OAR 137-049-0370
Disqualification of Persons

(1)

Authority. A Contracting Agency may disqualify a Person from consideration of Award of the Contracting Agency’s Contracts after providing the Person with notice and a reasonable opportunity to be heard in accordance with sections (2) and (4) of this rule.

(a)

Standards for Conduct Disqualification. As provided in ORS 279C.440 (Disqualification from consideration for award of contracts), a Contracting Agency may disqualify a Person for:

(A)

Conviction for the commission of a criminal offense as an incident in obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.

(B)

Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the Person’s responsibility as a contractor.

(C)

Conviction under state or federal antitrust statutes.

(D)

Violation of a contract provision that is regarded by the Contracting Agency to be so serious as to justify Conduct Disqualification. A violation under this subsection (1)(a)(D) may include but is not limited to material failure to perform the terms of a contract or an unsatisfactory performance in accordance with the terms of the contract. However, a Person’s failure to perform or unsatisfactory performance caused by acts beyond the Person’s control is not a basis for Disqualification.

(b)

Standards for Disqualification. As provided in ORS 200.065 (Fraudulent conduct prohibited), 200.075 (Prohibited conduct) or 279A.110 (Discrimination in subcontracting prohibited), a Contracting Agency may disqualify a Person’s right to submit an Offer or to participate in a Contract (e.g. subcontractors) as follows:

(A)

For a Disqualification under ORS 200.065 (Fraudulent conduct prohibited), the Contracting Agency may disqualify a Person upon finding that:
(i)
The Person fraudulently obtained or retained or attempted to obtain or retain or aided another Person to fraudulently obtain or retain or attempt to obtain or retain certification as a disadvantaged business enterprise, minority-owned business, women-owned business, emerging small business, or a business that a service-disabled veteran owns; or
(ii)
The Person knowingly made a false claim that any Person is qualified for certification or is certified under ORS 200.055 (Certification as disadvantaged business enterprise, minority-owned business, woman-owned business, business that service-disabled veteran owns or emerging small business) for the purpose of gaining a Contract or subcontract or other benefit; or
(iii)
The Person has been disqualified by another Contracting Agency under ORS 200.065 (Fraudulent conduct prohibited).

(B)

For a Disqualification under ORS 200.075 (Prohibited conduct), the Contracting Agency may disqualify a Person upon finding that:
(i)
The Person has entered into an agreement representing that a disadvantaged business enterprise, minority-owned business, women-owned business, emerging small business, or a business that a service-disabled veteran owns, certified under ORS 200.055 (Certification as disadvantaged business enterprise, minority-owned business, woman-owned business, business that service-disabled veteran owns or emerging small business) (“Certified Enterprise”), will perform or supply materials under a Public Improvement Contract without the knowledge and consent of the Certified Enterprise; or
(ii)
The Person exercises management and decision-making control over the internal operations, as defined by ORS 200.075 (Prohibited conduct)(1)(b), of any Certified Enterprise; or
(iii)
The Person uses a Certified Enterprise to perform Work under a Public Improvement Contract to meet an established Certified Enterprise goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075 (Prohibited conduct)(3), in performing its obligations under the contract.
(iv)
If a Person is Disqualified for a Disqualification under ORS 200.075 (Prohibited conduct), the affected Contracting Agency shall not permit that Person to participate in that Contracting Agency’s Contracts.

(C)

For a Disqualification under ORS 279A.110 (Discrimination in subcontracting prohibited), a Contracting Agency may disqualify a Person if the Contracting Agency finds that the Person discriminated against a disadvantaged business enterprise, minority-owned business, women-owned business, emerging small business, or a business that a service-disabled veteran owns in awarding a subcontract under a Contract with that Contracting Agency.

(2)

Notice of Intent to Disqualify. The Contracting Agency shall notify the Person in Writing of a proposed Disqualification personally or by registered or certified mail, return receipt requested. This notice shall:

(a)

State that the Contracting Agency intends to disqualify the Person;

(b)

Set forth the reasons for the Disqualification;

(c)

Include a statement of the Person’s right to a hearing if requested in Writing within the time stated in the notice and that if the Contracting Agency does not receive the Person’s Written request for a hearing within the time stated, the Person shall have waived its right to a hearing;

(d)

Include a statement of the authority under which the hearing will be held;

(e)

Include a reference to the particular sections of the statutes and rules involved;

(f)

State the proposed Disqualification period; and

(g)

State that the Person may be represented by legal counsel.

