Or. Admin. R. 137-045-0050

Current through Register Vol. 63, No. 6, June 1, 2024

Section 137-045-0050 - Exemptions from Legal Sufficiency Approval Based on Risk Assessment

The Attorney General has determined that the degree of risk to Agencies is not materially reduced by legal review and approval of certain Public Contracts. The Attorney General exempts from the legal sufficiency approval requirement under ORS 291.047 the Public Contracts listed below:

(1) Adoption Assistance Agreements. A document of understanding between the Oregon Department of Human Services and adoptive parents of a special needs child as defined under title IV-E at section 473(c) of the Social Security Act.

(2) Amendments to Public Contracts other than for Public Improvements, Public Works, and Loans. A written amendment to a Public Contract that is not for a Public Improvement, Public Works, or loan, if (a), (b) and (c) below apply:

(a) The Public Contract being amended was approved for legal sufficiency.

(b) The amendment only modifies the Public Contract or any related payment amounts in one or more of the following ways:

(A) Amends the Statement of Work to require the contractor to provide additional or fewer goods, services, or other work that are specified by Last Reviewed Contract; or

(B) Amends the expiration date of the Public Contract; Technical Specifications; time; or place, quantity or form of delivery, or price; or

(C) Any provisions as specified in writing at the time of approval by the Assistant Attorney General who provided legal sufficiency approval of the Last Reviewed Contract, based on the Assistant Attorney General's finding that the degree of risk assumed by the Agency will not be materially reduced by legal review and approval of the provisions.

(c) The aggregate increase in payments scheduled to be made by the Agency, or the aggregate decrease in payments scheduled to be received by the Agency, under the amendment, and all prior amendments exempted from the legal sufficiency approval requirement under this section subsequent to the Last Reviewed Contract, does not exceed the greater of:

(A) $250,000; or

(B) Any limits specified in writing at the time of legal sufficiency approval of the Last Reviewed Contract by the Assistant Attorney General based on their finding that the degree of risk assumed by the Agency will not be materially reduced by review of amendments that do not increase payments over the limits specified by the Assistant Attorney General.

(3) Amendments to Public Improvement Contracts or Public Contracts for a Public Work if (a), (b), or (c) below apply:

(a) A written change order or other amendment to a Public Improvement Contract or a Public Contract for a Public Work, other than a construction manager/general contractor contract, as provided in subsection (3)(b) below, or a design-build contract or energy savings performance contract as provided in subsection (3)(c) of this section, if all of the following apply:

(A) The Public Improvement Contract or the Public Contract for a Public Work being amended was approved for legal sufficiency.

(B) The change order or other amendment is within the general scope of the Public Improvement Contract or the Public Contract for a Public Work.

(C) The change order or other amendment is implemented in accordance with the provisions of the Public Improvement Contract or the Public Contract for a Public Work governing change orders and other types of amendments.

(D) The change order or other amendment modifies only one or both of the following and related payment amounts as necessary:

(i) The Statement of Work to require the contractor to provide additional or fewer materials, tools, equipment, labor or professional or non-professional services within the general scope of the Last Reviewed Contract;

(ii) The substantial completion date, the final completion date, or interim milestone dates of the Public Improvement Contract or the Public Contract for a Public Work; Technical Specifications; time, place, quantity or form of delivery of materials, tools, equipment or services; or price.

(E) Any increase in Agency payments under the change order or other amendment does not exceed ten percent (10%) of the total amount of Agency payments scheduled to be made under the Last Reviewed Contract, and the aggregate increase in Agency payments scheduled to be made under that change order or other amendment, and all prior change orders or other amendments effective after the Last Reviewed Contract do not exceed thirty-three percent (33%) of that total amount.

(b) An amendment to a CM/GC contract (as defined in OAR 137-049-0610) that complies with either paragraph (3)(b)(A) or (B) below, whether the amendment is in the form of a change order or other amendment:

(A) The amendment is made before construction services have been authorized under the CM/GC contract and:

(i) The CM/GC contract was approved for legal sufficiency;

(ii) The amendment is implemented in accordance with the provisions of the CM/GC contract governing change orders and other amendments; and

(iii) The amendment modifies only one or more of the following and related payment amounts as necessary:

(I) The Statement of Work to require the CM/GC to provide additional or fewer materials, equipment, or pre-construction services within the general scope of the Last Reviewed Contract.

(II) The substantial completion date, the final completion date, or interim milestone dates of the CM/GC contract; Technical Specifications; time, place, quantity or form of delivery of services; or price.

