Bill Text: OR HB2677 | 2013 | Regular Session | Introduced
Bill Title: Relating to the application of a prevailing rate of wage to public works projects; declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2677 Detail]
Download: Oregon-2013-HB2677-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1315
House Bill 2677
Sponsored by Representative HOYLE (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Defines 'funds of a public agency,' for purposes of applying
prevailing rate of wage to projects for public works, to include
tax credits or tax abatements that contractor engaged in project
for public works receives from state in connection with project.
Becomes operative 91 days after effective date of Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the application of a prevailing rate of wage to
public works projects; creating new provisions; amending ORS
279A.010, 279A.128, 279C.800, 279C.810, 279C.827 and 279C.830;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279A.010 is amended to read:
279A.010. (1) As used in the Public Contracting Code { - ,
unless the context or a specifically applicable definition
requires otherwise - } :
(a) 'Bidder' means a person that submits a bid in response to
an invitation to bid.
(b) { + (A) + } 'Contracting agency' means a public body { +
that is + } authorized by law to conduct a procurement { - .
'Contracting agency' includes, but is not limited to, the
Director of the Oregon Department of Administrative Services and
any person authorized by a contracting agency to conduct a
procurement on the contracting agency's behalf - } { + or a
person that the public body authorizes to conduct a procurement
on the public body's behalf + }.
{ + (B) + } 'Contracting agency' does not include the
judicial department or the legislative department.
(c) 'Days' means calendar days.
{ - (d) 'Department' means the Oregon Department of
Administrative Services. - }
{ - (e) 'Director' means the Director of the Oregon
Department of Administrative Services or a person designated by
the director to carry out the authority of the director under the
Public Contracting Code. - }
{ - (f) - } { + (d) + } 'Emergency' means circumstances
that:
(A) Could not have been reasonably foreseen;
(B) Create a substantial risk of loss, damage or interruption
of services or a substantial threat to property, public health,
welfare or safety; and
(C) Require prompt execution of a contract to remedy the
condition.
{ - (g) - } { + (e) + } 'Energy savings performance
contract' means a public contract { + , including a design-build
contract, + } between a contracting agency and a qualified energy
service company for { - the identification, evaluation,
recommendation, design and construction of - } { + identifying,
evaluating, recommending, designing and constructing + }energy
conservation measures { - , including a design-build
contract, - } that guarantee energy savings or performance.
{ - (h) - } { + (f) + } 'Executive department' has the
meaning given that term in ORS 174.112.
{ - (i) - } { + (g) + } 'Goods' { - includes - } { +
means:
(A) + } Supplies, equipment, materials { - , - } { + and
tangible or intangible + } personal property { - , including any
tangible, intangible and - } { + ;
(B) + } Intellectual property and rights and licenses { - in
relation thereto, - } { + connected with intellectual property;
+ }and
{ + (C) + } Combinations of any of the items identified in
{ + subparagraphs (A) and (B) of + } this paragraph.
{ - (j) - } { + (h) + } 'Goods and services' or 'goods or
services '
{ - includes combinations - } { + means a combination + } of
any of the items identified in the definitions of 'goods' and
'services. '
{ - (k)(A) - } { + (i)(A) + } 'Grant' means:
(i) An agreement under which a contracting agency receives
{ + from a grantor + } moneys, property or other assistance,
including but not limited to federal assistance that { - is
characterized as a grant by - } federal law or regulations { +
characterize as a grant + }, loans, loan guarantees, credit
enhancements, gifts, bequests, commodities or other assets { - ,
from a grantor - } for the purpose of supporting or stimulating
a program or activity of the contracting agency { - and in
which no substantial involvement by the grantor is anticipated in
the program or activity other than involvement associated with
monitoring - } { + in which the grantor is not anticipated to
have substantial involvement other than to monitor + } compliance
with the grant conditions; or
(ii) An agreement under which a contracting agency provides
{ + to a recipient + } moneys, property or other assistance,
including but not limited to federal assistance that { - is
characterized as a grant by - } federal law or regulations { +
characterize as a grant + }, loans, loan guarantees, credit
enhancements, gifts, bequests, commodities or other assets { - ,
to a recipient - } for the purpose of supporting or stimulating
a program or activity of the recipient
{ - and in which no substantial involvement by the contracting
agency is anticipated in the program or activity other than
involvement associated with monitoring - } { + in which the
contracting agency is not anticipated to have substantial
involvement other than to monitor + } compliance with the grant
conditions.
(B) 'Grant' does not include a public contract for a public
improvement, for public works, as defined in ORS 279C.800, or for
emergency work, minor alterations or ordinary repair or
maintenance necessary to preserve a public improvement,
{ - when - } { + if + } under the public contract a
contracting agency pays { - , - } { + moneys the contracting
agency received under a grant + } in consideration for contract
performance intended to realize or to support the realization of
the purposes for which grant funds were provided to the
contracting agency { - , moneys that the contracting agency has
received under a grant - } .
{ - (L) - } { + (j) + } 'Industrial oil' means
{ - any - } compressor, turbine or bearing oil, hydraulic oil,
metal-working oil or refrigeration oil.