(3)

Hearing. The Contracting Agency shall schedule a hearing upon the Contracting Agency’s receipt of the Person’s timely hearing request. Within a reasonable time prior to the hearing, the Contracting Agency shall notify the Person of the time and place of the hearing and provide information on the procedures, right of representation and other rights related to the conduct of the hearing.

(4)

Notice of Disqualification. The Contracting Agency will notify the Person in Writing of its Disqualification, personally or by registered or certified mail, return receipt requested. The notice shall contain:

(a)

The effective date and period of Disqualification;

(b)

The grounds for Disqualification; and

(c)

A statement of the Person’s appeal rights and applicable appeal deadlines. For a Conduct Disqualification or a Disqualification under ORS 279A.110 (Discrimination in subcontracting prohibited), the disqualified person must notify the Contracting Agency in Writing within three business Days after receipt of the Contracting Agency’s notice of Disqualification if the Person intends to appeal the Contracting Agency’s decision.

Source: Rule 137-049-0370 — Disqualification of Persons, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=137-049-0370.

137‑049‑0100
Application 137‑049‑0110
Policies 137‑049‑0120
Definitions 137‑049‑0130
Competitive Bidding Requirement 137‑049‑0140
Contracts for Construction Other Than Public Improvements 137‑049‑0150
Emergency Contracts 137‑049‑0160
Intermediate Procurements 137‑049‑0200
Solicitation Documents 137‑049‑0210
Notice and Advertising Requirements 137‑049‑0220
Prequalification of Offerors 137‑049‑0230
Eligibility to Bid or Propose 137‑049‑0240
Pre-Offer Conferences 137‑049‑0250
Addenda to Solicitation Documents 137‑049‑0260
Request for Clarification or Change 137‑049‑0270
Cancellation of Solicitation Document 137‑049‑0280
Offer Submissions 137‑049‑0290
Bid or Proposal Security 137‑049‑0300
Facsimile Bids and Proposals 137‑049‑0310
Electronic Procurement 137‑049‑0320
Pre-Closing Modification or Withdrawal of Offers 137‑049‑0330
Receipt, Opening and Recording of Offers 137‑049‑0340
Late Bids, Late Withdrawals and Late Modifications 137‑049‑0350
Mistakes 137‑049‑0360
First-Tier Subcontractors 137‑049‑0370
Disqualification of Persons 137‑049‑0380
Bid or Proposal Evaluation Criteria 137‑049‑0390
Offer Evaluation and Award 137‑049‑0395
Notice of Intent to Award 137‑049‑0400
Documentation of Award 137‑049‑0410
Time for Contracting Agency Acceptance 137‑049‑0420
Negotiation With Bidders Prohibited 137‑049‑0430
Negotiation When Bids Exceed Cost Estimate 137‑049‑0440
Rejection of Offers 137‑049‑0450
Protest of Contractor Selection, Contract Award 137‑049‑0460
Performance and Payment Security 137‑049‑0470
Substitute Contractor 137‑049‑0490
Foreign Contractor 137‑049‑0600
Purpose 137‑049‑0610
Definitions for Alternative Contracting Methods 137‑049‑0620
Use of Alternative Contracting Methods 137‑049‑0630
Findings, Notice and Hearing 137‑049‑0640
Competitive Proposals 137‑049‑0645
Requests for Qualifications (RFQ) 137‑049‑0650
Requests for Proposals (“RFP”) 137‑049‑0660
RFP Pricing Mechanisms 137‑049‑0670
Design-Build Contracts 137‑049‑0680
Energy Savings Performance Contracts (ESPC) 137‑049‑0690
Construction Manager/General Contractor Services (“CM/GC Services”) 137‑049‑0800
Required Contract Clauses 137‑049‑0810
Waiver of Delay Damages Against Public Policy 137‑049‑0815
BOLI Public Works Bond 137‑049‑0820
Retainage 137‑049‑0830
Contractor Progress Payments 137‑049‑0840
Interest 137‑049‑0850
Final Inspection 137‑049‑0860
Public Works Contracts 137‑049‑0870
Specifications 137‑049‑0880
Records Maintenance 137‑049‑0890
Contracting Agency Payment for Unpaid Labor or Supplies 137‑049‑0900
Contract Suspension 137‑049‑0910
Changes to the Work and Contract Amendments
Last Updated

Jun. 8, 2021

Rule 137-049-0370’s source at or​.us