Bill Text: OR HB4130 | 2012 | Regular Session | Introduced
Bill Title: Relating to public contracting; declaring an emergency.
Spectrum: Partisan Bill (Democrat 15-0)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [HB4130 Detail]
Download: Oregon-2012-HB4130-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 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 269
House Bill 4130
Sponsored by Representative KOTEK; Representatives BAILEY,
BARNHART, BUCKLEY, DEMBROW, DOHERTY, FREDERICK, HOLVEY, HOYLE,
KOMP, MATTHEWS, NATHANSON, READ, WITT (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.
Provides that employee who separates from contracting agency,
under specified conditions and for period of one year, may not
seek or gain employment with contractor with which contracting
agency entered into public contract.
Prohibits contracting agency from awarding public contract to
bidder or proposer that will perform services at or from location
outside United States. Requires contracting agency to include
statement of prohibition in all invitations to bid, requests for
proposals and contracts. Requires bidder or proposer to certify
that bidder or proposer will perform services within United
States.
Prohibits contracting agency, under specified conditions, from
accepting bid or proposal from bidder or proposer that advised or
assisted contracting agency concerning solicitation documents or
materials related to public contract.
Requires bidder or proposer to make certain disclosures to
federal or state agencies for purposes of equivalent price, rate
and total cost of goods or services.
Permits employee, group of employees or labor organization that
represents employees of contracting agency to seek judicial
review under certain conditions for alleged violation of
requirements for goods and services procurements.
Requires state agencies and education service districts to make
certain additional information concerning public contracts
available on Oregon transparency website.
Requires Oregon University System to make solicitation
documents for public contracts available on same electronic
system Oregon Department of Administrative Services uses.
Becomes operative January 1, 2013.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to public contracting; creating new provisions; amending
ORS 184.483, 279B.205, 279B.420, 279C.307 and 351.086; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2012 Act are added to
and made a part of ORS chapter 279A. + }
SECTION 2. { + (1)(a) Except as provided in subsection (2) of
this section, an employee of a contracting agency who separates
from the contracting agency may not, for a period of one year
after the employee's separation, seek or gain employment with a
contractor with which the contracting agency entered into a
public contract if the employee:
(A) Worked directly on matters related to the public contract
or in a field closely related to the public contract; or
(B) Would have duties for the contractor that involve work
related to the public contract.
(b) A contracting agency shall require an employee that
separates from the contracting agency to sign an agreement to
abide by the conditions set forth in paragraph (a) of this
subsection. The Oregon Department of Administrative Services by
rule shall prescribe the form and contents of the agreement.
(2) If a contracting agency enters into a public contract for
services that an employee of the contracting agency performs and,
as a result of entering into the public contract, the contracting
agency no longer employs the employee, the contracting agency
shall require in the terms of the public contract that the
contractor offer to employ the employee to perform services under
the public contract under employment terms that are similar to
the employment terms under which the contracting agency employed
the employee. + }
SECTION 3. { + (1) A contracting agency may not award a public
contract for services to a bidder or proposer that will perform
the services specified in the invitation to bid or request for
proposals at or from a location that is outside the United
States.
(2) A contracting agency shall state in the invitation to bid
or request for proposals that the contracting agency is subject
to the condition described in subsection (1) of this section in
awarding a public contract.
(3) A bidder or proposer for a public contract shall certify in
the bid or proposal that the bidder or proposer will perform the
services specified in the invitation to bid or request for
proposals within the United States.
(4) A contracting agency shall require as a covenant in each
public contract for services that the contractor must perform the
services specified in the contract within the United States. The
contract shall provide that if the contractor breaches the
covenant, the contracting agency is entitled to any or all of the
following remedies, as appropriate:
(a) To obtain liquidated damages in an amount specified in the
contract;
(b) To obtain specific performance from the contractor; or
(c) To rescind or terminate the contract.
(5) A contracting agency may commence and maintain an action in
a circuit court of this state to seek a remedy for a breach of
the covenant described in subsection (4) of this section. The
court shall award reasonable attorney fees and costs to a
contracting agency that prevails in the action.
(6) The provisions of subsections (1) to (5) of this section do
not apply if the contracting agency determines that complying
with the provisions of subsections (1) to (4) of this section
would violate:
(a) A provision of federal law; or
(b) A provision of an international treaty or trade agreement
to which this state is a party or to which this state has agreed
to be bound. + }
SECTION 4. { + Section 5 of this 2012 Act is added to and made
a part of ORS chapter 279B. + }
SECTION 5. { + (1) A contracting agency that procures personal
services for the purpose of advising or assisting the contracting
agency in developing specifications, a scope or statement of
work, an invitation to bid, a request for proposals or other
solicitation documents and materials related to a procurement may
not accept from the contractor, or an affiliate of the contractor
that advised or assisted the contracting agency, a bid or
proposal for the goods or services described, specified or
identified in the solicitation documents or materials if a
reasonable person would believe that by giving the advice or
assistance the contractor or the affiliate would have an
advantage in obtaining the public contract that is the subject of
the solicitation.