{ - (m) - } { + (k) + } 'Judicial department' has the
meaning given that term in ORS 174.113.
{ - (n) - } { + (L) + } 'Legislative department' has the
meaning given that term in ORS 174.114.
{ - (o) - } { + (m) + } 'Local contract review board' means
a local contract review board described in ORS 279A.060.
{ - (p) - } { + (n) + } 'Local contracting agency' means a
local government or special government body { + that is + }
authorized by law to conduct a procurement { - . 'Local
contracting agency' includes any - } { + or a + } person
{ - authorized by a - } { + that the + } local contracting
agency { + authorizes + } to conduct a procurement on
{ - behalf of - } the local contracting { - agency - } { +
agency's behalf + }.
{ - (q) - } { + (o) + } 'Local government' has the meaning
given that term in ORS 174.116.
{ - (r) - } { + (p) + } 'Lowest responsible bidder' means
the lowest bidder { - who - } { + that + }:
(A) { - Has substantially complied - } { + Complies
substantially + } with all prescribed public contracting
procedures and requirements;
(B) { - Has met - } { + Meets + } the standards of
responsibility set forth in ORS 279B.110 or 279C.375;
(C) { - Has not been - } { + Is not + } debarred or
disqualified by the contracting agency under ORS 279B.130 or
279C.440; and
(D) { - If the advertised contract is a public improvement
contract, - } Is not on the list { - created by - } { +
that + } the Construction Contractors Board { + created + }
under ORS 701.227 { + , if the advertised contract is a public
improvement contract + }.
{ - (s) - } { + (q) + } 'Lubricating oil' means
{ - any - } oil intended for use in an internal combustion
crankcase, transmission, gearbox or differential or an
automobile, bus, truck, vessel, plane, train, heavy equipment or
machinery powered by an internal combustion engine.
{ - (t) - } { + (r) + } 'Person' means a natural person
capable of being legally bound, a sole proprietorship, a
corporation, a partnership, a limited liability company or
partnership, a limited partnership, a for-profit or nonprofit
unincorporated association, a business trust, two or more persons
having a joint or common economic interest, { + a public body
or + } any other person with legal capacity to contract { - or
a public body - } .
{ - (u) - } { + (s)(A) + } 'Post-consumer waste' means a
finished material that { + has completed a life cycle as a
consumer item and + } would normally be disposed of as solid
waste { - , having completed its life cycle as a consumer
item - } .
{ + (B) + } 'Post-consumer waste' does not include
manufacturing waste.
{ - (v) - } { + (t) + } 'Price agreement' means a public
contract for
{ - the procurement of - } { + procuring + } goods or
services at a set price with:
(A) No guarantee of a minimum or maximum purchase; or
(B) An initial order or minimum purchase combined with { - a
continuing contractor - } { + an + } obligation { + for a
contractor to continue + } to provide goods or services { + + }
{ - in which - } { + , but no corresponding obligation for
+ }the contracting agency { - does not - } { + to + }
guarantee a minimum or maximum additional purchase.
{ - (w) - } { + (u) + } 'Procurement' means the act of
purchasing, leasing, renting or otherwise acquiring goods or
services { - . ' Procurement' includes - } { + and + } each
function and procedure
{ - undertaken or required to be undertaken by - } { +
that + } a contracting agency { + undertakes or must
undertake + } to enter into a public contract, administer a
public contract and obtain the performance of a public contract
under the Public Contracting Code.
{ - (x) - } { + (v) + } 'Proposer' means a person that
submits a proposal in response to a request for proposals.
{ - (y) - } { + (w) + } 'Public body' has the meaning given
that term in ORS 174.109.
{ - (z) - } { + (x)(A) + } 'Public contract' means a { +
contracting agency's + } sale or other disposal { - , or a - }
{ + or + } purchase, lease, rental or other acquisition { - ,
by a contracting agency - } of { + ;
(i) + } Personal property { - , - } { + ;
(ii) + } Services, including personal services { - , - }
{ + ;
(iii) + }Public improvements { - , - } { + ;
(iv) + } Public works { - , - } { + ; or + }
{ + (v) + } Minor alterations, { - or - } ordinary repair
or maintenance necessary to preserve a public improvement.
{ + (B) + } 'Public contract' does not include grants.
{ - (aa) - } { + (y) + } 'Public contracting' means
procurement activities described in the Public Contracting Code
{ - relating - } { + that are related + } to obtaining,
modifying or administering public contracts or price agreements.
{ - (bb) - } { + (z) + } 'Public Contracting Code' or
'code' means ORS chapters 279A, 279B and 279C.
{ - (cc) - } { + (aa)(A) + } 'Public improvement' means a
project { - for construction, reconstruction or - } { + to
construct, reconstruct or perform + } major renovation on real
property { - by or for - } { + that + } a contracting
agency { + undertakes or contracts to have done + }.
