OAR 137-045-0055
Special Public Contract Exemption Program for Exemptions from Legal Sufficiency Approval Based on Risk Assessment
(1)
In addition to the Public Contracts described in OAR 137-045-0050 (Exemptions from Legal Sufficiency Approval Based on Risk Assessment), the Attorney General has determined that the degree of risk assumed by Agencies is not materially reduced by legal review and approval of individual Public Contracts that satisfy the requirements of the Special Public Contract Exemption Program and fall within the types of contract described in this rule. The Attorney General exempts from the legal sufficiency approval requirement the Public Contracts that satisfy the requirements of the Special Public Contract Exemption Program and fall within the types of contract described in this rule.(2)
The requirements of the Special Public Contract Exemption Program are:(a)
The Agency’s representative responsible for the Public Contract must satisfactorily complete the Attorney General’s initial and any continuing, as it is scheduled, legal sufficiency review training for that type of contract, which may be specifically tailored for that Agency, and hold a current legal sufficiency review exemption certificate for that type of contract issued by the Attorney in Charge, Business Transactions Section.(b)
The Public Contract must be substantially composed of provisions that have been preapproved by an Assistant Attorney General for use in the Special Public Contract Exemption Program and any modifications to such provisions as may be communicated to the Agency by an Assistant Attorney General.(c)
The Agency must agree that the Attorney in Charge, Business Transactions Section may:(A)
Periodically, select any Public Contract that is exempted from legal sufficiency review under the Special Public Contract Exemption Program for a quality control review; and(B)
Depending upon the results of any such review, provide comments to the Agency about the review, require changes to preapproved provisions, or suspend the Agency’s or an Agency’s representative’s eligibility to participate in the Special Public Contract Exemption Program until further training or other reasonable conditions are met by the Agency or Agency representative.(d)
Costs for the activities specified in subsection (2)(c) of this rule shall be at the expense of the Agency unless otherwise agreed.(e)
An Agency must delete, modify with the specific advice of an Assistant Attorney General, or include only with the specific advice of an Assistant Attorney General, any provision in a proposed Public Contract that is substantially in any of the following forms:(A)
Governing law or choice of law: The laws of a state other than Oregon govern this contract.(B)
Jurisdiction or venue: A lawsuit to enforce, or arising out of, this contract must be brought in a state court located outside Oregon or any federal court.(C)
Arbitration: This contract is subject to binding arbitration.(D)
Indemnity, Hold Harmless: The State of Oregon or the Agency shall indemnify or hold harmless the other party.(E)
Responsibility: The State of Oregon or the Agency assumes or becomes responsible for unfunded liabilities or obligations, such as under uncapped, contingent, or open-ended responsibility clauses, unless such liabilities or obligations are expressly made subject to the limits of Oregon law in the contract, including Article XI, section 7 of the Oregon Constitution and the Oregon Tort Claims Act.(F)
Attorney fees or collection costs: The State of Oregon or the Agency shall pay the other party’s attorney fees or the prevailing party in any lawsuit recovers its attorney fees from the losing party.(G)
Punitive or exemplary damages: The State of Oregon or the Agency shall pay punitive, exemplary, or treble damages for the breach of contract or for any claims arising out of the contract.(H)
Interest: The State of Oregon or the Agency is obligated to pay interest on an overdue account if the payment is less than forty-five days overdue or the interest is higher than eight per cent per annum.(I)
Third party beneficiary: A person not a party to the contract is stated to be a beneficiary of the contract or has the right to bring a legal action under the contract or to enforce the contract.(J)
Commitment to pay for performance beyond the end of the current biennium or with funds not currently available: The State of Oregon or the Agency has an unconditional (i.e., not limited by the potential non-appropriation or non-allotment of funds) obligation to pay funds that are not currently available for expenditure for that obligation by the Agency.(K)
Taxes: The State of Oregon or the Agency must pay taxes incident to the contract that are not directly imposed upon the State of Oregon or the Agency.(L)
Confidentiality: The State of Oregon or the Agency is obligated to keep information confidential unless the obligation is made subject to the provisions of the Oregon Public Records Law.(M)
Statute of Limitations: The State of Oregon or the Agency must file a legal action arising out of the contract within a specified time period.(N)
Contractor as agent or employee: The contractor is deemed to be an agent of the State of Oregon or the Agency for liability or other purposes or is the equivalent of an employee of the State of Oregon or the Agency.(O)
Financing agreements: Agreements as defined in ORS 283.095 (Authority for state agency to enter into financing agreement), including installment sales and lease purchase agreements.(P)
Representation, legal advice or legal opinions by counsel not authorized by the Attorney General.(f)
Unless otherwise requested by the Agency, the Assistant Attorney General will not provide advice regarding provisions in the proposed Public Contract that are not affected by modifying or including the provisions in subsection (2)(e).(3)
Classes of Public Contracts identified by the Attorney in Charge, Business Transactions Section, based on risk assessments developed in collaboration with an executive officer of an Agency who is responsible for oversight of Public Contracts, are eligible for exemption from legal sufficiency review under the Special Public Contract Exemption Program.
Source:
Rule 137-045-0055 — Special Public Contract Exemption Program for Exemptions from Legal Sufficiency Approval Based on Risk Assessment, https://secure.sos.state.or.us/oard/view.action?ruleNumber=137-045-0055.