Caption: Conforms Prevailing Wage Rate
rules to provisions of SB 178 (2011).
Order No.: BLI 6-2011(Temp)
Filed with Sec. of
Certified to be
Effective: 7-22-11 thru 12-4-11
Rules Amended: 839-025-0020
Rules Suspended: 839-025-0020(T)
Subject: This temporary rule conforms the provisions of OAR
839-025-0020 relating to required conditions in public works contracts and
contract specifications to the provisions of Senate Bill 178 (2011). SB 178
amended the Prevailing Wage Rate Law to require every contract and subcontract
subject to the law to 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
if a public works project is subject to both state and federal prevailing wage
laws. This legislation, having an “emergency clause”, became effective upon
signature by the governor on June 7, 2011. The temporary rule also requires the
specification for public works contracts to provide that contractors and
subcontractors have a public works bond filed with the Construction Contractors
Board unless exempt, pursuant to the provisions of ORS 279C.830. This temporary
rule filing amends temporary rules filed on June 8 in which language
implementing the above was inadvertently omitted.
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
(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
(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)(a) Every public works 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 applicable
prevailing rate of wage.
(b) If a public works project is subject to both ORS
279C.800 to 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 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 prevailing rate of wage
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.
(d) 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 exempt under ORS 279C.836(4), (7), (8) or (9).
(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
(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
(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
Stat. Auth.: ORS 279C &
Stats. Implemented: ORS
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; BLI 6-2011(Temp), f. & cert. ef. 7-22-11
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.