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 3627
A-Engrossed
Senate Bill 908
Ordered by the Senate April 15
Including Senate Amendments dated April 15
Sponsored by COMMITTEE ON RULES (at the request of Governor John
A. Kitzhaber)
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.
Changes title of Director of Affirmative Action to Director of
Diversity and Inclusion. Changes title of Advocate for Minority,
Women and Emerging Small Business to Director of Economic and
Business Equity { - and name of Office for Minority, Women and
Emerging Small Business to Office of Economic and Business
Equity - } . { + Transfers duty of maintaining Oregon
Opportunity Register and Clearinghouse from Office for Minority,
Women and Emerging Small Business to Director of Economic and
Business Equity. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to executive branch nomenclature; amending ORS 182.100,
200.005, 200.025, 200.035, 200.045, 200.055, 200.065, 200.090,
200.100 and 243.315; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 243.315 is amended to read:
243.315. (1) There is hereby created in the office of the
Governor the position of Director of { - Affirmative Action - }
{ + Diversity and Inclusion + }. The primary duty of the
occupant of this position shall be to direct and monitor
affirmative action programs in all state agencies to implement
the public policy stated in ORS 243.305. The director shall be
appointed by the Governor, subject to confirmation by the Senate
pursuant to section 4, Article III of the Oregon Constitution.
(2) The legislative and judicial branches shall each select a
person to monitor the effectiveness of the branches' affirmative
action programs.
SECTION 2. ORS 182.100 is amended to read:
182.100. (1) It is declared to be the policy of Oregon that
this state shall be a leader in affirmative action. All
appointive authorities for state boards, commissions and advisory
bodies shall implement this policy of affirmative action in their
appointments, subject to the legal requirements for each
appointment.
(2) The Director of { - Affirmative Action - } { +
Diversity and Inclusion + } shall assist all persons who have
appointing authority at the state level for boards, commissions
or advisory bodies in carrying out the state policy stated in
subsection (1) of this section and ORS 236.115.
(3) As used in this section, 'affirmative action' means a
method of eliminating the effects of past and present
discrimination, intended or unintended, on the basis of race,
religion, national origin, age, sex, marital status or physical
or mental disabilities, that are evident or indicated by analysis
of present appointment patterns, practices and policies.
SECTION 3. ORS 200.005 is amended to read:
200.005. As used in ORS 200.005 to 200.075, 200.160 to 200.200
and 279A.105:
(1) 'Disadvantaged business enterprise' means a small business
concern:
(a) That is at least 51 percent owned by one or more socially
and economically disadvantaged individuals; or
(b) For which, in the case of a corporation, at least 51
percent of the stock is owned by one or more socially and
economically disadvantaged individuals, and of which the
management and daily business operations are controlled by one or
more of the socially and economically disadvantaged individuals
who own it.
(2) 'Economically disadvantaged individual' means a socially
disadvantaged individual whose ability to compete in the free
enterprise system has been impaired due to diminished capital and
credit opportunities as compared to other individuals in the same
business area who are not socially disadvantaged individuals.
(3) 'Emerging small business' means an independent business:
(a) With its principal place of business located in this state;
(b) That qualifies as a tier one firm or a tier two firm;
(c) That is properly licensed and legally registered in this
state; and
(d) That is not a subsidiary or parent company belonging to a
group of firms that are owned or controlled by the same
individuals if, in the aggregate, the group of firms does not
qualify as a tier one firm or a tier two firm.
(4) 'Minority individual' means a person who is a citizen or
lawful permanent resident of the United States { - , - } { +
and + } who is:
(a) Black, having origins in any of the black racial groups of
Africa;
(b) Hispanic, having Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish culture or origin, regardless of
race;
(c) Asian American, having origins in any of the original
peoples of the Far East, Southeast Asia, the Indian subcontinent
or the Pacific Islands;
(d) Portuguese, having Portuguese, Brazilian or other
Portuguese culture or origin, regardless of race;
(e) American Indian or Alaskan Native, having origins in any of
the original peoples of North America; or
(f) A member of another group, or another individual who is
socially and economically disadvantaged as determined by the
{ - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + }.
