Oregon Bulletin
July 1, 2011
Rule
Caption: Conforms Prevailing Wage Rate
rules to provisions of SB 178 (2011).
Adm.
Order No.: BLI 3-2011(Temp)
Filed with Sec. of
State: 6-8-2011
Certified to be
Effective: 6-8-11 thru 12-4-11
Notice Publication
Date:
Rules Amended: 839-025-0020, 839-025-0080, 839-025-0530
Subject: These temporary rules conform the provisions of OAR
839-025-0020, (relating to required conditions in public works contracts and
contract specifications), OAR 839-025-0080, (relating to liability to workers
by public agencies), and OAR 839-025-0530 (relating to civil penalties for
violations of the Prevailing Wage Rate Law) to the provisions of Senate Bill
178 (2011), which amended the Prevailing Wage Rate Law as follows:
• Public agencies
must include a requirement in public works contract specifications that
contractors pay the higher of the applicable state or federal prevailing rate
of wage to workers on public works projects subject to both state and federal
prevailing wage laws.
• If a public
works project is subject to both state and federal prevailing wage laws, every
contract and subcontract must provide that workers on the public works must be
paid no less than the higher of the applicable state or federal prevailing rate
of wage.
This legislation,
having an “emergency clause,” became effective upon signature by the governor
on June 7, 2011.
The rule
amendments also include other statutory provisions
relating to the inclusion of information in public works contracts and contract
specifications relating to public works bond requirements.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-025-0020
Public Works Contracts and
Contract Specifications; Required Conditions
(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;
(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); 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).
(e) 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
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 exempt under ORS 279C.836(4),
(7), (8) or (9).
(3) If a public works project is subject both to ORS
279C.800 to 279C.870 and to the Davis-Bacon Act, every contract and subcontract
must provide that each worker in each trade or occupation that 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 or federal prevailing rate of wage.
(4)(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.). Except as provided in
subsection (c) of this section and sections (6) and (7) of this rule, the
existing rate of wage is the rate in effect at the time the initial
specifications were first advertised for bid solicitations.
(b) If a public agency is required under subsection (a)
of this section or section (6) 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 require the contractor to pay the higher of the
applicable state or federal prevailing rate of wage to all workers on the
public works project.
(c) 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 both
the “existing state prevailing rate of wage” and the “applicable federal
prevailing rate of wage” that is consistent with the federal requirements under
29 CFR 1.6.
(5)(a) The provisions described in sections (3) and
(4), and sections (6) and (7) 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 prevailing
wage rate publication and any amendments thereto or Davis-Bacon wage rate
determination 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.
(6) 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 or painting of an improvement that is a public
works or when the CM/GC contract enters the construction phase, whichever
occurs first. The prevailing wage rate in effect at that time shall apply and
must be included with the construction specifications for the CM/GC contract.
For example, the CM/GC will have a binding and enforceable obligation to
perform or arrange for the performance of construction, reconstruction, major
renovation or painting of an improvement after the public agency and CM/GC
commit to the guaranteed maximum price. 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 or painting
work directly related to the improvement project.
(7) A public works project described in ORS 279C.800(6)(a)(B),
(C), or (D) that is not a CM/GC contract subject to section (6) of this rule is
subject to the existing state prevailing rate of wage or, if applicable, the
federal prevailing rate of wage required under the Davis-Bacon Act that is in
effect at the time a public agency enters into an agreement with a private
entity for the project. After that time, the specifications for any contract
for the public works shall include the applicable prevailing rate of wage.
(8) If a project is a public works of the type
described in ORS 279C.800(6)(a)(B), (C), or (D), 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 (5) 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, or authorizing the
construction or installation of a solar radiation device.
(9) 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.
Stat. Auth.: ORS 279C &
651.060
Stats. Implemented: ORS
279C.800–279C.870
Hist.: BL 14-1982, f. 10-19-82,
ef. 10-20-82; BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89; BL 5-1990, f.
3-30-90, cert. ef. 4-1-90; BL 3-1996, f. & cert. ef. 1-26-96; BL
3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97; BL 1-1998, f. & cert. ef.
1-5-98; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from
839-016-0020, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f.
12-29-05, cert. ef. 1-1-06; BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06
thru 11-10-06; BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06; BLI 2-2007, f.
