OAR 839-025-0310: Division of Projects

(1)(a) A person or public agency may not divide a public works project into more than one project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870. (b) When making a determination of whether a person or public agency divided a public works project to avoid compliance with ORS 279C.800 to 279C.870, the commissioner will consider the facts and circumstances in any given situation including, but not limited to, the following matters: (A) The physical separation of project structures; (B) Whether a single public works project includes several types of improvements or structures; (C) The anticipated outcome of the particular improvements or structures the agency plans to fund; (D) Whether the structures or improvements are similar to one another and combine to form a single, logical entity having an overall purpose or function; (E) Whether the work on the project is performed in one time period or in several phases as components of a larger entity; (F) Whether a contractor or subcontractor and their employees are the same or substantially the same throughout the particular project; (G) The manner in which the public agency and the contractors administer and implement the project; (H) Other relevant matters as may arise in any particular case. (c) If the commissioner determines that a person or public agency has divided a public works project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870, the commissioner will issue a written order compelling compliance with 279C.800 to 279C.870. The order will offer the person or public agency the opportunity to contest the order pursuant to OAR 839-050-0000 through 839-050-0420. (2) Regardless of whether the commissioner believes that a person or public agency divided a public works project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870, the commissioner may apply the considerations set forth in subsection (1)(b) of this rule to determine whether to divide a public works project into more than one contract. (3) If a project is a public works of the type described in ORS 279C.800(6)(a)(B) or (C), the commissioner shall divide the project, if appropriate, after applying the considerations set forth in section (1)(b) of this rule to separate the parts of the project that include funds of a public agency or that will be occupied or used by a public agency from the parts of the project that do not include funds of a public agency and that will not be occupied or used by a public agency. If the commissioner divides the project, any part of the project that does not include funds of a public agency and that will not be occupied or used by a public agency is not subject to 279C.800 to 279C.870. (4) If a project includes parts that are owned by a public agency and parts that are owned by a private entity, the commissioner shall divide the project, if appropriate, after applying the considerations set forth in sections (1)(b) and (2) of this rule to separate the parts of the project that are public works from the parts of the project that are not public works. If the commissioner divides the project, parts of the project that are not public works are not subject to ORS 279C.800 to 279C.870. (5) When a private project for the construction, reconstruction, major renovation, demolition, hazardous waste removal or painting of a privately owned road, highway, building, structure or improvement of any type that is already underway becomes a public works project by virtue of the provisions of ORS 279C.800(6)(a)(B) or (C), the provisions of 279C.800 to 279C.870 apply prospectively to the project once any public agency commits to the provision of funds for the project or any public agency enters into an agreement to occupy or use any portion of the completed project. If a public agency delays a commitment to the provision of funds or delays entry into an agreement for occupancy or use for the purpose of avoiding compliance with 279C.800 to 279C.870, the commissioner may determine that the provisions of 279C.800 to 279C.870 shall apply to the entire public works project under section (1) of this rule.