Bill Text: OR HB3102 | 2013 | Regular Session | Introduced
Bill Title: Relating to energy savings performance contracts; declaring an emergency.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3102 Detail]
Download: Oregon-2013-HB3102-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 1004
House Bill 3102
Sponsored by COMMITTEE ON ENERGY AND ENVIRONMENT
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.
Exempts energy savings performance contracts, under certain
circumstances, from requirement to use competitive bidding
process to award public improvement contracts. Specifies
circumstances.
Becomes operative 91 days after effective date of Act.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to energy savings performance contracts; creating new
provisions; amending ORS 279C.335; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279C.335 is amended to read:
279C.335. { - (1) All public improvement contracts shall be
based upon competitive bids except: - }
{ + (1) A contracting agency shall use a competitive bidding
process as the basis for awarding a public improvement contract,
except for: + }
(a) { - Contracts made - } { + A contract + } with { +
a + } qualified nonprofit
{ - agencies providing - } { + agency that provides + }
employment opportunities for individuals with disabilities under
ORS 279.835 to 279.855.
(b) A public improvement contract { + that is + } exempt under
subsection (2) of this section.
(c) A public improvement contract with a value of less than
$5,000.
(d) A contract { - not to - } { + with a contract price
that does not + } exceed $100,000 made under procedures for
competitive quotes in ORS 279C.412 and 279C.414.
(e) { - Contracts for - } { + A contract to + } repair,
{ - maintenance, improvement or protection of - } { +
maintain, improve or protect + } property { - obtained by - }
the Department of Veterans' Affairs { + obtains + } under ORS
407.135 and 407.145 (1).
(f) { + An + } energy savings performance { - contracts
entered into - } { + contract that a contracting agency enters
into with an energy service company + } in accordance with rules
of procedure adopted under ORS 279A.065 { + or after choosing
the energy service company from among prequalified energy service
companies that appear on a list that the State Department of
Energy designates by rule + }.
(2) Subject to subsection (4)(b) of this section, the Director
of the Oregon Department of Administrative Services, a local
contract review board or, for contracts described in ORS 279A.050
(3)(b), the Director of Transportation may exempt a public
improvement contract or a class of public improvement contracts
from the competitive bidding requirements of subsection (1) of
this section { - upon approval of - } { + after the director
or the local contract review board approves + } the following
findings submitted by the contracting agency or, if a state
agency is not the contracting agency, the state agency
{ - seeking - } { + that seeks + } the exemption:
(a) { - It is unlikely that - } The exemption { - will - }
{ + is unlikely to + } encourage favoritism in { - the
awarding of - } { + awarding + } public improvement contracts
or { + to + } substantially diminish competition for public
improvement contracts.
(b) { - The - } Awarding { - of - } { + a + } public
improvement { - contracts - } { + contract + } under the
exemption will likely result in substantial cost savings to the
contracting agency, to the state agency based upon the
justification and information described in ORS 279C.330 or, if
the { - contracts are - } { + contract is + } for { + a + }
public { - improvements - } { + improvement + } described in
ORS 279A.050 (3)(b), to the contracting agency or the public. In
{ - making - } { + approving + } the finding, the Director of
the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board may consider
the type, cost and amount of the contract, the number of persons
available to bid and { - such - } other { + appropriate + }
factors { - as may be deemed appropriate - } .
(c) As an alternative to the finding described in paragraph (b)
of this subsection, { - when - } { + if + } a contracting
agency or state agency seeks an exemption that would allow
the { + agency to + } use { - of - } an { - alternate - }
{ + alternative + } contracting method that the agency has not
previously used, the agency may make a finding that identifies
the project as a pilot project for which the agency intends to
determine whether { - the use of the alternate - } { + using
the alternative + } contracting method actually results in
substantial cost savings to the contracting agency, to the state
agency or, if the contract is for a public improvement described
in ORS 279A.050 (3)(b), to the contracting agency or the public.