{ + (B) + } 'Public improvement' does not include:
{ - (A) - } { + (i) + } Projects for which { - no - }
funds of a contracting agency are { + not + } directly or
indirectly used, except for participation that is incidental or
related primarily to project design or inspection; or
{ - (B) - } { + (ii) + } Emergency work, minor
{ - alteration - } { + alterations + }, ordinary repair or
maintenance necessary to preserve a public improvement.
{ - (dd) - } { + (bb)(A) + } 'Public improvement contract'
means a public contract for a public improvement.
{ + (B) + } 'Public improvement contract' does not include a
public contract for emergency work, minor alterations,
{ - or - } ordinary repair or maintenance necessary to preserve
a public improvement.
{ - (ee) - } { + (cc) + } 'Recycled material' means
{ - any - } material that would otherwise be { - a - }
useless, unwanted or discarded { - material except for the
fact - } { + , except + } that the material still has useful
physical or chemical properties after serving a specific purpose
and can, therefore, be reused or recycled.
{ - (ff) - } { + (dd) + } 'Recycled oil' means used oil
that has been prepared for reuse as a petroleum product by
refining, rerefining, reclaiming, reprocessing or other means,
provided that the preparation or use is operationally safe,
environmentally sound and complies with all laws and regulations.
{ - (gg) - } { + (ee) + } 'Recycled paper' means a paper
product { - with - } { + in which + } not less than:
(A) Fifty percent of { - its - } { + the + } fiber weight
{ - consisting - } { + of the paper product consists + } of
secondary waste materials; or
(B) Twenty-five percent of { - its - } { + the + } fiber
weight
{ - consisting - } { + of the paper product consists + } of
post-consumer waste.
{ - (hh) - } { + (ff) + } 'Recycled PETE' means
post-consumer polyethylene terephthalate material.
{ - (ii) - } { + (gg) + } 'Recycled product' means
{ - all - } materials, goods and supplies, { + of which + }
not less than 50 percent of the total weight { - of which - }
consists of secondary and post-consumer waste
{ - with - } { + and + } not less than 10 percent of
{ - its - } { + the + } total weight
{ - consisting - } { + consists + } of post-consumer waste
{ - . 'Recycled product' includes - } { + , and + } any product
that { + has completed the product's life cycle as a consumer
item and + } could have been disposed of as solid waste { - ,
having completed its life cycle as a consumer item, but
otherwise - } { + but + } is refurbished for reuse without
{ - substantial alteration of - } { + substantially
altering + } the product's form.
{ - (jj) - } { + (hh)(A) + } 'Secondary waste materials'
means { + post-consumer waste and + } fragments of products or
finished products of a manufacturing process that has converted a
virgin resource into a commodity of real economic value. { - '
Secondary waste materials' includes post-consumer waste. - }
{ + (B) + } 'Secondary waste materials' does not include
excess virgin resources of the manufacturing process { - . For
paper, ' secondary waste materials' does not include - } { +
or + } fibrous waste generated { - during the manufacturing
process - } { + in manufacturing paper, + } such as fibers
recovered from waste water or trimmings of paper machine rolls,
mill broke, wood slabs, chips, sawdust or other wood residue from
a manufacturing process.
{ - (kk) - } { + (ii) + } 'Services' { - mean - } { +
means + } services other than personal services designated under
ORS 279A.055, except that, for state contracting agencies with
procurement authority under ORS 279A.050 or 279A.140, 'services'
includes personal services as designated by the state contracting
agencies.
{ - (LL) - } { + (jj) + } 'Special government body' has the
meaning given that term in ORS 174.117.
{ - (mm) - } { + (kk) + } 'State agency' means the
executive department, except the Secretary of State and the State
Treasurer in { - the performance of - } { + performing + }
the duties of { - their - } { + the + } constitutional
offices { + of the Secretary of State and the State
Treasurer + }.
{ - (nn) - } { + (LL) + } 'State contracting agency' means
an executive department entity authorized by law to conduct a
procurement.
{ - (oo) - } { + (mm) + } 'State government' has the
meaning given that term in ORS 174.111.
{ - (pp) - } { + (nn) + } 'Used oil' has the meaning given
that term in ORS 459A.555.
{ - (qq) - } { + (oo) + } 'Virgin oil' means oil that has
been refined from crude oil and that has not been used or
contaminated with impurities.
