125-246-0210 Subcontracting to and Contracting with Emerging Small Businesses; Disqualification (1) As set forth in ORS 279A.105, a Contracting Agency may require a Contractor to subcontract some part of a Contract to, or to obtain materials to be used in performing the Contract from: (a) A business enterprise that is certified under ORS 200.055 as an Emerging Small Business; or (b) A business enterprise that is: (A) Certified under ORS 200.055 as an Emerging Small Business; and (B) Is located in or draws its Workforce from economically distressed areas, as designated by the Oregon Business Development Department. (2) For purposes of ORS 279A.105, a subcontractor certified under ORS 200.055 as an Emerging Small Business is located in or draws its Workforce from economically distressed areas if: (a) Its principal place of business is located in an area designated as economically distressed by the Oregon Business Development Department according to administrative rules adopted by the Oregon Economic and Community Development Department; or (b) The Contractor certifies in Writing to the Contracting Agency that a substantial number of the subcontractor's employees, or subcontractors that will manufacture or provide the Goods or perform the Services under the Contract, reside in an area designated as economically distressed by the Oregon Business Development Department according to administrative rules adopted by the Oregon Business Development Department. For the purposes of making the foregoing determination, the Contracting Agency must determine in each particular instance what proportion of a Contractor's subcontractor's employees or subcontractors constitutes a substantial number. (3) Discrimination in Subcontracting Prohibited. (a) Prohibition. An Offeror who competes for or is awarded a Public Contract may not discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a Minority-owned, Woman-owned, Veteran-owned, or Emerging Small Business Enterprise certified under ORS 200.055. (b) Certification. Contracting Agencies must include in each Solicitation Document a requirement that Offerors certify in their Offers that the Offeror has not and will not discriminate, in violation of Subsection (3)(a), against a subcontractor in the awarding of a subcontract because the subcontractor is a Minority-owned, Woman-owned, Veteran-owned, or Emerging Small Business Enterprise certified under ORS 200.055. (4) Disqualification. (a) A Contracting Agency may disqualify a Person from consideration of award of the Contracting Agency's Contracts under ORS 200.065(5), or suspend a Person's right to bid on or participate in any Public Contract according to ORS 200.075(1) after providing the Person with notice and a reasonable opportunity to be heard in accordance with Subsections (d) and (e) of this Section. (b) As provided in ORS 200.065 and 200.075 a Contracting Agency may disqualify or suspend a Person's right to submit an Offer or to participate in a Contract (e.g., act as a subcontractor) as follows: (A) For a Disqualification under ORS 200.065, the Contracting Agency may disqualify a Person upon finding that the Person engaged in any of the activities made unlawful by ORS 200.065(1) or (2), or if the Person has been disqualified by another Contracting Agency according to ORS 200.065. (B) For a Disqualification under ORS 200.075, the Contracting Agency may suspend a Person upon finding that the Person engaged in any of the acts prohibited by ORS 200.075(a) through (c). (c) A Contracting Agency may disqualify or suspend a Person's right to submit Offers or participate in Public Contracts only for the length of time permitted by ORS 200.065 or 200.075, as applicable. (d) The Contracting Agency must provide Written notice to the Person of a proposed Disqualification. The Agency must deliver the Written notice by personal service or by registered or certified mail, return receipt requested. This notice must: (A) State that the Contracting Agency intends to disqualify or suspend 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 must have waived the right to a hearing; (D) Include a statement of the authority and jurisdiction 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. (e) Hearing. Upon the Contracting Agency’s receipt of the Person’s timely request, the Contracting Agency must promptly deliver written notification and this request to the Chief Procurement Officer. The Chief Procurement Officer must schedule a hearing upon its receipt of the Person's timely request. The Department must 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 before the hearing. The Chief Procurement Officer has the discretion to delegate Authority under OAR 125-246-0170(3)(a)(G) and specify how the delegatee must review and hear Disqualifications. Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070 Statutes/Other Implemented: ORS 279A.200.065, 200.075, 105 & 279A.110 History: DAS 5-2023, amend filed 12/29/2023, effective 01/01/2024 DAS 1-2023, amend filed 04/11/2023, effective 05/01/2023 DAS 6-2022, temporary amend filed 11/07/2022, effective 11/07/2022 through 05/05/2023 DAS 2-2016, f. 12-22-16, cert. ef. 1-1-17 DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12 DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10 DAS 5-2006, f. & cert. ef. 5-31-06 DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05