OAR 137-045-0015: Legal Sufficiency Approval

(1) Legal sufficiency review and approval pursuant to this rule does not affect any other applicable review or approval requirement, except that legal sufficiency approval of a Public Contract that is an Interstate Agreement or an International Agreement satisfies requirements for Attorney General review under ORS 190.430 and ORS 190.490, as applicable. (2) The Attorney General provides legal sufficiency approval of a Public Contract solely for the benefit of Agencies, to determine compliance with this rule. Approval of a Public Contract for legal sufficiency is based upon the individual determination by the Assistant Attorney General reviewing the Public Contract and does not preclude the State of Oregon from later asserting any legally available claim or defense arising from or relating to the Public Contract. (3) Approval of a Public Contract for legal sufficiency must be noted in written form by the Assistant Attorney General reviewing the Public Contract and must either be affixed directly to the Public Contract or set forth in a separate writing that identifies the Public Contract with particularity. (4) An Assistant Attorney General may approve Public Contracts as a group if they are substantially in the same form, are substantially for the same purpose and have the same expiration date or anticipated period of performance if the Assistant Attorney General identifies the manner in which individual contracts within the group may vary. (5) Sections (5) and (6) are adopted to provide guidance to Agencies regarding criteria used for, and factors excluded from, the Attorney General's legal sufficiency approval of Public Contracts. Except as provided in section (6) and (7) of this rule, approval for legal sufficiency means that the reviewing Assistant Attorney General finds that: (a) The Public Contract has been reduced to written form; (b) The subject matter, promised performance and consideration of the Public Contract are within the Agency's statutory authority; (c) The Public Contract, on its face, contains all the essential elements of a legally binding contract, such as a description of consideration (money, performance, or forbearance) when consideration is required; (d) The Public Contract, on its face, complies with federal and State of Oregon statutes and administrative rules regulating the Public Contract, and all provisions required by Oregon law to be incorporated have been included; (e) The Public Contract includes or requires, as required by Oregon law, execution of any certification; (f) The Public Contract, on its face, does not violate any federal constitutional provision, or any State of Oregon constitutional limitation or prohibition, such as by creating unlawful "debt" under section 7, Article XI, of the Oregon Constitution, or impermissibly binding a future State of Oregon Legislative Assembly to fund the Public Contract; (g) The Statement of Work or comparable provisions and business or commercial terms are sufficiently clear and definite under the circumstances to be enforceable; and (h) The Public Contract allows the Agency, if appropriate, to terminate the Public Contract, declare defaults, and pursue its rights and remedies. (6) Approval for legal sufficiency does not include: (a) Consideration of facts or circumstances that are not apparent on the face of the Public Contract, unless the Assistant Attorney General reviewing the Public Contract has actual knowledge of those facts or circumstances; (b) A determination that the individual signing the Public Contract on behalf of the Agency possesses lawful authority to do so; (c) A determination that the technical provisions used in the Public Contract that are particular to a profession, trade or industry reflect the Agency's intentions, are appropriate to further the Agency's stated objectives or are sufficiently clear and definite to be enforceable; (d) A determination that the Public Contract is a good business deal for the Agency, weighing relative risks and benefits, although the Assistant Attorney General reviewing the Public Contract may provide advice regarding significant risks and issues in any particular transaction. The Agency is responsible for risk assessment and the decision whether to proceed with a Public Contract despite exposure to risks; (e) A determination that any particular remedy, whether or not expressly set forth in the Public Contract, will be available to the Agency. The requesting Agency may request the Assistant Attorney General reviewing the Public Contract to address the availability of specific remedies; (f) A determination that the Public Contract complies with Grant conditions or federal funding requirements or contains terms or assurances required under a Grant or federal funding program other than those set forth in statute or administrative rule. The requesting Agency may request the Assistant Attorney General reviewing the Public Contract to address the compliance with Grant conditions, federal funding requirements, or required assurances applicable to the federal funding program; (g) A stylistic or grammatical review, including spelling, punctuation and the like, unless such errors create ambiguity or otherwise are substantive. The Assistant Attorney General reviewing the Public Contract may address matters of this nature as time allows; however, these matters are primarily the responsibility of the Agency submitting a Public Contract for review; or (h) A determination that, except for setting off amounts owed under the Public Contract, the Agency will have court-enforceable damages, specific performance, or setoff remedies under a Public Contract with another sovereign in the event the sovereign fails to comply with the contract's terms unless the Assistant Attorney General determines in a separate writing that any such remedies are available to the Agency. (7) Approval of a Public Contract for legal sufficiency under these Division 045 rules is not a waiver by the Attorney General of the State of Oregon’s immunity under the Eleventh Amendment to the United States Constitution from suit in United States federal courts or consent to the jurisdiction of such federal courts. No such waiver is effective unless given in writing by the Attorney General in the specific instance in which the waiver is sought to be enforced. (8) An Assistant Attorney General may, at the time of or before approval of a Public Contract under these rules, provide to the Agency entering into the Public Contract written advice or reference to previously provided advice that describes particular legal or significant business risks presented by the Public Contract.