Bill Text: OR HB3488 | 2011 | Regular Session | Introduced

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Bill Title: Relating to public contracting; declaring an emergency.

Spectrum: Partisan Bill (Republican 10-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3488 Detail]

Download: Oregon-2011-HB3488-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 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 3029

                         House Bill 3488

Sponsored by Representatives CONGER, JOHNSON, SHEEHAN, WHISNANT;
  Representatives BREWER, CAMERON, OLSON, THOMPSON, WEIDNER,
  WINGARD

                             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.

  Raises threshold for requiring cost analysis for procurement
from $250,000 to $2 million. Requires contracting agency to
include overhead costs in estimation of costs contracting agency
would incur in performing services subject to procurement.
Removes prohibition on proceeding with procurement if
contractor's costs are lower solely because contractor pays
employees less. Removes requirement for state contracting agency
to prepare request for appropriation to obtain resources
necessary to perform service that state contracting agency
determines would cost less for state contracting agency to
perform but for which state contracting agency lacks necessary
personnel and resources.
  Becomes operative 91 days after effective date of Act.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to public contracting; 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. ORS 279B.030 is amended to read:
  279B.030. (1) Except as provided in ORS 279B.036, before
conducting a procurement for services with an estimated contract
price that exceeds   { - $250,000 - }  { +  $2 million + }, a
contracting agency shall:
  (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) Demonstrate, in accordance with ORS 279B.036, that
performing the services with the contracting agency's own
personnel and resources is not feasible.
  (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 2. ORS 279B.033 is amended to read:
  279B.033. (1) In the cost analysis required under ORS 279B.030,
a contracting agency shall:
  (a) Estimate the contracting agency's cost of performing the
services, including:
  (A) 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) Material costs, including costs for space, energy,
transportation, storage, raw and 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 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) Miscellaneous costs related to performing the services.
The contracting agency   { - may not - }  { +  shall + } include
in the cost analysis the contracting agency's indirect overhead
costs for existing salaries { + , + }   { - or - }  wages and
benefits for administrators   { - or for - }  { +  and + } 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) Estimate the cost a potential contractor would incur in
performing the services, including:
  (A) Average or actual salary or wage and benefit costs for
contractors and employees who:
  (i) Work in the industry or business most closely involved in
performing the services that the contracting agency intends to
procure; and
  (ii) Would be necessary and directly involved in performing the
services or who would inspect, supervise or monitor the
performance of the services;
  (B) Material costs, including costs for space, energy,
transportation, storage, raw and finished materials, equipment
and supplies; and
  (C) 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 over the
expected duration of the procurement.
  (2)(a) After comparing the difference between the costs
estimated as provided in subsection (1)(a) of this section with
the costs estimated as provided in subsection (1)(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 reason that the
costs estimated in subsection (1)(b) of this section are lower
than the costs estimated in subsection (1)(a) of this section is
because the costs estimated in subsection (1)(b)(A) of this
section are lower than the costs estimated in subsection
(1)(a)(A) 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 3.  { + The amendments to ORS 279B.030 and 279B.033 by
sections 1 and 2 of this 2011 Act apply to a contract that a
contracting agency first advertises or otherwise solicits on or
after the operative date set forth in section 4 of this 2011 Act
or, if the contracting agency does not advertise or solicit the
contract, to a contract that the contracting agency enters into
on or after the operative date set forth in section 4 of this
2011 Act. + }
  SECTION 4.  { + (1) The amendments to ORS 279B.030 and 279B.033
by sections 1 and 2 of this 2011 Act become operative on the 91st
day following the effective date of this 2011 Act.
  (2) The Director of the Oregon Department of Administrative
Services, 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, on and after the operative date
specified in subsection (1) of this section, all of the duties,
functions and powers conferred on the director, the Attorney
General or the contracting agency by the amendments to ORS
279B.030 and 279B.033 by sections 1 and 2 of this 2011 Act. + }
  SECTION 5.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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