Or. Admin. Code § 123-200-2210 - Contracting Agency Responsibilities
(1) It is the public agency 's sole
responsibility to perform commercially useful function (CUF ) reviews.
(2) The COBID may consider and
review the CUF reviews completed by the public contracting agency or any other
relevant factors when determining whether the certified firm has exhibited a
pattern of failing to perform CUFs.
(3) Notwithstanding any other part of this
section, the COBID and a public contracting agency may enter into an agreement
to share and protect information and otherwise cooperate in order to facilitate
the enforcement of ORS 200.065 and ORS 200.075, as permitted by ORS 192.410 to
192.505.
(a) The COBID , for purposes of an
investigation regarding certification, will consider CUF reviews under the
following circumstances:
(i) During the
course of a project
(ii) When
multiple reviews occur over an extended period suggesting reoccurring
violations
(iii) Within three
years of the discovery of an alleged CUF failure.
(4) CUF reviews and investigations
shall consider the following:
(a) Whether the
certified firm is responsible for execution of the work outlined in the public
contract and carries out its responsibilities by actually performing, managing,
and supervising the work involved. The public agency may evaluate the amount of
work contracted and standard industry practices.
(b) Whether a certified firm is responsible,
with respect to materials and supplies used on the contract, for negotiating
price; determining quality and quantity; ordering the material and installing
(where applicable); and paying for the material.
(c) Whether a certified firm has a role that
is limited to that of an extra participant in a transaction, contract, or
project through which participants pass funds in order to obtain the appearance
of involvement by the certified firm. In determining whether a certified firm
is such an extra participant and thus not performing a CUF , the public agency
may examine similar transactions, particularly those in which non-certified
firms participate.
(d) Whether a
certified firm performs or exercises responsibility for at least 30 percent of
the total cost of its contract with its own work force or subcontract with
another firm certified by the State of Oregon. If it does not, the public
agency may presume the certified firm is not performing a CUF . The firm must
not subcontract a greater portion of the work of a contract to a non-certified
firm than would be expected based on normal industry practice for the type of
work involved.
(5) If a
public agency determines that a certified firm is not performing a CUF as
provided in paragraph (4) (b), (c), and (d) of this section, the certified firm
may present evidence to rebut this presumption. The public agency may determine
that the firm is performing a CUF given the type of work involved and normal
industry practices.
(6) A public
agency shall notify the COBID if the agency investigates a certified firm.
(7) The COBID may not decertify a
firm based solely on a public agency 's investigation.
(8) COBID , at its discretion, may perform its
own investigation of a certified firm if it receives a complaint or
notification that alleges a certified firm has failed to perform a CUF . As part
of its investigation, COBID may request information from the complainant or
author of the notification unless such requirements violate an agreement
entered into by the public contracting agency and COBID under (3) of this
section. If COBID does not receive sufficient information to conduct an
investigation, COBID may in its discretion close the investigation without
taking further action. Requested information may include:
(a) All documentation gathered by the public
contracting agency during the CUF review and any additional documentation
related to the complaint or investigation.
(b) Disclosure of all participants in a
complaint or investigation.
(c)
Confirmation that the public contracting agency notified the firm in question
that it failed a CUF review and provided the firm an opportunity to present
evidence to rebut the claim.
(d)
List of current, open contracts let to the firm in question by the public
contracting agency .
Notes
Stat. Auth.: ORS 200.055
Stats. Implemented: ORS 200.055, 200.065 and ORS.075
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