Oregon Administrative Rules › Chapter 137 - DEPARTMENT OF JUSTICE › Division 45 - REVIEW OF PUBLIC CONTRACTS › Section 137-045-0015 - Legal Sufficiency Approval

Current through Register Vol. 63, No. 7, July 1, 2024
(1)
			 Legal sufficiency review and approval pursuant to this rule does not affect any
			 other applicable review or approval requirement, except that legal sufficiency
			 approval of a Public Contract that is an Interstate Agreement or an
			 International Agreement satisfies requirements for Attorney General review
			 under ORS 190.430 and ORS
			 190.490, as
			 applicable.
(2) The Attorney
			 General provides legal sufficiency approval of a Public Contract solely for the
			 benefit of Agencies, to determine compliance with this rule. Approval of a
			 Public Contract for legal sufficiency is based upon the individual
			 determination by the Assistant Attorney General reviewing the Public Contract
			 and does not preclude the State of Oregon from later asserting any legally
			 available claim or defense arising from or relating to the Public
			 Contract.
(3) Approval of a Public
			 Contract for legal sufficiency must be noted in written form by the Assistant
			 Attorney General reviewing the Public Contract and must either be affixed
			 directly to the Public Contract or set forth in a separate writing that
			 identifies the Public Contract with particularity.
(4) An Assistant Attorney General may approve
			 Public Contracts as a group if they are substantially in the same form, are
			 substantially for the same purpose and have the same expiration date or
			 anticipated period of performance if the Assistant Attorney General identifies
			 the manner in which individual contracts within the group may vary.
(5) Sections (5) and (6) are adopted to
			 provide guidance to Agencies regarding criteria used for, and factors excluded
			 from, the Attorney General's legal sufficiency approval of Public Contracts.
			 Except as provided in section (6) and (7) of this rule, approval for legal
			 sufficiency means that the reviewing Assistant Attorney General finds that:
(a) The Public Contract has been reduced to
			 written form;
(b) The subject
			 matter, promised performance and consideration of the Public Contract are
			 within the Agency's statutory authority;
(c) The Public Contract, on its face,
			 contains all the essential elements of a legally binding contract, such as a
			 description of consideration (money, performance, or forbearance) when
			 consideration is required;
(d) The
			 Public Contract, on its face, complies with federal and State of Oregon
			 statutes and administrative rules regulating the Public Contract, and all
			 provisions required by Oregon law to be incorporated have been
			 included;
(e) The Public Contract
			 includes or requires, as required by Oregon law, execution of any
			 certification;
(f) The Public
			 Contract, on its face, does not violate any federal constitutional provision,
			 or any State of Oregon constitutional limitation or prohibition, such as by
			 creating unlawful "debt" under section 7, Article XI, of the Oregon
			 Constitution, or impermissibly binding a future State of Oregon Legislative
			 Assembly to fund the Public Contract;
(g) The Statement of Work or comparable
			 provisions and business or commercial terms are sufficiently clear and definite
			 under the circumstances to be enforceable; and
(h) The Public Contract allows the Agency, if
			 appropriate, to terminate the Public Contract, declare defaults, and pursue its
			 rights and remedies.