Bill Text: OR HB2955 | 2013 | Regular Session | Introduced
Bill Title: Relating to contracting agencies' decisions concerning procurements for services; declaring an emergency.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2955 Detail]
Download: Oregon-2013-HB2955-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 2384
House Bill 2955
Sponsored by Representative GORSEK
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.
Permits employee of contracting agency that conducts cost
analysis or determines feasibility of procurement to seek
judicial review of cost analysis or determination. Specifies
conditions under which review may occur.
Requires contracting agency to issue request for information or
request for quotation to obtain information necessary to conduct
cost analysis or make determination before advertising or
otherwise soliciting procurement.
Requires contracting agency to consider contractor's profit in
cost analysis. Prohibits contracting agency from considering
proceeds of sale or costs of replacing long-term assets in cost
analysis.
Becomes operative 91 days after effective date of Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to contracting agencies' decisions concerning
procurements for services; creating new provisions; amending
ORS 279B.030 and 279B.033; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2013 Act is added to and made
a part of ORS chapter 279B. + }
SECTION 2. { + (1)(a) An employee of a contracting agency that
conducts a cost analysis under ORS 279B.033 or makes a
determination under ORS 279B.036, or an exclusive representative,
as defined in ORS 243.650, of the employee's bargaining unit, may
seek judicial review of the contracting agency's cost analysis or
determination if:
(A) The contracting agency allegedly violated a provision of
ORS 279B.030, 279B.033 or 279B.036;
(B) The employee or the exclusive representative described the
alleged violation in a written notice to the contracting agency
not later than 30 days after the date of the alleged violation;
(C) The contracting agency proceeded with a procurement after
receiving the notice described in subparagraph (B) of this
subsection; and
(D) The employee or the exclusive representative exhausted any
administrative remedy the contracting agency provides to address
the alleged violation.
(b) For the purposes of this section, a contracting agency
proceeded with a procurement if the contracting agency advertised
or solicited the procurement in accordance with the provisions of
this chapter or otherwise took affirmative steps to seek a
contractor to perform services for which the contracting agency
must conduct a procurement under this chapter. A contracting
agency did not, for the purposes of this section, proceed with a
procurement if the contracting agency issued a request for
information or request for a quotation or otherwise sought to
obtain needed data in the course of complying with the provisions
of ORS 279B.030, 279B.033 or 279B.036.
(2)(a) If an employee of a state contracting agency, or an
exclusive representative of the employee's bargaining unit, seeks
judicial review for an alleged violation of a provision of ORS
279B.030, 279B.033 or 279B.036, the Circuit Court for Marion
County or the circuit court for the county in which the principal
offices of the contracting agency are located may review the
alleged violation under ORS 183.484. For the purposes of the
review, a state contracting agency's decision to advertise or
solicit or otherwise proceed with a procurement is an order other
than an order in a contested case.
(b) If an employee of a local contracting agency, or an
exclusive representative of the employee's bargaining unit, seeks
judicial review for an alleged violation of a provision of ORS
279B.030, 279B.033 or 279B.036, the circuit court for the county
in which the contracting agency's principal offices are located
may review the alleged violation by means of a writ of review
under ORS chapter 34.
(3)(a) If an employee of the contracting agency, or the
exclusive representative of the employee's bargaining unit,
notifies the contracting agency as provided in subsection
(1)(a)(B) of this section and timely seeks review under this
section, the contracting agency may not proceed with the
procurement that is the subject of the review unless the
contracting agency determines that:
(A) A compelling governmental interest exists in proceeding
with the procurement; or
(B) An emergency exists that requires the procurement.
(b) A contracting agency that makes a determination under
paragraph (a) of this subsection shall set forth in writing the
reasons for the determination and provide the reasons to the
employee or the exclusive representative immediately.
(c) Despite the contracting agency's determination under
paragraph (a) of this subsection, the court, after joining as a
party to the litigation any prospective contractor interested in
the procurement, may stay the procurement at the employee's or
exclusive representative's motion if the court finds that the
contracting agency's determination under paragraph (a) of this
subsection was not supported by substantial evidence or
constituted a manifest abuse of discretion. In granting a stay
under this paragraph, the court may require the employee or the
exclusive representative to post a bond in an amount sufficient
to protect the contracting agency and the public from costs
associated with a delay in the procurement if the court finds
that issuing an injunction may irreparably harm the contracting
agency or the contractor and that the employee's or exclusive
representative's likelihood of success on the merits of the case
is minimal.