(iv) Any increase in Agency payments under the amendment does not exceed ten percent (10%) of the total amount of Agency payments scheduled to be made under the Last Reviewed Contract, and the aggregate increase in Agency payments scheduled to be made under that amendment and all prior amendments subsequent to the Last Reviewed Contract do not exceed thirty-three percent (33%) of that total amount.

(B) The amendment is made after construction services have been authorized under the CM/GC contract and complies with all of the following:

(i) The CM/GC contract being amended was approved for legal sufficiency;

(ii) The amendment is implemented in accordance with the provisions of the CM/GC contract governing change orders and other types of amendments;

(iii) The amendment is not the first amendment that authorizes construction services under the CM/GC contract;

(iv) The amendment does not establish the guaranteed maximum price ("GMP") under the CM/GC contract; and

(v) The amendment modifies only one or both of the following and related payment amounts as necessary.

(I) The Statement of Work to require the CM/GC to provide additional or fewer materials, tools, equipment, labor or professional or non-professional services within the general scope of the Last Reviewed Contract.

(vi) The amendment does not increase the contract price (whether a GMP, fixed price, lump sum or other price) established under the Last Reviewed Contract by more than $500,000.

(vii) The amendment and all prior amendments subsequent to the Last Reviewed Contract in the aggregate do not increase the contract price (whether a GMP, fixed price, lump sum or other price) established under the Last Reviewed Contract by more than ten percent (10%).

(c) An amendment to a Design-Build contract (as defined in OAR 137-049-0610), or an amendment to an Energy Savings Performance Contract (as defined in ORS 279A.010(1)(g)) that is in the construction phase, whether the amendment is in the form of a change order or a conventional amendment, if all of the following apply:

(A) The contract being amended was approved for legal sufficiency;

(B) The amendment is implemented in accordance with the provisions of the Design-Build or Energy Savings Performance Contract governing change orders and other types of amendments;

(C) The amendment modifies only one or both of the following and related payment obligations as necessary:

(i) The Statement of Work to require the Design/Builder or Energy Savings Performance Contract contractor, as applicable, to provide additional or fewer materials, tools, equipment, labor or professional or non-professional services within the general scope of the Last Reviewed Contract;

(ii) The substantial completion date, the final completion date, or interim milestone dates of the contract; Technical Specifications; time, place, quantity or form of delivery of materials, tools, equipment or services; or the price;

(D) The amendment does not increase the contract price (whether a GMP, fixed price, lump sum or other price) established under the Last Reviewed Contract by more than $500,000 or five percent (5%), whichever is less; and

(E) The amendment and all prior amendments subsequent to the Last Reviewed Contract in the aggregate do not increase the contract price (whether a GMP, fixed price, lump sum or other price) established under the Last Reviewed Contract by more than $500,000 or ten percent (10%), whichever is less.

(d) For purposes of this rule, "change order" means a mutually agreed upon change order or a unilateral construction change directive or similar instruction issued by the Agency or its authorized representative to the contractor requiring a change in the work within the general scope of a Public Improvement Contract or the Public Contract for a Public Work and issued under the provisions of the Public Improvement Contract or the Public Contract for a Public Work governing the implementation, addition, reduction or other revisions to the work and, if applicable, adjusting the contract price or contract time for the changed work.

(4) Bonds and Confirmation Statements, if (a) or (b) below apply:

(a) An agreement entered into, issued or established in connection with the issuance of a bond or other borrowing of the State of Oregon, including an interest rate exchange agreement and any associated confirmation statement, if the Oregon State Treasurer has issued or authorized the bond or other borrowing obligation to which the agreement relates and if bond counsel appointed in accordance with applicable law has issued an approving opinion for the benefit or use of purchasers of the bond or other borrowing with respect to the enforceability of the bond or other borrowing upon closing of the transaction; or

(b) A confirmation statement associated with an Agency's investment-related interest rate or currency swap agreement or other investment transaction, if the agreement under which the confirmation statement arises has been approved for legal sufficiency or is exempt from legal sufficiency approval.

(5) Conflict Counsel Contracts. Contracts entered into by Agencies for legal counsel pursuant to ORS 180.235 using, without substantial revision, a contract form approved by the Department of Justice.

(6) Employment Agreements. Employment agreements and collective bargaining agreements negotiated under applicable federal or state laws, including collective bargaining agreements entered into pursuant to ORS 410.612. Agreements with third-party providers of temporary services are not exempt.

(7) Federal Contracts. A contract with a federal agency consisting substantially of provisions prescribed in Federal Acquisition Regulations or federal agency supplemental acquisition clauses (48 CFR), except a contract allowed under Section 211 of the federal E-Government Act of 2002.

(8) Federal Cooperative Agreements. A Federal Cooperative Agreement.

