Current through Register Vol. 63, No. 9, September 1, 2024
The Attorney General has determined that the degree of risk to
Agencies is not materially reduced by legal review and approval of certain
Public Contracts. The Attorney General exempts from the legal sufficiency
approval requirement under ORS
291.047 the Public Contracts
listed below:
(1) Adoption Assistance
Agreements. A document of understanding between the Oregon Department of Human
Services and adoptive parents of a special needs child as defined under title
IV-E at section 473(c) of the Social Security Act.
(2) Amendments to Public Contracts other than
for Public Improvements, Public Works, and Loans. A written amendment to a
Public Contract that is not for a Public Improvement, Public Works, or loan, if
(a), (b) and (c) below apply:
(a) The Public
Contract being amended was approved for legal sufficiency.
(b) The amendment only modifies the Public
Contract or any related payment amounts in one or more of the following ways:
(A) Amends the Statement of Work to require
the contractor to provide additional or fewer goods, services, or other work
that are specified by Last Reviewed Contract; or
(B) Amends the expiration date of the Public
Contract; Technical Specifications; time; or place, quantity or form of
delivery, or price; or
(C) Any
provisions as specified in writing at the time of approval by the Assistant
Attorney General who provided legal sufficiency approval of the Last Reviewed
Contract, based on the Assistant Attorney General's finding that the degree of
risk assumed by the Agency will not be materially reduced by legal review and
approval of the provisions.
(c) The aggregate increase in payments
scheduled to be made by the Agency, or the aggregate decrease in payments
scheduled to be received by the Agency, under the amendment, and all prior
amendments exempted from the legal sufficiency approval requirement under this
section subsequent to the Last Reviewed Contract, does not exceed the greater
of:
(A) $250,000; or
(B) Any limits specified in writing at the
time of legal sufficiency approval of the Last Reviewed Contract by the
Assistant Attorney General based on their finding that the degree of risk
assumed by the Agency will not be materially reduced by review of amendments
that do not increase payments over the limits specified by the Assistant
Attorney General.
(3) Amendments to Public Improvement
Contracts or Public Contracts for a Public Work if (a), (b), or (c) below
apply:
(a) A written change order or other
amendment to a Public Improvement Contract or a Public Contract for a Public
Work, other than a construction manager/general contractor contract, as
provided in subsection (3)(b) below, or a design-build contract or energy
savings performance contract as provided in subsection (3)(c) of this section,
if all of the following apply:
(A) The Public
Improvement Contract or the Public Contract for a Public Work being amended was
approved for legal sufficiency.
(B)
The change order or other amendment is within the general scope of the Public
Improvement Contract or the Public Contract for a Public Work.
(C) The change order or other amendment is
implemented in accordance with the provisions of the Public Improvement
Contract or the Public Contract for a Public Work governing change orders and
other types of amendments.
(D) The
change order or other amendment modifies only one or both of the following and
related payment amounts as necessary:
(i) The
Statement of Work to require the contractor to provide additional or fewer
materials, tools, equipment, labor or professional or non-professional services
within the general scope of the Last Reviewed Contract;
(ii) The substantial completion date, the
final completion date, or interim milestone dates of the Public Improvement
Contract or the Public Contract for a Public Work; Technical Specifications;
time, place, quantity or form of delivery of materials, tools, equipment or
services; or price.
(E)
Any increase in Agency payments under the change order or other amendment does
not exceed ten percent (10%) of the total amount of Agency payments scheduled
to be made under the Last Reviewed Contract, and the aggregate increase in
Agency payments scheduled to be made under that change order or other
amendment, and all prior change orders or other amendments effective after the
Last Reviewed Contract do not exceed thirty-three percent (33%) of that total
amount.
(b) An amendment
to a CM/GC contract (as defined in OAR 137-049-0610) that complies with either
paragraph (3)(b)(A) or (B) below, whether the amendment is in the form of a
change order or other amendment:
(A) The
amendment is made before construction services have been authorized under the
CM/GC contract and:
(i) The CM/GC contract was
approved for legal sufficiency;
(ii) The amendment is implemented in
accordance with the provisions of the CM/GC contract governing change orders
and other amendments; and
(iii) The
amendment modifies only one or more of the following and related payment
amounts as necessary:
(I) The Statement of
Work to require the CM/GC to provide additional or fewer materials, equipment,
or pre-construction services within the general scope of the Last Reviewed
Contract.
(II) The substantial
completion date, the final completion date, or interim milestone dates of the
CM/GC contract; Technical Specifications; time, place, quantity or form of
delivery of services; or price.
