Chapter 279C

279C.350

NOTES OF DECISIONS

Under former similar statute (ORS 279.019)

Person bringing action for writ of review “pursuant to ORS chapter 34” to test validity of exemption granted pursuant to [former] ORS 279.015 is not required to meet standing requirement imposed by ORS 34.040. Associated Builders and Contractors, Inc. v. Tri-Met, 170 Or App 271, 12 P3d 62 (2000)

279C.375

NOTES OF DECISIONS

Under former similar statute (ORS 279.029)

Lowest-bidder provision does not apply to award of concession contract by public agency. Double Eagle Golf, Inc. v. City of Portland, 322 Or 604, 910 P2d 1104 (1996)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.029)

Amendment or cancellation of public contracts, (1974) Vol 36, p 1127

279C.380

NOTES OF DECISIONS

When read with ORS 279C.600, successful bidder in public improvement contract must secure payment bond in amount equal to full contract price to protect potential claimant under ORS 279C.600 and claimant under ORS 279C.600 is not required to incorporate its contract or quasi-contract claims into bond claims. State v. Ross Bros. & Co., Inc., 268 Or App 438, 342 P3d 1026 (2015), Sup Ct review denied

279C.385

NOTES OF DECISIONS

Under former similar statute (ORS 279.031)

Section applies only to situation where proper contract has been formed by acceptance of an extant bid and successful bidder refuses to execute such contract, and section does not require that bids not be withdrawn after they have been opened but prior to time they are accepted. Taggart v. Douglas County, 31 Or App 1137, 572 P2d 1050 (1977), Sup Ct review denied

279C.450

NOTES OF DECISIONS

Under former similar statute (ORS 279.045)

Failure to meet Disadvantaged Business Enterprise goal was ground for rejection of bid, but rejection did not constitute “disqualification” of bidder, and bidder could not seek review of bid rejection under this section. Clarke Electric, Inc. v. State Highway Division, 93 Or App 693, 763 P2d 1199 (1988)

Because public contracting laws of [former] ORS chapter 279 do not apply to Legislative Administration Committee, this section does not provide remedy for person appealing disqualification. Enertrol Power Monitoring Corp. v. State of Oregon, 314 Or 78, 836 P2d 123 (1992)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.045)

Constitutionality of this section in limiting judicial review of Public Contract Review Board decision, (1979) Vol 39, p 484

279C.555

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.400)

Constitutionality of the Act, (1976) Vol 37, p 1269; constitutionality of the provisions, (1976) Vol 38, p 472

279C.570

See also annotations under ORS 279.575 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 279.435)

In damage action for breach of contract to construct reservoir, where contractor-plaintiff claimed interest on balance withheld by water district, plaintiff was entitled to interest at rate in effect under this section at time of contract, rather than rate this section provided at time of judgment. Valley Inland Pac. Constructors v. Clack. Water Dist., 43 Or App 527, 603 P2d 1381 (1979)

Although interest on unreleased final payment is determined by this section, release of final payment is governed by contract. Contractors, Inc. v. Tri-Met, 94 Or App 392, 766 P2d 389 (1988), Sup Ct review denied

Trial court erred by awarding prejudgment interest under version of statute in effect when contract was entered, rather than amended version in effect at time of breach, and in adding prejudgment interest to judgment before computing post-judgment interest. Gilbert Pacific Corp. v. Department of Transportation, 110 Or App 171, 822 P2d 729 (1991), Sup Ct review denied

Attorney fees and costs on action to “collect interest due” are not available where action is brought to collect both principal and interest. Coats v. ODOT, 144 Or App 449, 927 P2d 108 (1996)

In general

Where city and contractor dispute amount owed under public improvement contract, interest is applied under ORS 279C.570 (9) upon resolution of dispute to judgment or settlement; interest does not simultaneously accrue under ORS 279C.570 (2) or (8). Big River Construction, Inc. v. City of Tillamook, 281 Or App 787, 386 P3d 19 (2016), modified 283 Or App 668, 391 P3d 996 (2017)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.435)

Operative date of the Act concerning contracts and subcontracts, (1975) Vol 37, p 812; constitutionality of the Act, (1976) Vol 37, p 1269; constitutionality of the provisions, (1976) Vol 38, p 472

279C.580

NOTES OF DECISIONS

Under former similar statute (ORS 279.445)

Surety’s right to be paid from specific proceeds of publicly funded project is superior to interest of contractor’s secured creditor. In re Comcraft, 206 B.R. 551 (Bkrtcy. D. Or. 1997)

279C.600

NOTES OF DECISIONS

Under former similar statute (ORS 279.526)

Penalty wages claimed under ORS chapter 652 are not payment for labor that may be recovered from surety bond. North Marion School District #15 v. Acstar Insurance Co., 205 Or App 484, 136 P3d 42 (2006), aff’d 343 Or 305, 169 P3d 1224 (2007)

In general

When read with ORS 279C.380, successful bidder in public improvement contract must secure payment bond in amount equal to full contract price to protect potential claimant under this section and claimant under this section is not required to incorporate its contract or quasi-contract claims into bond claims. State v. Ross Bros. & Co., Inc., 268 Or App 438, 342 P3d 1026 (2015), Sup Ct review denied

