Bill Text: OR SB627 | 2013 | Regular Session | Introduced
Bill Title: Relating to public contracting; declaring an emergency.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB627 Detail]
Download: Oregon-2013-SB627-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 1147
Senate Bill 627
Sponsored by Senator STEINER HAYWARD, Representative JOHNSON;
Representatives CONGER, WHISNANT (at the request of Oregon
School Boards Association)
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, 279B.033 and 279B.036; 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) { + (a) + } 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 { + of which + } the procurement is
conducted shall comply with { - the requirement set forth
in - } subsection (1) of this section.
{ + (b) If a contracting agency conducts a procurement on
behalf of another public body, the public body on behalf of which
the contracting agency conducts the procurement shall comply with
subsection (1) of this section.
(3)(a) If a contracting agency conducts a procurement for the
purpose of establishing a price agreement under which more than
one public body may contract for services, the contracting
agency, before conducting the procurement, shall determine
whether the contracting agency has adequate information to comply
with subsection (1) of this section on behalf of all public
bodies that might contract for services under the price
agreement. After making the determination, the contracting agency
may conduct the procurement to establish the price agreement
under the following conditions:
(A) If the contracting agency has adequate information to
comply with subsection (1) of this section on behalf of all
public bodies that might contract for services under the price
agreement, the contracting agency shall comply with subsection
(1) of this section before conducting the procurement to
establish the price agreement.
(B) If the contracting agency does not have adequate
information to comply with subsection (1) of this section on
behalf of all public bodies that might contract for services
under the price agreement, the contracting agency may conduct the
procurement to establish the price agreement without complying
with subsection (1) of this section. The contracting agency may
not contract for services under the price agreement, however,
until the contracting agency complies with subsection (1) of this
section, nor may the public body contract for services under the
price agreement until the public body complies with subsection
(1) of this section.
(b) A public body that contracts for services subject to a
price agreement established in accordance with paragraph (a)(B)
of this subsection shall maintain an aggregated record of the
services the public body obtains under the price agreement. If
the contract price of the services the public body obtains under
the price agreement in the aggregate exceeds or, if the public
body procures additional services, will exceed $2 million during
the term of the price agreement, the public body shall comply
with subsection (1) of this section before entering into a
contract for additional services under the price agreement.
(4) A public body may not divide a procurement into more than
one contract for the purpose of avoiding compliance with
subsection (1) of this section. + }
{ - (3) - } { + (5) + } 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) Except as provided in paragraph (b) of this
subsection, + } a cost analysis, record, documentation or
determination made under this section is a public record.
{ + (b) A contracting agency that proceeds with a procurement
after conducting an analysis or making a determination under this
section may withhold a cost analysis, record, documentation or
determination the contracting agency makes under this section
from disclosure under ORS 192.410 to 192.505 until after the
contracting agency issues a notice of intent to award a
contract. + }
SECTION 3. ORS 279B.036 is amended to read:
279B.036. (1) Notwithstanding the provisions of ORS 279B.033
(2)(a), a contracting agency may proceed with a procurement if
the contracting agency reasonably determines in writing that
using the contracting agency's own personnel or resources to
perform the services that the contracting agency intends to
procure is not feasible. The contracting agency may make the
determination described in this subsection without conducting a
cost analysis under ORS 279B.033 if the contracting agency finds
that:
(a) The contracting agency lacks the specialized capabilities,
experience or technical or other expertise necessary to perform
the services. In making the finding, the contracting agency shall
compare the contracting agency's capability, experience or
expertise in the field most closely involved in performing the
services with a potential contractor's capability, experience or
expertise in the same or a similar field.
(b) Special circumstances require the contracting agency to
procure the services by contract. Special circumstances may
include, but are not limited to, circumstances in which:
(A) The terms under which the contracting agency receives a
grant or other funds for use in a procurement require the
contracting agency to obtain services through an independent
contractor;
(B) Other state or federal law requires the contracting agency
to procure services through an independent contractor;
(C) The procurement is for services that are incidental to a
contract for purchasing or leasing real or personal property,
including service and maintenance agreements for equipment that
is leased or rented;
(D) The contracting agency cannot accomplish policy,
administrative or legal goals, including but not limited to
avoiding conflicts of interest or ensuring independent or
unbiased findings in cases when using the contracting agency's
existing personnel or persons the contracting agency could hire
through a regular or ordinary process would not be suitable;
(E) The procurement is for services to which the provisions of
ORS 279B.080 apply { + , in which case the contracting agency may
make the determination required in subsection (1) of this section
after entering into a contract in accordance with ORS
279B.080 + };
(F) The procurement is for services, the need for which is so
urgent, temporary or occasional that attempting to perform the
services with the contracting agency's own personnel or resources
would cause a delay that would frustrate the purpose for
obtaining the services; or
(G) The services that the contracting agency intends to procure
will be completed within six months after the date on which the
contract for the services is executed.
(2) A finding or determination and supporting documentation for
a finding or determination made under this section is a public
record.
SECTION 4. { + The provisions of ORS 279B.030, 279B.033 and
279B.036, as amended by sections 1 to 3 of this 2013 Act, do not
create a cause of action against a public body and may not be
asserted in an action against a public body as the basis for a
per se negligence claim. + }
SECTION 5. { + (1) The amendments to ORS 279B.030, 279B.033
and 279B.036 by sections 1 to 3 of this 2013 Act become operative
on the 91st day after the effective date of this 2013 Act.
(2) The amendments to ORS 279B.030, 279B.033 and 279B.036 by
sections 1 to 3 of this 2013 Act apply to procurements that a
contracting agency advertises or otherwise solicits on or after
the operative date specified in subsection (1) of this section.
(3) 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 adopt
rules and take related actions before the operative date
specified in subsection (1) of this section that are 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 279B.030, 279B.033
and 279B.036 by sections 1 to 3 of this 2013 Act. + }
SECTION 6. { + 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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