Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Hicks v. Central Point School District

Court of Appeals of Oregon

April 22, 2015

Stephanie HICKS, Plaintiff-Appellant,
v.
CENTRAL POINT SCHOOL DISTRICT, an Oregon school district; and First Student, Inc., a Delaware corporation, Defendants-Respondents

Argued and Submitted November 21, 2013.

Page 308

113521E9. Jackson County Circuit Court. Ronald D. Grensky, Judge.

Sarah K. Drescher argued the cause for appellant. With her on the briefs was Tedesco Law Group.

Barrett C. Mersereau and Paul H. Trinchero argued the cause for respondents. On the joint answering brief were Thomas W. McPherson and Mersereau Shannon, LLP, and John M. Junkin, Paul H. Trinchero and Garvey Schubert Barer. With them on the joint reply brief was Barrett C. Mersereau.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.[*]

OPINION

Page 309

[270 Or.App. 534] LAGESEN, J.

Concerned that government jobs were being out-sourced to private contractors under circumstances that either drove up costs for taxpayers or, alternatively, saved money for taxpayers solely by sacrificing family-wage jobs, the Oregon Legislature amended the Public Contracting Code (the code)[1] in 2009 to address that concern. 2009 Or. Laws, ch 880. As amended, the code requires (with some exceptions) that a public body considering entering into a service contract over $250,000 conduct a detailed cost-benefit analysis before making the decision to contract out government services. If that required cost-benefit analysis reveals that outsourcing the services at issue will be more expensive than providing them in-house with public employees, or shows that any cost savings will exist solely from the fact that a private contractor likely will pay its employees lower wages and benefits than those that would be paid to public employees, then the public body cannot outsource the services. See generally ORS 279B.030; ORS 279B.033.

This appeal requires us to assess how, if at all, the Central Point School District's (the district) cost analysis pertaining to the provision of student transportation services, and its related determination that that cost analysis authorized it to contract out with First Student for the provision of student transportation services, are subject to judicial review and, if they are reviewable, whether the district's cost analysis complied with statutory requirements. We conclude that the district's cost analysis, and its determination that that analysis permitted procurement, are subject to review in this action for declaratory relief, under the standard of review established by ORS 279B.145. We further conclude that the district's cost analysis did not comply with the requirements of the code, specifically, the requirements of ORS 279.033. Those conclusions require us to reverse and remand to the trial court for further proceedings consistent with this opinion.

[270 Or.App. 535] I. REGULATORY, FACTUAL, AND PROCEDURAL BACKGROUND

Before 2009, a public body considering contracting out for the provision of government services was permitted to initiate the procurement[2] process without conducting any

Page 310

sort of cost-benefit analysis; such an analysis was not required by statute. As a result of the 2009 amendments to the code, see generally 2009 Oregon Laws, chapter 880, a public body considering conducting a procurement for services estimated to cost more than $250,000 now must conduct a more rigorous analysis before initiating the procurement process. With exceptions not applicable here, an agency considering contracting out for services must demonstrate either that it is not feasible for the contracting agency[3] to provide those services with its own personnel and resources or, alternatively, that it will cost less to procure the services from a private contractor than it will for the government to provide those services with its own personnel. ORS 279B.030 states, in relevant part:

" (1) Except as provided in ORS 279B.036, before conducting a procurement for services with an estimated contract price that exceeds $250,000, a contracting agency shall:
" (a) Demonstrate, by means of a written cost analysis in accordance with ORS 279B.033, that the contracting agency would incur less cost in conducting the procurement than in performing the services with the contracting agency's own personnel and resources; or
" (b) Demonstrate, in accordance with ORS 279B.036, that performing the services with the contracting agency's own personnel and resources is not feasible."

ORS 279B.030(1).