(2) As used in this section, 'affiliate' means a person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the
contractor described in subsection (1) of this section. + }
SECTION 6. ORS 279B.205 is amended to read:
279B.205. { + (1) + } { - Consistent with ORS 279A.015,
specifications must - } { + A contracting agency's
specification for a procurement must be consistent with ORS
279A.015 and must:
(a) + } Seek to promote optimal value and suitability for the
{ + contracting agency's + } purposes { + in conducting the
procurement; and
(b) + } { - intended and to - } Reasonably encourage
competition in satisfying a contracting agency's needs.
{ + (2) + } Subject to ORS 279B.405, the { + contracting
agency alone has the discretion to determine the contents of
the + } specification
{ - content must be determined in the sole discretion of the
contracting agency - } .
{ + (3)(a) The contracting agency, in the solicitation
documents and materials related to a procurement, shall require a
bidder or proposer to disclose in a bid or proposal the price,
rate and total cost of goods or services:
(A) That are similar to the goods or services described or
identified in the solicitation documents and specification; and
(B) That the bidder or proposer provides or offers to provide
to the federal government or a federal agency, to another state
government or to an agency or political subdivision of this or
another state.
(b) The contracting agency shall deem a bid or proposal that
does not include the disclosures required under paragraph (a) of
this subsection to be not responsive to the solicitation for the
procurement and may not consider the bid or proposal for a
contract award. + }
SECTION 7. ORS 279B.420 is amended to read:
279B.420. (1) If a contracting agency allegedly violates a
provision of ORS chapter 279A and a judicial remedy is not
otherwise available under ORS chapter 279A, 279B or 279C, the
alleged violation is subject to judicial review only as provided
in this section.
(2) If a contracting agency allegedly violates a provision of
this chapter, except a provision of ORS 279B.030, 279B.033,
279B.036, 279B.270, 279B.275, 279B.280 or 279B.400 to 279B.425,
and a judicial remedy is not otherwise provided in this chapter
or ORS chapter 279A, the alleged violation is subject to judicial
review only as provided in this section.
(3) A person may seek judicial review under this section for a
violation described in subsection (1) or (2) of this section only
if:
(a) A public contract is about to be awarded or has been
awarded;
(b) The alleged violation of a provision of this chapter or ORS
chapter 279A, except a provision of ORS 279B.030, 279B.033,
279B.036, 279B.270, 279B.275, 279B.280 or 279B.400 to 279B.425,
occurred in the procurement process for the public contract and
the alleged violation resulted in or will result in an unlawful
award of a contract or an unlawful failure to award the contract;
(c) The alleged violation deprived the person of the award of
the contract or deprived the person of the opportunity to compete
for the award of the contract;
(d) The person was qualified to receive the award of the
contract under ORS 279B.110;
(e) The person gave written notice that described the alleged
violation to the contracting agency not later than 10 days after
the date on which the alleged violation occurred and, regardless
of when the alleged violation occurred, not later than 10 days
after the date of execution of the contract;
(f) The person has exhausted all administrative remedies the
contracting agency provides; and
(g)(A) The alleged violation is a violation of a provision of
ORS chapter 279A and no other section of ORS chapter 279A, 279B
or 279C provides judicial review; or
(B) The alleged violation is a violation of a provision of this
chapter, except a provision of ORS 279B.030, 279B.033, 279B.036,
279B.270, 279B.275, 279B.280 or 279B.400 to 279B.425, and no
other section of this chapter or ORS chapter 279A provides
judicial review.
