ORS 279C.527
Inclusion of amount for green energy technology or woody biomass energy technology in public improvement contract

  • written determination of appropriateness
  • conditions, exemptions and limitations
  • rules

(1)

As used in this section and ORS 279C.528 (State Department of Energy requirements and specifications):

(a)

Intentionally left blank —Ed.

(A)

“Green energy technology” means a system that employs:
(i)
Solar or geothermal energy directly for space or water heating or to generate electricity;
(ii)
Building design that uses solar energy passively to reduce energy use from other sources by at least 10 percent from a level required under ORS 276.900 (Policy) to 276.915 (Energy design requirements) or achieved in buildings constructed according to state building code standards that the Department of Consumer and Business Services approves under ORS 455.496 (Standards relating to energy use and energy efficiency aspects of specialty codes); or
(iii)
Battery storage, if the battery storage is part of a system that generates electricity from solar or geothermal energy on the site of the public building.

(B)

“Green energy technology” does not include a system that:
(i)
Uses water, groundwater or the ground as a heat source at temperatures less than 140 degrees Fahrenheit, or less than 128 degrees Fahrenheit if the system is used for a public school building; or
(ii)
Incorporates solar energy indirectly into other methods for generating energy, such as from the action of waves on water, from hydroelectric facilities or from wind-powered turbines.

(b)

Intentionally left blank —Ed.

(A)

“Public building” means a building that a public body, as defined in ORS 174.109 (“Public body” defined), owns or controls, and that is:
(i)
Used or occupied by employees of the public body; or
(ii)
Used for conducting public business.

(B)

“Public building” does not include an airport, as defined in ORS 836.005 (Definitions).

(c)

Intentionally left blank —Ed.

(A)

“Total contract price” means all of the costs a contracting agency anticipates incurring in all contracts and subcontracts involved in constructing, reconstructing or performing a major renovation of a public building including design or architecture, engineering, transportation or environmental impact assessment and planning, construction management, labor, materials, land surveying and site preparation, demolition, hazardous material removal, required reinforcements or improvements to existing structures or appurtenant infrastructure, insurance, inspections and certifications and, except as provided in subparagraph (B) of this paragraph, other costs the contracting agency would not incur but for the construction, reconstruction or major renovation of the public building.

(B)

“Total contract price” does not include:
(i)
Costs of advertising, soliciting, evaluating bids or proposals for or awarding a public contract;
(ii)
Costs of moving contracting agency employees, equipment and furnishings from and to a public building;
(iii)
Costs of locating, renting or leasing and preparing to occupy alternative facilities;
(iv)
Ordinary operating costs for a public building during periods of reconstruction or renovation;
(v)
Costs of storing equipment or furnishings at a site away from a public building;
(vi)
Labor costs for employees of a contracting agency;
(vii)
Direct costs that are solely for the purpose of retrofitting or improving a public building’s ability to withstand a seismic event; and
(viii)
Costs that bear only a tenuous relationship to the construction, reconstruction or major renovation of a public building.

(d)

Intentionally left blank —Ed.

(A)

“Woody biomass energy technology” means a system that, for space or water heating or as a combined heat and power system, uses a boiler with a lower heating value combustion efficiency of at least 80 percent and that uses as fuel material from trees and woody plants, such as limbs, tops, needles, leaves and other woody parts, that:
(i)
Grows in a forest, a woodland, a farm, a rangeland or a wildland that borders on an urban area; and
(ii)
Is a by-product of forest management, agriculture, ecosystem restoration or fire prevention or related activities.

(B)

“Woody biomass energy technology” does not include a system that uses for fuel:
(i)
Wood pieces that have been treated with creosote, pentachlorophenol, chromated copper arsenate or other chemical preservatives; or
(ii)
Municipal solid waste.

(2)

Intentionally left blank —Ed.

(a)

Except as otherwise provided in this section, a contracting agency that intends to enter into a public improvement contract with a total contract price of $5 million or more for constructing a public building or for reconstructing or performing a major renovation of a public building, if the cost of the reconstruction or major renovation exceeds 50 percent of the value of the public building, shall first make a determination under subsection (5) of this section as to whether green energy technology is appropriate for the public building.

(b)

If a contracting agency determines that green energy technology is appropriate, the contracting agency shall ensure that the public improvement contract provides an amount equal to at least 1.5 percent of the total contract price for the purpose of including appropriate green energy technology as part of the construction, reconstruction or major renovation of the public building.

(3)

Intentionally left blank —Ed.