(2) Other definitions appearing in the Public Contracting Code
and the sections in which they appear are:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a) '
Adequate'
ORS 279C.305
(b) '
Administering contracting
agency'
ORS 279A.200
(c) '
Affirmative action'
ORS 279A.100
(d) '
Architect'
ORS 279C.100
(e) '
Architectural,
engineering, photogram-
metric mapping,
transportation planning
or land surveying
services'
ORS 279C.100
(f) '
Bid documents'
ORS 279C.400
(g) '
Bidder'
ORS 279B.415
(h) '
Bids'
ORS 279C.400
(i) '
Brand name'
ORS 279B.405
(j) '
Brand name or equal
specification'
ORS 279B.200
(k) '
Brand name
specification'
ORS 279B.200
(L) '
Class special
procurement'
ORS 279B.085
(m) '
Consultant'
ORS 279C.115
(n) '
Contract-specific
special procurement'
ORS 279B.085
(o) '
Cooperative
procurement'
ORS 279A.200
(p) '
Cooperative procurement
group'
ORS 279A.200
(q) '
Donee'
ORS 279A.250
(r) '
Engineer'
ORS 279C.100
(s) '
Findings'
ORS 279C.330
(t) '
Fire protection
equipment'
ORS 279A.190
(u) '
Fringe benefits'
ORS 279C.800
(v) '
Funds of a public
{ -
agency'
ORS 279C.810 - }
{ +
agency'
ORS 279C.800 + }
(w) '
Good cause'
ORS 279C.585
(x) '
Good faith dispute'
ORS 279C.580
(y) '
Goods'
ORS 279B.115
(z) '
Housing'
ORS 279C.800
(aa)'
Interstate cooperative
procurement'
ORS 279A.200
(bb)'
Invitation to bid'
ORS 279B.005
............and 279C.400
(cc)'
Joint cooperative
procurement'
ORS 279A.200
(dd)'
Labor dispute'
ORS 279C.650
(ee)'
Land surveyor'
ORS 279C.100
(ff)'
Legally flawed'
ORS 279B.405
(gg)'
Locality'
ORS 279C.800
{ -
(h')
Nonprofit
organization'
ORS 279C.810
(ii)'
Nonresident bidder'
ORS 279A.120
(jj)'
Not-for-profit
organization'
ORS 279A.250
(kk)'
Original contract'
ORS 279A.200
(LL)'
Permissive cooperative
procurement'
ORS 279A.200
(mm)'
Person'
ORS 279C.500
............and 279C.815
(nn)'
Personal services'
ORS 279C.100
(oo)'
Photogrammetric
mapping'
ORS 279C.100
(pp)'
Photogrammetrist'
ORS 279C.100
(qq)'
Prevailing rate of
wage'
ORS 279C.800
(rr)'
Procurement
description'
ORS 279B.005
(ss)'
Property'
ORS 279A.250
(tt)'
Public agency'
ORS 279C.800
(uu)'
Public contract'
ORS 279A.190
(vv)'
Public works'
ORS 279C.800
(ww)'
Purchasing contracting
agency'
ORS 279A.200
(xx)'
Regularly organized fire
department'
ORS 279A.190
(yy)'
Related services'
ORS 279C.100
(zz)'
Request for
proposals'
ORS 279B.005
(aaa'
Resident bidder'
ORS 279A.120
(bbb'
Responsible bidder'
ORS 279A.105
............and 279B.005
(ccc'
Responsible
proposer'
ORS 279B.005
(ddd'
Responsive bid'
ORS 279B.005
(eee'
Responsive
proposal'
ORS 279B.005
(fff'
Retainage'
ORS 279C.550
(ggg'
Special
procurement'
ORS 279B.085
(hhh'
Specification'
ORS 279B.200
(iii'
State agency'
ORS 279A.250
(jjj'
Substantial
completion'
ORS 279C.465
(kkk'
Surplus property'
ORS 279A.250
(LLL'
Transportation
planning services'
ORS 279C.100
(mmm'
Unnecessarily
restrictive'
ORS 279B.405 - }
{ +
(h')
Nonresident bidder'
ORS 279A.120
(ii)'
Not-for-profit
organization'
ORS 279A.250
(jj)'
Original contract'
ORS 279A.200
(kk)'
Permissive cooperative
procurement'
ORS 279A.200
(LL)'
Person'
ORS 279C.500
............and 279C.815
(mm)'
Personal services'
ORS 279C.100
(nn)'
Photogrammetric
mapping'
ORS 279C.100
(oo)'
Photogrammetrist'
ORS 279C.100
(pp)'
Prevailing rate of
wage'
ORS 279C.800
(qq)'
Procurement
description'
ORS 279B.005
(rr)'
Property'
ORS 279A.250
(ss)'
Public agency'
ORS 279C.800
(tt)'
Public contract'
ORS 279A.190
(uu)'
Public works'
ORS 279C.800
(vv)'
Purchasing contracting
agency'
ORS 279A.200
(ww)'
Regularly organized fire
department'
ORS 279A.190
(xx)'
Related services'
ORS 279C.100
(yy)'
Request for
proposals'
ORS 279B.005
(zz)'
Resident bidder'
ORS 279A.120
(aaa'
Responsible bidder'
ORS 279A.105
............and 279B.005
(bbb'
Responsible
proposer'
ORS 279B.005
(ccc'
Responsive bid'
ORS 279B.005
(ddd'
Responsive
proposal'
ORS 279B.005
(eee'
Retainage'
ORS 279C.550
(fff'
Special
procurement'
ORS 279B.085
(ggg'
Specification'
ORS 279B.200
(hhh'
State agency'
ORS 279A.250
(iii'
Substantial
completion'
ORS 279C.465
(jjj'
Surplus property'
ORS 279A.250
(kkk'
Transportation
planning services'
ORS 279C.100
(LLL) '
Unnecessarily
restrictive'
ORS 279B.405 + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 2. ORS 279A.128 is amended to read:
279A.128. (1) As used in this section, 'services' means
services as defined in ORS 279A.010 { - (1)(kk) - } { +
(1)(ii) + } and personal services designated under ORS 279A.055.