{ + (4) An employee or a group of employees of a contracting
agency or a labor organization that is an exclusive
representative, as defined in ORS 243.650, of the employee or
group, may seek judicial review under this section for a
violation of ORS 279B.030, 279B.033 or 279B.036 only if:
(a) A public contract is about to be awarded or has been
awarded;
(b) The alleged violation of a provision of ORS 279B.030,
279B.033 or 279B.036 occurred in the procurement process for the
public contract and the alleged violation resulted in or will
result in an unlawful award of a contract;
(c) The alleged violation deprived the employee or the group of
employees of a job or work opportunity or of jobs or work
opportunities, will reduce work hours or will otherwise adversely
affect the terms and conditions of the employee's or group's
employment;
(d) The employee, group or labor organization gave written
notice that described the alleged violation to the contracting
agency not later than 10 days after the date on which the alleged
violation occurred and, regardless of when the alleged violation
occurred, not later than 10 days after the date of execution of
the contract;
(e) The employee, group or labor organization has exhausted all
administrative remedies the contracting agency provides; and
(f) The alleged violation is a violation of a provision of ORS
279B.030, 279B.033 or 279B.036 and no other section of ORS
chapter 279A, 279B or 279C provides judicial review. + }
{ - (4) - } { + (5) + } If a state contracting agency
allegedly commits a violation, the Circuit Court for Marion
County or the circuit court for the county in which the principal
offices of the state contracting agency are located may review
the alleged violation under ORS 183.484.
{ - (5) - } { + (6) + } If a local contracting agency
allegedly commits a violation, the circuit court for the county
in which the principal offices of the local contracting agency
are located may review the alleged violation by means of a writ
of review under ORS chapter 34.
{ - (6) - } { + (7) + } If a person gives the notice
required under subsection (3)(e) { + or (4)(d) + } of this
section and timely seeks judicial review under this section, the
contracting agency may not execute the contract unless the
contracting agency determines that a compelling governmental
interest exists in proceeding or that the goods and services are
urgently needed. A contracting agency that makes such a
determination shall set forth in writing the reasons for the
determination and immediately provide the reasons to the person
who filed the challenge. Thereafter, after joining the
prospective contractor as a party to the litigation and upon
motion by the person who filed the challenge, the court may
nonetheless stay the performance of the contract if the court
finds that the contracting agency's determination that a
compelling governmental interest exists in proceeding with
contract execution, or the contracting agency's determination
that the goods or services were urgently needed, was not
supported by substantial evidence or constituted a manifest abuse
of discretion. In granting a stay, the court may require the
person who sought the stay to post a bond in an amount sufficient
to protect the contracting agency and the public from costs
associated with a delay in contract performance.
{ - (7) - } { + (8) + } In a review, the circuit court
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 all questions of law de novo. Thereafter:
(a) If a contract has not been executed and the court rules in
favor of the person that sought judicial review, and if the
violation could have affected the award of the contract, the
court shall remand the procurement to the contracting agency for
a determination whether to continue with the procurement process
in light of the court's decision.
(b) In addition to the relief provided for in paragraph (a) of
this subsection, if a contract has been executed and the court
rules in favor of the person that sought judicial review, the
court shall include in the court's order a determination whether
the party that signed the contract with the contracting agency is
entitled to reimbursement under the conditions of, and calculated
in the same manner as provided in, ORS 279C.470. Notwithstanding
that ORS 279C.470 otherwise applies only to public improvement
contracts, under this paragraph the court shall apply ORS
279C.470 to both public improvement contracts and other public
contracts of contracting agencies.
(c) The court may award costs and attorney fees to the
prevailing party.
SECTION 8. ORS 279C.307 is amended to read:
279C.307. (1) Except as provided in subsection (2) of this
section, a contracting agency that procures personal services for
the purpose of { + advising or assisting the contracting agency
in developing specifications, a scope or statement of work, an
invitation to bid, a request for proposals or other solicitation
documents or materials related to a procurement or for the
purposes of + } administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing a public
contract that is subject to this chapter may not:
{ + (a) Accept from the contractor, or an affiliate of the
contractor that advised or assisted the contracting agency, a bid
or proposal for the public improvement, public works or
construction services that are described, specified or identified
in the solicitation documents or materials if a reasonable person
would believe that by giving the advice or assistance the
contractor or the affiliate would have an advantage in obtaining
the public contract that is the subject of the solicitation; + }
{ - (a) - } { + (b) + } Procure the personal services from
a contractor or an affiliate of a contractor who is a party to
the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by
means of the personal services; or
{ - (b) - } { + (c) + } Procure the personal services
through the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by
means of the personal services.
(2) Subsection (1) of this section does not apply to a
procurement that qualifies as a construction manager/general
contractor procurement or a design-build procurement, both as
defined in { - OAR 125-249-0610 or 137-049-0610 - } { + rules
adopted under ORS 279A.065 + }.
(3) As used in this section, 'affiliate' means a person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the
contractor { + that provides the personal services + } described
in subsection { - (1)(a) - } { + (1) + } of this section.
SECTION 9. ORS 184.483 is amended to read:
184.483. (1) The Oregon Department of Administrative Services
shall develop and make available an Oregon transparency website.
The website { - shall - } { + must + } allow any person to
view information that is a public record and not exempt from
disclosure under ORS 192.410 to 192.505, including but not
limited to information described in subsection (3) of this
section.