& cert. ef. 1-23-07; BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru
1-27-08; 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 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 3-2011(Temp), f. &
cert. ef. 6-8-11 thru 12-4-11
839-025-0080
Liability to Workers
(1) Any contractor or subcontractor or any surety
thereof who fails or refuses to pay at least the prevailing wages and fringe
benefits as determined by the commissioner or any overtime wages as required by
ORS 279C.540 is liable to the workers affected for all the unpaid prevailing
wages, including fringe benefits, and unpaid overtime wages.
(2) The contractor or subcontractor or surety thereof,
referred to in section (1) of this rule, is also liable to all unpaid workers
for an amount equal to the unpaid prevailing wages, including fringe benefits,
as liquidated damages.
(3) The contractor or subcontractor or surety thereof,
referred to in section (1) of this rule, is also liable to all unpaid workers
for an amount equal to the unpaid overtime wages as liquidated damages, except
that if the unpaid overtime results from willful falsification of payroll
records, these liquidated damages shall be twice the amount of unpaid overtime.
(4) Any public agency that fails to include a provision
in the advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract documents that
the contractor and any subcontractor shall comply with ORS 279C.840 shall be
jointly and severally liable, with any contractor or subcontractor that had
notice of the requirement to comply with ORS 279C.840, to the workers affected
for any unpaid minimum wages.
(5) As used in section (4) of this rule, “minimum
wages” means the prevailing wage, including fringe benefits, as determined by
the commissioner. “Minimum wages” does not mean overtime wages required by ORS
279C.540 nor liquidated damages referred to in sections (2) and (3) of this rule.
(6) When a public works project is subject to the
Davis-Bacon Act (40 U.S.C. 3141 et seq.) and a public agency fails to include
the state and federal prevailing rates of wage in the specifications for the
contract for public works as required under ORS 279C.830(1)(a), or fails to
provide in the contract that workers on the public works project must be paid
not less than the higher of the applicable state or federal prevailing rate of
wage as required under ORS 279C.830(1)(d), the public agency is liable to each
affected worker for:
(a) The worker’s unpaid minimum wages, including fringe
benefits, in an amount that equals, for each hour worked, the difference
between the applicable higher rate of wage and the lower rate of wage; and
(b) An additional amount, equal to the amount of unpaid
minimum wages due under subsection (a) of this section, as liquidated damages.
Stat. Auth.: ORS 279 & 651.060
Stats. Implemented: ORS 279.334
& 279.356
Hist.: BL 14-1982, f. 10-19-82,
ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 3-1997(Temp), f. 7-31-97,
cert. ef. 8-1-97; BL 1-1998, f. & cert. ef. 1-5-98; Renumbered from
839-016-0080, 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 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11
839-025-0530
Violations for Which a Civil
Penalty May Be Assessed
(1) The commissioner may assess a civil penalty for
each violation of any provision of the Prevailing Wage Rate Law (ORS 279C.800
to 279C.870) and for each violation of any provision of the administrative
rules adopted under the Prevailing Wage Rate Law.
(2) Civil penalties may be assessed against any
contractor, subcontractor or public agency regulated under the Prevailing Wage
Rate Law and are in addition to, not in lieu of, any other penalty prescribed
by law.
(3) The commissioner may assess a civil penalty against
a contractor or subcontractor for any of the following violations:
(a) Failure to pay the applicable prevailing rate of
wage in violation of ORS 279C.840;
(b) Failure to pay all wages due and owing to the
contractor’s or subcontractor’s workers on the regular payday established and
maintained under ORS 652.120 in violation of ORS 279C.840(1).
