Or. Admin. R. 839-025-0085 - Contract Ineligibility

(1) Under the following circumstances, the commissioner, in accordance with the Administrative Procedures Act, may determine that a contractor or a subcontractor or a firm, limited liability company, corporation, partnership or association in which the contractor or subcontractor has a financial interest may not receive a contract or subcontract for a public works for a period of three years:

(a) The contractor or subcontractor intentionally failed or refused to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840;

(b) The contractor failed to pay to the contractor's employees amounts required under ORS 279C.840 and a surety or another person paid the amounts on the contractor's behalf;

(c) The subcontractor failed to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840 and the contractor, a surety or another person paid the amounts owed on the subcontractor's behalf;

(d) The contractor or subcontractor intentionally failed or refused to post the prevailing wage rates as required under ORS 279C.840(4) and these rules; or

(e) The contractor or subcontractor intentionally falsified information in the certified statements the contractor or subcontractor submitted under ORS 279C.845.

(2) If a contractor or subcontractor is a corporation or a limited liability company, the provisions of this rule will apply to any corporate officer or agent of the corporation or any member or manager of the limited liability company who is responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to the contractor's employees amounts required under ORS 279C.840 that a surety or other person pays on the contractor's behalf, failing to pay to a subcontractor's employees amounts required under ORS 279C.840 that the contractor, a surety or other person pays on the subcontractor's behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845.

(3) As used in section (2) of this rule, any corporate officer or agent of the corporation or any member or manager of the limited liability company responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to the contractor's employees amounts required under ORS 279C.840 that a surety or other person pays on the contractor's behalf, failing to pay to a subcontractor's employees amounts required under ORS 279C.840 that the contractor, surety or other person pays on the subcontractor's behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845, includes, but is not limited to, the following individuals when the individuals knew or should have known the amount of the applicable prevailing wages or that such wages must be posted:

(a) The corporate president;

(b) The corporate vice president;

(c) The corporate secretary;

(d) The corporate treasurer;

(e) Any member or manager of the limited liability company;

(f) Any other person acting as an agent of a corporate officer, the corporation, limited liability member or manager, or limited liability company.

(4) The Wage and Hour Division will maintain a written list of the names of contractors, subcontractors and other persons who are ineligible to receive public works contracts and subcontracts. The list will contain the name of contractors, subcontractors and other persons and the name of any firms, corporations, limited liability companies, partnerships or associations in which the contractor, subcontractor or other persons have a financial interest. Except as provided in OAR 839-025-0095, such names will remain on the list for the duration of the period, as determined by the commissioner, in which no contract or subcontract for public works may be received.

(5) Before placing a name on the ineligible list referred to in section (4) of this rule, the commissioner will serve a notice of intended action upon the contractor or subcontractor in the same manner as service of summons or by certified mail, return receipt requested. The notice will include:

(a) A reference to ORS 279C.840;

(b) A short and concise statement of the matters which constitute intentional failure or refusal to pay or post the prevailing rate of wage or intentional falsification of information in the certified statements;

(c) A statement of the party's right to request a contested case hearing and to be represented by counsel at such hearing, provided that any such request must be received by the commissioner in writing within 20 days of service of the notice;

(d) A statement that the party's name will be published on a list of persons ineligible to receive public works contracts or subcontracts, unless the party requests a contested case hearing as provided in section (5)(c) of this rule;

(e) A statement that failure to make written request to the commissioner for a contested case hearing within the time specified will constitute a waiver of the right thereto; and

(f) A statement that if a hearing is requested, the contractor or subcontractor will be given information on procedures and rights as required by ORS 183.413(2).

(6) Upon the failure of the contractor or subcontractor to request a contested case hearing within the time specified, the commissioner or the commissioner's designee will enter an order supporting the bureau's action.

(7) If a contractor or subcontractor makes a timely request for a contested case hearing, a hearing will be held in accordance with OAR 839-050-0000 to -0045 and presided over by an administrative law judge designated by the commissioner.

Notes

Or. Admin. R. 839-025-0085

BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 3-1996, f. & cert. ef. 1-26-96; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0085, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14; BLI 4-2018, amend filed 02/22/2018, effective 2/22/2018

Statutory/Other Authority: ORS 651.060(4) & ORS 279C.808

Statutes/Other Implemented: OL Ch. 334 (2017) & ORS 279C.860