(5) 'Minority or women business enterprise' means a small
business concern:
(a) That is at least 51 percent owned by one or more minority
individuals or women; or
(b) For which, in the case of a corporation, at least 51
percent of the stock is owned by one or more individuals who are
minority individuals or women, and of which the management and
daily business operations are controlled by one or more of the
minority individuals or women who own it.
(6) 'Responsible bidder' means a bidder who, as determined by
the { - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + },
has undertaken both a policy and practice of actively pursuing
participation by minority or women business enterprises in all
bids, both public and private, submitted by the bidder.
(7) 'Small business concern' means a small business as defined
by the United States Small Business Administration in 13 C.F.R.
part 121 and in effect on January 1, 2006.
(8) 'Socially disadvantaged individual' means an individual who
has been subjected to racial or ethnic prejudice or cultural
bias, without regard to individual qualities, because of the
individual's identity as a member of a group.
(9) 'Tier one firm' means a business that employs fewer than 20
full-time equivalent employees and has average annual gross
receipts for the last three years that do not exceed $1.5 million
for a business performing construction, as defined in ORS
446.310, or $600,000 for a business not performing construction.
(10) 'Tier two firm' means a business that employs fewer than
30 full-time equivalent employees and has average annual gross
receipts for the last three years that do not exceed $3 million
for a business performing construction, as defined in ORS
446.310, or $1 million for a business not performing
construction.
(11) 'Woman' means a person of the female sex who is a citizen
or lawful permanent resident of the United States.
SECTION 4. ORS 200.025 is amended to read:
200.025. (1) There is created, in the Office of the Governor,
the { - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + }
who shall be appointed by the Governor.
(2) There is created in the Oregon Business Development
Department the Office for Minority, Women and Emerging Small
Business, the employees of which shall be appointed by the
Director of the Oregon Business Development Department.
(3)(a) The Director { + of the Oregon Business Development
Department + }may prescribe the duties and assignments of all
officers and employees of the Office for Minority, Women and
Emerging Small Business. The director shall establish the
compensation of all officers and employees of the office.
(b) The officers and employees of the office shall be allowed
reimbursement for reasonable and necessary travel and other
expenses incurred in the performance of their duties.
(4) The { - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + }
shall:
(a) Advise the Governor and the Director { + of the Oregon
Business Development Department + } on activities and initiatives
that may promote the economic integration of minorities, women
and emerging small businesses into the business sector;
(b) Prepare an annual report to the Governor, Director { + of
the Oregon Business Development Department + } and Legislative
Assembly on the status of minorities and women in the
marketplace, accomplishments and resolutions of issues of concern
to minority and women's enterprises and recommendations for
executive and legislative actions; { - and - }
{ + (c) Maintain an Oregon Opportunity Register and
Clearinghouse for information on public agency and other contract
solicitations for professional services, supplies and services
and other bid opportunities, in consultation with the State Board
of Higher Education, the Department of Transportation and other
entities; and + }
{ - (c) - } { + (d) + } Carry out other duties that may be
assigned by the Governor.
(5) The Office for Minority, Women and Emerging Small Business
shall:
(a) Provide information to minority, women and emerging small
businesses;
(b) Assist in the development and implementation of an
aggressive strategy for this state, based on research and
monitoring, that encourages participation of minorities, women
and emerging small businesses in the state's economy;
(c) Make recommendations to the Director { + of the Oregon
Business Development Department + } on the research, development
and implementation of the plan for the involvement of
disadvantaged and minority groups and emerging small businesses
in all state programs;
{ - (d) Maintain an Oregon Opportunity Register and
Clearinghouse for information on public agency and other contract
solicitations for professional services, supplies and services
and other bid opportunities, in consultation with the State Board
of Higher Education, the Department of Transportation and other
entities; - }
{ - (e) - } { + (d) + } Monitor the certification and
compliance program for disadvantaged, minority, women and
emerging small businesses under ORS 200.055;
{ - (f) - } { + (e) + } Investigate complaints and possible
abuses of the certification program; and
{ - (g) - } { + (f) + } Assist in the promotion and
coordination of plans, programs and operations of state
government that strengthen minority and women participation in
the economic life of this state.
