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Oregon Bulletin

May 1, 2012

Oregon Business Development Department, Chapter 123

Rule Caption: These rules have been amended to update the limitations for unanticipated amendments.

Adm. Order No.: OBDD 2-2012

Filed with Sec. of State: 3-30-2012

Certified to be Effective: 4-2-12

Notice Publication Date: 3-1-2012

Rules Amended: 123-006-0035

Subject: These rules have been amended to update the limitations for unanticipated amendments for contracts as well as removing the 90 day limit to request for reinstatement of an expired contract.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-006-0035

Contract Amendments

(1) General Rule. The Department may amend any contract without additional competition, including reinstatements and cost overruns, but only when the Department has determined:

(a) The amended Contract is within the Scope of the Solicitation Document, or if no Solicitation Document, the Contract; or in the instance of a Special Procurement, the approval of Special Procurement;

(b) The amended Contract does not adversely affect the competitive conditions for the original contract; and

(c) If the Contract was selected according to the Small Procurement method, the total compensation does not exceed $5000, or, if selected according to the Intermediate Procurement method, the total compensation does not exceed $150,000.

(2) Anticipated Amendments.

(a) “Anticipated Amendment” means the Department has text in any Solicitation Document and the Contract that explains:

(A) The possibility of one or more Amendments;

(B) A general description of circumstances that might require an Amendment to be issued under the Contract and any changes to the requirements of the Contract that may be anticipated or even planned for, but not necessarily quantified at the time of Contract execution. These changes may be described in any Solicitation and Contract as, for example: Extra Work or Goods; Additional Work; Work to be done if certain situations are encountered; or Changes in terms, conditions, price, or type of Work; etc.; and

(C) The provisions of the Contract that are subject to negotiation in order to finalize the details and costs of such an Amendment.

(b) Anticipated Amendments do not include cost overruns or reinstatements.

(c) The Department may make one or more Anticipated Amendments to a Contract without any additional competitive process and for an unlimited amount, subject to section (1) of this rule.

(3) Unanticipated Amendments.

(a) Unanticipated Amendment” means any Amendment that does not meet the requirements of an Anticipated Amendment. Unanticipated Amendments do not include cost overruns or reinstatements.

(b) Limited Amount. The Department may make one or more Unanticipated Amendments to a Contract without any additional competitive process, provided the cumulative amounts of all Unanticipated Amendments do not exceed $6,000 for a Contract award as a small procurement under 137-047-0265 or 25% of the Original Contract amount of a Contract awarded as an intermediate procurement under 137-047-0270 and subject to section (1) of this rule.

(c) Unlimited Amount. The Department may make one or more Unanticipated Amendments to a Contract without any additional competitive process and for an unlimited amount, subject to section (1) of this rule, and provided the Department’s Designated Procurement Officer gives written approval of the Unanticipated Amendment as meeting the following requirements:

(A) The Unanticipated Amendment is due to circumstances that were unforeseen at the time the original Contract was established;

(B) The Unanticipated Amendment does not represent any important general change that alters the essential identity or main purpose of the original Contract, nor is of such importance that it should be a new undertaking; and

(C) The Unanticipated Amendment serves the public interest, including specific reasoning to support that conclusion. Reasons may include, but are not limited to: To address emergencies arising in the course of the Contract that require prompt action to protect the Work already completed or Goods delivered; to comply with official or judicial commands or directives issued during contract performance; or to ensure that the purpose of the Contract will be realized.

(4) Cost Overruns.

(a) Unless the Contract provides that the maximum total compensation is based on an estimate and is subject to amendment, if Contractor expends all authorized compensation but the required Goods, Work or Services are not complete or are not satisfactory, Contractor is responsible to complete the Goods, Work or Services to Department’s satisfaction without further compensation.

(b) Notwithstanding the general rule in subsection (4)(a) above, Department may, by Amendment to the Contract, agree to increases in the maximum total compensation, subject to section (1) of this rule, and provided the Department’s Designated Procurement Officer gives written approval of the Cost Overrun Amendment as meeting the following requirements:

(A) The cost overrun arose out of circumstances or conditions encountered in the course of contract performance that were unavoidable and not reasonably anticipated at the time of the original Contract, or the most recent Amendment, if any;

(B) The cost overrun was incurred in good faith, results from the good faith performance by the Contractor, and is no greater than the prescribed hourly rate or the reasonable value of the additional Goods, Work or Services rendered; and

(C) The Cost Overrun Amendment serves the public interest, including specific reasoning to support that conclusion. Reasons may include, but are not limited to: To address emergencies arising in the course of the Contract that require prompt action to protect the Work already completed; to comply with official or judicial commands or directives issued during contract performance; or to ensure that the purpose of the Contract will be realized.