[270 Or.App. 536] ORS 279B.033, in turn, details what information must be contained in the mandatory cost analysis, and explains how that cost analysis governs the contracting agency's authority to pursue procurement. See generally ORS 279B.033. After setting forth the required contents of the cost analysis, the statute explains that, subject to an exception for time-sensitive work, a contracting agency may proceed with the procurement process only if the cost analysis demonstrates that it would be more expensive for the government to perform the services in question with its own staff and resources. Id. Further, even if the cost analysis indicates that it would be more expensive for the contracting agency to perform the services in question with its own staff and resources, procurement is nonetheless prohibited if the estimate reflects that the only reason for any cost savings stems from the fact that a private contractor's costs for wages, salary, and benefits are estimated to be lower than the contracting agency's costs for wages, salary, and benefits in connection with the services at issue.[4] Id. Although the statute does not require a contracting agency to seek public input or conduct any sort of public process when preparing the cost analysis required by ORS 279B.033, and determining whether procurement is authorized in the light of the cost analyses, the statute specifies that the cost analysis and related determinations must be maintained as public records: " A cost analysis, record, documentation or determination made under this section is a public record." ORS 279B.033(3). Pursuant to ORS 279B.145, a contracting agency's cost analysis under ORS 279B.033, and its related determination as to whether the cost analysis

Page 311

allows for procurement, are " final and conclusive unless they are clearly [270 Or.App. 537] erroneous, arbitrary, capricious or contrary to law." ORS 279B.145.

The district is a public body governed by the code and, in particular, by the requirements of ORS 279B.030 and ORS 279B.033. Based on concerns that its bus fleet was aging and would soon need to be replaced, the district decided to explore the option of contracting its transportation services to a private company. The district asked Robinson, its director of business services, to complete a cost analysis, which she prepared and presented to the district's board of directors at its public meeting in March 2011. In preparing her cost estimate, Robinson did not obtain any information from which to estimate salary or wage and benefit costs for contractors involved in performing student transportation services; instead, Robinson chose to assume that a private contractor would have the same wage, salary, and benefit costs as the district.

At the March meeting of the district's board of directors, the board approved Robinson's cost analysis and directed the issuance of a request for proposals (RFP) for student transportation services. Then, in May 2011, after receiving defendant First Student's RFP, the district hired Fairchild, a transportation consultant, to provide a supplemental cost analysis in light of First Student's RFP. In his supplemental cost estimate, Fairchild, like Robinson, assumed that a contractor's wage or salary and benefit costs would be the same as the district's, and did not collect information from which to estimate those costs. A subcommittee of the board studied the First Student RFP and the Robinson and Fairchild cost analyses and recommended acceptance of First Student's RFP. After a hearing on June 14, 2011, the board declared its intention to contract with First Student. The district subsequently executed a service contract with First Student. Approximately one week later, the district laid off its student transportation employees, including plaintiff, who had been employed as a bus driver for the district.

Within a few weeks of receiving notice that she was being laid off, plaintiff initiated this action for declaratory and injunctive relief under ORS 28.010 to 28.160. [270 Or.App. 538] She alleged that the district had entered into the contract with First Student " unlawfully, in violation of ORS 279B.030(1)(a)[.]" Plaintiff's theory was that the contract between the district and First Student was unauthorized--and, thus, " void" --because, in plaintiff's view, the cost analyses conducted by the district did not comply with the requirements of ORS 279B.033. As a remedy for the alleged illegality in contracting procedure, plaintiff requested (1) a declaration that the district " violated ORS 279B.030(1)(a) by failing to conduct a cost analysis in accordance with ORS 279B.033 before conducting a procurement for transportation services" ; (2) a declaration that the contract between the district and First Student is " void" ; (3) an injunction barring defendants from implementing the contract; (4) an order compelling the district to reinstate her to her job, and to pay her any lost wages and benefits; and (5) any other " just and equitable" relief.