(c) Failure to post the applicable prevailing wage
rates in violation of ORS 279C.840(4);
(d) Failure to post the notice describing the health
and welfare or pension plans in violation of ORS 279C.840(5);
(e) Failure to include a provision in a subcontract
that workers shall be paid not less than the specified minimum hourly rate of
wage in violation of ORS 279C.830(1)(c);
(f) 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.),
failure to include a provision in a subcontract that workers must be paid not
less than the higher of the applicable state or federal prevailing rate of wage
in violation of ORS 279C.830(1)(d);
(g) Failure to include in a subcontract a provision
requiring the subcontractor to have a public works bond filed with the
Construction Contractors Board before starting work on the project, unless
exempt, in violation of ORS 279C.830(2);
(h) Failure to file with the Construction Contractors
Board a public works bond, as required under ORS 279C.836, before starting work
on a contract or subcontract for a public works project subject to the
provisions of 279C.800 to 279C.870;
(i) Failure to verify that a subcontractor has filed a
public works bond as required or has elected not to file a public works bond
under ORS 279C.836 prior to permitting a subcontractor to start work on a
public works project;
(j) Failure to file certified statements in violation
of ORS 279C.845;
(k) Filing inaccurate or incomplete certified
statements in violation of ORS 279C.845;
(l) Failure to retain 25 percent of the amount the
first-tier subcontractor earned when the first-tier subcontractor fails to
submit payroll and certified statement forms to the public agency in violation
of ORS 279C.845;
(m) Paying the prevailing rate of wage in violation of
ORS 279C.840(6);
(n) Reducing an employee’s pay in violation of ORS
279C.840(7);
(o) Taking action to circumvent the payment of the
prevailing wage, other than subsections (k) and (m) of this section, in
violation of ORS 279C.840(7);
(p) Failure to submit reports and returns in violation
of ORS 279C.815(3);
(q) Failure to certify the accuracy of reports and
returns in violation of ORS 279C.815(3);
(r) Failure to timely pay the fee required by ORS
279C.825 on public works contracts first advertised or solicited prior to
January 1, 2008;
(s) Receiving a public works contract or subcontract while
on the list of ineligibles in violation of ORS 279C.860;
(t) Awarding a contract to a contractor whose name
appears on the list of ineligibles maintained pursuant to ORS 279C.860.
(4) The commissioner may assess a civil penalty against
a public agency for any of the following violations:
(a) Failure to include in the specifications for a
public works contract a provision stating the applicable existing prevailing
wage rate in violation of ORS 279C.830(1)(a);
(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.),
failure to require the contractor to pay the higher of the applicable state
prevailing rate of wage or federal prevailing rate of wage to all workers in
violation of ORS 279C.830(1)(b);
(c) Failure to include a contract provision stating
that workers must be paid the applicable prevailing rate of wage in violation
of ORS 279C.830(1)(c);
(d) 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.),
failure to include a contract provision stating that workers on public works
must be paid not less than the higher of the applicable state prevailing rate
of wage or federal prevailing rate of wage in violation of ORS 279C.830(1)(d);
(e) Failure to include in the specifications for a
contract for a public works stating 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 exempt, in violation of ORS
279C.830(2);
(f) Failure to include in a contract for a public works
a provision requiring the contractor to have a public works bond filed with the
Construction Contractors Board before starting work on the project, unless
exempt, in violation of ORS 279C.830(2)(a);
(g) Failure to include in a contract for a public works
a provision requiring the contractor to include in every subcontract a
provision requiring the contractor to have a public works bond filed with the
Construction Contractors Board before starting work on the project, unless
exempt, in violation of ORS 279C.830(2)(b);
(h) Failure to notify the commissioner when a contract
is awarded in violation of ORS 279C.835;
(i) Dividing a public works project in violation of ORS
279C.827;
(j) Failure to include a copy of the disclosure of
first-tier subcontractors with the Notice of Award in violation of ORS
279C.835;
(k) Failure to retain 25 percent of the amount the
contractor earned when the contractor fails to submit payroll and certified
statement forms to the public agency in violation of ORS 279C.845;
(l) Failure to timely pay the fee required in violation
of ORS 279C.825;
(m) Awarding a contract to a contractor whose name
appears on the list of ineligibles maintained pursuant to ORS 279C.860;
(n) Entering into an agreement with another state or a
political subdivision or agency of another state agreeing that a contractor or
subcontractor may pay less than the prevailing rate of wage determined in
accordance with ORS 279C.815 under the terms of a contract for public works to
which the contracting agency is a party or of which the contracting agency is a
beneficiary in violation of ORS 279C.829.
Stat. Auth.: ORS 279 & 651.060
Stats. Implemented: ORS 279.370
Hist.: BL 3-1996, f. & cert.
ef. 1-26-96; BL 1-1998, f. & cert. ef. 1-5-98; BLI 5-2002, f. 2-14-02,
cert. ef. 2-15-02; Renumbered from 839-016-0530, BLI 7-2005, f. 2-25-05, cert.
ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 20-2007(Temp), f.
7-30-07, cert. ef. 8-1-07 thru 1-27-08; 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 3-2011(Temp), f. & cert. ef.
6-8-11 thru 12-4-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use |