ORS Chapter 279b
Chapter 279B — PublicContracting - Public Procurements
2009 EDITION
PUBLICCONTRACTING - PUBLIC PROCUREMENTS
PUBLICFACILITIES, CONTRACTING & INSURANCE
GENERALPROVISIONS
279B.005 Definitions
279B.010 Policy
279B.015 Applicability
279B.020 Maximumhours of labor on public contracts; holidays; exceptions; liability to workers;rules
279B.025 Procurementpractices regarding recyclable and reusable goods
279B.030 Demonstrationthat procurement will cost less than performing service or that performingservice is not feasible; exemptions
279B.033 Contentsof cost analysis; conditions under which procurement may proceed; exceptions
279B.036 Determinationof feasibility of procurement
SOURCESELECTION
(Methodsof Source Selection)
279B.050 Methodsof source selection
279B.055 Competitivesealed bidding
279B.060 Competitivesealed proposals
279B.065 Smallprocurements
279B.070 Intermediateprocurements
279B.075 Sole-sourceprocurements
279B.080 Emergencyprocurements
279B.085 Specialprocurements
(Cancellation,Rejection and Delay of Invitations for Bids or Requests for Proposals)
279B.100 Cancellation,rejection, delay of invitations for bids or requests for proposals
(Qualifications)
279B.110 Responsibilityof bidders and proposers
279B.115 Qualifiedproducts lists
279B.120 Prequalificationof prospective bidders and proposers
279B.125 Applicationfor prequalification
279B.130 Debarmentof prospective bidders and proposers
(Noticeof Intent to Award)
279B.135 Noticeof intent to award
(PriceAgreements)
279B.140 Priceagreements
(Determinations)
279B.145 Finalityof determinations
SPECIFICATIONS
(GeneralProvisions)
279B.200 Definitionsfor ORS 279B.200 to 279B.240
279B.205 Specificationsto encourage reasonable competition
279B.210 Policy;development of specifications
279B.215 Brandname or equal specification; brand name specification
279B.220 Conditionsconcerning payment, contributions, liens, withholding
279B.225 Conditionconcerning salvaging, recycling, composting or mulching yard waste material
279B.230 Conditionconcerning payment for medical care and providing workers’ compensation
279B.235 Conditionconcerning hours of labor
279B.240 Exclusionof recycled oils prohibited
(Specificationsin State Contracts)
279B.270 Statecontracting agencies to use recovered resources and recycled materials; noticeto prospective contractors
279B.275 Purchaseof goods containing recycled polyethylene material
279B.280 Useof recycled products when economically feasible
LEGALREMEDIES
279B.400 Protestsand judicial review of approvals of special procurements
279B.405 Protestsand judicial review of solicitations
279B.410 Protestsof contract award
279B.415 Judicialreview of protests of contract award
279B.420 Judicialreview of other violations
279B.425 Reviewof prequalification and debarment decisions
GENERALPROVISIONS
279B.005Definitions.(1) As used in this chapter, unless the context or a specifically applicabledefinition requires otherwise:
(a)“Invitation to bid” means all documents, whether attached or incorporated byreference, used for soliciting bids.
(b)“Procurement description” means the words used in a solicitation to describethe goods or services to be procured. “Procurement description” includesspecifications attached to or made a part of the solicitation.
(c)“Request for proposals” means all documents, whether attached or incorporatedby reference, used for soliciting proposals.
(d)“Responsible bidder” or “responsible proposer” means a person who meets thestandards of responsibility described in ORS 279B.110.
(e)“Responsive bid” or “responsive proposal” means a bid or proposal thatsubstantially complies with the invitation to bid or request for proposals andall prescribed procurement procedures and requirements.