Plaintiff thereafter moved for partial summary judgment solely on the issue of whether the district's cost analysis satisfied the requirements of ORS 279B.033.[5] The district filed a cross-motion for summary judgment on the same point, arguing that the undisputed facts demonstrated that its cost analysis complied with ORS 279.033, completely defeating plaintiff's claim.[6] On its

Page 312

own, the court addressed the threshold jurisdictional issue of whether plaintiff should have brought the case as a writ of review under ORS 34.010, rather than as declaratory judgment action. The court concluded that plaintiff properly brought the action as a declaratory a judgment action. The court then concluded that the district's cost analysis complied with ORS 279B.033, and [270 Or.App. 539] that, consequently, the district permissibly proceeded with the procurement that led to the contract with First Student. Based on that conclusion, the court entered a general judgment dismissing the complaint with prejudice.[7]

On appeal, plaintiff assigns error to the trial court's ruling that the district's cost estimates satisfy the requirements of ORS 279B.033; she asserts that the trial court erred by granting the district's motion for summary judgment.[8] Defendants cross-assign error to the trial court's jurisdictional conclusion that plaintiff could challenge the district's cost analysis and to its determination that procurement was authorized in a declaratory judgment action, and was not required to proceed by way of writ of review.

We conclude that the district's cost analysis and its determination that that analysis authorized procurement were not reviewable by way of writ of review and that the trial court therefore had jurisdiction over this declaratory judgment action. However, we conclude that the trial court erred when it determined that the two cost analyses on which the district relied complied with the requirements of ORS 279B.033 and, therefore, erred when it granted the district's motion for summary judgment. We therefore reverse the general judgment of dismissal and remand for further proceedings consistent with this opinion.

II. STANDARDS OF REVIEW

The threshold jurisdictional issue of whether the district actions challenged by plaintiff were subject to review by writ of review under ORS 34.010 to 34.102 (and, correlatively, not subject to review in this declaratory judgment action under ORS 28.010 to 28.160), presents a question of law. See, e.g., Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., [270 Or.App. 540] 287 Or. 591, 602-04, 601 P.2d 769 (1979) (articulating legal analysis); Hood River Valley v. Board of Cty. Commissioners, 193 Or.App. 485, 493-99, 91 P.3d 748 (2004) (same). We therefore review for legal error the trial court's determination that plaintiff was not required to bring this challenge by way of writ of review.

We generally review a trial court's ruling on cross-motions for summary judgment to determine " whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law." Vision Realty, Inc. v. Kohler, 214 Or.App. 220, 222, 164 P.3d 330 (2007). Here, the underlying facts are not disputed; the only question is one of law. Plaintiff argues that the district's cost analyses must be set aside under ORS 279B.145 as " contrary to law," asserting that the cost analyses do not satisfy the requirements of ORS 279B.033(1). Whether the cost analyses comply with ORS 279B.033(1) presents a question of statutory construction that we review for legal error, with the goal of determining the intended meaning of the statute by examining the statute's text in context, considering any relevant legislative history. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

Page 313

III. ANALYSIS

A. Jurisdiction

Because it is potentially dispositive, we first address defendants' cross-assignment of error, in which they contend that the district's decision to engage in a procurement process was " quasi-judicial" and reviewable only by writ of review and, therefore, not by way of a declaratory judgment action. When a writ of review under ORS 34.010 to 34.102 is available to challenge a local government's action, the writ of review provides the exclusive mechanism by which such action may be challenged, depriving a court of jurisdiction to review the challenged action under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160. State ex rel City of Powers v. Coos County Airport, 201 Or.App. 222, 230, 119 P.3d 225 (2005), rev den, 341 Or. 197, 140 P.3d 580 (2006); League of Oregon Cities v. State of Oregon, 334 Or. 645, 652, 56 P.3d 892 (2002). As a result, if the district's cost analyses and [270 Or.App. 541] determination that those analyses authorized the district to engage in procurement would have been reviewable through a writ of review proceeding under ORS 34.010, then the trial court lacked jurisdiction over this proceeding.

Before analyzing whether the district's cost analyses and its determination that those analyses authorized procurement would have been reviewable by writ of review under ORS 34.010 to 34.102, we make two observations. First, it is clear to us that the legislature intended that a contracting agency's cost analysis under ORS 279B.033(1), and its related determination under ORS 279B.030(1) and ORS 279B.033 as to whether procurement is authorized, would be subject to judicial review in some type of proceeding. That because the legislature expressly supplied a standard of review for those determinations. As noted, ORS 279B.145 provides in relevant part, " The determinations under ORS 279B.030 [and] 279B.033 * * * are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law." That provision would serve no purpose if a contracting agency's cost estimates and related determinations under ORS 279B.030 and 279B.033 were not subject to review at all.[9]