(9) Federal Grants. A grant from a federal agency under which an Agency is the grantee, provided that the Agency has a grants coordinator.

(10) Federal Pass-Through Grants. A Grant under which an Agency passes through to another recipient all or a portion of the money or property received by the Agency under a Grant from a federal agency, provided that:

(a) The Agency does not add to or modify the federal grant except as necessary to provide for proper administration; and

(b) The Grant contains a clause substantially in the following form: "The recipient of grant funds, pursuant to this agreement with the State of Oregon, shall assume sole liability for recipient's breach of the conditions of the grant, and shall, upon recipient's breach of grant conditions that causes or requires the State of Oregon to return funds to the grantor, hold harmless and indemnify the State of Oregon for an amount equal to the funds which the State of Oregon is required to pay to grantor."

(11) Foster Care Agreements. An agreement between the Oregon Department of Human Services or the Oregon Youth Authority and a foster parent for the provision of foster care to an individual under the age of 21, or a youth placed with the Oregon Department of Human Services or Oregon Youth Authority pursuant to ORS 419C.478.

(12) Home Care Services Agreements. An agreement for the provision of and payment for home care services as defined in ORS 410.600(8).

(13) Membership Agreements. A Public Contract that requests or provides for the payment of dues or fees in consideration of membership of individual officers, employees or agents of the State of Oregon in a club, institution, or association in which the State of Oregon acquires no ownership interest. This exemption does not apply if the membership is for an Agency of the State of Oregon.

(14) Non-Negotiable Public Contracts. A Non-Negotiable Public Contract.

(15) Prescribed Contracts. An agreement that is in the form prescribed in Procurement Documents and any conditions on authorization for release under OAR 137-045-0035. Prescribed Contracts do not vary from the form prescribed in Procurement Documents other than to fill in blanks in the form, as is commonly done with invitations to bid for goods and services other than personal services.

(16) Resulting Contracts. A contract formed by a purchase order, work order, task order or a similar ordering instrument for the purchase of goods or services under a Price Agreement, provided that the Assistant Attorney General who reviewed the Price Agreement specified that resulting contracts are exempt from further legal sufficiency review and approval, and the ordering instrument issued by the Agency complies with any conditions set by the Assistant Attorney General in the approval.

(17) Settlement Agreements. Agreements settling disputed claims that do not have the effect of amending Public Contracts that are subject to the legal sufficiency approval requirement.

(18) Amendments to Loan Contracts. A written amendment to a Public Contract solely for an Agency loan of money to another party that requires repayment to the Agency, if all of the following apply:

(a) The Public Contract being amended was approved for legal sufficiency;

(b) The amendment modifies only;

(A) The description of the project being financed only to the extent that the modified project remains eligible for financing by the same source of funds as the project before modification; or

(B) Business terms in the Public Contract that:

(i) Except as provided in subsection (18)(c), do not increase or decrease the total principal repayment obligations under the Public Contract;

(ii) Change the interest rate or payment due dates, except for the final maturity date; or

(iii) Describe the non-financial terms and conditions of performance, such as performance start or completion dates for the project being financed or job creation or retention requirements; and

(c) The aggregate increase in the loan amount under the amendment or the aggregate decrease in principal payments scheduled to be received by the Agency, and all prior amendments exempted from the legal sufficiency approval requirement subsequent to the Last Reviewed Contract, does not exceed the greater of:

(A) $250,000; or

(B) Any amounts specified in writing at the time of approval by the Assistant Attorney General who provided legal sufficiency approval of the Last Reviewed Contract.

Or. Admin. R. 137-045-0050

JD 4-1997(Temp), f. & cert. ef. 10-3-97; JD 5-1997(Temp), f. & cert. ef. 10-17-97; 137-045-0050 (Temp) repealed by DOJ 3-1998, f. & cert. ef. 4-1-98; DOJ 3-1998, f. & cert. ef. 4-1-98; DOJ 2-2001, f. & cert. ef. 1-18-01; DOJ 17-2003, f. & cert. ef. 12-9-03; DOJ 19-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 18-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 2-2009(Temp), f. & cert. ef. 2-26-09 thru 8-25-09; DOJ 10-2009, f. 7-2-09, cert. ef. 7-6-09; DOJ 14-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 11-2014(Temp), f. & cert. ef. 7-11-14 thru 9-30-14; DOJ 12-2014(Temp), f. 9-25-14, cert. ef. 10-1-14 thru 11-14-14; Reverted to DOJ 14-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 28-2023, amend filed 12/29/2023, effective 1/1/2024

Statutory/Other Authority: ORS 291.047(4), 190.430 & 190.490

Statutes/Other Implemented: ORS 291.047, 190.430 & 190.490