(5) Reinstatements.

(a) “Reinstatement” of an expired Contract means an amendment to restore the full action of the Contract as though the expiration had not occurred, and extend the Contract to a new expiration. A reinstatement may be combined with any other amendment allowed by this rule.

(b) The Department’s Designated Procurement Officer may give written approval to reinstate an expired Contract if the following requirements are met:

(A) The failure to extend or renew the Contract in a timely manner was due to unforeseen or unavoidable conditions, or if due to administrative mistake, the reason for the mistake and the steps taken to prevent similar mistakes;

(B) The expiration occurred in good faith on the part of both the Department and the Contractor;

(C) The reinstatement furthers the public interest, compared to a separate procurement process, including specific reasoning to support that conclusion; and

(c) When a Contract is reinstated pursuant to this section, the Department may compensate the Contractor only at the rate or terms of compensation established in the original Contract, for Goods, Work or Services performed in the interim between the expiration of the original Contract and the execution of the Reinstatement Amendment.

(6) Amendments of Contracts for Architectural, Engineering and Land Surveying Services. This rule does not apply to amendments of Contracts for Architectural, Engineering and Land Surveying Services. The Department will comply with the Oregon Department of Justice Model Public Contract Rules, OAR chapter 137, division 048 for amendments to such contracts.

Stat. Auth.: ORS 285A.075
Stats. Implemented: ORS 285A.075 & 279.070
Hist.: EDD 11-2005, f. 11-30-05, cert. ef. 12-1-05; EDD 26-2008, f. 8-28-08, cert. ef. 9-1-08; OBDD 37-2010, f. 10-29-10, cert. ef. 11-1-10; OBDD 2-2012, f. 3-30-12, cert. ef. 4-2-12


 

Rule Caption: The Water/Wastewater Fund rules have been amended to reflect changes in the definitions as well as Appeals and Exceptions.

Adm. Order No.: OBDD 3-2012

Filed with Sec. of State: 3-30-2012

Certified to be Effective: 4-2-12

Notice Publication Date: 3-1-2012

Rules Amended: 123-043-0010, 123-043-0025, 123-043-0115

Rules Repealed: 123-043-0010(T), 123-043-0025(T), 123-043-0115(T)

Subject: The Water/Wastewater rules include updating the definition of “project” as well as adding language to the Appeals and Exceptions rule to allow for the director or his designee to waive non-statutory requirements.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-043-0010

Definitions

For the purposes of these rules additional definitions may be found in Procedural Rules, OAR 123-001. As used in this division of administrative rules, the following terms shall have the following meaning, unless the context clearly indicates otherwise:

(1) “DEQ” means the State of Oregon Department of Environmental Quality.

(2) “Facilities” means something that is built or installed to perform some particular function.

(3) “Fund” means the water fund created by ORS 285B.563.

(4) “Grant” means an award to a municipality of monies that can be used to reimburse eligible project costs. Grant funds are not required to be repaid when contract conditions are met.

(5) “Non-compliance” means the municipality has received a notice of non-compliance with:

(a) Drinking water quality standards administered by the Oregon Department of Human Services Public Health Services Drinking Water Program; or

(b) Water quality statutes, rules, orders, or permits administered by DEQ or the Environmental Quality Commission.

(6) “Project” means only a project for constructing or improving a drinking water system, or a project for constructing or improving a system for waste water collection or treatment, including storm drainage systems as defined in ORS 285B.560(4) and (5).

(7) “System” means the interconnected facilities that are required or useful for performing the required function.