Second, it is equally clear that the legislature provided no specific mechanism for review of determinations under ORS 279B.030 and ORS 279B.033. ORS 279B.400 to 279B.425 describe review procedures for the different types of public contracts and different phases of the contracting process, but the cost analysis under ORS 279B.033 and the decision that procurement is authorized are not among them.[10] There is no provision in ORS chapter 279A or 279B [270 Or.App. 542] describing a review process for violation of ORS 279B.030 or ORS 279B.033. In fact, ORS 279B.420 describes the exclusive judicial remedies for violations of ORS chapter 279B for which " a judicial remedy is not otherwise provided" in ORS chapter 279A or 279B, but specifically exempts from its scope the provisions of ORS 279B.030 and ORS 279.033 at issue here, among others.[11]

Page 314

[270 Or.App. 543] Consequently, we are confronted with a clear legislative intention to afford judicial review of determinations under ORS 279B.030 and ORS 279B.033, but no legislative indication as to the type of proceeding in which that review should occur. Our case law suggests that a declaratory judgment action provides an appropriate mechanism for providing such review. See, e.g., Hinkley v. Eugene Water & Electric Board, 189 Or.App. 181, 184-87, 74 P.3d 1146 (2003) (taxpayer had standing to pursue declaratory judgment action challenging utility's failure to comply with competitive bidding requirements of the code). And if the challenged actions were not reviewable by way of writ of review, defendants do not dispute that plaintiff has otherwise sufficiently alleged a justiciable controversy under the Uniform Declaratory Judgments Act, or otherwise assert that review under the Uniform Declaratory Judgments Act is improper.[12]

Page 315

[270 Or.App. 544] We conclude that the district actions challenged in this proceeding were not reviewable by way of writ of review. A writ of review is available only to review governmental decisions made through " the exercise of judicial or quasi-judicial functions[.]" ORS 34.040. " A judicial or quasi-judicial function is one that involves or requires an adjudicatory process." Koch v. City of Portland, 306 Or. 444, 448, 760 P.2d 252 (1988). Accordingly, the central question presented to us is whether the process of preparing a cost analysis, and then determining whether that cost analysis allows for procurement, resulted from an adjudicatory process. To answer that question, we look to the criteria identified by the Supreme Court in Strawberry Hill 4 Wheelers.

In Strawberry Hill 4 Wheelers, the Supreme Court identified several criteria to guide the determination of whether a decision-making process was quasi-judicial: (1) Was the process, once begun, bound to result in a decision? (2) Was the decision-maker bound to apply preexisting criteria to concrete facts? (3) Was the decision directed at a closely circumscribed factual situation or a relatively small number of persons? 287 Or. at 602-03. We have observed that the existence and nature of the procedural requirements governing the determination at issue also inform the determination of whether a process is quasi-judicial. Hood River Valley, 193 Or.App. at 498-99. The criteria are not " elements" of a quasi-judicial function; instead, they are characteristics that might indicate that a disputed action or decision-making process was judicial or quasi-judicial, as opposed to ministerial or legislative.[13] White v. Vogt, 258 Or.App. 130, 142, [270 Or.App. 545] 308 P.3d 356 (2013). In other words, The Strawberry Hill 4 Wheelers criteria are not to be applied as a bright-line test devoid of context. See Hood River, 193 Or.App. at 495 (" Strawberry Hill 4 Wheelers 'contemplates a balancing of the various factors which militate for or against a quasi-judicial characterization and does not create [an] " all or nothing test." '" (citation omitted)). " We cannot, and will not, pretend that the Strawberry Hills 4 Wheelers criteria are exact or that their application is certain." Hood River Valley, 193 Or.App. at 499.

Before applying the relevant criteria to the district actions challenged in this proceeding--the district's cost analyses and its related determination as to whether procurement is authorized--we start by observing that, on their face, those actions (and the process that led to them) have little in common with typical adjudicatory processes. At its core, the process is investigatory in nature, not adjudicatory. A contracting agency considering procurement for a service is charged with gathering information about the different

Page 316

costs associated with providing a service in-house rather than by outsourcing, in order to make an informed decision about how to proceed. Although the results of that investigatory process ultimately may limit the options available to a contracting agency as to how it can provide certain services, nothing that resembles a typical adjudication occurs.

