OAR 340-256-0470: Emission Control System Inspection: Agreement With Independent Contractor; Qualifications of Contractor; Agreement Provisions

(1) The Director is authorized to enter into an emissions inspection agreement with one or more independent contractors, subject to public bidding, to provide for the construction, equipment, establishment, maintenance and operation of any emissions inspection stations or activities in such numbers and locations as may be required to provide vehicle owners reasonably convenient access to inspection facilities for the purpose of obtaining compliance with rules contained in this Division. (2) The Director is prohibited from entering into an emissions inspection agreement with any independent contractor who: (a) Is engaged in the business of manufacturing, selling, maintaining or repairing vehicles, except that the independent contractor shall not be precluded from maintaining or repairing any vehicle owned or operated by the independent contractor; (b) Does not have the capability, resources or technical and management skill to adequately construct, equip, operate or maintain a sufficient number of emissions inspection stations to meet the demand for inspection of every vehicle which is required to be submitted for inspection pursuant to this Division. (3) All persons employed by the independent contractor in the performance of an emissions inspection agreement are employees of the independent contractor and not of this state. An employee of the independent contractor shall not wear any badge, insignia, patch, emblem, device, word or series of words which would tend to indicate that such person is employed by this state. Employees of the independent contractor are specifically prohibited under this subsection from wearing the flag of this state, the words “state of Oregon,” the words “emissions inspection program” or any similar emblem or phrase. (4) The emissions inspection agreement authorized by this rule shall contain at least the following provisions: (a) A contract term or duration of not more than ten years with reasonable compensation to the contractor if the provisions of this rule are repealed during the ten-year term; (b) That nothing in the agreement or contract requires the state to purchase any asset or assume any liability if such agreement or contract is not renewed; (c) The minimum requirements for adequate staff, equipment, management and hours and place of operation of emissions inspection stations; (d) The submission of such reports and documentation concerning the operation of emissions inspection stations as the Director and the Attorney General may require; (e) Surveillance by DEQ and the Department of Administrative Services to ensure compliance with vehicle emissions testing standards, procedures, rules and laws; (f) The right of this state, upon providing reasonable notice to the independent contractor, to terminate the contract with the independent contractor and to assume operation of the vehicle emissions inspection program; (g) The right of this state upon termination of the term of the agreement or upon assumption of the operation of the program to have transferred and assigned to it for reasonable compensation any interest in land, buildings, improvements, equipment, parts, tools and services used by the independent contractors in their operation of the program; (h) The right of this state upon termination of the term of the agreement or assumption of the operation of the program to have transferred and assigned to it any contract rights, and related obligations, for land, buildings, improvements, equipment, parts, tools and services used by the independent contractors in their operation of the program; (i) The obligation of the independent contractors to provide in any agreement to be executed by them, and to maintain in any agreements previously executed by them, for land, buildings, improvements, equipment, parts, tools and services used in their operation of the program for the right of the independent contractors to assign to this state any of their rights and obligations under such contract; (j) The amounts of liquidated damages payable by this state to the independent contractor if the state exercises its right to terminate the contract at the conclusion of the first, second, third or fourth year of the contract pursuant to section (f) of this rule. The damages recoverable by the independent contractor if the state exercises its right to terminate the contract shall be limited to the liquidated damages specified in the contract; (k) Any other provision deemed necessary by the Department of Administrative Services for enforcement of the emissions inspection agreement. (5) In conjunction with the Attorney General and the Department of Administrative Services, DEQ shall establish bid specifications or contract terms for a contract with an independent contractor as provided in this rule, review bids for award of a contract with the independent contractors and negotiate any terms of a contract with the independent contractors. (6) Before entering into any contract the Director shall inquire into the marketplace of independent contractors and based upon this review shall select the independent contractor who in the sole discretion of the Director is best qualified to perform the duties required by this rule and can be operational on January 1, 1998. After a contract is awarded to an independent contractor, the Director may modify the contract with the independent contractor to allow the contractor and the state to comply with amendments to applicable statutes or rules. This modification is exempt from public bidding and may include the addition, deletion or alteration of any contract provision in order to make compliance feasible, including inspection fees and services rendered. Provisions relating to contract term or duration may be amended, except that the term or duration of the contract shall not be extended more than three and one-half years beyond the term of the original contract as awarded. If the Director cannot negotiate an acceptable modification of the contract, the state may terminate the contract. [NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan that EQC adopted under OAR 340-200-0040.]