SECTION 5. ORS 200.035 is amended to read:
200.035. (1) For a public contract with a value of $5,000 or
more, a state agency shall provide timely notice and information
to the { - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + }
regarding:
(a) Bid or proposal solicitations; and
(b) Contract awards.
(2) Each state agency shall, in consultation with the
{ - advocate - } { + director + }, establish a process and
timeline for providing the notice and information required by
subsection (1) of this section to the { - advocate - } { +
director + }.
SECTION 6. ORS 200.045 is amended to read:
200.045. (1) To determine whether a bidder that has failed to
meet emerging small business enterprise contract requirements may
be awarded the contract, the public contracting agency must
decide whether the bidder's efforts to obtain participation by
emerging small business enterprises were good faith efforts to
meet the requirements.
(2) Performing all of the following actions by a bidder
constitutes a rebuttable presumption that the bidder has made a
good faith effort to satisfy the subcontracting requirement for
emerging small businesses. It shall be a rebuttable presumption
that the bidder has not made a good faith effort if the bidder
has not acted consistently with such actions. Efforts that are
merely superficial are not good faith efforts:
(a) The bidder attended any presolicitation or prebid meetings
that were scheduled by the contracting agency to inform emerging
small business enterprises of contracting and subcontracting or
material supply opportunities available on the project;
(b) The bidder identified and selected specific economically
feasible units of the project to be performed by emerging small
business enterprises in order to increase the likelihood of
participation by such enterprises;
(c) The bidder advertised in general circulation, trade
association, minority and trade oriented, women-focus
publications, if any, concerning the subcontracting or material
supply opportunities;
(d) The bidder provided written notice to a reasonable number
of specific emerging small business enterprises, identified from
a list of certified emerging small business enterprises provided
or maintained by the Oregon Business Development Department for
the selected subcontracting or material supply work, in
sufficient time to allow the enterprises to participate
effectively;
(e) The bidder followed up initial solicitations of interest by
contacting the enterprises to determine with certainty whether
the enterprises were interested;
(f) The bidder provided interested emerging small business
enterprises with adequate information about the plans,
specifications and requirements for the selected subcontracting
or material supply work;
(g) The bidder negotiated in good faith with the enterprises,
and did not without justifiable reason reject as unsatisfactory
bids prepared by any emerging small business enterprises;
(h) Where applicable, the bidder advised and made efforts to
assist interested emerging small business enterprises in
obtaining bonding, lines of credit or insurance required by the
contracting agency or contractor;
(i) The bidder's efforts to obtain emerging small business
enterprise participation were reasonably expected to produce a
level of participation sufficient to meet the goals or
requirement of the public contracting agency; and
(j) The bidder used the services of minority community
organizations, minority contractor groups, local, state and
federal minority business assistance offices and other
organizations identified by the { - Advocate for Minority,
Women and Emerging Small Business - } { + Director of Economic
and Business Equity + } that provide assistance in the
recruitment and placement of emerging small business enterprises.
(3) To determine whether a bidder is a responsible bidder, the
performance of all the following actions constitutes a rebuttable
presumption that the bidder is responsible. It shall be a
rebuttable presumption that the bidder is not responsible if the
bidder has not acted consistently with the actions described in
this subsection. Efforts that are merely superficial are not good
faith efforts.