An application of the relevant factors confirms that initial impression. We acknowledge (as defendants argue) [270 Or.App. 546] that the third Strawberry Hill 4 Wheelers factor (that the decision at issue was directed at a " closely circumscribed factual situation" ) points toward a determination that the action for which plaintiff seeks review was quasi-judicial; the district's determination that its analyses under ORS 279B.033 permitted it to move forward with procurement was directed at the " closely circumscribed factual situation" as to whether it could engage in procurement for student transportation services. However, the other criteria point in a different direction. Regarding the first factor, once the district began the process of investigating whether procurement of transportation services was authorized by preparing the cost analyses, it was not bound to reach a decision. It was not even bound to complete the estimate. Although the completion of the analysis was a necessary prerequisite to proceeding with procurement, the district remained free to abandon that information-gathering process and the inquiry into whether to pursue procurement at any time, and could have simply continued to provide student transportation services in-house rather than seeking to outsource them.

The second factor also points to the conclusion that the district was not engaged in a quasi-judicial function when it prepared the cost analyses at issue here and then determined from them that it could proceed with procurement of student transportation services. Although ORS 279B.033(1)[14] details the information that must be included [270 Or.App. 547] in a preprocurement cost-benefits analysis, the preparation of a cost analysis does not require the " application of preexisting criteria to concrete facts." Strawberry Hill 4 Wheelers, 287 Or. at 603. Instead, as discussed further below, the preparation of a cost analysis requires an agency to collect information about the different types of costs identified in ORS 279B.033(1) and then use that information to prepare an analysis of the likely costs of procurement versus the likely costs of providing services in-house. In other words, the standards in ORS 279B.033(1) structure an information-gathering process, rather than a decision-making process. And,

Page 317

once that information is collected and employed to create the required analysis, the determination under ORS 279B.033(2)(a) as to whether procurement is authorized is purely ministerial, and allows for no exercise of adjudicatory discretion. If the cost analysis reflects that procurement will be more expensive than providing the services in question in-house, then procurement is not authorized. ORS 279B.033(2)(a). Or, if the cost analysis indicates that any cost savings from procurement stems solely from the fact that it is estimated that a private contractor will pay lower wages, salaries, and benefits than the contracting agency would pay its own employees, then procurement is not authorized. Id. Otherwise, procurement is authorized but not required.

[270 Or.App. 548] Finally, ORS 279B.033 imposes no procedural requirements on the preparation of a cost analysis, and the related determination as to whether the cost analysis authorizes procurement, apart from the requirement that the contracting agency maintain the analysis, supporting documentation, and any determination based on the estimate, as public records. ORS 279B.033. The absence of such procedural requirements further indicates that the process of preparing a cost analysis and determining whether the analysis authorizes procurement in not quasi-judicial. Lane v. City of Prineville, 49 Or.App. 385, 388, 619 P.2d 940 (1980); see Hood River Valley, 193 Or.App. at 498-99 (presence of " a number of procedural requirements" for making determination at issue was indicative of quasi-judicial function).

In sum, we conclude that the district's preparation of the cost analyses at issue in this case, and its related determination that those analyses authorized procurement, did not involve the exercise of a quasi-judicial function. Accordingly, those actions were not subject to challenge by writ of review. See Koch, 306 Or. at 448 (in determining that a writ of review process does not apply it is sufficient to distinguish the agency's act from acts that are quasi-judicial); White, 258 Or.App. at 142 (if it is determined that the agency's act is not quasi-judicial, it is not necessary for the court to determine what other type of action it might be). The trial court therefore had jurisdiction over this matter because, as noted above, plaintiff has sufficiently alleged a justiciable controversy under the Uniform Declaratory Judgments Act.[15]

