ORS 279C.306
Administrative enforcement of least-cost policy for public improvements

  • procedure
  • civil action

(1)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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.

Source: Section 279C.306 — Administrative enforcement of least-cost policy for public improvements; procedure; civil action, 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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