(a)

A public improvement contract to construct, reconstruct or renovate a public building may provide for constructing green energy technology, other than battery storage, at a site that is located away from the site of the public building if:

(A)

Constructing green energy technology away from the site of the public building and using the energy from the green energy technology at the site of the public building is more cost-effective, taking into account additional costs associated with transmitting generated energy to the site of the public building, than is constructing and using green energy technology at the site of the public building;

(B)

The green energy technology that is located away from the site of the public building is located within this state and in the same county as, or in a county adjacent to, the site of the public building; and

(C)

The public improvement contract provides that all of the moneys for constructing green energy technology away from the site of the public building must fund new energy generating capacity that does not replace or constitute a purchase and use of energy generated from green energy technology that:
(i)
Employs solar energy and that existed on the date that the original building permit for the public building was issued; or
(ii)
Employs geothermal energy and for which construction was completed before January 1, 2013.

(b)

In evaluating whether a contracting agency can construct green energy technology, other than battery storage, at a site away from the site of the public building in accordance with paragraph (a)(A) of this subsection, the contracting agency shall compare the costs of constructing green energy technology that employs a particular fuel source or method of energy generation at the site of the public building only with the corresponding costs of green energy technology that employs the same fuel source or method of energy generation at a location away from the site of the public building.

(4)

Intentionally left blank —Ed.

(a)

Of the amount that a contracting agency provides in a public improvement contract under subsection (2) of this section for the purpose of including green energy technology as part of the construction, reconstruction or major renovation of a public building, the contracting agency may expend as much as half or, if green energy technology is not appropriate for the public building, the entirety, as follows:

(A)

If an analysis under subsection (5)(a)(B) of this section shows that the available total solar resource fraction at the site of the public building is 75 percent or less, the contracting agency may improve energy use efficiency in the public building by:
(i)
Designing, engineering and constructing, reconstructing or renovating the public building to reduce or offset energy use in accordance with guidelines the State Department of Energy adopts by rule; or
(ii)
Installing or preparing the public building for an installation of devices, technologies and other measures that reduce or offset energy use in accordance with guidelines the department adopts by rule.

(B)

The contracting agency may include woody biomass energy technology as part of constructing, reconstructing or performing a major renovation on the public building if the woody biomass energy technology creates new energy generation capacity that did not exist on the date on which the original building permit for the public building was issued, the contracting agency has considered the potential costs of the woody biomass energy technology and:
(i)
The facility that uses woody biomass energy technology is located in an area of the state that complies with standards that the Department of Environmental Quality has adopted for emissions of particulate matter; or
(ii)
The contracting agency demonstrates to the Department of Environmental Quality, if the facility that uses woody biomass energy technology is located in an area that does not comply with standards the department has adopted for emissions of particulate matter, that one of the following two conditions applies:

(I)

The fuel that the woody biomass energy technology uses is pelletized; or

(II)

The woody biomass energy technology produces particulate matter emissions at the same level as, or a lower level than, a functionally equivalent system that is capable of producing the same energy output and that uses fuel that is pelletized.

(b)

Notwithstanding a contracting agency’s demonstrations in accordance with subparagraph (B)(ii) of this paragraph, the Department of Environmental Quality may require additional emissions control technologies or specifications before the contracting agency may include woody biomass energy technology in the construction, reconstruction or major renovation of a public building.

(5)

Intentionally left blank —Ed.

(a)

In making a written determination as to whether green energy technology is appropriate, or whether an expenditure for a purpose described in subsection (4) of this section is suitable as an addition to or an alternative to including green energy technology in constructing, reconstructing or performing a major renovation of a public building, a contracting agency in the written determination shall:

(A)

List the total contract price and specify the amount the agency intends to expend on including green energy technology or for a purpose described in subsection (4) of this section as part of the construction, reconstruction or major renovation.

(B)

Show the results of an analysis of the total solar resource fraction available for use at the site on which the contracting agency intends to install green energy technology that uses solar energy for space or water heating or to generate electricity. The contracting agency may conclude that the green energy technology described in this subparagraph is appropriate if the total solar resource fraction exceeds 75 percent.

(b)

The State Department of Energy shall develop a form that a contracting agency may use to prepare the written determination described in this subsection.

(6)

Intentionally left blank —Ed.

(a)

If a contracting agency determines that green energy technology is not appropriate for a public building, subsection (2) of this section does not apply to the public improvement contract, except that if the contracting agency determines that an expenditure for a purpose described in subsection (4) of this section is a suitable alternative, the contracting agency will make the determination specified in subsection (5) of this section for the alternative purpose. A contracting agency’s determination under this paragraph must consider whether constructing green energy technology or making an expenditure for a purpose described in subsection (4) of this section at the site of the public building is appropriate and whether constructing green energy technology, other than battery storage, away from the site of the public building and in accordance with subsection (3)(a) and (b) of this section, or making an expenditure for a purpose described in subsection (4) of this section away from the site of the public building, is appropriate.

