Bill Text: OR SB805 | 2013 | Regular Session | Engrossed
Bill Title: Relating to analyses required before conducting a procurement for services; declaring an emergency.
Sponsorship: Partisan Bill (Democrat 18)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB805 Detail]
Download: Oregon-2013-SB805-Engrossed.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 3761
A-Engrossed
Senate Bill 805
Ordered by the Senate July 1
Including Senate Amendments dated July 1
Sponsored by Senator STEINER HAYWARD, Representative WITT;
Senators MONROE, ROBLAN, SHIELDS, Representatives BARNHART,
BARTON, CLEM, DEMBROW, DOHERTY, FREDERICK, GALLEGOS, GOMBERG,
GORSEK, HOLVEY, LIVELY, MATTHEWS, REARDON
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.
Permits employee of contracting agency that conducts cost
analysis or determines feasibility of procurement, or exclusive
representative of employee's bargaining unit, to seek judicial
review of cost analysis or determination. Specifies conditions
under which review may occur.
{ + Requires contracting agency to take certain steps to
obtain information necessary to conduct cost analysis before
advertising or soliciting procurement.
Requires contracting agency to update cost analysis and to
reconsider determination of feasibility of agency performing
services that are subject to procurement under certain
circumstances. + }
Requires contracting agency to consider contractor's profit in
cost analysis. Prohibits contracting agency from considering
proceeds of sale or costs of replacing long-term assets in cost
analysis.
Becomes operative January 1, 2014.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to analyses required before conducting a procurement for
services; 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. { + Section 2 of this 2013 Act is added to and made
a part of ORS chapter 279B. + }
SECTION 2. { + (1)(a) An employee of a contracting agency that
conducts a cost analysis under ORS 279B.033 or makes a
determination under ORS 279B.036, or an exclusive representative,
as defined in ORS 243.650, of the employee's bargaining unit, may
seek judicial review of the contracting agency's cost analysis or
determination if:
(A) The contracting agency allegedly violated a provision of
ORS 279B.030, 279B.033 or 279B.036;
(B) The employee or the exclusive representative described the
alleged violation in a written notice to the contracting agency
not later than 30 days after the date of the alleged violation;
(C) The contracting agency proceeded with a procurement after
receiving the notice described in subparagraph (B) of this
paragraph; and
(D) The employee or exclusive representative exhausted any
administrative remedy the contracting agency provides to address
the alleged violation.
(b)(A) Except as provided in subparagraph (B) of this
paragraph, for the purposes of this section a contracting agency
proceeded with a procurement if the contracting agency advertised
or solicited the procurement in accordance with the provisions of
this chapter or otherwise took affirmative steps to seek a
contractor to perform services for which the contracting agency
would be required to conduct a procurement under this chapter.
(B) A contracting agency did not, for the purposes of this
section, proceed with a procurement if:
(i) The contracting agency issued a request for information or
a request for a quotation or otherwise sought to obtain needed
information in the course of complying with ORS 279B.030,
279B.033 or 279B.036; or
(ii) The contracting agency, after advertising or soliciting a
procurement, updated a cost analysis or reconsidered a
determination in accordance with ORS 279B.030 (1)(c).
(2)(a) If an employee of a state contracting agency, or an
exclusive representative of the employee's bargaining unit, seeks
judicial review for a state contracting agency's alleged
violation of a provision of ORS 279B.030, 279B.033 or 279B.036,
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. For the purposes of the review, a state contracting
agency's decision to advertise or solicit or otherwise proceed
with a procurement is an order other than an order in a contested
case.
(b) If an employee of a local contracting agency, or an
exclusive representative of the employee's bargaining unit, seeks
judicial review for a local contracting agency's alleged
violation of a provision of ORS 279B.030, 279B.033 or 279B.036,
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.
(3)(a) If an employee of the contracting agency, or the
exclusive representative of the employee's bargaining unit,
notifies the contracting agency as provided in subsection
(1)(a)(B) of this section and timely seeks review under this
section, the contracting agency may not proceed with the
procurement that is the subject of the review unless the
contracting agency determines that:
(A) A compelling governmental interest exists in proceeding
with the procurement; or
(B) An emergency exists that requires the procurement.
(b) A contracting agency that makes a determination to proceed
with a procurement under paragraph (a) of this subsection shall
set forth in writing the reasons for the determination and
provide the reasons to the employee or the exclusive
representative immediately.
(c) Despite the contracting agency's determination under
paragraph (a) of this subsection, the court, after joining as a
party to the litigation any prospective contractor interested in
the procurement, may stay the procurement on the employee's or
the exclusive representative's motion if the court finds that the
contracting agency's determination under paragraph (a) of this
subsection was not supported by substantial evidence or
constituted a manifest abuse of discretion. In granting a stay
under this paragraph, the court may require the employee or the
exclusive representative to post a bond in an amount sufficient
to protect the contracting agency and the public from costs
associated with a delay in the procurement if the court finds
that issuing an injunction may irreparably harm the contracting
agency or the contractor and that the employee's or the exclusive
representative's likelihood of success on the merits of the case
is minimal.
