Required Records

839-16-025 (1) All contractors and subcontractors performing work on public works contracts shall make and maintain for a period of three (3) years from the completion of work upon such public works records necessary to determine whether the prevailing rate of wage and overtime has been or is being paid to workers upon public works. (2) In addition to the Payroll and Certified Statement, Form WH-38. records necessary to determine whether the prevailing wage rate and overtime wages have been or are being paid include but are not limited to records of: (a) The name and address of each employee;

(b) The work classification or classifications of each employee:

(c) The rate or rates of monetary wages and fringe benefits paid to each employee:

(d) The rate or rates of fringe benefit payments made in lieu of those required to be provided to each employee: (e) Total daily and weekly compensation paid to each employee:

(f) The daily and weekly hours worked by each employee;

(g) Apprenticeship and Training Agreements;

(h) Any deductions, rebates or refunds taken from each employee's total compensation and actual wages paid: (i) Any payroll and other such records pertaining to the employment of employees upon a public work.

(3) When apprentices and/or trainees are employed on a public works project, the records must clearly distinguish them from other employees.

(4) When a contractor or subcontractor employs a worker on public works projects and non public works projects during the same work week and the worker is paid a rate of pay which is less than the prevailing wage rate when working on a non public works project, the contractor or subcontractor must separately record the hours worked on the public works projects and those hours worked elsewhere.

(5) Contractors shall maintain records documenting that the appropriate fee was paid. Such records shall be maintained for a period of two years and shall include but are not limited to:

(a) Contract documents showing the contract price:

(b) Change orders or other adjustments to the final contract price:

(c) Receipts showing amounts paid.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Records Availability

839-16-030 (1) Every contractor and subcontractor performing work on a public works contract shall make available to representatives of the Wage and Hour Division records necessary to determine if the prevailing wage rate has been or is being paid to workers upon such public work and records showing contract prices and sums paid as fees to the bureau. Such records shall be made available to representatives of the Wage and Hour Division for inspection and transcription during normal business hours.

(2) The contractor or subcontractor shall make the records referred to in section (1) of this rule available within 24 hours of a request from a representative of the Wage and Hour Division or at such later date as may be specified by the division.

(3) When a prevailing wage ra:e claim or complaint has been filed with the Wage and Hour Division or when the division has otherwise received evidence indicating that a violation has occurred and upon a written request by a representative of the Division a public works contractor or subcontractor shall send a certified copy of such contractor's or subcontractor's payroll records to the Division within ten days of receiving such request. The Division's written request for such certified copies will indicate that a prevailing wage rate claim has been filed or that the division has received evidence indicating that a violation has occurred.

839-16-033 (1) Contractors shall post the prevailing wage rates applicable to the project in a conspicuous place at the site of work. The posting shall be easily accessible to employees working on the project.

(2) Contractors may obtain a copy of the applicable prevailing wage rates, without cost, from: Prevailing Wage Rate Unit. Wage and Hour Division. Bureau of Labor and Industries. 800 N.E. Oregon Street #32. Portland, OR 97232.

(3) When a contractor or subcontractor provides for or contributes to a health and welfare plan or pension plan for employees who are working on a public works project. the contractor or subcontractor shall post a notice containing the following information:

(a) A description of the plan or plans;

(b) Information on how and where claims can be made; and

(c) Where to obtain more information.

(4) The notice required to be posted in section (3) of this rule shall be posted in a conspicuous place at the site of work and shall be easily accessible to employees working on the project. The notice shall be posted in the same location as the prevailing wage rate pursuant to section (1) of this rule.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Youth Apprentices

839-16-045 Youth apprentices, as defined in ORS 344.745. shall not be employed on public works construction projects (Reference: ORS 344.750(5)).

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Contract Ineligibility

839-16-085 (1) Under the following circumstances, the commissioner, in accordance with the Administrative Procedures Act, may determine that for a period not to exceed three years, a contractor, subcontractor or any firm. limited liability company, corporation, partnership or association in which the contractor or subcontractor has a financial interest is ineligible to receive any contract or subcontract for a public work:

(a) The contractor or subcontractor has intentionally failed or refused to pay the prevailing rate of wage to workers employed on public works as required by ORS 279.350;

(b) The subcontractor has failed to pay its employees the prevailing rate of wage required by ORS 279.350 and the contractor has paid the employees on the subcontractor's behalf

(c) The contractor or subcontractor has intentionally failed or refused to post the prevailing wage rates as required by ORS 279.350(4) and these rules.

(2) When the contractor or subcontractor is a corporation, the provisions of section (1) of this rule shall apply to any corporate officer or corporate agent who is responsible for the failure or refusal to pay or post the prevailing wage rates.