(b)

If subsection (2) of this section does not apply to the public improvement contract and the contracting agency does not choose to make an expenditure for a purpose described in subsection (4) of this section:

(A)

The contracting agency shall expend an amount equal to at least 1.5 percent of the total contract price to include appropriate green energy technology or for a purpose described in subsection (4) of this section as part of a future public building project; and

(B)

The amount the contracting agency expends on the future public building project in accordance with subparagraph (A) of this paragraph is in addition to any amount required under subsection (2) of this section for including appropriate green energy technology as part of the future public building project.

(7)

A contracting agency may choose to consolidate in one public building, or in one location away from the site of the public building, all or a substantial portion of the green energy technology that the contracting agency would otherwise include as part of the construction, reconstruction or major renovation of one or more other public buildings if:

(a)

The total amount the contracting agency expends on green energy technology is an aggregate of all of the amounts that, under this section and ORS 279C.528 (State Department of Energy requirements and specifications), the contracting agency must expend on each of the public buildings that are part of the same project; and

(b)

The project, taken as a whole, otherwise meets the requirements set forth in this section and ORS 279C.528 (State Department of Energy requirements and specifications).

(8)

Intentionally left blank —Ed.

(a)

A contracting agency need not set aside the amount described in subsection (6)(b) of this section in an account or otherwise reserve moneys for a future public building at the time the contracting agency makes the determination described in subsection (5) of this section, but the contracting agency shall report the amount described in subsection (6)(b) of this section to the State Department of Energy as provided in ORS 279C.528 (State Department of Energy requirements and specifications) (2).

(b)

Subsection (6)(b) of this section does not apply to a public improvement contract for which state funds are not directly or indirectly used.

(9)

Intentionally left blank —Ed.

(a)

This section does not exempt an authorized state agency, as defined in ORS 276.905 (Definitions for ORS 276.900 to 276.915), from complying with ORS 276.900 (Policy) to 276.915 (Energy design requirements), except that an authorized state agency, without complying with ORS 276.900 (Policy) to 276.915 (Energy design requirements), may determine that green energy technology or an alternative technology described in subsection (4) of this section is appropriate to include as part of constructing, reconstructing or performing a major renovation of a public building.

(b)

A contracting agency may not use an amount described in subsection (6)(b) of this section to comply with requirements set forth in ORS 276.900 (Policy) to 276.915 (Energy design requirements) or with a state building code standard that the Department of Consumer and Business Services approves under ORS 455.496 (Standards relating to energy use and energy efficiency aspects of specialty codes).

(10)

Notwithstanding the provisions of ORS 174.108 (Effect of definitions) (3), this section applies to intergovernmental entities described in ORS 174.108 (Effect of definitions) (3). [2007 c.310 §2; 2012 c.83 §1; 2013 c.612 §1; 2015 c.262 §1; 2015 c.424 §1; 2017 c.735 §1; 2019 c.160 §1]
Note: 279C.527 (Inclusion of amount for green energy technology or woody biomass energy technology in public improvement contract) and 279C.528 (State Department of Energy requirements and specifications) were added to and made a part of 279C.005 (Definitions) to 279C.670 (Application of ORS 279C.650 to 279C.670) by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

Source: Section 279C.527 — Inclusion of amount for green energy technology or woody biomass energy technology in public improvement contract; written determination of appropriateness; conditions, exemptions and limitations; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors279C.­html.

