Current through Register Vol. 63, No. 12, December 1, 2024
(1) For purposes of this rule:
(a) "Construction Manager/General Contractor
contract" (or "CM/GC contract") means a contract that typically results in a
general contractor/construction manager initially undertaking various
pre-construction tasks that may include, but are not limited to: design phase
development, constructability reviews, value engineering, scheduling, and cost
estimating, and in which a guaranteed maximum price for completion of
construction-type work is typically established by amendment of the initial
contract, after the pre-construction tasks are complete or substantially
complete. "CM/GC" refers to the general contractor/construction manager under
this form of contract. Following the design phase, the CM/GC may then act as a
General Contractor and begin the subcontracting process. The CM/GC typically
coordinates and manages the construction process, provides contractor
expertise, and acts as a member of the project team.
(b) "Construction specifications" include the
detailed description of physical characteristics of the improvement, design
details, technical descriptions of the method and manner of doing the work,
quantities or qualities of any materials required to be furnished, descriptions
of dimensions, required units of measurement, composition or manufacturer, and
descriptions of any quality, performance, or acceptance requirements.
(2) Every public works contract
must contain the following:
(a) A condition or
clause that, if the contractor fails, neglects, or refuses to make prompt
payment of any claim for labor or services furnished to the contractor or a
subcontractor by any person, or the assignee of the person, in connection with
the public works contract as such claim becomes due, the proper officer or
officers of the public agency may pay such claim and charge the amount of the
payment against funds due or to become due the contractor by reason of the
contract (Reference: ORS 279C.515);
(b) A condition that no person will be
employed for more than 10 hours in any one day, or 40 hours in any one week
except in cases of necessity, emergency, or where the public policy absolutely
requires it, and in such cases the person so employed must be paid at least
time and one-half the regular rate of pay for all time worked:
(A) For all overtime in excess of eight hours
a day or 40 hours in any one week when the work week is five consecutive days,
Monday through Friday; or
(B) For
all overtime in excess of 10 hours a day or 40 hours in any one week when the
work week if four consecutive days, Monday through Friday; and
(C) For all work performed on Saturday and on
any legal holiday specified in ORS 279C.540 (Reference: ORS
279C.520(1));
(c) A
condition that an employer must give notice to employees who work on a public
works contract in writing, either at the time of hire or before commencement of
work on the contract, or by posting a notice in a location frequented by
employees, of the number of hours per day and days per week that the employees
may be required to work (Reference: ORS 279C.520(2)); and
(d) A condition that the contractor must
promptly, as due, make payment to any person, co-partnership, association or
corporation, furnishing medical, surgical and hospital care or other needed
care and attention, incident to sickness or injury, to employees of such
contractor, of all sums which the contractor agrees to pay for such services
and all moneys and sums which the contractor collected or deducted from the
wages of the contractor's employees pursuant to any law, contract or agreement
for the purpose of providing or paying for such service (Reference: ORS
279C.530).
(3) Every
public works contract that a public agency awards must contain a condition or
clause that requires the contractor to:
(a)
Have a public works bond filed with the Construction Contractors Board before
starting work on the project, unless the contractor is exempt under ORS
279C.836(4), (7), (8) or (9).
(b)
Require, in every subcontract, that the subcontractor have a public works bond
filed with the Construction Contractors Board before starting work on the
project, unless the subcontractor is exempt under ORS 279C.836(4), (7), (8) or
(9).
(4) Every
subcontract that a contractor or subcontractor awards in connection with a
public works contract between a contractor and a public agency must require any
subcontractor to have a public works bond filed with the Construction
Contractors Board before starting work on the public works projects, unless the
subcontractor is exempt under ORS 279C.836 (4), (7), (8), or (9).
(5)
(a)
Every public works contract and subcontract must provide that each worker the
contractor, subcontractor or other person who is a party to the contract uses
in performing all or part of the contract, must be paid not less than the
applicable prevailing rate of wage for each trade or occupation as defined by
the Commissioner of the Bureau of Labor and Industries in the applicable
publication entitled Definitions of Covered Occupations for Public Works
Contracts in Oregon.
(b) If a
public works project is subject to both ORS 279C.800 to ORS 279C.870 and to the
Davis-Bacon Act (40 U.S.C. 3141 et seq.), every public works contract and
subcontract must provide that the worker whom the contractor, subcontractor or
other person who is a party to the contract uses in performing all or part of
the contract, must be paid not less than the higher of the applicable state
prevailing rate of wage for each trade or occupation as defined by the
Commissioner of the Bureau of Labor and Industries in the applicable
publication entitled Definitions of Covered Occupations for Public Works
Contracts in Oregon or federal prevailing rate of wage.
(6)
(a) The
specifications for every public works contract must contain a provision that
states the existing state prevailing rate of wage and, if applicable, the
federal prevailing rate of wage required under the Davis-Bacon Act (40 U.S.C. 3141 et seq.).
(b) Except as
provided in subsection (d) of this section and sections (8) and (9) of this
rule, the existing state prevailing rate of wage and the applicable publication
entitled Definitions of Covered Occupations for Public Works Contracts in
Oregon are those in effect at the time the initial specifications were first
advertised for bid solicitations.