(2)(a) Notwithstanding provisions of law requiring a
contracting agency to award a contract to the lowest responsible
bidder or best proposer or provider of a quotation, a contracting
agency that uses public funds to procure goods or services for a
public use under ORS chapter 279B may give preference to
procuring goods that are fabricated or processed, or services
that are performed, entirely within this state if the goods or
services cost not more than 10 percent more than goods that are
not fabricated or processed, or services that are not performed,
entirely within this state. If more than one bidder or proposer
qualifies for the preference described in this subsection, the
contracting agency may give a further preference to a qualifying
bidder or proposer that resides in or is headquartered in this
state.
(b) The contracting agency by order may set a higher percentage
than the percentage set forth in paragraph (a) of this subsection
if the contracting agency, in a written determination to support
the order, finds good cause to set the higher percentage and
explains the contracting agency's reasons and evidence for the
finding.
(3) Notwithstanding ORS 279C.320 (1), subsection (2) of this
section does not apply to emergency work, minor alterations,
ordinary repairs or maintenance work for public improvements or
to other construction contracts described in ORS 279C.320 (1).
SECTION 3. ORS 279C.800 is amended to read:
279C.800. As used in ORS 279C.800 to 279C.870:
(1) 'Fringe benefits' means the amount of:
(a) The rate of contribution a contractor or subcontractor
makes irrevocably to a trustee or to a third person under a plan,
fund or program; and
(b) The rate of costs to the contractor or subcontractor that
may be reasonably anticipated in providing the following items,
except for items that federal, state or local law requires the
contractor or subcontractor to provide:
(A) Benefits to workers pursuant to an enforceable written
commitment to the workers to carry out a financially responsible
plan or program for:
(i) Medical or hospital care;
(ii) Pensions on retirement or death; or
(iii) Compensation for injuries or illness that result from
occupational activity;
(B) Insurance to provide the benefits described in subparagraph
(A) of this paragraph;
(C) Unemployment benefits;
(D) Life insurance;
(E) Disability and sickness insurance or accident insurance;
(F) Vacation and holiday pay;
(G) Costs of apprenticeship or other similar programs; or
(H) Other bona fide fringe benefits.
{ + (2)(a) 'Funds of a public agency' means moneys that a
public agency uses to fund construction, reconstruction, major
renovation or painting for a project for public works, or a tax
credit or tax abatement that a contractor engaged in a project
for public works receives from this state in connection with the
project for public works.
(b) 'Funds of a public agency' does not include:
(A) Funds provided in the form of a government grant to an
organization or group of organizations described in section
501(c)(3) of the Internal Revenue Code that is exempt from income
tax under section 501(a) of the Internal Revenue Code, unless the
government grant is for the purpose of construction,
reconstruction, major renovation or painting;
(B) Building and development permit fees that the public agency
pays or waives;
(C) Land that a public agency sells to a private entity at fair
market value;
(D) The difference between:
(i) The value of land that a public agency sells to a private
entity as determined at the time of the sale after taking into
account any plan, requirement, covenant, condition, restriction
or other limitation, exclusive of zoning or land use regulations,
that the public agency imposes on the development or use of the
land; and
(ii) The fair market value of the land if the land is not
subject to the limitations described in sub-subparagraph (i) of
this subparagraph;
(E) Staff resources the public agency uses to:
(i) Manage a project or provide a principal source of
supervision, coordination or oversight of a project; or
(ii) Design or inspect one or more components of a project;
(F) Moneys derived from a sale of bonds that a state agency
lends to a private entity, unless the moneys will be used for a
public improvement;
(G) Value added to land as a consequence of a public agency's
site preparation, demolition of real property or remediation or
removal of environmental contamination, except for value added in
excess of the expenses the public agency incurred in the site
preparation, demolition or remediation or removal when the land
is sold for use in a project otherwise subject to ORS 279C.800 to
279C.870; or
(H) Bonds, or loans from the proceeds of bonds, issued in
accordance with ORS chapter 289 or ORS 441.525 to 441.595, unless
the bonds or loans will be used for a public improvement. + }
{ - (2) - } { + (3) + } 'Housing' has the meaning given
that term in ORS 456.055.
{ - (3) - } { + (4) + } 'Locality' means the following
district in which the public works, or the major portion thereof,
is to be performed:
(a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
(b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
(c) District 3, composed of Marion, Polk and Yamhill Counties;
(d) District 4, composed of Benton, Lincoln and Linn Counties;
(e) District 5, composed of Lane County;
(f) District 6, composed of Douglas County;
(g) District 7, composed of Coos and Curry Counties;
(h) District 8, composed of Jackson and Josephine Counties;
(i) District 9, composed of Hood River, Sherman and Wasco
Counties;
(j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
(k) District 11, composed of Klamath and Lake Counties;
(L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
(m) District 13, composed of Baker, Union and Wallowa Counties;
and
(n) District 14, composed of Harney and Malheur Counties.
