2017 ORS 279C.306¹
Administrative enforcement of least-cost policy for public improvements
  • procedure
  • civil action

(1)(a) A contractor, or a trade association of contractors acting on behalf of a member of the trade association, may allege in a complaint to the Commissioner of the Bureau of Labor and Industries that a contracting agency has violated ORS 279C.305 (Least-cost policy for public improvements) with respect to a public improvement that a contractor was eligible to construct.

(b) A complaint under paragraph (a) of this subsection must set forth the acts or omissions that constitute the alleged violation. The contractor or trade association must file the complaint with the commissioner within one year after the contractor or trade association discovered or should have known that the violation occurred.

(c) The contractor or trade association must submit along with a complaint under paragraph (a) of this subsection a filing fee of $250. If the commissioner finds substantial evidence of a violation, the commissioner shall refund the filing fee. The commissioner by rule may specify other circumstances in which the commissioner will refund the filing fee.

(d) The commissioner shall dismiss a complaint under this subsection if the contractor or trade association brings an action in a court of this state or initiates another proceeding that alleges an act or omission that is the same or substantially similar to an act or omission the contractor or trade association alleged in the complaint.

(2)(a) The commissioner shall investigate a violation of ORS 279C.305 (Least-cost policy for public improvements) that is alleged in a complaint under subsection (1) of this section or that the commissioner discovers or otherwise has reason to believe occurred unless the commissioner reasonably concludes that the facts alleged do not constitute a violation or that the complaint is frivolous or was filed to harass the contracting agency or for purposes other than to enforce the requirements of ORS 279C.305 (Least-cost policy for public improvements).

(b) In the course of an investigation under this subsection, to the extent reasonably necessary, the commissioner may:

(A) Compel attendance from witnesses, receive testimony and examine the witnesses under oath;

(B) Require a contracting agency or an employee of a contracting agency to produce books, records, files and other documents; and

(C) Take any other action the commissioner deems necessary to conduct the investigation.

(3)(a) The commissioner must conclude an investigation under subsection (2) of this section within 60 days after beginning the investigation and must either find substantial evidence of a violation of ORS 279C.305 (Least-cost policy for public improvements) or end the investigation and dismiss any complaint. If the commissioner finds substantial evidence of a violation, the commissioner shall:

(A) Notify the contracting agency in writing that the commissioner has found substantial evidence of a violation of ORS 279C.305 (Least-cost policy for public improvements), describe the nature of the violation and, if the commissioner has not found substantial evidence of a violation in the five years preceding the date on which the commissioner began the investigation, state that for future violations, the commissioner will require the contracting agency to negotiate an agreement under paragraph (b) of this subsection.

(B) Provide a copy of any notice the commissioner issued under subparagraph (A) of this paragraph to any contractor or trade association that filed a complaint concerning the violation under subsection (1) of this section.

(b) If the commissioner in the course of an investigation under subsection (2) of this section finds substantial evidence that the contracting agency violated ORS 279C.305 (Least-cost policy for public improvements) within the five years preceding the date on which the commissioner began the investigation, the commissioner shall specify a period of time within which the contracting agency must negotiate an agreement with the contractor or the trade association to remedy the violation and prevent future violations.

(c) If the contracting agency and the contractor or trade association enter into an agreement within the specified period, the commissioner in an order shall set forth, and direct the contracting agency to comply with, the terms of the agreement.

(d) If negotiations between the contracting agency and the contractor or trade association do not result in an agreement within the time the commissioner specifies, the commissioner may:

(A) Extend the time period for negotiations;

(B) End negotiations and dismiss the complaint, provided that the commissioner states the commissioner’s reasons for the dismissal in an order to dismiss the complaint; or

(C) End negotiations and initiate a contested case hearing against the contracting agency under ORS chapter 183.

(4)(a) If a contracting agency that is a party to an agreement set forth in accordance with an order of the commissioner under subsection (3)(c) of this section breaches the agreement, a contractor or trade association that is a party to the agreement may submit a complaint to the commissioner that asks the commissioner to enforce the agreement. The contractor or trade association must file the complaint within 180 days after the date the contractor or trade association discovered or should have known of the breach.

(b) The commissioner shall investigate a complaint that a contractor or trade association files under paragraph (a) of this subsection as provided in subsection (2) of this section. If the commissioner finds substantial evidence that the contracting agency materially breached the agreement, the commissioner may:

(A) Issue an order to cease and desist from the contracting agency’s material breach and to perform actions that the commissioner determines will carry out the purposes of ORS 279C.305 (Least-cost policy for public improvements) and remedy the effects of the breach; or

(B) Conduct a contested case hearing in accordance with ORS chapter 183.

(c) An order to cease and desist that the commissioner issues under paragraph (b)(A) of this subsection may not include an award of attorney fees. The remedy that the commissioner orders may include requiring the contracting agency to enter into a contract with a contractor to perform any remaining construction on the public improvement that is the subject of the contracting agency’s violation.

(5)(a) If the commissioner finds by a preponderance of the evidence in a contested case hearing under subsection (3)(d)(C) of this section that a local contracting agency violated the least cost policy set forth in ORS 279C.305 (Least-cost policy for public improvements) (1), or in a contested case hearing under subsection (4)(b)(B) of this section that a local contracting agency materially breached the agreement described in subsection (3)(c) of this section, the commissioner shall order the contracting agency to cease and desist from the conduct that constitutes the breach and may impose a civil penalty of not more than $5,000 for the violation or breach or a civil penalty of not more than $20,000 if the commissioner determines that the local contracting agency willfully engaged in a violation of the least cost policy set forth in ORS 279C.305 (Least-cost policy for public improvements) (1).

(b) The commissioner shall impose a civil penalty under paragraph (a) of this subsection in accordance with ORS 183.745 (Civil penalty procedures) and shall apply the proceeds of the civil penalty first to the costs of the commissioner’s investigation and any administrative proceedings that result from the investigation. The commissioner shall deposit any remaining proceeds in the State Treasury to the credit of the General Fund.

(6) In addition to other available remedies for violations of orders of the commissioner, a contractor or trade association may bring a civil action to enforce a cease and desist order issued under subsection (5)(a) of this section through writ of mandamus or specific performance. [2017 c.715 §3]

Note: 279C.306 (Administrative enforcement of least-cost policy for public improvements) was added to and made a part of ORS chapter 279C by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

1 Legislative Counsel Committee, CHAPTER 279C—Public Improvements and Related Contracts, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors279C.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.