ORS 279B.400
Protests and judicial review of approvals of special procurements


(1)

Before seeking judicial review of the approval of a special procurement, a person must file a protest, in accordance with the rules adopted under ORS 279A.065 (Model rules generally), with the Director of the Oregon Department of Administrative Services or the local contracting agency, as applicable, and exhaust all available nonjudicial remedies. The rules adopted under ORS 279A.065 (Model rules generally) shall provide a reasonable time and manner for affected persons to protest the approval of a special procurement under ORS 279B.085 (Special procurements).

(2)

The approval of a class special procurement by the director under ORS 279B.085 (Special procurements) constitutes rulemaking and not a contested case under ORS chapter 183. Any affected person, except the state contracting agency that requested the approval or anyone representing the state contracting agency, may petition the Court of Appeals in the manner provided in ORS 183.400 (Judicial determination of validity of rule) to test the validity of a class special procurement approved by the director. A proceeding under ORS 183.400 (Judicial determination of validity of rule) does not affect the validity of a contract executed pursuant to a class special procurement before the petition is filed. Notwithstanding ORS 183.400 (Judicial determination of validity of rule) (1), before seeking judicial review under this subsection, a person must file a protest with the director as described in subsection (1) of this section.

(3)

Intentionally left blank —Ed.

(a)

The approval of a contract-specific special procurement by the director is reviewable under ORS 183.484 (Jurisdiction for review of orders other than contested cases), but only if judicial review is sought before the contract is awarded. Otherwise, a contract awarded pursuant to the contract-specific special procurement is conclusively presumed valid and may not, in any future judicial or administrative proceeding, be challenged on the ground that the contract was awarded under an invalid special procurement.

(b)

Judicial review may be sought from the Circuit Court for Marion County or the circuit court for the county in which the principal offices of the state contracting agency that requested the approval are located. The circuit court shall give priority on its docket and expedited review to proceedings under this subsection.

(4)

Intentionally left blank —Ed.

(a)

The approval of a special procurement by a local contract review board may be challenged by filing a writ of review under ORS chapter 34, provided that all available nonjudicial remedies first have been exhausted, including protests as described in subsection (1) of this section. Notwithstanding the 60-day filing period prescribed by ORS 34.030 (Jurisdiction to grant writ), the approval of a special procurement is not subject to a writ of review proceeding more than 10 days after the board approves the use of the special procurement.

(b)

The writ of review may be filed with and is reviewable by the circuit court for the county in which the principal offices of the local contracting agency that requested the approval are located. The circuit court shall give priority on its docket and expedited review to proceedings under this subsection.

(5)

If timely judicial review is sought regarding the approval of a special procurement under ORS 279B.085 (Special procurements), the contracting agency may not proceed with contract execution unless the contracting agency determines that there is a compelling governmental interest in proceeding or that the goods or services are urgently needed. If the contracting agency makes such a determination, the contracting agency shall set forth the reasons for the determination in writing and immediately provide them to the person who filed the challenge. Thereafter, after joining the prospective contractor as a party to the litigation and upon motion by the person filing the challenge, the court may nonetheless stay the performance of the contract if the court finds that the contracting agency’s determination of the existence of a compelling governmental interest in proceeding with contract execution, or the contracting agency’s determination that the goods or services were urgently needed, was not supported by substantial evidence or constituted a manifest abuse of discretion. In granting a stay, the court may require the person seeking the stay to post a bond in an amount sufficient to protect the contracting agency and the public from costs associated with delay in contract performance.

(6)

In its review, the circuit court shall give due deference to any factual contracting decision made by the contracting agency and may not substitute its judgment for that of the contracting agency, but shall review all questions of law de novo. Thereafter:

(a)

If a contract has not been executed and the court rules in favor of the party that sought judicial review, and if the violation could have affected the award of the contract, the court shall remand the procurement to the contracting agency for a determination whether to continue with the procurement process in light of the court’s decision.

(b)

In addition to the relief provided for in paragraph (a) of this subsection, if a contract has been executed and the court rules in favor of the party that sought judicial review, the court shall include in its order a determination whether the party that signed the contract with the contracting agency is entitled to reimbursement under the conditions of, and calculated in the same manner as provided in, ORS 279C.470 (Compensation for contractor on contract declared void by court). Notwithstanding that ORS 279C.470 (Compensation for contractor on contract declared void by court) otherwise applies only to public improvement contracts, under this paragraph the court shall apply ORS 279C.470 (Compensation for contractor on contract declared void by court) to both public improvement contracts and other public contracts of contracting agencies.

(c)

The court may award costs and attorney fees to the prevailing party. [2003 c.794 §83; 2005 c.103 §8g]

Source: Section 279B.400 — Protests and judicial review of approvals of special procurements, https://www.­oregonlegislature.­gov/bills_laws/ors/ors279B.­html.

279B.005
Definitions
279B.010
Policy
279B.015
Applicability
279B.020
Maximum hours of labor on public contracts
279B.025
Procurement practices regarding recyclable and reusable goods
279B.030
Demonstration that procurement will cost less than performing service with contracting agency’s own personnel and resources or that performing service is not feasible
279B.033
Contents of cost analysis
279B.036
Determination of feasibility of procurement
279B.040
Prohibition on accepting bid or proposal from contractor that advised or assisted contracting agency to develop specifications or solicitation documents
279B.045
Contractor warranty and covenant concerning tax law compliance
279B.050
Methods of source selection
279B.055
Competitive sealed bidding
279B.060
Competitive sealed proposals
279B.065
Small procurements
279B.070
Intermediate procurements
279B.075
Sole-source procurements
279B.080
Emergency procurements
279B.085
Special procurements
279B.100
Cancellation, rejection, delay of invitations for bids or requests for proposals
279B.110
Responsibility of bidders and proposers
279B.112
Personnel deployment disclosure
279B.115
Qualified products lists
279B.120
Prequalification of prospective bidders and proposers
279B.125
Application for prequalification
279B.130
Debarment of prospective bidders and proposers
279B.135
Notice of intent to award
279B.140
Price agreements
279B.145
Finality of determinations
279B.200
Definitions for ORS 279B.200 to 279B.240
279B.205
Specifications to encourage reasonable competition
279B.210
Policy
279B.215
Brand name or equal specification
279B.220
Conditions concerning payment, contributions, liens, withholding
279B.225
Condition concerning salvaging, recycling, composting or mulching yard waste material
279B.230
Condition concerning payment for medical care and providing workers’ compensation
279B.235
Condition concerning hours of labor
279B.240
Exclusion of recycled oils prohibited
279B.270
State contracting agencies to use recovered resources and recycled materials
279B.275
Purchase of goods containing recycled polyethylene material
279B.280
Use of recycled products when economically feasible
279B.283
Condition concerning use of conflict minerals
279B.400
Protests and judicial review of approvals of special procurements
279B.405
Protests and judicial review of solicitations
279B.410
Protests of contract award
279B.415
Judicial review of protests of contract award
279B.420
Judicial review of other violations
279B.425
Review of prequalification and debarment decisions
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