125-055-0035 Direct Labor Audits (1) If an OFC’s gross revenues generated under the Oregon Forward Program exceed $100,000 annually, the OFC must conduct an independent audit of direct labor to maintain qualifications and listing on the Procurement List. Independent audits must be conducted every other year as scheduled by the Department to determine compliance with ORS 279.835(5)(c). The audit must be conducted by an independent certified public accountant (CPA) in accordance with generally accepted auditing principles. The OFC must submit a letter of attestation and the compilation worksheet to the Department 120 calendar days after the close of the OFC's fiscal year. An OFC may request an extension in writing prior to the 120-day deadline. The request must state the reason for the extension and the anticipated date of submission. (2) For purposes of subsection (3): (a) "Direct labor" means all work required for the manufacture, preparation, processing and packing of products produced by an OFC and all work performed in rendition of services by an OFC. Direct labor does not include supervision, administration, shipping, or client-type services provided by an OFC to Individuals with a Disability served by the OFC, such as job training and therapeutic services. (b) "Supervision" means the direction, assignment, instruction and oversight of individuals performing direct labor and inspection of work performed or products for quality assurance. (c) "Administration" means the management activities of an OFC that include acquisition of equipment, parts, supplies and inventory, handling of the entity's payroll, personnel and accounting activities, executive decision-making and other business activities, generally of a centralized nature, that do not entail the "hands-on" production of a product or the performance of a service. (d) "Shipping" means the transportation of a product to the site designated by the acquirer of the product or the transportation of workers to and from the site at which they will perform services for a customer. (3) The examination and resulting audit report must be based on the following records and information: (a) A listing of all products and services provided by the entity in the OFC's fiscal year, including those products and services procured by Agencies under the Oregon Forward Program and those procured outside the Oregon Forward Program; (b) A list of all individuals covered by the audit scope employed by the OFC that are Individuals with a Disability who provided direct labor for the production of products or the performance of services during the fiscal year that is the subject of the audit examination, including employee name, unique employee identification number, job description and disability status; (c) A list of all individuals covered by the audit scope employed by the OFC, whether paid or unpaid, who are not Individuals with a Disability and provided direct labor required for the production of products or the performance of services during the fiscal year that is the subject of the audit examination, including employee name, unique employee identification number and job description; (d) A compilation of the total hours of direct labor performed by the OFC during the fiscal year; (e) Payroll reports for all individuals covered by the audit scope employed by the OFC during the fiscal year, including employee name, work hours paid, vacation hours, sick leave hours and training hours. Hours worked must be segregated from hours paid but not worked; (f) Time and billing records showing direct hours worked by each employee in the manufacture of goods or provision of services; (g) The OFC must have documentation of disability on file for each employee who is claimed to be an Individual with a Disability. The acceptable forms of disability documentation are defined in OAR 125-055-0017(1)(b); and (h) A Competitive Employment statement must be on file for each employee who is claimed to be an Individual with a Disability, except as described in OAR 125-055-0017(1). (4) The audit report must address the following elements: (a) A determination whether the OFC's time, billing and payroll records are sufficiently complete and reliable to demonstrate compliance with the direct labor requirement of ORS 279.835(5)(c). The records must permit segregation of direct labor hours from other hours worked and paid, and allow for the assessment of direct hours worked by employees with disabilities, as well as by employees without disabilities; (b) If the CPA finds the records to be sufficiently complete and reliable, the CPA must test the OFC's calculations of total direct labor hours worked by employees with disabilities for the entire applicable fiscal year. Only direct labor hours worked may be included in the calculations. Vacation, sick leave, holiday, training hours and any other hours paid but not worked by the employee must be excluded from the calculation; (c) The CPA must apply sufficient statistical sampling techniques to obtain an 80 percent level of confidence that: (A) The direct labor by Individuals with a Disability during the