(3) As used in section (2) of this rule, any corporate officer or corporate agent responsible for the failure to pay or post the prevailing wage rates or for the failure to pay to a subcontractor's employees amounts required by ORS 279.350 that are paid by the contractor on the subcontractor's behalf includes, but is not limited to the following individuals when the individuals knew or should have known the amount of the applicable prevailing wages or that such wages must be posted:

(a) The corporate president:

(b) The corporate vice president:

(c) The corporate secretary;

(d) The corporate treasurer;

(e) Any other person acting as an agent of a corporate officer or the corporation.

(4) The Wage and Hour Division shall maintain a written list of the names of those contractors, subcontractors and other persons who are ineligible to receive public works contracts and subcontracts. The list shall contain the name of contractors, subcontractors and other persons, and the name of any firms, corporations, partnerships or associations in which the contractor, subcontractor or other persons have a financial interest. Except as provided in

OAR 839-16-095, such names will remain on the list for a period of three (3) years from the date such names were first published on the list.

(5) Before placing a name on the ineligible list referred to in section (3) of this rule, the commissioner shail serve a notice of intended action upon the contractor or subcontractor in the same manner as service of summons or by certified mail, return receipt requested.

(6) The Notice shall include:

(a) A reference to ORS 279.350:

(b) A short and concise statement of the matters which constitute intentional failure or refusal to pay or post the prevailing rate of wage:

(c) A statement of the party's right to request a contested case hearing and to be represented by counsel at such hearing, provided that any such request must be received by the commissioner in writing within 20 days of service of the notice:

(d) A statement that the party's name will be published on a list of persons ineligible to receive public works contracts or subcontracts, unless the party requests a contested case hearing as provided in subsection (4)(c) of this rule:

(e) A statement that failure to make written request to the commissioner for a contested case hearing within the time specified shall constitute a waiver of the right thereto; and

(f) A statement that if a hearing is requested. the contractor or subcontractor will be given information on procedures and rights as required by ORS 183.413(2).

(7) Upon the failure of the contractor or subcontractor to request a contested case hearing within the time specified, the commissioner or the commissioner's designee shall enter an order supporting the Bureau's action.

(8) If a contractor or subcontractor makes a timely request for a contested case hearing a hearing shall be held in accordance with the Attorney General's Model Rules of Procedure Under the Administrative Procedure Act by the commissioner or the commissioner's designee.

839-16-100 (1) All publit works contracts, regardless of funding sources, awarded by a public agency are regulated under ORS 279.348 to 279 380 except as follows:

(a) Projects for which the total sum of the contract price does not exceed $25.000;

(b) Projects which are regulated under the Davis-Bacon Act (40 U.S.C. 276a);

(c) Contracts of a People's Utility District which are regulated under ORS 261.345.

(2) As used in subsection (1)(a) of this rule, the contract price has the same meaning as that defined in OAR 839-016-200(5)(a)

(3) As used in subsection (1)(b) of this rule, projects regulated under the Davis-Bacon Act do not include projects subject to that Act but for any reason are not regulated under it. (For example, contracts subject to the Davis-Bacon Act and from which the prevailing wage rates, as determined by the U.S. Secretary of Labor, have been omitted are not regulated under that Act.)

(4) The provisions of ORS 279.350 and these rules that regulate payment of the prevailing rate of wage do not apply to inmates of the Oregon Department of Corrections assigned to a work release program or otherwise working in gainful private employment pursuant to ORS 144.480. relating to prison inmate labor.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented. ORS 279.348 to 279.380

Fees On Public Works Contracts

Fees to be paid by Contractor

839-16-200 (1) Every contractor awarded a contract for a public work which is regulated under the Prevailing Wage Rate Law ORS 279.348 to 29 380 shall pay a fee.

(2) The amount of the fee shall be one tenth of one percent (.001) of the contract price. However, the fee shall be no less than $100 nor more than $5.000 regardless of the contract price.

(3) The fee is payable to the Bureau of Labor and Industries and shall be mailed or delivered to the bureau at the following address: Prevailing Wage Rate Unit, Wage and Hour Division. Bureau of Labor and Industries, 800 N.E. Oregon Street #32, Portland, OR 97232.

(4) The fee shall be paid no later than 10 days following receipt by the contractor of the first progress payment on the contract or 60 days after work on the project has begun, whichever date is earlier.

(5) In order to assist contractors in the proper calculation of the fee, the bureau has prepared a form for this purpose. The form is available, on request, from the Prevailing Wage Rate Unit at the address contained in section (3) of this rule.

(6) As used in this rule:

(a) "Contract price" means the dollar amount of the contract on the date it was awarded to the contractor and the dollar amount of any subsequent change orders or other adjustments.

(b) "Work on the project" shall mean work performed after the date the contract was awarded and for which the contractor is paid as part of the contract price.