(a) The bidder attended any presolicitation or prebid meetings
that were scheduled by the contracting agency to inform minority
or women business enterprises of contracting and subcontracting
or material supply opportunities available on the project;
(b) The bidder identified and selected specific economically
feasible units of the project to be performed by minority or
women business enterprises in order to increase the likelihood of
participation by such enterprises;
(c) The bidder advertised in general circulation, trade
association, minority and trade oriented, women-focus
publications, if any, concerning the subcontracting or material
supply opportunities;
(d) The bidder provided written notice to a reasonable number
of specific minority or women business enterprises, identified
from a list of certified minority or women business enterprises
provided or maintained by the Oregon Business Development
Department for the selected subcontracting or material supply
work, in sufficient time to allow the enterprises to participate
effectively;
(e) The bidder followed up initial solicitations of interest by
contacting the enterprises to determine with certainty whether
the enterprises were interested;
(f) The bidder provided interested minority or women business
enterprises with adequate information about the plans,
specifications and requirements for the selected subcontracting
or material supply work;
(g) The bidder negotiated in good faith with interested,
capable and competitive minority or women business enterprises
submitting bids;
(h) Where applicable, the bidder advised and made efforts to
assist interested minority or women business enterprises in
obtaining bonding, lines of credit or insurance required by the
contracting agency or contractor;
(i) The bidder's efforts to obtain minority or women business
enterprise participation were reasonably expected to produce a
level of participation sufficient to meet the goals of the public
contracting agency; and
(j) The bidder used the services of minority community
organizations, minority contractor groups, local, state and
federal minority business assistance offices and other
organizations identified by the { - Advocate for Minority,
Women and Emerging Small Business - } { + Director of Economic
and Business Equity + } that provide assistance in the
recruitment and placement of disadvantaged, minority or women
business enterprises.
SECTION 7. ORS 200.055 is amended to read:
200.055. (1) Any disadvantaged, minority, women or emerging
small business enterprise is entitled to be certified as such
upon application to the Oregon Business Development Department.
If the application is approved by the department, the department
shall certify the applicant as a disadvantaged, minority, women
or emerging small business enterprise. The enterprise shall be
considered so certified by any public contracting agency.
(2) In consultation with the State Board of Higher Education
and the Department of Transportation, and with the approval of
the
{ - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + },
the Oregon Business Development Department by rule shall adopt a
uniform standard form and procedure designed to provide complete
documentation that a business enterprise is certified as a
disadvantaged, minority, women or emerging small business
enterprise. The department shall compile and make available upon
request a list of certified disadvantaged, minority, women or
emerging small business enterprises.
(3) Any business enterprise that is refused certification as a
disadvantaged business enterprise or denied recertification as
such or whose certification is revoked may appeal directly to the
United States Department of Transportation.
(4) Any business enterprise that is refused certification as a
minority, women or emerging small business enterprise or has its
certification revoked may request a contested case hearing as
provided in ORS chapter 183.
(5) The Oregon Business Development Department shall be the
sole agency authorized to certify enterprises as disadvantaged,
minority, women or emerging small business enterprises eligible
to perform on public contracts in this state.
(6) The Oregon Business Development Department by rule may
establish a fee not to exceed $100 for a copy of the list of
certified disadvantaged, minority, women and emerging small
business enterprises and may assess state agencies for services
under ORS 200.005 to 200.075.
(7) The Department of Transportation may collect a fee, not to
exceed $200, from a bidder upon bidder prequalifications to cover
the costs of the Oregon Business Development Department in
administering ORS 200.005 to 200.075. The Department of
Transportation shall transfer such fees to the credit of the
account established under subsection (8) of this section.
(8) The Oregon Business Development Department shall establish
a special account in which to deposit fees and assessments. The
special account is continuously appropriated to the department to
meet its expenses in administering ORS 200.005 to 200.075.
SECTION 8. ORS 200.065 is amended to read:
200.065. (1) It shall be unlawful for any person fraudulently
to obtain or retain or attempt to obtain or retain or to aid
another person fraudulently to obtain or retain or attempt to
obtain or retain certification as a disadvantaged, minority,
women or emerging small business enterprise.