(4) A court in reviewing a violation alleged under this section
shall give due deference to any factual contracting decision the
contracting agency made and may not substitute the court's
judgment for the contracting agency's judgment. The court shall
review questions of law de novo.
(5) If the court rules in favor of the employee or the
exclusive representative, the court shall enjoin the contracting
agency from proceeding with the procurement and the contracting
agency shall cancel the procurement. The court may award costs
and attorney fees to the prevailing party in the litigation. + }
SECTION 3. ORS 279B.030 is amended to read:
279B.030. (1) { + (a) + } Except as provided in ORS 279B.036,
before conducting a procurement for services with an estimated
contract price that exceeds $250,000, a contracting agency shall:
{ - (a) - } { + (A) + } Demonstrate, by means of a written
cost analysis in accordance with ORS 279B.033, that the
contracting agency would incur less cost in conducting the
procurement than in performing the services with the contracting
agency's own personnel and resources; or
{ - (b) - } { + (B) + } { - Demonstrate - } { +
Determine + }, in accordance with ORS 279B.036, that performing
the services with the contracting agency's own personnel and
resources is not feasible.
{ + (b) To obtain pricing and other market data that is
necessary to conduct the cost analysis described in paragraph
(a)(A) of this subsection or make the determination described in
paragraph (a)(B) of this subsection, the contracting agency shall
issue a request for information or a request for a quotation or
shall use any other reasonably practicable method to obtain
needed data before advertising or otherwise soliciting the
procurement. + }
(2) If a local contracting agency authorizes a department,
bureau, office or other subdivision of the local contracting
agency to conduct a procurement on behalf of another department,
bureau, office or subdivision of the local contracting agency,
the department, bureau, office or subdivision on whose behalf the
procurement is conducted shall comply with the requirement set
forth in subsection (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 has a population of not more than 15,000 or a
county that has a population of not more than 30,000;
(b) A community college that enrolls not more than 1,000
full-time equivalent students, as defined in ORS 341.005;
(c) A special district, as defined in ORS 198.010, a diking
district formed under ORS chapter 551 and a soil and water
conservation district organized under ORS 568.210 to 568.808;
(d) The Port of Portland; or
(e) Procurements for client services, { - as defined in OAR
125-246-0110 - } { + the definition and scope of which the
Oregon Department of Administrative Services specifies by
rule + }.
SECTION 4. ORS 279B.033 is amended to read:
279B.033. (1) { + (a) + } In the cost analysis required under
ORS 279B.030, a contracting agency shall:
{ - (a) - } { + (A) + } Estimate the contracting agency's
cost of performing the services, including:
{ - (A) - } { + (i) + } Salary or wage and benefit costs
for contracting agency employees who are directly involved in
performing the services, including employees who inspect,
supervise or monitor the performance of the services.
{ - (B) - } { + (ii) + } Material costs, including costs
for space, energy, transportation, storage, raw and finished
materials, equipment and supplies.
{ - (C) - } { + (iii) + } Costs incurred in planning for,
training for, starting up, implementing, transporting and
delivering the services and costs related to stopping and
dismantling a project or operation because the contracting agency
intends to procure a limited quantity of services or procure the
services within a defined or limited period of time.
{ - (D) - } { + (iv) + } Miscellaneous costs related to
performing the services. The contracting agency may not include
in the cost analysis the contracting agency's indirect overhead
costs for existing salaries or wages and benefits for
administrators or for rent, equipment, utilities and materials
except to the extent that the costs are attributable solely to
performing the services and would not exist unless the
contracting agency performs the services.