(c) The "date work on the project has begun" shall be the date the contractor actually starts work on the project or, if the contractor cannot determine the date the contractor actually started working on the project, the date the contracting agency establishes as the date work actually started on the project or, if neither the contractor nor the contracting agency can determine the date the contractor actually started work on the project. the date the contracting agency authorized the contractor to begin work on the project.

(d) "Progress payment" means a partial payment to the contractor by the contracting agency for work performed on the contract.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Adjustment of Fees

839-16-210 (1) Within 30 days of the final progress payment to the contractor by the contracting agency after completion of the contract, the contractor shall determine the final contract price. The contractor shall consider all change orders or other adjustments to the contract price in making the determination.

(2) The contractor shall calculate the fee in accordance with OAR 839-16-200(2) and shall credit the amount paid pursuant to OAR 839-16-200(4). The difference, if any, shall be determined as follows:

(a) In the case of a reduction of more than $100 in the amount of the fee, the contractor may submit a request to the bureau for a refund of the difference and the bureau shall pay a refund to the contractor or subcontractor. (b) in the case of an increase of more than $100 in the amount of the fee, the contractor shall pay the difference to the bureau.

(3) Requests for refunds and additional payments shall be submitted with sufficient documentation to show how the amount to be refunded or to be paid was calculated. All such requests or payments shall be made to the bureau at the address specified in OAR 839-16-200(3) within 30 days of the date the final progress payment was made to the contractor by the contracting agency after completion of the contract.

(4) In order to assist contractors in the proper calculation of the fee, the bureau has prepared a form for this purpose. The form is available, on request, from the Prevailing Wage Unit at the address specified in OAR 839-16-200(3).

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Fees for Contract Without Specific Award Amounts

839-16-220 (1) When the project for a public work is anticipated to equal or exceed $25.000 but the contract is awarded without stating any specific amount, the contract price for purposes of calculating the fee shall be based on the amount the public agency anticipates to be the guaranteed maximum amount of the project.

(2) When the contract is awarded without stating any specific amount. the fee shall be calculated on the guaranteed maximum amount referred to in section (1) of this rule and the fee is payable pursuant to OAR 839-16-200

(3) When the contract is completed, adjustments in the fees shall be calculated and paid or a refund may be requested as provided in OAR 839-16-210.

(4) When the agency has not determined the guaranteed maximum amount. the agency shall provide to the contractor with a good faith estimate of the contract price. The fee shall be calculated on this estimated amount.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Special Circumstances/No General Contractor

839-16-230 (1) While the general contractor is normally the party that will pay the required fee, there are circumstances when this may not be the case. When the public contracting agency chooses to act as its own general contractor or when the agency contracts with another to act as the construction manager of a public works project. several parties may be responsible for paying a fee.

(2) The required fee must be paid by the contractor who is awarded the public works contract (See ORS 279.375). Therefore, when a contracting agency acts as its own general contractor and enters into one or several contracts in connection with a public works project of $25,000 or more, each contractor shall be required to pay the fee in connection with the contract awarded to the contractor. The fee is required on all contracts, regardless of the contract price of any individual contract, so long as the combined price of all contracts awarded on the project is $25.000 or more.

(3) Section (2) of this rule is also applicable to the circumstance where the contracting agency contracts with a contractor to act as the general manager of a public works project. The contract for general manager services is a public works contract for purposes of these rules and a fee is required just as any other public works contract, since the contract would not have been entered into but for the public works project.

(4) When a contracting agency enters into an agreement for construction management services or chooses to act as its own general contractor or construction manager, the contract price for purposes of determining whether the project is regulated under the law shall be the sum of all contracts associated with the project or, if the actual sums are not known at the time work begins, the contract price shall be the guaranteed maximum amour for the project or the agency's good faith estimate of the contract price of the project if there is no guaranteed maximum amount. Under these circumstances, when the guaranteed maximum amount of the project or the agency's estimate of the price of the project meets or exceeds $25,000, each contractor that enters into a contract with the agency shall be responsible for paying a fee pursuant to OAR 839-16-200.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Special Circumstances/Effective Date

839-16-240 (1) Contractors are required to pay a fee on all applicable contracts awarded on or after September 9, 1995. Contracts awarded before that date are not subject to the fee.

(2) When work on a public works project of $25,000 or more began prior to the effective date and contracts are awarded in connection with the project after the effective date, only those contracts awarded after the effective date are subject to the required fee.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380

Generally

Actions That Circumvent Payment Of Prevailing Wages Prohibited

839-16-300 No person shall take any action which circumvents the payment of the prevailing wage rate to workers on public works projects.

Stat. Auth.: ORS Ch. 279 & 651

Stats. Implemented: ORS 279.348 to 279.380