OFC's fiscal year satisfied the direct labor requirement under ORS 279.835(5)(c); and (B) The hours reported as worked by Individuals with a Disability were worked by individuals whose disabilities were documented under subsection (3)(g) of this rule. (d) A determination whether adequate actions have been taken to resolve any prior adverse audit report findings or recommendations; and (e) The CPA that conducted the direct labor audit must sign an attestation that the OFC complied or did not comply with the direct labor requirement of ORS 279.835(5)(c) during the applicable fiscal year. If the CPA attests that the OFC did not comply with the requirement of ORS 279.835(5)(c), the report must include a concise description of the nature and extent of the noncompliance. (5) The letter of attestation must be signed and dated by the CPA and by an officer of the OFC's board of directors. (6) Failure to comply with the requirements of ORS 279.835(5)(c) by an OFC constitutes sufficient grounds to terminate the OFC’s participation in the Oregon Forward Program and constitutes sufficient grounds for an Agency to terminate, or to suspend performance of the work under, a contract with the OFC. (7) The cost of the audit required by this rule is an overhead expense that the OFC may recover and which must be taken into account in determining the Price under OAR 125-055-0030. (8) If the Department determines that an OFC is in material noncompliance with any requirement imposed on it by this rule, including the direct labor requirement of ORS 279.835(5)(c), the Department will issue to the non-complying OFC a written notice to cure the noncompliance. The written notice will state the reasons that the OFC is not in compliance and provide potential remedies. (a) An OFC receiving notice of noncompliance under this subsection must respond to the Department within thirty (30) calendar days of the date of the Department's notice. The OFC’s response must acknowledge receipt of the notice and describe a corrective action plan. (b) If the OFC does not submit a written response within thirty (30) calendar days from the date of the written notice or such additional time as may be permitted by the Department, the Department may issue, to the OFC, written notice of the proposed termination of participation in the OFC Program. (c) The Department reserves the right to require an OFC to submit to the Department quarterly audit reports concerning the OFC's compliance with the direct labor requirement of ORS 279.835(5)(c). The Department may require, at its discretion, that the quarterly audits be conducted and reported by a CPA in accordance with subsection (5). If an OFC subject to this requirement satisfies the direct labor requirement in the first two consecutive quarterly audits, the Department may waive the quarterly audit requirement for that OFC. (d) If the OFC fails to achieve compliance within the time prescribed in the Department's written notice, the Department may terminate the OFC's participation in the Oregon Forward Program. The Department will issue to the OFC a written notice of termination. (e) After termination of OFC status, the OFC may not enter into or renew any contracts under the OFC Program. Termination of the OFC's participation in the Oregon Forward Program constitutes sufficient grounds for any Agency to terminate any contract with the OFC. (f) One year after the effective date of termination of OFC status, a CRP may re-apply for OFC status under OAR 125-055-0015 and listing on the Procurement List under OAR 125-055-0020. (9) If an OFC fails the direct labor requirement of ORS 279.835(5)(c), that OFC will be required to submit an independent audit report the following year. If the subsequent annual audit discloses that the OFC failed to satisfy the direct labor requirement, the Department will issue a notice of termination to the OFC. (10) The OFC may submit a written appeal to the Department within ten (10) calendar days from the date of the notice of termination issued under subsection (8)(d). The appeal must state the OFC's grounds for appealing the decision. If the OFC does not appeal the Department's decision, termination of participation in the Oregon Forward Program is final. (11) On appeal, if the Department determines that the OFC complied with the direct labor requirement of ORS 279.835(5)(c), it will notify the OFC of its decision. If on appeal, the Department determines that the OFC failed to comply with the direct labor requirement of ORS 279.835(5)(c), it will provide the OFC a written decision stating the reasons for the determination. The Department's written decision under this subsection constitutes a final order under ORS 183.484. Statutory/Other Authority: ORS 279.845(1) & 184.340 Statutes/Other Implemented: ORS 279A.025(4) & 279.835 - 279.855 History: DAS 6-2020, amend filed 11/30/2020, effective 12/01/2020 DAS 3-2020, temporary amend filed 09/22/2020, effective 09/22/2020 through 03/20/2021 DAS 3-2010, f. & cert. ef. 10-8-10 DAS 8-2005, f. & cert. ef. 6-21-05 DAS 6-2004(Temp), f. & cert. ef. 12-28-04 thru 6-24-05 DAS 4-2003, f. & cert. ef. 9-8-03