(1) Required Disclosure. Within two working
hours after the Bid Closing on an ITB for a Public Improvement having a
Contract Price anticipated by the Contracting Agency to exceed $100,000, all
Bidders shall submit to the Contracting Agency a disclosure form as described
by ORS 279C.370(2), identifying any first-tier subcontractors (those Entities
that would be contracting directly with the prime contractor) that will be
furnishing labor or labor and materials on the Contract, if Awarded, whose
subcontract value would be equal to or greater than:
(a) Five percent of the total Contract Price,
but at least $15,000; or
(b)
$350,000, regardless of the percentage of the total Contract Price.
(2) Bid Closing, Disclosure
Deadline and Bid Opening. For each ITB to which this rule applies, the
Contracting Agency shall:
(a) Set the Bid
Closing on a Tuesday, Wednesday or Thursday, and at a time between 2 p.m. and 5
p.m., except that these Bid Closing restrictions do not apply to an ITB for
maintenance or construction of highways, bridges or other transportation
facilities, and provided that the two-hour disclosure deadline described by
this rule would not then fall on a legal holiday;
(b) Open Bids publicly immediately after the
Bid Closing; and
(c) Consider for
Contract Award only those Bids for which the required disclosure has been
submitted by the announced deadline on forms prescribed by the Contracting
Agency.
(3) Bidder
Instructions and Disclosure Form. For the purposes of this rule, a Contracting
Agency in its solicitation shall:
(a)
Prescribe the disclosure form that must be utilized, substantially in the form
set forth in ORS 279C.370(2); and
(b) Provide instructions in a notice
substantially similar to the following:
"Instructions for First-Tier Subcontractor Disclosure
Bidders are required to disclose information about certain
first-tier subcontractors (see ORS 279C.370). Specifically, when the contract
amount of a first-tier subcontractor furnishing labor or labor and materials
would be greater than or equal to: (i) 5% of the project Bid, but at least
$15,000; or (ii) $350,000 regardless of the percentage, the Bidder must
disclose the following information about that subcontract either in its Bid
submission, or within two hours after Bid Closing:
(A) The subcontractor's name;
(B) The category of Work that the
subcontractor would be performing, and
(C) The dollar value of the subcontract. If
the Bidder will not be using any subcontractors that are subject to the above
disclosure requirements, the Bidder is required to indicate "NONE" on the
accompanying form.
THE CONTRACTING AGENCY MUST REJECT A BID IF THE BIDDER FAILS TO
SUBMIT THE DISCLOSURE FORM WITH THIS INFORMATION BY THE STATED DEADLINE (see
OAR 137-049-0360)."
(4) Submission. A Bidder shall submit the
disclosure form required by this rule either in its Bid submission, or within
two working hours after Bid Closing in the manner specified by the
ITB.
(5) Responsiveness. Compliance
with the disclosure and submittal requirements of ORS 279C.370 and this rule is
a matter of Responsiveness. Bids that are submitted by Bid Closing, but for
which the disclosure submittal has not been made by the specified deadline, are
not Responsive and shall not be considered for Contract Award.
(6) Contracting Agency Role. Contracting
Agencies shall obtain, and make available for public inspection, the disclosure
forms required by ORS 279C.370 and this rule. Contracting Agencies shall also
provide copies of disclosure forms to the Bureau of Labor and Industries as
required by ORS 279C.835. Contracting Agencies are not required to determine
the accuracy or completeness of the information provided on disclosure
forms.
(7) Substitution.
Substitution of affected first-tier subcontractors shall be made only in
accordance with ORS 279C.585. Contracting Agencies shall accept Written
submissions filed under that statute as public records. Aside from issues
involving inadvertent clerical error under ORS 279C.585, Contracting Agencies
do not have a statutory role or duty to review, approve or resolve disputes
concerning such substitutions. See ORS 279C.590 regarding complaints to the
Construction Contractors Board on improper substitution.
Notes
Or. Admin. Code
§
137-049-0360
DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.370, 279C.585, 279C.590 &
279C.835