(iv) Any increase in Agency payments under
the amendment does not exceed ten percent (10%) of the total amount of Agency
payments scheduled to be made under the Last Reviewed Contract, and the
aggregate increase in Agency payments scheduled to be made under that amendment
and all prior amendments subsequent to the Last Reviewed Contract do not exceed
thirty-three percent (33%) of that total amount.
(B) The amendment is made after construction
services have been authorized under the CM/GC contract and complies with all of
the following:
(i) The CM/GC contract being
amended was approved for legal sufficiency;
(ii) The amendment is implemented in
accordance with the provisions of the CM/GC contract governing change orders
and other types of amendments;
(iii) The amendment is not the first
amendment that authorizes construction services under the CM/GC
contract;
(iv) The amendment does
not establish the guaranteed maximum price ("GMP") under the CM/GC contract;
and
(v) The amendment modifies only
one or both of the following and related payment amounts as necessary.
(I) The Statement of Work to require the
CM/GC to provide additional or fewer materials, tools, equipment, labor or
professional or non-professional services within the general scope of the Last
Reviewed Contract.
(II) The
substantial completion date, the final completion date, or interim milestone
dates of the CM/GC contract; Technical Specifications; time, place, quantity or
form of delivery of materials, tools, equipment or services; or the
price.
(vi) The
amendment does not increase the contract price (whether a GMP, fixed price,
lump sum or other price) established under the Last Reviewed Contract by more
than $500,000.
(vii) The amendment
and all prior amendments subsequent to the Last Reviewed Contract in the
aggregate do not increase the contract price (whether a GMP, fixed price, lump
sum or other price) established under the Last Reviewed Contract by more than
ten percent (10%).
(c) An amendment to a Design-Build contract
(as defined in OAR 137-049-0610), or an amendment to an Energy Savings
Performance Contract (as defined in ORS
279A.010(1)(g))
that is in the construction phase, whether the amendment is in the form of a
change order or a conventional amendment, if all of the following apply:
(A) The contract being amended was approved
for legal sufficiency;
(B) The
amendment is implemented in accordance with the provisions of the Design-Build
or Energy Savings Performance Contract governing change orders and other types
of amendments;
(C) The amendment
modifies only one or both of the following and related payment obligations as
necessary:
(i) The Statement of Work to
require the Design/Builder or Energy Savings Performance Contract contractor,
as applicable, to provide additional or fewer materials, tools, equipment,
labor or professional or non-professional services within the general scope of
the Last Reviewed Contract;
(ii)
The substantial completion date, the final completion date, or interim
milestone dates of the contract; Technical Specifications; time, place,
quantity or form of delivery of materials, tools, equipment or services; or the
price;
(D) The amendment
does not increase the contract price (whether a GMP, fixed price, lump sum or
other price) established under the Last Reviewed Contract by more than $500,000
or five percent (5%), whichever is less; and
(E) The amendment and all prior amendments
subsequent to the Last Reviewed Contract in the aggregate do not increase the
contract price (whether a GMP, fixed price, lump sum or other price)
established under the Last Reviewed Contract by more than $500,000 or ten
percent (10%), whichever is less.
(d) For purposes of this rule, "change order"
means a mutually agreed upon change order or a unilateral construction change
directive or similar instruction issued by the Agency or its authorized
representative to the contractor requiring a change in the work within the
general scope of a Public Improvement Contract or the Public Contract for a
Public Work and issued under the provisions of the Public Improvement Contract
or the Public Contract for a Public Work governing the implementation,
addition, reduction or other revisions to the work and, if applicable,
adjusting the contract price or contract time for the changed work.
(4) Bonds and Confirmation
Statements, if (a) or (b) below apply:
(a) An
agreement entered into, issued or established in connection with the issuance
of a bond or other borrowing of the State of Oregon, including an interest rate
exchange agreement and any associated confirmation statement, if the Oregon
State Treasurer has issued or authorized the bond or other borrowing obligation
to which the agreement relates and if bond counsel appointed in accordance with
applicable law has issued an approving opinion for the benefit or use of
purchasers of the bond or other borrowing with respect to the enforceability of
the bond or other borrowing upon closing of the transaction; or
(b) A confirmation statement associated with
an Agency's investment-related interest rate or currency swap agreement or
other investment transaction, if the agreement under which the confirmation
statement arises has been approved for legal sufficiency or is exempt from
legal sufficiency approval.
