Or. Admin. R. 839-025-0310 - Division of Projects
(1)
(a) A person or public agency may not divide
a public works project into more than one project for the purpose of avoiding
compliance with ORS 279C.800 to
279C.870.
(b) When making a determination of whether a
person or public agency divided a public works project to avoid compliance with
ORS 279C.800 to
279C.870, the commissioner will
consider the facts and circumstances in any given situation including, but not
limited to, the following matters:
(A) The
physical separation of project structures;
(B) Whether a single public works project
includes several types of improvements or structures;
(C) The anticipated outcome of the particular
improvements or structures the agency plans to fund;
(D) Whether the structures or improvements
are similar to one another and combine to form a single, logical entity having
an overall purpose or function;
(E)
Whether the work on the project is performed in one time period or in several
phases as components of a larger entity;
(F) Whether a contractor or subcontractor and
their employees are the same or substantially the same throughout the
particular project;
(G) The manner
in which the public agency and the contractors administer and implement the
project;
(H) Other relevant matters
as may arise in any particular case.
(c) If the commissioner determines that a
person or public agency has divided a public works project for the purpose of
avoiding compliance with ORS
279C.800 to
279C.870, the commissioner will
issue a written order compelling compliance with 279C.800 to 279C.870. The
order will offer the person or public agency the opportunity to contest the
order pursuant to OAR
839-050-0000 through
839-050-0420.
(2) Regardless of whether the
commissioner believes that a person or public agency divided a public works
project for the purpose of avoiding compliance with ORS
279C.800 to
279C.870, the commissioner may
apply the considerations set forth in subsection (1)(b) of this rule to
determine whether to divide a public works project into more than one
contract.
(3) If a project is a
public works of the type described in ORS
279C.800(6)(a)(B) or
(C), the commissioner shall divide the
project, if appropriate, after applying the considerations set forth in section
(1)(b) of this rule to separate the parts of the project that include funds of
a public agency or that will be occupied or used by a public agency from the
parts of the project that do not include funds of a public agency and that will
not be occupied or used by a public agency. If the commissioner divides the
project, any part of the project that does not include funds of a public agency
and that will not be occupied or used by a public agency is not subject to
279C.800 to 279C.870.
(4) If a
project includes parts that are owned by a public agency and parts that are
owned by a private entity, the commissioner shall divide the project, if
appropriate, after applying the considerations set forth in sections (1)(b) and
(2) of this rule to separate the parts of the project that are public works
from the parts of the project that are not public works. If the commissioner
divides the project, parts of the project that are not public works are not
subject to ORS 279C.800 to
279C.870.
(5) When a private project for the
construction, reconstruction, major renovation or painting of a privately owned
road, highway, building, structure or improvement of any type that is already
underway becomes a public works project by virtue of the provisions of ORS
279C.800(6)(a)(B) or
(C), the provisions of 279C.800 to 279C.870
apply prospectively to the project once any public agency commits to the
provision of funds for the project or any public agency enters into an
agreement to occupy or use any portion of the completed project. If a public
agency delays a commitment to the provision of funds or delays entry into an
agreement for occupancy or use for the purpose of avoiding compliance with
279C.800 to 279C.870, the commissioner may determine that the provisions of
279C.800 to 279C.870 shall apply to the entire public works project under
section (1) of this rule.
Notes
Statutory/Other Authority: ORS 279C.808 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.800-.870 & OL Ch. 334 (2017)
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