{ - (4) - } { + (5) + } 'Prevailing rate of wage' means the
rate of hourly wage, including all fringe benefits, that the
Commissioner of the Bureau of Labor and Industries determines is
paid in the locality to the majority of workers employed on
projects of a similar character in the same trade or occupation.
{ - (5) - } { + (6) + } 'Public agency' means the State of
Oregon or a political subdivision of the State of Oregon, or a
county, city, district, authority, public corporation or public
entity organized and existing under law or charter or an
instrumentality of the county, city, district, authority, public
corporation or public entity.
{ - (6)(a) - } { + (7)(a) + } 'Public works'
{ - includes, but is not limited to - } { + means + }:
(A) Roads, highways, buildings, structures and improvements of
all types, the construction, reconstruction, major renovation or
painting of which is carried on or contracted for by any public
agency to serve the public interest;
(B) A project that uses funds of a private entity and $750,000
or more of funds of a public agency for constructing,
reconstructing, painting or performing a major renovation on a
privately owned road, highway, building, structure or improvement
of any type;
(C) A project that uses funds of a private entity for
constructing a privately owned road, highway, building, structure
or improvement of any type in which a public agency will use or
occupy 25 percent or more of the square footage of the completed
project; { - or - }
(D) Notwithstanding the provisions of ORS 279C.810
{ - (2)(a), (b) and (c) - } { + (1), (2) and (3) + }, a
device, structure or mechanism, or a combination of devices,
structures or mechanisms, that:
(i) Uses solar radiation as a source for generating heat,
cooling or electrical energy; and
(ii) Is constructed or installed, with or without using funds
of a public agency, on land, premises, structures or buildings
that a public body, as defined in ORS 174.109, owns { - . - }
{ + ;
(E) A project for constructing, reconstructing or performing a
major renovation of a privately owned road, highway, building,
structure or improvement of any type that:
(i) Is located in an enterprise zone, as defined in ORS
285C.050;
(ii) Consists of or is sited on real property for which a
qualified business firm, as defined in ORS 285C.050, has received
or will receive an exemption from ad valorum property taxation
under ORS 285C.170 or 285C.175 in connection with the project;
and
(iii) Has a total project cost that the contracting agency that
funds the project, or the lead contracting agency, if more than
one contracting agency participates in the project, reasonably
estimates will equal or exceed $5 million; or
(F) A project of a character or nature similar to other
projects described in this paragraph. + }
(b) 'Public works' does not include:
(A) { - The reconstruction or renovation of - } { +
Reconstructing or renovating + } privately owned property that a
public agency leases; or
(B) { - The - } { + A private nonprofit entity's + }
renovation of publicly owned real property that is more than 75
years old { - by a private nonprofit entity - } if:
(i) The real property is leased to the private nonprofit entity
for more than 25 years;
(ii) Funds of a public agency used in the renovation do not
exceed 15 percent of the total cost of the renovation; and
(iii) Contracts for the renovation were advertised or, if not
advertised, were entered into before July 1, 2003, but the
renovation has not been completed on or before July 13, 2007.
{ + (8) 'Sponsor' has the meaning given that term in ORS
285C.050. + }
SECTION 4. ORS 279C.810 is amended to read:
279C.810. { - (1) As used in this section: - }
{ - (a) 'Funds of a public agency' does not include: - }
{ - (A) Funds provided in the form of a government grant to a
nonprofit organization, unless the government grant is issued for
the purpose of construction, reconstruction, major renovation or
painting; - }
{ - (B) Building and development permit fees paid or waived
by the public agency; - }
{ - (C) Tax credits or tax abatements; - }
{ - (D) Land that a public agency sells to a private entity
at fair market value; - }
{ - (E) The difference between: - }
{ - (i) The value of land that a public agency sells to a
private entity as determined at the time of the sale after taking
into account any plan, requirement, covenant, condition,
restriction or other limitation, exclusive of zoning or land use
regulations, that the public agency imposes on the development or
use of the land; and - }
{ - (ii) The fair market value of the land if the land is not
subject to the limitations described in sub-subparagraph (i) of
this subparagraph; - }
{ - (F) Staff resources of the public agency used to manage a
project or to provide a principal source of supervision,
coordination or oversight of a project; - }
{ - (G) Staff resources of the public agency used to design
or inspect one or more components of a project; - }
{ - (H) Moneys derived from the sale of bonds that are loaned
by a state agency to a private entity, unless the moneys will be
used for a public improvement; - }
{ - (I) Value added to land as a consequence of a public
agency's site preparation, demolition of real property or
remediation or removal of environmental contamination, except for
value added in excess of the expenses the public agency incurred
in the site preparation, demolition or remediation or removal
when the land is sold for use in a project otherwise subject to
ORS 279C.800 to 279C.870; or - }
{ - (J) Bonds, or loans from the proceeds of bonds, issued in
accordance with ORS chapter 289 or ORS 441.525 to 441.595, unless
the bonds or loans will be used for a public improvement. - }
{ - (b) 'Nonprofit organization' means an organization or
group of organizations described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under
section 501(a) of the Internal Revenue Code. - }
{ - (2) - } ORS 279C.800 to 279C.870 do not apply to:
{ - (a) - } { + (1) + } { - Projects - } { + A
project + } for which the contract price does not exceed $50,000.