(8) “Technical Assistance” means preliminary engineering or planning; legal, financial, and economic investigations, reports and studies to determine the feasibility of a project. Technical Assistance also means required Water Master Plans or Wastewater Facility Studies needed to allow communities to properly plan for the future.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560 - 285B.599
Hist.: EDD 10-1993(Temp), f. & cert. ef. 10-4-93; EDD 7-1994, f. & cert. ef. 4-7-94; EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12

123-043-0025

Ineligible Project Costs

Expenses and costs expressly allowed by OAR 123-043-0015 are eligible for reimbursement from the fund. All other costs, including but not limited to those listed below, are ineligible for reimbursement:

(1) Costs incurred for facilities that are or will be privately owned.

(2) Cost of purchase of general purpose motor vehicles and other equipment not directly related to the project.

(3) Cost of purchase of off-site property for uses not directly related to the project.

(4) Project operating or maintenance expenses.

Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560 - 285B.599
Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 42-2010, f. 11-30-10, cert. ef. 12-1-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12

123-043-0115

Appeals and Exceptions

(1) Appeals of decisions made by the municipality regarding a project must be made at the local level in accordance with the requirements and procedures of the municipality.

(2) The director or the director’s designee will consider appeals of the Authority’s funding decisions. Only the municipality may appeal. Appeals must be submitted in writing to the director within 30 days of the event or action that is being appealed. A project that would have been funded but for a technical error in the Authority’s review of the application, as determined by the director, will be funded as soon as sufficient moneys become available in the fund, provided the project is still viable. The director’s or the director’s designee decision is final.

(3) The director or the director’s designee may waive any non-statutory requirements of OAR chapter 123, division 43, if it is demonstrated such a waiver will further the goals and objectives of the program.

Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560 - 285B.599
Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12


 

Rule Caption: Development of new rules for the Business Retention and Expansion Program established in 2011 Legislative Session through SB 219.

Adm. Order No.: OBDD 4-2012

Filed with Sec. of State: 3-30-2012

Certified to be Effective: 4-2-12

Notice Publication Date: 3-1-2012

Rules Adopted: 123-091-0001, 123-091-0010, 123-091-0015, 123-091-0020, 123-091-0025, 123-091-0030

Subject: The Business Retention and Expansion Program (OBEP) was establishes through SB 219 in the 2011 Legislative Session. Business Oregon, through OBEP, will provide forgivable loans to certified employers to allow for expanded operations and increased hiring. These rules establish criteria for eligibility of funding and describe the loan agreement.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-091-0001

Purpose

This division of administrative rules clarifies, specifies and establishes procedures, standards and criteria for operation of and making loans to businesses from the Oregon Business Retention and Expansion Program (OBEP).

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

123-091-0010

Definitions

For the purpose of this rule, the following terms shall have the following meanings:

(1) “Business” means any individual, association of individuals, joint venture, partnership, limited liability company or corporation which is validly existing and authorized to conduct business in Oregon.

(2) “Calendar year” means an individual’s tax year of January 1–December 31.

(3) “Department” means the Oregon Business Development Department as established under ORS 285A.070.

(4) “Director” means the director of the Department as appointed under ORS 285A.070.

(5) “Eligible Employee” means a new employee of the Business:

(a) Who will have an annual wage that is at least 150% of the most recently available average pay for the county in which the new job will be created or the most recently available average pay for the state, both as determined by the Oregon Employment Department in the Covered Employment and Wages Summary Report, whichever is less;

(b) Who will be hired by the Business at its Oregon facility before the end of the two calendar years following the year of OBEP loan approval;

(c) For whom FICA and state and federal income taxes are deducted from his/her gross wages, which are then forwarded to the appropriate agencies by the Business on behalf of the person;

(d) For whom the Business pays state and federal unemployment insurance; and

(e) For whom the Business contributes to FICA.

(6) “Full-time Job” one Full-time Job equals 1,820 Hours Worked in a one-year period.

(7) “Hours Worked” means all hours that the employee worked, if the employee is paid for those hours. “Hours worked” does not include holiday, vacation time, sick leave or any other paid time where no work is performed.

(8) “OBEP Fund” means the Oregon Business Retention and Expansion Fund.