(2)ORS 279A.010 contains general definitions applicable throughout this chapter. [2003c.794 §47; 2005 c.103 §7; 2007 c.764 §5]
279B.010Policy.In addition to the policy stated in ORS 279A.015, it is the policy of the Stateof Oregon that public contracting activities should:
(1)Provide effective outcomes that represent optimal value to the contractingagency and, to the greatest extent feasible, be consistent with marketpractices;
(2)Seek consistency in procurement practices between contracting agencies coveredunder the Public Contracting Code while preserving each contracting agency’sability to adopt rules to maximize the contracting agency’s effectiveness; and
(3)Apply innovative practices while maintaining quality and integrity. [2003 c.794§48]
279B.015Applicability.Except as provided in ORS 279C.320, public contracting under this chapter issubject to ORS chapter 279A, but not ORS chapter 279C. [2003 c.794 §48a; 2005c.103 §8]
279B.020Maximum hours of labor on public contracts; holidays; exceptions; liability toworkers; rules.(1) When labor is employed by a contracting agency through a contractor, aperson may not be required or permitted to labor more than 10 hours in any oneday, or 40 hours in any one week, except in cases of necessity or emergency orwhen the public policy absolutely requires it, in which event, the person soemployed for excessive hours shall receive at least time and a half pay:
(a)(A)For all overtime in excess of eight hours in any one day or 40 hours in any oneweek when the work week is five consecutive days, Monday through Friday; or
(B)For all overtime in excess of 10 hours in any one day or 40 hours in any oneweek when the work week is four consecutive days, Monday through Friday; and
(b)For all work performed on Saturday and on the following legal holidays:
(A)Each Sunday.
(B)New Year’s Day on January 1.
(C)Memorial Day on the last Monday in May.
(D)Independence Day on July 4.
(E)Labor Day on the first Monday in September.
(F)Thanksgiving Day on the fourth Thursday in November.
(G)Christmas Day on December 25.
(2)An employer shall give notice in writing to employees who perform work undersubsection (1) of this section, either at the time of hire or beforecommencement of work on the contract, or by posting a notice in a locationfrequented by employees, of the number of hours per day and days per week thatemployees may be required to work.
(3)For the purpose of this section, each time a legal holiday, other than Sunday,listed in subsection (1) of this section falls on Sunday, the succeeding Mondayshall be recognized as a legal holiday. Each time a legal holiday listed insubsection (1) of this section falls on Saturday, the preceding Friday shall berecognized as a legal holiday.
(4)When specifically agreed to under a written labor-management negotiated laboragreement, an employee may be paid at least time and a half pay for workperformed on any legal holiday specified in ORS 187.010 and 187.020 that is notlisted in subsection (1) of this section.
(5)This section does not apply to contracts for personal services designated underORS 279A.055, provided that persons employed under such contracts shall receiveat least time and a half pay for work performed on the legal holidays specifiedin subsection (1)(b)(B) to (G) of this section and for all overtime worked inexcess of 40 hours in any one week, except for individuals under personalservices contracts who are excluded under ORS 653.010 to 653.261 or under 29U.S.C. 201 to 209 from receiving overtime.
(6)Subsections (1) and (2) of this section do not apply to contracts for servicesat a county fair or for other events authorized by a county fair board ifpersons employed under the contract receive at least time and a half for workin excess of 10 hours in any one day or 40 hours in any one week.
(7)Subsections (1) to (3) of this section do not apply to a contract for servicesif the contractor is a party to a collective bargaining agreement in effectwith any labor organization.
(8)(a)Subsections (1) and (2) of this section do not apply to contracts for services.However, persons employed under such contracts shall receive at least time anda half pay for work performed on the legal holidays specified in a collectivebargaining agreement or in subsection (1)(b)(B) to (G) of this section and forall time worked in excess of 10 hours in any one day or in excess of 40 hoursin any one week, whichever is greater.
(b)An employer shall give notice in writing to employees who work on a contractfor services, either at the time of hire or before commencement of work on thecontract, or by posting a notice in a location frequented by employees, of thenumber of hours per day and days per week that the employees may be required towork.
(9)Any contractor or subcontractor or contractor’s or subcontractor’s surety thatviolates the provisions of this section is liable to the affected employees inthe amount of their unpaid overtime wages and in an additional amount equal tothe unpaid overtime wages as liquidated damages. If the violation resulted fromwillful falsification of payroll records, the contractor or subcontractor orcontractor’s or subcontractor’s surety is liable to the affected employees in theamount of their unpaid overtime wages and in an additional amount equal totwice the unpaid overtime wages as liquidated damages.
(10)An action to enforce liability to employees under subsection (9) of thissection may be brought as an action on the contractor’s payment bond asprovided for in ORS 279C.610.
(11)This section does not apply to:
(a)Financial institutions as defined in ORS 706.008.