[270 Or.App. 549] B. Merits

Turning finally to the merits, the question presented by plaintiff in her first assignment of error is whether the court erred in granting the district's motion for summary judgment and rejecting plaintiff's contention that the district violated ORS 279B.030(1)(a) by failing to correctly complete the cost analysis required by ORS 279B.033 before entering into a contract for transportation services with First Student. At the heart of plaintiff's argument is the view that the cost analyses of Robinson and Fairchild do not support the trial court's ruling on summary judgment because they were incomplete. We agree with plaintiff

Page 318

that, because both cost analyses omitted data that was central to the district's comparison of costs under ORS 279B.033(2)(a), the district's determination pursuant to ORS 279B.033(2)(a) that there were cost savings permitting it to proceed to procurement was " contrary to law." ORS 279B.145 (providing that determinations under ORS 279B.033 may be reviewed to determine whether they are, among other things, " contrary to law" ).

ORS 279B.033(1)(a)(A) provides that, " [i]n the cost analysis required under ORS 279B.030, the contracting agency shall:

" (a) Estimate the contracting agency's cost of performing the services, including,
" (A) Salary or wage and benefit costs for contracting agency employees who are directly involved in performing the services, including employees who inspect, supervise or monitor the performance of the services."

Additionally, under ORS 279B.033(1)(b), the cost analysis " shall estimate the cost a potential contractor would incur in performing the services, including:

" Average or actual salary or wage and benefit costs for contractors and employees who:
[270 Or.App. 550] " (i) Work in the industry or business most closely involved in performing the services that the contracting agency intends to procure; and
" (ii) Would be necessary and directly involved in performing the services or who would inspect, supervise or monitor the performance of the services[.]"

Then, under ORS 279B.033(2)(a), the contracting agency is required to compare its own costs with those of the potential contractor, and may proceed with the procurement

" only if the contracting agency would incur more cost in performing the services with the contracting agency's own personnel and resources then the contracting agency would incur in procuring the services from a contractor."

But the agency may not proceed with the procurement

" if the sole reason that the costs estimated [for the potential contractor] are lower than the costs estimated [for the contracting agency] is because the costs estimated [for the potential contractor's salary or wage and benefits] are lower than the costs estimated [for the contracting agency's salary or wage and benefits]."

ORS 279B.033(2)(a).

In plaintiff's view, neither the Robinson nor the Fairchild cost analysis satisfies the " salary, wage, and benefits" comparison required by ORS 279B.033(2)(a). The Robinson analysis estimated the district's personnel costs based on the district's budget for the previous academic year (2010-2011), for a total of $1,555,735 for all personnel costs related to transportation. The Robinson report then assumed the identical cost for the " potential contractor," explaining:

" The district cannot determine contractor's wage and benefit programs until RFP's have been received. We anticipate a contractor to pay a competitive wage relative to the services offered. Contractors have economies of scale for reduced health benefit costs. Due to this lack of information we are using the assumption that the cost will be equal to that of the District."

(Emphasis added.) The Fairchild cost analysis similarly assumed that First Student would pay its employees the [270 Or.App. 551] same wages and benefits as the district. This was despite Fairchild's knowledge that First Student's wages and benefits would likely be lower than the district's.[16]

Plaintiff asserts that this method of " estimating" the potential contractor's personnel costs is not an estimate at all within the meaning of ORS 279B.033; rather, it is an assumption. Plaintiff further asserts that the district's reliance on that assumption to prepare its cost analyses renders those analyses, and the related determination that those analyses authorized procurement, contrary to ORS 279B.033 and, thus, " contrary to law." Defendants do not directly respond to that contention, except to agree with the

Page 319

trial court's conclusion that it was a " very conservative (and defensible) assumption" in light of the absence of actual data," and not " so irrational as to violate the statute." [17]

We conclude, based on the text of ORS 279B.033, that the district's reliance on assumptions in preparing the cost analysis required by the statutes rendered that cost analysis " contrary to law." As noted, ORS 279B.033 describes the cost analysis that must precede a contracting agency's decision to proceed with a procurement. The contracting agency's cost analysis " shall"

" [e]stimate the cost a potential contractor would incur in performing the services, including:
" (A) Average or actual salary or wage and benefit costs for contractors and employees who:
" (i) Work in the industry or business most closely involved in performing the services that the contracting agency intends to procure[.]"