Where claimant that provided rock-hauling services pursuant to agreements with multiple parties in connection with specific construction project under public contract gave notice within 180 days of last date claimant provided labor or furnished materials on project, but later than 180 days from last date claimant provided labor or materials pursuant to contract with particular contractor alleged not to have paid, claimant timely provided notice of its claim. State v. Smith & Smith Excavation, 280 Or App 766, 386 P3d 112 (2016)

279C.605

NOTES OF DECISIONS

Under former similar statute (ORS 279.528)

Sending notice by first class mail was adequate where notice was actually received. State ex rel Town Concrete Pipe, Inc. v. Andersen, 264 Or 565, 505 P2d 1162 (1973)

If replacement or corrective parts are last materials furnished in connection with supplier’s contractual performance, it is their delivery that triggers running of notice period. City of The Dalles v. D’Lectric Co., Inc., 105 Or App 46, 803 P2d 771 (1990), Sup Ct review denied

In general

Where claimant that provided rock-hauling services pursuant to agreements with multiple parties in connection with construction project under public contract gave notice within 180 days of last date claimant provided labor or furnished materials on project, but later than 180 days from last date claimant provided labor or materials pursuant to contract with particular contractor alleged not to have paid, claimant timely provided notice of its claim. State v. Smith & Smith Excavation, 280 Or App 766, 386 P3d 112 (2016)

279C.625

NOTES OF DECISIONS

Under former similar statute (ORS 279.542)

Liability is imposed on state when bond is required under [former] ORS 279.029 and state fails to require bond. State ex rel Oregon Waste Systems, Inc. v. United Pacific Insurance Co., 172 Or App 435, 18 P3d 491 (2001), Sup Ct review denied

279C.800

NOTES OF DECISIONS

Under former similar statute (ORS 279.348)

Where public agency sells property to private party for development consistent with agency objectives, but agency is not party to construction contract and makes no subsequent use of property, construction is not public work “contracted for” by public agency. Portland Development Commission v. Bureau of Labor and Industries, 216 Or App 72, 171 P3d 1012 (2007); State of Oregon v. City of Salem, 231 Or App 127, 219 P3d 32 (2009)

Where one building is public work, separately owned building that is designed to complement that public work and that shares certain components with that public work is not necessarily public work. State of Oregon v. City of Salem, 231 Or App 127, 219 P3d 32 (2009)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.348)

Employer contribution to industry advancement fund as fringe benefit under this section, (1980) Vol 41, p 162

279C.840

NOTES OF DECISIONS

Under former similar statute (ORS 279.350)

Oregon’s Little Davis-Bacon Act is different from federal act on which it was patterned and agency did not “carry on” construction of “public work” as defined in [former] ORS 279.348. Columbia-Pacific v. OPB, 102 Or App 212, 794 P2d 438 (1990)

Post-contract collateral attack is barred as attack on prevailing wage rate regardless of whether attack is styled as rate challenge or classification challenge. Northwest Permastore Systems, Inc. v. Bureau of Labor and Industries, 172 Or App 427, 18 P3d 496 (2001)

Requirement to keep prevailing wage posted in conspicuous and accessible place at project must be fulfilled by each contractor and subcontractor on individual basis. Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), Sup Ct review denied

Where public agency sells property to private party for development consistent with agency objectives, but agency is not party to construction contract and makes no subsequent use of property, construction is not “public work.” Portland Development Commission v. Bureau of Labor and Industries, 216 Or App 72, 171 P3d 1012 (2007)

ATTY. GEN. OPINIONS

Under former similar statute (ORS 279.350)

Prevailing wage law application to employes of contractor crushing and stockpiling mineral aggregate for county road project, (1978) Vol 39, p 446

279C.850

NOTES OF DECISIONS

Under former similar statute (ORS 279.355)

Since the Commissioner of the Bureau of Labor has no positive duty to decide, in any given case, whether to exercise enforcement powers under this section, mandamus does not lie to compel her to exercise discretion. State ex rel Building Council v. Bureau of Labor, 61 Or App 22, 656 P2d 325 (1982), Sup Ct review denied

This section allows commissioner to seek either or both of two authorized remedies. Metro. Service Dist. v. Tigard Electric, Inc., 112 Or App 492, 829 P2d 727 (1992)

279C.855

NOTES OF DECISIONS

Under former similar statute (ORS 279.356)

Where payment is for full amount of wages due, delay in payment does not violate prevailing wage requirement. North Marion School District #15 v. Acstar Insurance Co., 205 Or App 484, 136 P3d 42 (2006), aff’d 343 Or 305, 169 P3d 1224 (2007)

279C.860

NOTES OF DECISIONS

Under former similar statute (ORS 279.361)

This section establishes exclusive jurisdiction for determining intentional noncompliance with prevailing rate of wage laws with Bureau of Labor and Industries. Metro. Service Dist. v. Tigard Electric, Inc., 112 Or App 492, 829 P2d 727 (1992)

To “intentionally” fail to pay prevailing wage, employer must either consciously choose not to determine prevailing wage or consciously choose not to pay known prevailing wage. Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), Sup Ct review denied

279C.870

NOTES OF DECISIONS

Under former similar statute (ORS 279.365)

Action to compel enforcement of wage rate requirements is available only when agency payments remain due and contractor has recourse against noncomplying subcontractor. Stockton v. Silco Construction Co., 123 Or App 504, 860 P2d 851 (1993), aff’d 319 Or 365, 877 P2d 71 (1994)