In determining the price of a project, a public agency:
{ - (A) - } { + (a) + } May not include the value of
donated materials or work { - performed on the project by - }
{ + that + } individuals { - volunteering - } { + who
volunteer + } to the public agency { + perform on the
project + } without pay; and
{ - (B) - } { + (b) + } Shall include the value of work
{ - performed by every person paid by - } { + for which + } a
contractor or subcontractor { + pays a person + } in any manner
for the person's work on the project.
{ - (b) - } { + (2) + } { - Projects - } { + A
project + } for which { - no - } funds of a public agency
are { + not + } directly or indirectly used. In accordance with
ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries shall adopt rules to carry out the provisions of this
{ - paragraph - } { + subsection + }.
{ - (c) Projects: - }
{ + (3) A project: + }
{ - (A) - } { + (a) + } That { - are - } { + is + }
privately owned;
{ - (B) - } { + (b) + } That { - use - } { + uses + }
funds of a private entity;
{ - (C) - } { + (c) + } In which { + a public agency will
occupy or use + } less than 25 percent of the square footage of
{ - a - } { + the + } completed project
{ - will be occupied or used by a public agency - } ; and
{ - (D) - } { + (d) + } { - For - } { + In + } which
less than $750,000 of funds of a public agency are used.
{ - (d) - } { + (4)(a) + } { - Projects - } { + A
project + } for residential construction that { - are - } { +
is + } privately owned and that predominantly
{ - provide - } { + provides + } affordable housing.
{ + (b) + } As used in this { - paragraph - } { +
subsection + }:
(A) 'Affordable housing' means housing that serves occupants
whose incomes are { - no - } { + not + } greater than 60
percent of the area median income or, if the occupants are
owners, whose incomes are { - no - } { + not + } greater than
80 percent of the area median income.
(B) 'Predominantly' means 60 percent or more.
(C) 'Privately owned' { - includes - } { + means + }:
(i) Affordable housing provided on real property { - owned
by - } { + that + } a public agency { + owns + } if the real
property and related structures are leased to a private entity
for 50 or more years; and
(ii) Affordable housing owned by a partnership, nonprofit
corporation or limited liability company in which a housing
authority, as defined in ORS 456.005, is a general partner,
director or managing member and the housing authority is not a
majority owner in the partnership, nonprofit corporation or
limited liability company.
(D) 'Residential construction' { - includes - } { +
means + } the construction, reconstruction, major renovation or
painting of single-family houses or apartment buildings not more
than four stories in height and all incidental items, such as
site work, parking areas, utilities, streets and sidewalks,
pursuant to the United States Department of Labor's 'All Agency
Memorandum No. 130: Application of the Standard of Comparison
'Projects of a Character Similar' Under Davis-Bacon and Related
Acts,' dated March 17, 1978. However, the commissioner may
consider different definitions of residential construction in
determining whether a project is a residential construction
project for purposes of this
{ - paragraph - } { + subsection + }, including definitions
that:
(i) Exist in local ordinances or codes; or
(ii) Differ, in the prevailing practice of a particular trade
or occupation, from the United States Department of Labor's
description of residential construction.
SECTION 5. ORS 279C.827 is amended to read:
279C.827. (1)(a) A public agency { + or a person that under
ORS 279C.800 to 279C.870 must pay a prevailing rate of wage on
public works + } may not divide a public works project into more
than one contract for the purpose of avoiding compliance with ORS
279C.800 to 279C.870.
(b) { - When - } { + If + } the Commissioner of the Bureau
of Labor and Industries determines that a public agency { + or a
person that under ORS 279C.800 to 279C.870 must pay a prevailing
rate of wage on public works + } has divided a public works
project into more than one contract for the purpose of avoiding
compliance with ORS 279C.800 to 279C.870, the commissioner shall
issue an order { - compelling - } { + to compel + }
compliance.
(c) In making determinations under this subsection, the
commissioner shall consider:
(A) The physical separation of the project structures;
(B) The timing of the work on project phases or structures;
(C) The continuity of project contractors and subcontractors
working on project parts or phases;
(D) The manner in which the public agency { + , or a person
that under ORS 279C.800 to 279C.870 must pay a prevailing rate of
wage on public works, + } and the contractors administer and
implement the project;
(E) Whether a single public works project includes several
types of improvements or structures; and
(F) Whether the combined improvements or structures have an
overall purpose or function.
(2) If a project is a public works of the type described in ORS
279C.800 { - (6)(a)(B) - } { + (7)(a)(B) + } or (C), the
commissioner { + , after applying the considerations set forth in
subsection (1)(c) of this section, + } shall divide the project,
if appropriate, { - after applying the considerations set forth
in subsection (1)(c) of this section - } to separate the parts of
the project that { - include - } { + use + } funds of a
public agency or that { + a public agency + } will { - be
occupied or used by a public agency - } { + occupy or use + }
from the parts of the project that do not { - include - } { +
use + } funds of a public agency and that { + a public
agency + } will not { - be occupied or used by a public
agency - } { + occupy or use + }. If the commissioner divides
the project, any part of the project that does not
{ - include - } { + use + } funds of a public agency and
that { + a public agency + } will not { - be occupied or used
by a public agency - } { + occupy or use + } is not subject to
ORS 279C.800 to 279C.870.
