Or. Admin. R. 734-010-0400 - Records Maintenance; Right to Audit Records
(1) Contractors; all subcontractors at all
tiers; all material suppliers at all tiers of aggregates, asphalt cement
concrete, Portland cement concrete, and the supply and fabrication of
structural steel items; and all Related Entities as defined by this rule,
(collectively referred to in this Rule as "Record Keepers") shall maintain all
records, including fiscal records, regardless of when created, relating to
their:
(a) Performance of the Contract or a
subcontract;
(b) Ability to
continue performance of the Contract or a subcontract; and
(c) Claims arising from or relating to
performance under the Contract or a subcontract.
(2) Records to be maintained shall include,
but are not limited to the following:
(a)
Bidding estimates, worksheets, tabulations or similar documents;
(b) Job cost detail reports, including
monthly totals;
(c) Payroll records
(including without limitation, the ledger or register, and tax forms) and all
documents which establish the time periods, individuals involved, the hours for
the individuals and the rates for the individuals;
(d) Records that identify the equipment used
by the Contractor and subcontractors at all tiers in the performance of
Contract or subcontracts, including without limitation, equipment lists, rental
contracts, and any records used in setting rental rates;
(e) Invoices from vendors, rental agencies,
subcontractors, and lower tier subcontractors;
(f) Material quotes, invoices, purchase
orders and requisitions;
(g)
Contracts with subcontractors at all tiers and with suppliers;
(h) Contracts or documents of other
arrangements with any Related Entity;
(i) General ledger;
(j) Trial Balance;
(k) Any financial statements kept or
maintained (e.g., balance sheet, income statement, statement of cash flows and
financial statement notes);
(L)
Income tax returns;
(m) All
worksheets used to prepare bids or claims, or to establish the cost components
for the Pay Items, including without limitation, the labor, benefits and
insurance, materials, equipment and subcontractors; and
(n) Other records further identified in the
Contract.
(3) Such
records must be maintained in accordance with generally accepted accounting
principles or other accounting principles, that are accepted accounting
principles and practices for the subject industry, and that satisfy all
applicable state and federal tax law and regulation.
(4) Record Keepers shall maintain the records
and keep the records accessible and available at reasonable times and places
for a minimum period of three years from the date of final payment under the
Contract, or until the conclusion of any audit, controversy, administrative
proceeding or litigation arising out of or related to the Contract or a
subcontract, whichever date is later, unless a shorter period is otherwise
authorized in writing by the ODOT Contract Administration Engineer.
(5) Record Keepers are responsible for
maintaining their own records and records relating to their own performance,
their own ability to continue performance, and their own claims. Contractors
submitting disputes or contract claims to ODOT shall provide ODOT access to
records supporting such dispute or claims, or that are otherwise relevant to a
dispute or claim, whether maintained by the Contractor, subcontractors,
material suppliers or Related Entities.
(6) Except to the extent limited by section
(9) of this Rule, ODOT and its authorized representatives shall, at reasonable
times and places, have access to and an opportunity to inspect, examine, copy,
and audit the Records identified in section (2) of this rule, or shall be
provided a copy of such records upon request. Except for Records requested in
connection with a dispute or contract claim issue, ODOT shall pay copy costs
according to the rates used for public records requests under OAR 731-001-0025.
Where such records are stored electronically, ODOT may request, and the Record
Keeper shall promptly provide, access to or a copy of the electronically stored
records and, if necessary to access or read such records, access to or use of
software, as needed to allow ODOT to efficiently audit, inspect or copy the
records.
(7) A "Related Entity," as
referred to in this rule, is an entity that furnishes any goods or services in
fulfillment of any obligation of the Contractor under the Contract with ODOT,
regardless of whether the entity qualifies as a subcontractor or a material
supplier otherwise required to maintain records and provide access to said
records under this rule, and
(a) Where 10% or
more of the stock, partnership interest, beneficial interest or voting rights
of the Entity are held by a Contractor; or
(b) Where a separate Entity holds 10% or more
of the stock, partnership interest, beneficial interest or voting rights of a
Contractor.
(8)
Confidentiality of Communications
(a) Nothing
in this Rule is intended to operate as a waiver of the confidentiality of any
communications privileged under the Oregon Evidence Code. Nothing in this Rule
limits records or documents that can be obtained by legal process.
(b) If records, identified in section (2) and
provided under this rule, contain any information that may be considered exempt
from disclosure as a trade secret under either ORS
192.501(2) or
646.461(4), or
under other grounds specified in Oregon Public Records Law, ORS
192.410 through
192.505, the Record Keeper must
clearly designate on or with the records those portions that the Record Keeper
believes are exempt from disclosure, along with a justification and citation to
the authority relied upon. To the extent allowed by the Oregon Public Records
Law or some other applicable law related to the disclosure of public records,
ODOT will not disclose records or portions of records the Record Keeper has
designated as trade secrets to a third party, who is not a representative of
ODOT, to the extent the records are exempt from disclosure as trade secrets
under the Oregon Public Records Law or other applicable law, except to the
extent ODOT is ordered to disclose in accordance with the Oregon Public Records
Law or by a court of competent jurisdiction. Application of the Oregon Public
Records Law or other applicable law shall determine whether any record or
portion thereof is actually exempt from disclosure.
(9) An ODOT Project Manager's authority to
request or require access to the records identified in this rule shall be
limited to items under section (2)(a) through (h), and (n) for purposes of
reviewing a dispute or claim under the Contract, and performance and contract
compliance issues. The ODOT Contract Administration Engineer (CAE), or the
CAE's designee, shall have access to all items under section (2) of this rule
for purposes of reviewing a dispute or claim, performance under the Contract or
a subcontract, contract compliance, general auditing, checking for collusive
bidding, and reviewing qualifications.
Notes
Statutory/Other Authority: 184.619, 279A.050, 279A.065 & ORS 184.616
Statutes/Other Implemented: ORS 279A.030, 279C.375 & 279C.440
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