(5) Conflict Counsel Contracts. Contracts
entered into by Agencies for legal counsel pursuant to ORS
180.235 using, without
substantial revision, a contract form approved by the Department of
Justice.
(6) Employment Agreements.
Employment agreements and collective bargaining agreements negotiated under
applicable federal or state laws, including collective bargaining agreements
entered into pursuant to ORS
410.612. Agreements with
third-party providers of temporary services are not exempt.
(7) Federal Contracts. A contract with a
federal agency consisting substantially of provisions prescribed in Federal
Acquisition Regulations or federal agency supplemental acquisition clauses (48
CFR), except a contract allowed under Section 211 of the federal E-Government
Act of 2002.
(8) Federal
Cooperative Agreements. A Federal Cooperative Agreement.
(9) Federal Grants. A grant from a federal
agency under which an Agency is the grantee, provided that the Agency has a
grants coordinator.
(10) Federal
Pass-Through Grants. A Grant under which an Agency passes through to another
recipient all or a portion of the money or property received by the Agency
under a Grant from a federal agency, provided that:
(a) The Agency does not add to or modify the
federal grant except as necessary to provide for proper administration;
and
(b) The Grant contains a clause
substantially in the following form: "The recipient of grant funds, pursuant to
this agreement with the State of Oregon, shall assume sole liability for
recipient's breach of the conditions of the grant, and shall, upon recipient's
breach of grant conditions that causes or requires the State of Oregon to
return funds to the grantor, hold harmless and indemnify the State of Oregon
for an amount equal to the funds which the State of Oregon is required to pay
to grantor."
(11) Foster
Care Agreements. An agreement between the Oregon Department of Human Services
or the Oregon Youth Authority and a foster parent for the provision of foster
care to an individual under the age of 21, or a youth placed with the Oregon
Department of Human Services or Oregon Youth Authority pursuant to ORS
419C.478.
(12) Home Care Services Agreements. An
agreement for the provision of and payment for home care services as defined in
ORS 410.600(8).
(13) Membership Agreements. A Public Contract
that requests or provides for the payment of dues or fees in consideration of
membership of individual officers, employees or agents of the State of Oregon
in a club, institution, or association in which the State of Oregon acquires no
ownership interest. This exemption does not apply if the membership is for an
Agency of the State of Oregon.
(14)
Non-Negotiable Public Contracts. A Non-Negotiable Public Contract.
(15) Prescribed Contracts. An agreement that
is in the form prescribed in Procurement Documents and any conditions on
authorization for release under OAR 137-045-0035. Prescribed Contracts do not
vary from the form prescribed in Procurement Documents other than to fill in
blanks in the form, as is commonly done with invitations to bid for goods and
services other than personal services.
(16) Resulting Contracts. A contract formed
by a purchase order, work order, task order or a similar ordering instrument
for the purchase of goods or services under a Price Agreement, provided that
the Assistant Attorney General who reviewed the Price Agreement specified that
resulting contracts are exempt from further legal sufficiency review and
approval, and the ordering instrument issued by the Agency complies with any
conditions set by the Assistant Attorney General in the approval.
(17) Settlement Agreements. Agreements
settling disputed claims that do not have the effect of amending Public
Contracts that are subject to the legal sufficiency approval
requirement.
(18) Amendments to
Loan Contracts. A written amendment to a Public Contract solely for an Agency
loan of money to another party that requires repayment to the Agency, if all of
the following apply:
(a) The Public Contract
being amended was approved for legal sufficiency;
(b) The amendment modifies only;
(A) The description of the project being
financed only to the extent that the modified project remains eligible for
financing by the same source of funds as the project before modification;
or
(B) Business terms in the Public
Contract that:
(i) Except as provided in
subsection (18)(c), do not increase or decrease the total principal repayment
obligations under the Public Contract;
(ii) Change the interest rate or payment due
dates, except for the final maturity date; or
(iii) Describe the non-financial terms and
conditions of performance, such as performance start or completion dates for
the project being financed or job creation or retention requirements;
and
(c) The
aggregate increase in the loan amount under the amendment or the aggregate
decrease in principal payments scheduled to be received by the Agency, and all
prior amendments exempted from the legal sufficiency approval requirement
subsequent to the Last Reviewed Contract, does not exceed the greater of:
(A) $250,000; or
(B) Any amounts specified in writing at the
time of approval by the Assistant Attorney General who provided legal
sufficiency approval of the Last Reviewed Contract.
Statutory/Other Authority: ORS
291.047(4),
190.430 & 190.490
Statutes/Other Implemented: ORS
291.047,
190.430 &
190.490
