Current through Register Vol. 63, No. 3, March 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