(4) Notwithstanding ORS 279B.145 or any other provision of this
chapter or ORS chapter 279A, a court shall review de novo a
contracting agency's determination under ORS 279B.030, 279B.033
or 279B.036.
(5) If the court rules in favor of the employee or the
exclusive representative, the court shall enjoin the contracting
agency from proceeding with the procurement. The court may not
award costs and attorney fees to the prevailing party in the
litigation. + }
SECTION 3. ORS 279B.030 is amended to read:
279B.030. { - (1) - } { + (1)(a) + } Except as provided in
ORS 279B.036, before conducting a procurement for services with
an estimated contract price that exceeds $250,000, a contracting
agency shall:
{ - (a) - } { + (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) - } { + (B) + } { - Demonstrate - } { +
Determine + }, in accordance with ORS 279B.036, that performing
the services with the contracting agency's own personnel and
resources is not feasible.
{ + (b) To obtain information necessary to conduct the cost
analysis described in paragraph (a)(A) of this subsection or to
make the determination described in paragraph (a)(B) of this
subsection, a contracting agency, before advertising or otherwise
soliciting a procurement, shall issue a request for information
or a request for a quotation or shall use another reasonably
practicable method to obtain needed information.
(c) If after advertising or otherwise soliciting a procurement
and before awarding a contract a contracting agency obtains new
or additional information from bids or proposals, or from other
sources, that would alter or otherwise affect a cost analysis the
agency conducted under ORS 279B.033 or a determination the
contracting agency made under ORS 279B.036, the contracting
agency shall update the cost analysis with the new or additional
information or, if necessary, reconsider the agency's
determination as to the feasibility of performing with the
contracting agency's own personnel or resources the services that
are the subject of the procurement. The contracting agency may
proceed with the procurement only after updating the cost
analysis or, if appropriate, reconsidering the determination and
only if the procurement continues to meet the applicable
requirement set forth in ORS 279B.033 (2) or 279B.036 (1). + }
(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 4. ORS 279B.033 is amended to read:
279B.033. (1) { + (a) + } In the cost analysis required under
ORS 279B.030, a contracting agency shall:
{ - (a) - } { + (A) + } Estimate the contracting agency's
cost of performing the services, including:
{ - (A) - } { + (i) + } 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) - } { + (ii) + } Material costs, including costs
for space, energy, transportation, storage, raw and finished
materials, equipment and supplies.
{ - (C) - } { + (iii) + } 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) - } { + (iv) + } Miscellaneous costs related to
performing the services. The contracting agency may not include
in the cost analysis the contracting agency's indirect overhead
costs for existing salaries or wages and benefits for
administrators or for 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) - } { + (B) + } Estimate the cost a potential
contractor would incur { + and the profit the potential
contractor would realize + } in performing the services,
including:
{ - (A) - } { + (i) + } Average or actual salary or wage
and benefit costs for contractors and employees who:
{ - (i) - } { + (I) + } Work in the industry or business
most closely involved in performing the services that the
contracting agency intends to procure; and
{ - (ii) - } { + (II) + } Would be necessary and directly
involved in performing the services or who would inspect,
supervise or monitor the performance of the services;
{ - (B) - } { + (ii) + } Material costs, including costs
for space, energy, transportation, storage, raw and finished
materials, equipment and supplies; and
{ - (C) - } { + (iii) + } 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 - } { + paragraph + } over the expected
duration of the procurement.
{ + (b) In the cost analysis required under ORS 279B.030, a
contracting agency may not include proceeds or revenues from a
sale, or costs incurred to replace, any of the contracting
agency's long-term assets, including capital assets, vehicles or
other durable goods. + }
(2)(a) After comparing the difference between the costs
estimated as provided in subsection { - (1)(a) - }
{ + (1)(a)(A) + } of this section with the costs estimated as
provided in subsection
{ - (1)(b) - } { + (1)(a)(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 - } { + primary + } reason that the costs estimated
in subsection
{ - (1)(b) - } { + (1)(a)(B) + } of this section are lower
than the costs estimated in subsection { - (1)(a) - } { +
(1)(a)(A) + } of this section is because the costs estimated in
subsection { - (1)(b)(A) - } { + (1)(a)(B)(i) + } of this
section are lower than the costs estimated in subsection
{ - (1)(a)(A) - } { + (1)(a)(A)(i) + } 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 5. { + Section 2 of this 2013 Act and the amendments
to ORS 279B.030 and 279B.033 by sections 3 and 4 of this 2013 Act
apply to contracts that a contracting agency first advertises or
otherwise solicits or, if the contracting agency does not
advertise or solicit the contract, to contracts that the
contracting agency first enters into on or after the operative
date specified in section 6 of this 2013 Act. + }
SECTION 6. { + (1) Section 2 of this 2013 Act and the
amendments to ORS 279B.030 and 279B.033 by sections 3 and 4 of
this 2013 Act become operative on January 1, 2014.
(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 section 2 of
this 2013 Act and the amendments to ORS 279B.030 and 279B.033 by
sections 3 and 4 of this 2013 Act. + }
SECTION 7. { + 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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