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

123-091-0015

Criteria for OBEP Fund Loan

In order to be eligible for a loan from the OBEP Fund, the Department must first find:

(1) That, at the time a loan from the OBEP Fund is considered for approval, the Business:

(a) Has at least 150 employees as demonstrated by documentation determined to be acceptable by the Department;

(b) Is a traded sector business, as defined in ORS 285A.010;

(c) Is not a retailer, as defined in ORS 72.8010;

(d) Plans to hire at least 50 full-time Eligible Employees before the end of the two calendar years following the year in which the OBEP loan is approved;

(e) Has stated to the Department that a loan from the OBEP was an integral factor in the Business’s decision to hire at least 50 full-time Eligible Employees; and

(f) Has provided all information to the Department as requested and as required by the Oregon Business Retention and Expansion Program;

(2) That the Business’s proposed expansion will result in significant, long-term economic benefit in the region and will serve as a catalyst for additional economic development benefits in the state.

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

123-091-0020

Approval and Amount of OBEP Fund Loan

(1) The Director, or his designee, in his sole discretion, shall determine whether to approve a loan to a Business from the OBEP Fund and the amount of the loan.

(2) A loan from the OBEP Fund shall not exceed the lesser of:

(a)(A) The amount of estimated Oregon personal income taxes to be paid in the two calendar years following the year of OBEP loan approval by Eligible Employees, using the result of the following formula:

(B) Average wage of all Eligible Employees multiplied by the applicable Tax as a Percent of Taxable Income from Table B: Average Income and Tax (Dollars) in the Oregon Department of Revenue’s most recently published Oregon Personal Income Tax Statistics, All Returns and Full-Year Resident Returns (by AGI) multiplied by 2.

(b) The amount currently available in the OBEP Fund.

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

123-091-0025

Loan Agreement

After approval of a loan from the OBEP Fund, the Department will enter into a loan agreement with the Business. Among other items, the loan agreement will contain the following provisions:

(1) The Business must enter into a First Source Agreement in accordance with OAR 123-070;

(2) The Business, to the extent practicable, must consult with vendors in Oregon before entering into contracts for goods and services;

(3) The Business must duly execute and deliver the following to the Department within 90 days from the date the loan was approved:

(a) Loan agreement;

(b) Promissory note;

(c) If required, a copy of the First Source Agreement; and

(d) Any other certificates, opinions and documents as the Department may reasonably require regarding the authorization of the loan agreement, the promissory note and any related documents.

(4) Loan funds must be disbursed to the Business no later than 120 days after the loan was approved, provided that the Department, in the reasonable exercise of its administrative discretion, has made a determination that there are sufficient funds in the OBEP Fund to make the disbursement;

(5) The terms for forgiveness of the loan, which will, among other items, require that the personal income tax estimated to be generated by the new Full-time Jobs in no more than two consecutive calendar years is equal to or exceeds the amount of the loan and that the actual number of new Full-time Jobs is equal to or exceeds the number of Full-time Jobs proposed at the time the loan was approved. The Department intends to obtain information to calculate the personal income tax estimated to be generated by the new Full-time Jobs and the actual number of new Full-time Jobs from the Oregon Employment Department. If the Department is not able to obtain information from the Oregon Employment Department to make these calculations, the Business will be required to provide comparable information, as the Department may reasonably request, to the Department.

(6) If the personal income tax estimated to be generated by the new Full-time Jobs (“Total PIT”) is less than the amount of the loan, the Business must immediately repay to the Department an amount equal to: (the loan amount multiplied by .5) multiplied by (1 – (Total PIT / the loan amount)). If the actual number of new Full-time Jobs is less than the number of new Full-time Jobs proposed at the time the loan was approved, the Business must immediately repay to the Department an amount equal to: (the loan amount multiplied by .5) multiplied by (1 – (the actual number of new Full-time Jobs / the required number of new Full-time Jobs); and

(7) The Business must submit a report to the Department which lists categories of new positions created in the time period used to calculate the personal income tax, as described in paragraph e. above, the average hourly wage of the new positions, and the number of persons hired to fill those positions.

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

123-091-0030

Waivers

The Director, or his designee, may waive non-statutory requirements of this division of administrative rule if such a waiver will serve to further the goals of the Oregon Business Retention and Expansion Program.

Stat. Auth.: ORS 285A.075, 285B & OL Ch. 549, Sec. 1-8 & 10-11
Stats. Implemented: ORS 285B, OL Ch. 549, Sec. 1-8 & 10-11
Hist.: OBDD 4-2012, f. 3-30-12, cert. ef. 4-2-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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