(2) State agencies and education service districts, to the
extent practicable and subject to laws relating to
confidentiality, when at no additional cost, using existing data
and existing resources of the state agency or education service
district and without reallocation of resources, shall:
(a) Furnish information to the Oregon transparency website by
posting reports and providing links to existing information
system applications in accordance with standards established by
the Oregon Department of Administrative Services; { - and - }
(b) Provide the information in { - the - } { + a
downloadable file + } format { - and - } { + that commonly
used software applications can open and view, and in any
other + } manner { - required by - } { + that + } the Oregon
Department of Administrative Services { + requires + }
{ - . - } { + ; and
(c) Update the information at least twice each calendar year
and at least four times each biennium, during which time the
state agency shall also remove or delete information that is
obsolete or no longer accurate. + }
(3) To the extent practicable and subject to laws relating to
confidentiality, when at no additional cost, using existing data
and existing resources of the state agency or education service
district and without reallocation of resources, the Oregon
transparency website shall contain information about each state
agency and education service district, including but not limited
to:
(a) Annual revenues of state agencies and education service
districts;
(b) Annual expenditures of state agencies and education service
districts;
(c) Annual human resources expenses, including compensation, of
state agencies and education service districts;
(d) Annual tax expenditures of state agencies, including,
{ - when possible - } { + to the extent the information is
not required by law to be confidential + }, the identity of the
recipients of each tax expenditure { + and a list of the
businesses that received tax credits, deductions, refunds,
rebates or other subsidies from the state agency + };
(e) Contracting and subcontracting information { + , to the
extent allowed by law, + } { - of - } { + for each public
contract that a + } state
{ - agencies and - } { + agency or + } education service
{ - districts - } { + district enters into + }, { - to the
extent allowed by law; - } { + including but not limited to
information entered into separate fields that facilitate
retrieval and organization by each component of the following
categories:
(A) The state agency's or education service district's
authorized expenditure limitation for the contract and for any
amendments to the contract;
(B) The actual amount the state agency or education service
district expended for the contract and for any amendments to the
contract;
(C) The date on which the state agency or education service
district entered into the contract, the dates on which the state
agency or education service district amended the contract, and
the date on which the contract ended; and
(D) The name, street address and state of residence for each
contractor and subcontractor; + }
(f) A prominently placed graphic representation of the primary
funding categories and { + the + } approximate number of
individuals { - served by - } the state agency or the
education service district { + serves + };
(g) A description of the mission, function and program
categories of the state agency or education service district;
(h) Information about the state agency from the Oregon Progress
Board;
(i) A copy of any audit report issued by the Secretary of State
for the state agency or of any audit reports issued for the
education service district;
(j) The local service plans of the education service districts;
(k) A copy of each report required by statute for education
service districts; and
(L) A copy of all notices of public meetings of the education
service districts.
(4) In addition to the information described in subsection (3)
of this section, each state agency shall post on the Oregon
transparency website notices of public meetings required to be
provided by the state agency under ORS 192.640.
(5) In creating, operating, refining and recommending
enhancements to the Oregon transparency website, the Oregon
Department of Administrative Services and the Transparency Oregon
Advisory Commission created in ORS 184.486 shall consider and, to
the extent practicable, adhere to the following principles:
(a) The website must be accessible without cost and be easy to
use;
(b) Information included on the Oregon transparency website
must be presented using plain, easily understandable language;
and
(c) The website should teach users about how state government
and education service districts work and provide users with the
opportunity to learn something about how state government and
education service districts raise and spend revenue.
(6) If a state agency or an education service district is not
able to include information described in this section on the
Oregon transparency website because of the lack of availability
of { + the + } information or cost in acquiring { - it - }
{ + the information + }, the Transparency Oregon Advisory
Commission created in ORS 184.486 shall list the information that
is not included for that state agency or education service
district in the commission's report to the Legislative Assembly
required under ORS 184.486.
SECTION 10. ORS 351.086 is amended to read:
351.086. (1) Except as otherwise provided in this chapter and
ORS chapter 352, the provisions of ORS chapters 182, 240, 270,
273, 276, 278, 279A, 279B, 279C, 282, 283, 291 and 292 and ORS
180.060, 180.160, 180.210, 180.220, 180.225 and 180.230 do not
apply to the Oregon University System.