(c) If a public agency is required under
subsection (a) of this section or section (8) of this rule to include the state
and federal prevailing rates of wage in the specifications for a contract for
public works, the public agency shall also include in the specifications the
requirement that the contractor pay the higher of the applicable state or
federal prevailing rate of wage to all workers on the public works
project.
(d) Pursuant to ORS
279C.838(4) and notwithstanding ORS 279C.830(1), if the contract is subject to
both ORS 279C.800 to 279C.870 and the Davis Bacon Act (40 U.S.C. 3141 et seq.),
the public agency may provide in the specifications for the contract a single
date to be used to establish the "existing state prevailing rate of wage," the
applicable publication entitled Definitions of Covered Occupations for Public
Works Contracts in Oregon, and the "applicable federal prevailing rate of wage"
that is consistent with the federal requirements under 29 CFR 1.6.
(e) The specifications for a contract for
public works must provide that the contractor and every subcontractor must have
a public works bond filed with the Construction Contractors Board before
starting work on the project, unless the contractor or subcontractor is exempt
under ORS 279C.836(4), (7), (8) or (9).
(7)
(a) The
provisions described in sections (5) and (6), and sections (8) and (9) if
applicable, must be included in all specifications for each contract awarded on
the project, regardless of the price of any individual contract, so long as the
combined price of all contracts awarded on the project is $50,000 or more
(Reference: ORS 279C.830).
(b) A
statement incorporating the applicable state prevailing wage rate publication
and any amendments thereto into the specifications by reference will satisfy
these requirements. Except as provided in subsection (c), such reference must
include the title of the applicable wage rates publication or determination and
the date of the publication or determination as well as the date of any
applicable amendments.
(c) When the
prevailing wage rates are available electronically or are accessible on the
Internet, the rates may be incorporated into the specifications by referring to
the electronically accessible or Internet-accessible rates and by providing
adequate information about how to access the rates. Such reference must include
the title of the applicable wage rates publication or determination and the
date of the publication or determination as well as the date of any applicable
amendments. The reference requirements of this subsection will be satisfied if
such reference includes Uniform Resource Locator (URL) information for a
webpage or webpages showing the title of each applicable wage rates publication
or determination and the date of each publication or determination as well as
the date of any applicable amendments.
(8)
(a)
When a public agency is a party to a CM/GC contract, the CM/GC contract becomes
a public works contract either when the contract first constitutes a binding
and enforceable obligation on the part of the CM/GC to perform or arrange for
the performance of construction, reconstruction, major renovation, demolition,
removal of hazardous waste or painting of an improvement that is a public works
or when the CM/GC contract enters the construction phase, whichever occurs
first.
(b) For example, the CM/GC
will have a binding and enforceable obligation to perform or arrange for the
performance of construction, reconstruction, major renovation, demolition,
removal of hazardous waste or painting of an improvement after the public
agency and CM/GC commit to the guaranteed maximum price.
(c) For purposes of this rule, the CM/GC
contract enters the construction phase when the agency first authorizes the
performance of early construction, reconstruction, major renovation,
demolition, removal of hazardous waste or painting work directly related to the
improvement project.
(d) The
publication entitled Definitions of Covered Occupations for Public Works
Contracts in Oregon and the prevailing wage rate in effect at the time the
CM/GC contract becomes a public works contract shall apply and the applicable
prevailing wage rates must be included with the construction specifications for
the CM/GC contract.
(9)
A public works project described in ORS 279C.800(6)(a)(B), (C), (D), (E) or (F)
that is not a CM/GC contract subject to section (8) of this rule, and for which
no public agency awards a contract to a contractor for the project, is subject
to the publication entitled Definitions of Covered Occupations for Public Works
Contracts in Oregon and the existing state prevailing rate of wage or, if
applicable, the federal prevailing rate of wage required under the Davis-Bacon
Act that are in effect at the time a public agency enters into an agreement
with a private entity for the project. (Note: The effective date of the
applicable federal prevailing rate of wage may be different under federal law.)
After that time, the specifications for any contract for the public works shall
include the applicable prevailing rate of wage.
(10) If a project is a public works of the
type described in ORS 279C.800(6)(a)(B), (C), (D), (E) or (F) and no public
agency awards a contract to a contractor for the project, a public agency will
be deemed to have complied with the provisions of ORS 279C.830 if the public
agency requires compliance with the provisions of section (7) of this rule in
any agreement entered into by the public agency committing to provide funds for
the project, to occupy or use the completed project, authorizing the
construction or installation of a solar radiation device, or authorizing
demolition or hazardous waste removal.
(11) Public agencies may obtain, without
cost, a copy of the existing state prevailing rate of wages for use in
preparing the contract specifications by contacting the Prevailing Wage Rate
Unit or any office of the bureau.
Statutory/Other Authority: ORS 651.060 & ORS
279C.808
Statutes/Other Implemented: ORS 279C.800 -
279C.870