(2) It shall be unlawful knowingly to make a false claim that
any person is qualified for certification or is certified under
ORS 200.055 for the purpose of gaining a contract or subcontract
or other benefit.
(3) The public contracting agency may withhold payment, suspend
or terminate the contract and may impose on any person a civil
penalty not to exceed 10 percent of the contract or subcontract
price or $5,000, whichever is less, for each violation of
subsection (1) or (2) of this section. The penalty shall be paid
to the Office for Minority, Women and Emerging Small Business.
(4) The Oregon Business Development Department or an affected
public contracting agency shall investigate any complaint that a
person has violated subsection (1) or (2) of this section. In
investigating such a complaint, the department or an affected
public contracting agency may require any additional information,
administer oaths, take depositions and issue subpoenas to compel
the attendance of witnesses and the production of books, papers,
records, memoranda or other information necessary to carry out
its duties. If any person fails to comply with any subpoena
issued under this subsection or refuses to testify on any matter
on which a person may lawfully be interrogated, the procedure
provided in ORS 183.440 shall be followed to compel compliance.
(5) An affected public contracting agency or the department
{ + may + } disqualify any person found to have violated
subsection (1) or (2) of this section or who admits to such
violation under oath during the course of an investigation from
bidding or participating in any public contract for a period of
time specified by the agency or department, not to exceed three
years. Any contracting agency that has notice of the finding of
the fraudulent certification may also disqualify the person from
bidding on or participating in any public contract.
SECTION 9. ORS 200.090 is amended to read:
200.090. Public agencies shall aggressively pursue a policy of
providing opportunities for available contracts to emerging small
businesses and shall cooperate with the { - Advocate for
Minority, Women and Emerging Small Business - } { + Director of
Economic and Business Equity + } to determine the best means by
which to make such opportunities available.
SECTION 10. ORS 200.100 is amended to read:
200.100. As used in ORS 200.100 to 200.120:
(1) 'Contractor' means a person who contracts on predetermined
terms to be responsible for the performance of all or part of a
job of preparation or construction in accordance with established
specifications or plans, retaining control of means, method and
manner of accomplishing the desired result, and who provides:
(a) Labor at the site; or
(b) Materials, supplies and labor at the site.
(2) 'Disadvantaged business enterprise' means a small business
concern that is at least 51 percent owned by one or more socially
and economically disadvantaged individuals, or, in the case of
any corporation, at least 51 percent of the stock of which is
owned by one or more socially and economically disadvantaged
individuals and whose management and daily business operations
are controlled by one or more of the socially and economically
disadvantaged individuals who own it.
(3) 'Minority or women business enterprise' means a small
business concern which is at least 51 percent owned by one or
more minorities or women, or in the case of a corporation, at
least 51 percent of the stock of which is owned by one or more
minorities or women, and whose management and daily business
operations are controlled by one or more of such individuals.
(4) 'Minority individual' means a person who is a citizen or
lawful permanent resident of the United States and who is:
(a) Black, a person having origins in any of the black racial
groups of Africa;
(b) Hispanic, a person of Mexican, Puerto Rican, Cuban, Central
or South American or other Spanish culture or origin, regardless
of race;
(c) Asian American, a person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent or the Pacific Islands;
(d) Portuguese, a person of Portuguese, Brazilian or other
Portuguese culture or origin, regardless of race;
(e) American Indian or Alaskan Native, a person having origins
in any of the original peoples of North America; or
(f) A member of another group or another individual that is
socially and economically disadvantaged as determined by the
{ - Advocate for Minority, Women and Emerging Small
Business - } { + Director of Economic and Business Equity + }.
(5) 'Subcontractor' means a contractor who has no direct
contractual relationship with the owner.
SECTION 11. { + 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. + }
----------