OAR 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.