Current through Register Vol. 63, No. 12, December 1, 2024
(1) As used in this rule:
(a) "Public improvement project subject to
enhanced reporting" means a public improvement contract with a contract price
exceeding $3 million, that is entered into by a qualifying agency.
(b) "Public improvement contract" has the
meaning given that phrase in ORS
279A.010.
(c) "Qualifying agency" has the meaning given
that phrase in ORS 279C.533.
(d) "Subcontractor" means a subcontractor
required to report payroll certified statements under the provisions of ORS
279C.800 to
279C.870 or ORS
279C.533.
(2)
(a)
Except as provided in subsection (b) of this section, the form required by ORS
279C.845 is the Payroll and
Certified Statement form, WH-38. The WH-38 form must be submitted in accordance
with ORS 279C.845 and include the
information required by ORS
279C.845.
(b) For public improvement projects subject
to enhanced reporting, the form required by ORS
279C.533 and
279C.845 is the Enhanced Payroll
and Certified Statement form, Enhanced WH-38. The Enhanced WH-38 form must be
submitted in accordance with ORS
279C.845 and include the
information required by ORS
279C.533 and
279C.845.
(3)
(a) The
contractor or subcontractor must submit the weekly payroll to the public agency
or qualifying agency on the WH-38 or Enhanced WH-38 form, or a similar form
provided the form contains all the elements of the WH-38 or Enhanced WH-38
form. When submitting the weekly payroll to the public agency or qualifying
agency on a form other than WH-38 or Enhanced WH-38 form, the contractor or
subcontractor must include the certification statement contained on the WH-38
or Enhanced WH-38 form on the payroll forms submitted.
(b) Not later than 30 days after making a
final payment to a contractor on a public improvement project requiring
enhanced reporting, a qualifying agency must make the required report to the
Bureau of Labor and Industries in a format and via an electronic method
specific by the Bureau in writing.
(4) If the contractor on a public works
project or a public improvement project subject to enhanced reporting fails to
timely submit its payroll and certified statement forms to the public agency in
accordance with ORS 279C.845, the public agency or
qualifying agency must retain 25 percent of any amount earned by the contractor
until the contractor has submitted the required payroll and certified
statements to the public agency.
(a) The
amount to be retained shall be calculated at 25 percent of the unpaid amount
earned by the contractor at the time each payroll and certified statement are
due. For example, if the contractor fails to submit its payroll and certified
statement by the fifth of the month and the contractor earned $100,000 in the
period since its last payroll and certified statement were submitted to the
public agency, the public agency must retain 25 percent of $100,000 ($25,000),
until such time as the required payroll and certified statement are
submitted.
(b) When calculating the
amount to be retained, amounts previously retained shall not be included as
amounts earned by the contractor.
(c) Once the required payroll and certified
statement have been submitted to the public agency, the public agency must pay
the amount retained to the contractor within 14 days.
(5) If a first-tier subcontractor on a public
works project or a public improvement project subject to enhanced reporting
fails to timely submit a payroll and certified statement form to the public
agency in accordance with ORS
279C.845, the contractor must
retain 25 percent of any amount earned by the first-tier subcontractor until
the first-tier subcontractor has submitted the required payroll and certified
statements to the public agency.
(a) The
amount to be retained shall be calculated at 25 percent of the unpaid amount
earned by the first-tier subcontractor at the time each payroll and certified
statement are due. For example, if the first-tier subcontractor fails to submit
the payroll and certified statement by the fifth of the month and the
first-tier subcontractor earned $100,000 in the period since the last payroll
and certified statement were submitted to the public agency, the contractor
must retain 25 percent of $100,000 ($25,000), until such time as the required
payroll and certified statement are submitted.
(b) When calculating the amount to be
retained, amounts previously retained shall not be included as amounts earned
by the first-tier subcontractor.
(c) The contractor must verify that the
first-tier subcontractor has filed the required payroll and certified
statement(s) with the public agency before the contractor may pay the
first-tier subcontractor any amount retained under this section.
(d) Once the first-tier subcontractor has
filed the required payroll and certified statement with the public agency, the
contractor must pay the amount retained to the first-tier subcontractor within
14 days.
(6)
Notwithstanding ORS 279C.555 or
279C.570, amounts retained
pursuant to the provisions of this rule shall be in addition to any other
amounts retained.
(7)
(a) If a project is a public works of the
type described in ORS
279C.800(6)(a)(B)
and no public agency awards a contract to a contractor for the project, the
contractors and any subcontractors employing workers upon the public works
project shall submit weekly payrolls as required by ORS
279C.845 and this rule to the
public agency or agencies providing funds for the project.
(b) When more than one public agency provides
funds for a project, the public agencies may designate one agency to receive
the contractor's and any subcontractors' payrolls.
(8)
(a) If
a project is a public works of the type described in ORS
279C.800(6)(a)(C)
and no public agency awards a contract to a contractor for the project, the
contractors and any subcontractors employing workers upon the public works
project shall submit weekly payrolls as required by ORS
279C.845 and this rule to the
public agency or agencies that will occupy or use the completed
project.
(b) When more than one
public agency will occupy or use the completed project, the public agencies may
designate one agency to receive the contractor's and any subcontractors'
payrolls.
(9) If a
project is a public works of the type described in ORS
279C.800(6)(a)(D)
and no public agency awards a contract to a contractor for the project, the
contractors and any subcontractors employing workers upon the public works
project shall submit weekly payrolls as required by ORS
279C.845 and this rule to the
public agency that owns the land, premise(s), structure(s) or building(s) on
which the solar radiation device(s) will be constructed or installed.
(10) If a project is a public works of the
type described in ORS
279C.800(6)(a)(E)
and no public agency awards a contract to a contractor for the project, the
contractors and any subcontractors employing workers upon the public works
project shall submit weekly payrolls as required by ORS
279C.845 and this rule to the
public university listed in ORS
352.002 that owns the real
property.
(11) If a project is a
public works of the type described in ORS
279C.800(6)(a)(F)
and no public agency awards a contract to a contractor for the project, the
contractors and any subcontractors employing workers upon the public works
project shall submit weekly payrolls as required by ORS
279C.845 and this rule to the
public agency or agencies providing funds for the project or to the public
agency that owns the real property on which the demolition or removal of
hazardous waste takes place.
Forms and Publications referenced are available from the
Bureau of Labor and Industries.
Statutory/Other Authority: ORS
651.060 & ORS
279C.808
Statutes/Other Implemented: ORS
279C.800 -
279C.870