Or. Admin. R. 125-055-0037

Current through Register Vol. 63, No. 9, September 1, 2024

Section 125-055-0037 - OFC Contract Termination and Successor Contractor Requirements

(1) Definitions applicable to this rule, 125-055-0037:

(a) Three categories of Oregon Forward Program services are subject to the requirements of this rule. Other Oregon Forward service categories are not affected by these requirements. The definitions of these applicable services are:

(A) "Janitorial Services" means regular and periodical activities provided as required by Contract and performed to maintain the cleanliness of a facility.

(B) "Grounds Maintenance Services" means activities necessary for the upkeep of lands for appearance, safety and to promote the healthy growth of desired plants.

(C) "Security Services" means preventative measures employed to protect an Agency's assets and personnel from risks.

(b) "Health Benefits" means medical, optical, or dental benefits, including, but not limited to, hospital and physician services, prescription drugs, and related benefits purchased by a contractor on behalf of its employees as part of those employee's compensation for their labor.

(c) "Outgoing Contractor" means an Oregon Forward Contractor that was party to a contract for Janitorial Services, Grounds Maintenance Services or Security Services that has been terminated or expired and not renewed by either the Oregon Forward Contractor or the Public Agency.

(d) "Successor Contract" means an agreement between a Public Agency and a Service Provider for substantially the same janitorial, grounds maintenance or security services provided by an Oregon Forward Contractor through a separate terminated or expired and unrenewed agreement. The agreement will contain a provision requiring the Contractor to comply with the requirements of ORS 279.853(1) and of this rule.

(e) "Successor Contractor" means any provider under a Successor Contract.

(2) A Successor Contract shall be developed by a Public Agency when a Contract is terminated or allowed to expire for a service defined in section (1)(a) and for which the Public Agency has an ongoing need for substantially the same service.

(3) Neither a Public Agency nor Successor Contractor may resort to a name change or reorganization to evade the requirements of ORS 279.853(1) or of this rule.

(4) A Public Agency that is party to a contract or contractual relationship for a service as defined in section (1)(a) that is terminated or allowed to expire, should utilize the process described in OAR 125-055-0040(5) to evaluate potential Oregon Forward Contractor interest in providing the service needed.

(a) An Oregon Forward Contractor selected by the Public Agency as a Successor Contractor must offer employment to the Individuals with disabilities employed for 28 hours per week or more to fulfill the Contract that was terminated at the time of termination. The compensation offered to the workers must include wages and Health Benefits as favorable as, or more favorable than the wages and Health Benefits they earned from the Outgoing Contractor. The employment offer to those workers must be made in good faith.

(b) If there is not an Oregon Forward Contractor that has been deemed Suitable by DAS interested in the Successor Contract, the Public Agency shall conduct a solicitation for that service as required by applicable law. The non-Oregon Forward Contractor that would enter a Successor Contract must offer employment to all of the employees employed 28 hours per week or more to fulfill the provisions of the Contract that was terminated at the time of termination, regardless of their disability status. Supervisory and managerial personnel are excluded from this requirement. The compensation offered must include wages and Health Benefits as favorable as, or more favorable than earned by the workers from the Outgoing Contractor.

(5) The Outgoing Contractor shall cooperate with the Successor Contractor to facilitate the transition of any employees choosing to accept the Successor Contractor's employment offer. No later than 15 business days prior to the end of the prior Contract, the Outgoing Contractor shall provide the following information in writing to the Department and the Public Agency. In the event the Contract is terminated for default or immediately for any other reason and the Outgoing Contractor cannot provide the information 15 business days prior to termination, the following information must be provided in writing as soon as possible either prior to or after the termination to the Public Agency and to the Department.

(a) A list of all workers employed to fulfill the terminating Contract during the two months prior to Contract termination. Contact information for any qualifying workers shall also be included in the submitted information. This list of employees and their contact information shall be considered confidential to the Public Agency and to the Department. This confidential worker information is not to be disclosed for any purpose and shall not be subject to public records requests. The sole purpose of this information is to facilitate the purposes of the Successor Contractor transition. Any information provided to the Public Agency, or the Department shall be destroyed after the Successor Contract is executed.

(b) The number of hours worked, and the wages paid to each worker to fulfill the Contract during the two full calendar months prior to the deadline for providing this information.

(c) The Health Benefits, including written copies of the Summary Plan Description (SPD) and the Summary of Benefits and Coverage (SBC) for all health plans offered by the contractor for any workers that may be offered employment, and their costs. Any costs of health benefits borne by the workers shall also be included in the information provided.

(d) A position or role description for each worker employed to fulfill the terminated Contract for 28 hours or more per week at time of termination.

(e) An immediately effective Contract termination by the Public Agency or the Oregon Forward Contractor for a service as defined in section (1)(a) may warrant that the Public Agency enter into a short-term Contract with a contractor to allow for the development of a Successor Contract. This short-term Contract may utilize any Oregon Forward Contractor suitable for providing the service and must end before two months have elapsed since the end of the terminated Contract, at which time the Public Agency must establish a Successor Contract using the process described in this rule.

(6) The proposed Successor Contractor shall provide the following information in writing to the Public Agency and the Department:

(a) The wages that will be offered to all workers who will fulfill the Successor Contract's requirements.