[270 Or.App. 552] ORS 279B.033(1)(b). The inclusion of an estimate of the potential contractor's personnel costs is mandatory, not optional. There are additional cost estimates that must be included in the cost analysis, but the estimate of personnel costs is especially significant, because the procurement process cannot proceed if the only cost saving is in personnel. ORS 279B.033(2)(a). The legislature emphasized that concern by specifically requiring the contracting agency to make a comparison of the estimated personnel costs of the contracting agency and the potential contractor. ORS 279B.033(2)(a) provides:

" The contracting agency may not proceed with the procurement if the sole reason that the costs estimated in subsection (1)(b) of this section are lower than the costs estimated in subsection (1)(a) of this section is because the costs estimated in subsection (1)(b)(A) of this section are lower than the costs estimated in subsection (1)(a)(A) of this section."

The statute unambiguously requires an " estimate" of the potential contractor's personnel costs.

In Oregon Cable Telecommunications v. Dept. of Rev., 237 Or.App. 628, 636, 240 P.3d 1122 (2010), we observed that the term " estimate" encompasses " the act of appraising or valuing: VALUATION, CALCULATION; 'a judgment made from usually mathematical calculation especially from incomplete data : a rough or approximate calculation[.]'" (Quoting Webster's Third New Int'l Dictionary 799 (unabridged ed 2002).). That definition is apt here: The " estimates" of personnel costs required by ORS 279B.033 require the act of appraisal or valuation based on calculations based on data. Although data may be incomplete, resulting in calculations that are " rough or approximate," we believe that, in enacting ORS 279B.033, the legislature intended for a contracting agency to go through the process of creating an " estimate" : collecting data and making calculations and appraisals based on that data.

The legislative history of ORS 279B.030 and ORS 279B.033 confirms that the legislature understood and intended for the term " estimate" in those provisions to encompass the process of collecting information and assessing costs based on that information. The proponents of the [270 Or.App. 553] measure frequently reiterated that the purpose of the estimate process was to collect information so that contracting agencies could make informed decisions about contracting. See, e.g., Exhibit 9, House Committee on Rules, HB 2867, Apr 20, 2009, (written statement of Dana Hepper on behalf of Stand for Children); Exhibit 15, House Committee on Rules, HB 2867, May 27, 2009, (written statement of Melissa Unger, on behalf of Service Employees International Union, Local 503). And as to the frequently discussed question of how a

Page 320

contracting agency would obtain the information needed to complete the analysis, one proponent explained:

" The bill requires that the contracting agency estimates the costs of wages and benefits of a possible contractor for providing the service. The agency can look to past contracts and also there is extensive information available from the Oregon Employment Department about the average salary of different jobs in different areas of the state. At their website [ ], an agency can search for the job title by county to get an average wage. In addition, the Employment Department does studies on average benefits.
" It is critical that contracting agencies are taking the time to estimate the costs of potential contractors before they receive bids so that they can compare the different proposals from contractors to ensure that they are within reason of [ ] how much the service should cost."

Exhibits 15, pp 4-5, House Committee on Rules, HB 2867, May 27, 2009, (written statement of Melissa Unger, on behalf of Service Employees International Union, Local 503), (Underscoring in original.)

The district's decision to base its cost estimate for the potential contractor on an assumption circumvented the process intended by the legislature in ORS 279B.033. Because the district relied on assumptions about salary, wage, and benefit costs, and did not include estimates of actual salary, wage, and benefit costs for potential contractors as required by ORS 279B.033(1)(b), its cost analysis did not comply with the statute.[18] The trial court therefore [270 Or.App. 554] erred when it granted summary judgment to defendant on the ground that the undisputed facts demonstrated that the cost analyses complied with ORS 279B.033.

IV. CONCLUSION

The district's cost analyses were " contrary to law." The trial court erred in concluding otherwise. The general judgment of dismissal is reversed and remanded for further proceedings consistent with this opinion.[19]

Reversed and remanded.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.