The agency shall include an analysis and conclusion regarding
actual cost savings, if any, in the evaluation required under ORS
279C.355.
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency or state
agency shall clearly identify the class using the class's
defining characteristics. { - Those - } { + The + }
characteristics { - shall - } { + must + } include
{ - some - } { + a + } combination of project descriptions or
locations, time periods, contract values, methods of procurement
or other factors that distinguish the limited and related class
of public improvement contracts from the agency's overall
construction program. The agency may not identify a class solely
by funding source, such as a particular bond fund, or by the
method of procurement, but shall identify the class using
characteristics that reasonably relate to the exemption criteria
set forth in subsection (2) of this section.
(4) In granting exemptions under subsection (2) of this
section, the Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract
review board shall:
(a) { - When - } { + If + } appropriate, direct the use of
{ - alternate - } { + alternative + } contracting methods that
take account of market realities and modern practices and are
consistent with the public policy of encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency or state agency that support { - the - }
awarding
{ - of - } a particular public improvement contract or a class
of public improvement contracts { - , - } without the
competitive bidding requirement of subsection (1) of this
section. The findings must show that the exemption of a contract
or class of contracts complies with the requirements of
subsection (2) of this section.
(5)(a) { + A contracting agency or state agency shall hold a
public hearing + }before { - final adoption of - } { +
finally adopting + } the findings required by subsection (2) of
this section { + and + } exempting a public improvement contract
or a class of public improvement contracts from the requirement
of competitive bidding { - , a contracting agency or state
agency shall hold a public hearing - } .
(b) Notification of the public hearing { - shall - } { +
must + } be published in at least one trade newspaper of general
statewide circulation a minimum of 14 days before the hearing.
(c) The notice { - shall - } { + must + } state that the
public hearing is for the purpose of taking comments on the draft
findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft
findings { - shall - } { + must + } be made available to the
public. At the option of the contracting agency or state agency,
the notice may describe the process by which the findings are
finally adopted and may indicate the opportunity for
{ - any - } further public comment.
(d) At the public hearing, the contracting agency or state
agency shall offer an opportunity for any interested party to
appear and present comment.
(e) If a contracting agency or state agency { - is required
to - } { + must + } act promptly { - due to - } { + because
of + } circumstances beyond the agency's control that do not
constitute an emergency, notification of the public hearing may
be published simultaneously with the agency's solicitation of
contractors for the alternative { - public - } contracting
method, as long as responses to the solicitation are due at least
five days after the { - meeting - } { + hearing + } and
approval of the findings.
(6) The purpose of an exemption is to exempt one or more public
improvement contracts from competitive bidding requirements. The
representations in and the accuracy of the findings, including
{ - any - } { + a + } general description of the resulting
public improvement contract, are the bases for approving the
findings and granting the { - exception - } { +
exemption + }. The findings may describe anticipated features of
the resulting public improvement contract, but the final
parameters of the contract are those characteristics or specifics
announced in the solicitation document.
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be
amended only in accordance with rules adopted under ORS 279A.065.
(8) { + A + } public improvement { - contracts - } { +
contract that is + } excepted from competitive { - bid - }
{ + bidding + } requirements under subsection (1)(a), (c), (d),
(e) or (f) of this section { - are - } { + is + } not subject
to the exemption requirements of subsection (2) of this section.
SECTION 2. { + The amendments to ORS 279C.335 by section 1 of
this 2013 Act apply to a contract that a contracting agency
enters into on or after the operative date specified in section 3
of this 2013 Act. + }
SECTION 3. { + (1) The amendments to ORS 279C.335 by section 1
of this 2013 Act become operative 91 days after the effective
date of this 2013 Act.
(2) The Attorney General, the Director of the Oregon Department
of Administrative Services, the Director of Transportation 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 Attorney General,
the director or the contracting agency 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 Attorney
General, the director or the contracting agency by the amendments
to ORS 279C.335 by section 1 of this 2013 Act. + }
SECTION 4. { + 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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