{ - (b) - } { + (B) + } Estimate the cost a potential
contractor would incur { + and the profit the potential
contractor would realize + } in performing the services,
including:
{ - (A) - } { + (i) + } Average or actual salary or wage
and benefit costs for contractors and employees who:
{ - (i) - } { + (I) + } Work in the industry or business
most closely involved in performing the services that the
contracting agency intends to procure; and
{ - (ii) - } { + (II) + } Would be necessary and directly
involved in performing the services or who would inspect,
supervise or monitor the performance of the services;
{ - (B) - } { + (ii) + } Material costs, including costs
for space, energy, transportation, storage, raw and finished
materials, equipment and supplies; and
{ - (C) - } { + (iii) + } Miscellaneous costs related to
performing the services, including but not limited to reasonably
foreseeable fluctuations in the costs for the items identified in
this
{ - subsection - } { + paragraph + } over the expected
duration of the procurement.
{ + (b) In the cost analysis required under ORS 279B.030, a
contracting agency may not include proceeds or revenues from a
sale, or costs incurred to replace, any of the contracting
agency's long-term assets, including capital assets, vehicles or
other durable goods. + }
(2)(a) After comparing the difference between the costs
estimated as provided in subsection { - (1)(a) - }
{ + (1)(a)(A) + } of this section with the costs estimated as
provided in subsection
{ - (1)(b) - } { + (1)(a)(B) + } of this section, except as
provided in paragraph (b) of this subsection, the contracting
agency may proceed with the procurement only if the contracting
agency would incur more cost in performing the services with the
contracting agency's own personnel and resources than the
contracting agency would incur in procuring the services from a
contractor. The contracting agency may not proceed with the
procurement if the
{ - sole - } { + primary + } reason that the costs estimated
in subsection
{ - (1)(b) - } { + (1)(a)(B) + } of this section are lower
than the costs estimated in subsection { - (1)(a) - } { +
(1)(a)(A) + } of this section is because the costs estimated in
subsection { - (1)(b)(A) - } { + (1)(a)(B)(i) + } of this
section are lower than the costs estimated in subsection
{ - (1)(a)(A) - } { + (1)(a)(A)(i) + } of this section.
(b) A contracting agency may proceed with a procurement even if
the contracting agency determines that the contracting agency
would incur less cost in providing the services with the
contracting agency's own personnel and resources if at the time
the contracting agency intends to conduct a procurement, the
contracting agency lacks personnel and resources that are
necessary to perform the services within the time in which the
services are required. If the contracting agency conducts a
procurement under the conditions described in this paragraph, the
contracting agency shall:
(A) Keep a record of the cost analysis and findings that the
contracting agency makes for each procurement the contracting
agency conducts under this section, along with the basis for the
contracting agency's decision to proceed with the procurement;
and
(B) Collect and provide copies of the records described in
subparagraph (A) of this paragraph each calendar quarter to the
local contract review board, if the contracting agency is a local
contracting agency, or to the Emergency Board, if the contracting
agency is a state contracting agency.
(c) If the contracting agency is a state contracting agency, in
addition to complying with the provisions of paragraph (b) of
this subsection the contracting agency shall prepare a request to
the Governor for an appropriation and any authority that is
necessary for the contracting agency to hire personnel and obtain
resources necessary to perform the services that the contracting
agency procured under the conditions described in paragraph (b)
of this subsection. The request must include a copy of the
records that the contracting agency provided to the Emergency
Board under paragraph (b)(B) of this subsection.
(3) A cost analysis, record, documentation or determination
made under this section is a public record.
SECTION 5. { + (1) Section 2 of this 2013 Act and the
amendments to ORS 279B.030 and 279B.033 by sections 3 and 4 of
this 2013 Act become operative 91 days after the effective date
of this 2013 Act.
(2) The Director of the Oregon Department of Administrative
Services, the Director of Transportation, the Attorney General or
a contracting agency that adopts rules under ORS 279A.065 may
take any action before the operative date specified in subsection
(1) of this section that is necessary to enable the director, the
Attorney General or the contracting agency to exercise the
duties, functions and powers conferred on the director, the
Attorney General or the contracting agency by section 2 of this
2013 Act and the amendments to ORS 279B.030 and 279B.033 by
sections 3 and 4 of this 2013 Act. + }
SECTION 6. { + Section 2 of this 2013 Act applies to
procurements with which a contracting agency proceeded on or
after the operative date specified in section 5 of this 2013
Act. + }
SECTION 7. { + 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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