(2) { + (a) + } Notwithstanding subsection (1) of this section,
ORS 182.100, 182.109, 240.167, 276.073 to 276.090, 279A.065 (2),
279B.055 (3), 279C.380 (1)(a) and (3), 279C.600 to 279C.625,
279C.800, 279C.810, 279C.825, 279C.830, 279C.835, 279C.840,
279C.845, 279C.850, 279C.855, 279C.860, 279C.865, 279C.870,
283.085 to 283.092, 291.200, 291.201 to 291.222, 291.223, 291.224
(2) and (6), 291.226, 291.272 to 291.278, 291.322 to 291.334,
291.405, 291.407, 291.445, 292.043 and 292.044 apply to the
Oregon University System.
{ + (b) Notwithstanding subsection (1) of this section, the
Oregon University System shall make all specifications, scopes or
statements of work, invitations to bid, requests for proposals or
other solicitation documents and materials related to a
procurement for a public contract publicly available by means of
the same electronic system that the Oregon Department of
Administrative Services uses to solicit public contracts. + }
(3) Notwithstanding subsection (1) of this section, ORS 273.413
to 273.456 apply to any structure, equipment or asset owned by
the Oregon University System that is encumbered by a certificate
of participation.
(4) Notwithstanding subsection (6) of this section:
(a) The provisions of ORS chapters 35, 190, 192, 244, 286A, 295
and 297 and ORS 30.260 to 30.460, 184.480, 184.483, 184.486,
184.488, 200.005 to 200.025, 200.045 to 200.090, 200.100 to
200.120, 200.160 to 200.200, 236.605 to 236.640, 243.650 to
243.782, 243.800, 243.820, 243.830, 243.850, 243.910 to 243.945,
307.090 and 307.112 apply to the Oregon University System under
the same terms as they apply to other public bodies other than
the State of Oregon.
(b) The provisions of ORS 293.115, 293.117, 293.130, 293.169,
293.171, 293.205 to 293.225, 293.250, 293.265 to 293.280,
293.285, 293.295, 293.321, 293.353, 293.375, 293.406, 293.465 to
293.485, 293.490, 293.495, 293.525, 293.701 to 293.820, 293.875,
293.880 and 293.990 apply to the Oregon University System under
the same terms as they apply to state agencies with moneys held
by the State Treasurer, to the Oregon University System Fund
established in ORS 351.506 and to any other moneys deposited with
or held by the State Treasurer for the Oregon University System.
(5) Notwithstanding subsections (1) and (6) of this section,
the Oregon University System and its agents and employees remain
subject to all statutes and administrative rules of this state
that create rights, benefits or protections in favor of military
veterans, service members and families of service members to the
same extent as an agency of this state would be subject to such
statutes and administrative rules.
(6) The Oregon University System, as a distinct governmental
entity, is not subject to any provision of law enacted after
January 1, 2011, with respect to any governmental entity, that is
unique to governmental entities, unless the provision
specifically provides that it applies to the Oregon University
System.
(7) In carrying out the duties, functions and powers imposed by
law upon the Oregon University System, the State Board of Higher
Education or the Chancellor of the Oregon University System may
contract with any public agency for the performance of such
duties, functions and powers as the board or chancellor considers
appropriate.
SECTION 11. { + (1) Sections 2, 3 and 5 of this 2012 Act and
the amendments to ORS 279B.205, 279B.420, 279C.307 and 351.086 by
sections 6, 7, 8 and 10 of this 2012 Act become operative January
1, 2013.
(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 sections 2, 3 and 5 of this
2012 Act and the amendments to ORS 279B.205, 279B.420, 279C.307
and 351.086 by sections 6, 7, 8 and 10 of this 2012 Act. + }
SECTION 12. { + (1) Sections 2, 3 and 5 of this 2012 Act and
the amendments to ORS 279B.205, 279B.420, 279C.307 and 351.086 by
sections 6, 7, 8 and 10 of this 2012 Act apply to public
contracts that a contracting agency advertises or otherwise
solicits on or after the operative date specified in section 11
of this 2012 Act or, if the contracting agency does not advertise
or otherwise solicit the public contract, to a public contract
that the contracting agency enters into on or after the operative
date specified in section 11 of this 2012 Act.
(2) Section 2 of this 2012 Act applies to employees of
contracting agencies whose separation from employment takes
effect on or after the operative date specified in section 11 of
this 2012 Act.
(3) The amendments to ORS 184.483 by section 9 of this 2012 Act
apply to information related to public contracts that a state
agency or education service district enters into and tax
expenditures that a state agency provides before, on or after the
operative date specified in section 11 of this 2012 Act. A state
agency or education service district subject to ORS 184.483 shall
provide or update the information required under ORS 184.483 as
soon as is practicable after the effective date of this 2012
Act. + }
SECTION 13. { + This 2012 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2012 Act takes effect on
its passage. + }
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