(b) The Health Benefits and their costs, including written copies of the Summary Plan Description (SPD) and the Summary of Benefits and Coverage (SBC) for all health plans offered to affected workers, as would be offered to workers employed to fulfill the Successor Contract. The proposed Successor Contractor shall provide the timeline for when the workers will be allowed to use Health Benefits, including that portion of the health benefit, if any, that would be paid by the worker.

(c) A position or role description for the workers that will fulfill the requirements of the Successor Contract.

(7) The Public Agency will compare the wages and Health Benefits paid by the terminated Contractor for the workers as described in section four of this rule with those wages and Health Benefits offered by the proposed Successor Contractor for those workers. The Public Agency will submit the outcomes of their analysis for the Department's review. If the Public Agency fails to provide a timely report to the Department or does not have the ability to perform that analysis, the Department will perform the analysis. The Department will provide a report to the Public Agency, the proposed Successor Contractor, and the terminated Contractor of the outcomes of the analysis. The report will not include any of the workers' names or other identifying information. Worker information for affected workers only will be shared with the proposed Successor Contractor and the outgoing Oregon Forward Contractor. Otherwise, that report, which may be requested by submission of Public Records Request from the Department, will include:

(a) A comparison of the wages and Health Benefits provided to employees employed to fulfill the Contract that was terminated and the wages and Health Benefits that would be offered to transitioning workers by the proposed Successor Contractor.

(b) A determination of whether the proposed Successor Contractor offers wages and Health Benefits that are as favorable as, or more favorable than those offered by the Outgoing Contractor.

(c) A description of a process by which the proposed Successor Contractor may protest the outcomes of this evaluation.

(8) A proposed Successor Contractor that does not offer wages and Health Benefits, as equal or better that the Outgoing Contractor as determined by this evaluation, is not allowed to enter into a Successor Contract.

(9) No later than ten business days prior to the execution of the Successor Contract, all workers that qualify for any potential offers of employment from the Successor Contractor will also be provided The Department's evaluation of the wages and Health Benefits described in section (7) of this rule unless the Contract is terminated or expired immediately. In the case of an immediate Contract termination, those workers who qualify will be given the information as soon as possible. In no case will the potentially transitioning workers be given less than ten business days to review the analysis and decide about transferring to a new employer, subject to the Successor Contractor's established hiring procedures.

(10) In the event the proposed Successor Contractor is unable to offer wages and Health Benefits as favorable or more favorable than those offered by the Outgoing Contractor to workers eligible for making a transfer, the Public Agency may choose another vendor utilizing the process in OAR 125-055-0040(5) to identify another Oregon Forward Contractor that able and willing to fulfill the Successor Contract. If there is not an Oregon Forward Contractor that is able or interested in the Successor Contract, the Public Agency should conduct a solicitation in accordance with applicable law.

(11) The Successor Contract shall require the Successor Contractor, for a period of 90 days after entering into the Successor Contract, to offer employment to all employees that qualify for an employment offer as described in section 4 of this rule. The Successor Contractor may subject individuals to that company's established hiring procedures and may require the individuals to complete a probationary period to demonstrate that they meet the qualifications the Successor Contractor applies to new hires.

(12) No sooner than 90 days, and no later than 120 days after the Successor Contract is executed, the Successor Contractor must provide a report to the Department regarding the workers affected by these successor requirements. The report must include the following information:

(a) The names of all workers who were offered employment by the Successor Contractor that were employed by the Outgoing Contractor. Worker personally identifiable information may be exempt from disclosure.

(b) The employment status of each of those workers.

(c) The wages and Health Benefits provided to those workers that transitioned to the Successor Contractor at the time of the report.

(13) An Oregon Forward Contractor's failure to comply with the requirements of this rule will result in the Department sanctioning that Oregon Forward Contractor. The sanction will only apply to the service being provided through the Contract that is transitioning from the outgoing Oregon Forward Contractor to the Successor Contractor.

(a) The Department may impose one or more of the following sanctions: prohibit the Oregon Forward Contractor from entering into any new contracts for that service for a period of one year, unless the new contract is for services already provided to a Public Agency through an existing Oregon Forward Program Contract; or prohibit amendment or extension of a contract; or prohibit the Oregon Forward Contractor from entering into any new work order contracts under a master agreement; or suspend all services under the Oregon Forward Contractor's contracts.

(b) The Department will issue a written notification to the Oregon Forward Contractor of any sanction or status change and will note this status on the Oregon Forward Contractor's listing for the service in the Oregon Forward Program Procurement List.

(c) The Department will reinstate full-service suitability after the year has passed.

(14) An Oregon Forward Contractor may submit a written appeal to the Department within 10 days of the written suspension notification. The appeal must state the error in the Department's decision. If the applicant does not appeal the Department's decision, the decision is final.

(15) If the Department finds merit to the appeal, the Oregon Forward Contractor will remain on the Procurement List for the service.

Or. Admin. R. 125-055-0037

DAS 2-2019, temporary adopt filed 09/26/2019, effective 09/29/2019 through 03/26/2020; DAS 2-2020, adopt filed 03/12/2020, effective 3/12/2020; DAS 3-2020, temporary amend filed 09/22/2020, effective 9/22/2020 through 3/20/2021; DAS 6-2020, amend filed 11/30/2020, effective 12/1/2020; DAS 5-2023, amend filed 12/29/2023, effective 1/1/2024

Statutory/Other Authority: ORS 184.340 & 279.845(1)

Statutes/Other Implemented: ORS 279A.025(4), 279.835-279.855 & SB494 (2019)