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. + } ----------