(3) If a project includes parts that { - are owned by - } a
public agency { + owns + } and parts that { - are owned by - }
a private entity { + owns + }, the commissioner { + , after
applying the considerations set forth in subsections (1)(c) and
(2) of this section, + } shall divide the project, if
appropriate, { - after applying the considerations set forth in
subsections (1)(c) and (2) of this section - } to separate the
parts of the project that are public works from the parts of the
project that are not public works. If the commissioner divides
the project, parts of the project that are not public works are
not subject to ORS 279C.800 to 279C.870.
SECTION 6. ORS 279C.830 is amended to read:
279C.830. (1)(a) Except as provided in paragraph (e) of this
subsection, the specifications for { - every - } { + a + }
contract for public works must contain a provision that states
the existing state prevailing rate of wage and, if applicable,
the federal prevailing rate of wage required under the
Davis-Bacon Act (40 U.S.C. 3141 et seq.) that { - must be
paid - } { + a contractor or subcontractor or other person that
is a party to the contract must pay + } to workers in each trade
or occupation that the contractor or subcontractor or other
person { - who - } { + that + } is a party to the contract
uses in performing all or part of the contract. If the prevailing
rates of wage are available electronically or are accessible on
the Internet, the { + public agency may incorporate the
+ }rates { - may be incorporated - } into the specifications
by referring to the electronically accessible or
Internet-accessible rates and by providing adequate information
about how to access the rates.
(b) If a public agency under paragraph (a) of this subsection
must include the state and federal prevailing rates of wage in
the specifications, the public agency shall also require the
contractor { + or subcontractor or other person that is a party
to the contract + } to pay the higher of the applicable state or
federal prevailing rate of wage to all workers on the public
works.
(c) Every contract and subcontract must provide that the { +
contractor or subcontractor or other person that is a party to
the contract must pay + }workers { - must be paid - } not
less than the specified minimum hourly rate of wage in accordance
with ORS 279C.838 and 279C.840.
(d) If a public works project is subject both to ORS 279C.800
to 279C.870 and to the Davis-Bacon Act, every contract and
subcontract must provide that { + the contractor or
subcontractor or other person that is a party to the contract
must pay + } workers on the public works { - must be paid - }
not less than the higher of the applicable state or federal
prevailing rate of wage.
(e) A public works project described in ORS 279C.800
{ - (6)(a)(B) - } { + (7)(a)(B) + } or (C) is subject to the
existing state prevailing rate of wage or, if applicable, the
federal prevailing rate of wage required under the Davis-Bacon
Act that is in effect at the time a public agency enters into an
agreement with a private entity for the project. After that time,
the specifications for a contract for the public works must
include the applicable prevailing rate of wage.
(2) The specifications for a contract for public works must
provide that the contractor and every subcontractor must have a
public works bond filed with the Construction Contractors Board
before starting work on the project, unless { + the contractor
or subcontractor is + } exempt under ORS 279C.836 (4), (7), (8)
or (9). Every contract that a { - contracting - }
{ + public + } agency awards must require the contractor to:
(a) Have a public works bond filed with the Construction
Contractors Board before starting work on the project, unless
{ + the contractor is + }exempt under ORS 279C.836 (4), (7),
(8) or (9).
(b) Require, in every subcontract, that the subcontractor have
a public works bond filed with the Construction Contractors Board
before starting work on the project, unless { + the
subcontractor is + } exempt under ORS 279C.836 (4), (7), (8) or
(9).
SECTION 7. { + The amendments to ORS 279A.010, 279A.128,
279C.800, 279C.810, 279C.827 and 279C.830 by sections 1 to 6 of
this 2013 Act apply to contracts for public works that a public
agency first advertises or otherwise solicits or, if the public
agency does not advertise or solicit the contract for public
works, to a contract for public works that the public agency
first enters into on or after the operative date specified in
section 8 of this 2013 Act. + }
SECTION 8. { + (1) The amendments to ORS 279A.010, 279A.128,
279C.800, 279C.810, 279C.827 and 279C.830 by sections 1 to 6 of
this 2013 Act become operative 91 days after the effective date
of this 2013 Act.
(2) A public agency or the Commissioner of the Bureau of Labor
and Industries may take any action before the operative date
specified in subsection (1) of this section that is necessary to
enable the public agency or the commissioner to exercise, on and
after the operative date specified in subsection (1) of this
section, all of the duties, functions and powers conferred on the
public agency or the commissioner by the amendments to ORS
279A.010, 279A.128, 279C.800, 279C.810, 279C.827 and 279C.830 by
sections 1 to 6 of this 2013 Act. + }
SECTION 9. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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