279C.005
Definitions
279C.010
Applicability
279C.100
Definitions for ORS 279C.100 to 279C.125
279C.105
Contracts for architectural, engineering, photogrammetric mapping, transportation planning or land surveying and related services
279C.107
Public disclosure of contents of proposals for architectural, engineering, photogrammetric mapping, transportation planning or land surveying services
279C.110
Selection procedures for consultants to provide services
279C.115
Direct contracts for services of consultants
279C.120
Selection procedure for related services
279C.125
Architectural, engineering, photogrammetric mapping, transportation planning and land surveying services selection process for local public improvements procured through state agency
279C.300
Policy on competition
279C.305
Least-cost policy for public improvements
279C.306
Administrative enforcement of least-cost policy for public improvements
279C.307
Limitations in procurement of personal services
279C.308
Community benefit contract
279C.310
Limitation on contracting agency constructing public improvement
279C.315
Waiver of damages for unreasonable delay by contracting agency against public policy
279C.320
Contracts for construction other than public improvements
279C.325
Limitation on contracting agency awarding contract to nonresident education service district
279C.330
“Findings” defined
279C.332
Definitions for ORS 279A.065, 279C.307, 279C.335, 279C.337 and 279C.380
279C.335
Competitive bidding requirement
279C.337
Procurement of constructions manager/general contractor services
279C.340
Contract negotiations
279C.345
Specifications for contracts
279C.350
Exemption procedure
279C.355
Evaluation of public improvement projects not contracted by competitive bidding
279C.360
Requirement for public improvement advertisements
279C.365
Requirements for solicitation documents and bids and proposals
279C.370
First-tier subcontractor disclosure
279C.375
Award and execution of contract
279C.380
Performance bond
279C.385
Return or retention of bid security
279C.390
Exemption of contracts from bid security and bonds
279C.395
Rejection of bids
279C.400
Competitive proposals
279C.405
Requests for information, interest or qualifications
279C.410
Receipt of proposals
279C.412
Competitive quotes for intermediate procurements
279C.414
Requirements for competitive quotes
279C.430
Prequalification of bidders
279C.435
Effect of prequalification by Department of Transportation or Oregon Department of Administrative Services
279C.440
Disqualification from consideration for award of contracts
279C.445
Appeal of disqualification
279C.450
Appeal procedure for decision to deny, revoke or revise prequalification
279C.460
Action by or on behalf of adversely affected bidder or proposer
279C.465
Action against successful bidder
279C.470
Compensation for contractor on contract declared void by court
279C.500
“Person” defined
279C.505
Conditions concerning payment, contributions, liens, withholding, drug testing
279C.510
Demolition contracts to require material salvage
279C.515
Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints
279C.520
Condition concerning hours of labor
279C.525
Provisions concerning environmental and natural resources laws
279C.527
Inclusion of amount for green energy technology or woody biomass energy technology in public improvement contract
279C.528
State Department of Energy requirements and specifications
279C.530
Condition concerning payment for medical care and providing workers’ compensation
279C.533
Condition concerning employment of apprentices to perform percentage of work hours that workers in apprenticeable occupations perform on public improvements
279C.534
Advisory committee for monitoring implementation of apprenticeship condition in public improvement contracts
279C.535
Condition concerning steel material
279C.537
Condition concerning use of diesel engines in motor vehicles used in performing certain public improvement contracts
279C.540
Maximum hours of labor on public contracts
279C.545
Time limitation on claim for overtime
279C.550
“Retainage” defined
279C.555
Withholding of retainage
279C.560
Form of retainage
279C.565
Limitation on retainage requirements
279C.570
Prompt payment policy
279C.580
Contractor’s relations with subcontractors
279C.585
Authority to substitute undisclosed first-tier subcontractor
279C.590
Complaint process for substitutions of subcontractors
279C.600
Right of action on payment bond or public works bond of contractor or subcontractor
279C.605
Notice of claim
279C.610
Action on contractor’s public works bond or payment bond
279C.615
Preference for labor and material liens
279C.620
Rights of person providing medical care to employees of contractor
279C.625
Joint liability when payment bond not executed
279C.650
“Labor dispute” defined
279C.655
Extension and compensation when work suspended
279C.660
Compensation when contract terminated due to public interest
279C.665
Contractual provisions for compensation when contract terminated due to public interest
279C.670
Application of ORS 279C.650 to 279C.670
279C.800
Definitions for ORS 279C.800 to 279C.870
279C.805
Policy
279C.807
Workforce diversity for public works projects
279C.808
Rules
279C.810
Exemptions
279C.815
Determination of prevailing wage
279C.817
Determination of applicability of prevailing wage rate
279C.820
Advisory committee to assist commissioner
279C.825
Fees
279C.827
Division of public works project
279C.829
Agreement with other state to pay less than prevailing rate of wage
279C.830
Provisions concerning prevailing rate of wage in specifications, contracts and subcontracts
279C.835
Notifying commissioner of public works contract subject to prevailing wage
279C.836
Public works bond
279C.838
Applicability of state and federal rates of wage
279C.840
Payment of prevailing rate of wage
279C.845
Certified statements regarding payment of prevailing rates of wage
279C.850
Inspection to determine whether prevailing rate of wage being paid
279C.855
Liability for violations
279C.860
Ineligibility for public works contracts for failure to pay or post notice of prevailing rates of wage
279C.865
Civil penalties
279C.870
Civil action to enforce payment of prevailing rates of wage
279C.875
Criminal liability for intentional failure to pay prevailing wage
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