(b)Labor performed in the prevention or suppression of fire under contracts andagreements made pursuant to the authority of the State Forester or the StateBoard of Forestry under ORS 477.406.
(c)Public contracts for goods or personal property.
(12)In accordance with ORS chapter 183, the Commissioner of the Bureau of Labor andIndustries may adopt rules to carry out the provisions of this section. [2003c.794 §48b; 2005 c.103 §8a]
279B.025Procurement practices regarding recyclable and reusable goods. All contractingagencies shall establish procurement practices that ensure, to the maximumextent economically feasible, the procurement of goods that may be recycled orreused when discarded. [2003 c.794 §49]
279B.030Demonstration that procurement will cost less than performing service or thatperforming service is not feasible; exemptions. (1) Except asprovided in ORS 279B.036, before conducting a procurement for services with anestimated contract price that exceeds $250,000, a contracting agency shall:
(a)Demonstrate, by means of a written cost analysis in accordance with ORS279B.033, that the contracting agency would incur less cost in conducting theprocurement than in performing the services with the contracting agency’s ownpersonnel and resources; or
(b)Demonstrate, in accordance with ORS 279B.036, that performing the services withthe contracting agency’s own personnel and resources is not feasible.
(2)If a local contracting agency authorizes a department, bureau, office or othersubdivision of the local contracting agency to conduct a procurement on behalfof another department, bureau, office or subdivision of the local contractingagency, the department, bureau, office or subdivision on whose behalf theprocurement is conducted shall comply with the requirement set forth insubsection (1) of this section.
(3)Subsection (1) of this section does not apply to:
(a)A local contracting agency or a local contract review board for a city that hasa population of not more than 15,000 or a county that has a population of notmore than 30,000;
(b)A community college that enrolls not more than 1,000 full-time equivalentstudents, as defined in ORS 341.005;
(c)A special district, as defined in ORS 198.010, a diking district formed underORS chapter 551 and a soil and water conservation district organized under ORS568.210 to 568.808;
(d)The Port of Portland; or
(e)Procurements for client services, as defined in OAR 125-246-0110. [2009 c.880 §2]
279B.033Contents of cost analysis; conditions under which procurement may proceed;exceptions.(1) In the cost analysis required under ORS 279B.030, a contracting agencyshall:
(a)Estimate the contracting agency’s cost of performing the services, including:
(A)Salary or wage and benefit costs for contracting agency employees who aredirectly involved in performing the services, including employees who inspect,supervise or monitor the performance of the services.
(B)Material costs, including costs for space, energy, transportation, storage, rawand finished materials, equipment and supplies.
(C)Costs incurred in planning for, training for, starting up, implementing,transporting and delivering the services and costs related to stopping anddismantling a project or operation because the contracting agency intends toprocure a limited quantity of services or procure the services within a definedor limited period of time.
(D)Miscellaneous costs related to performing the services. The contracting agencymay not include in the cost analysis the contracting agency’s indirect overheadcosts for existing salaries or wages and benefits for administrators or forrent, equipment, utilities and materials except to the extent that the costsare attributable solely to performing the services and would not exist unlessthe contracting agency performs the services.
(b)Estimate the cost a potential contractor would incur in performing theservices, including:
(A)Average or actual salary or wage and benefit costs for contractors andemployees who:
(i)Work in the industry or business most closely involved in performing theservices that the contracting agency intends to procure; and
(ii)Would be necessary and directly involved in performing the services or whowould inspect, supervise or monitor the performance of the services;
(B)Material costs, including costs for space, energy, transportation, storage, rawand finished materials, equipment and supplies; and
(C)Miscellaneous costs related to performing the services, including but notlimited to reasonably foreseeable fluctuations in the costs for the itemsidentified in this subsection over the expected duration of the procurement.
(2)(a)After comparing the difference between the costs estimated as provided insubsection (1)(a) of this section with the costs estimated as provided insubsection (1)(b) of this section, except as provided in paragraph (b) of thissubsection, the contracting agency may proceed with the procurement only if thecontracting agency would incur more cost in performing the services with thecontracting agency’s own personnel and resources than the contracting agencywould incur in procuring the services from a contractor. The contracting agencymay not proceed with the procurement if the sole reason that the costsestimated in subsection (1)(b) of this section are lower than the costses