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What You Need To Know About Bid Protests

Competition for construction projects will not dwindle any time soon. Tight economic conditions make the few available projects more valuable. Although losing bidders on a private project must look for another job, such bidders on a public project have the right, in certain cases, to challenge the sufficiency of the bidding process and its outcome.

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The Lead-Based Paint Trap

Lead-based paint is a recognized source of hazardous lead dust and chips that can harm adults and children. Remodeling or repair activities like sanding, cutting, and demolition can generate hazardous lead dust and chips when performed where lead-based paint is present. As a result, federal law has endeavored to protect the public from harmful exposure by, among other things, requiring disclosure of the presence of lead-based paint in homes built prior to 1978.

Recently, the federal Environmental Protection Agency (EPA) extended protection from possible adverse lead exposure to include both “target housing” (i.e. homes built prior to 1978) and “child-occupied facilities”. A “child-occupied facility” is any building constructed prior to 1978 visited regularly by the same child under 6 years of age, on at least two different days within any week. Under the EPA’s new rule, contractors performing work on a structure built prior to 1978 must carefully assess whether the anticipated project involves target housing or a child-occupied facility to avoid civil penalties and liabilities. If the project falls within the new rule, a contractor must be certified and follow specific work practices to prevent lead contamination. See 40 CFR 745.80, Subpart E.

To comply with the federal law, the 2009 Oregon legislature enacted ORS 701.505 to 701.520 and 701.995. Under ORS 700.510 a contractor may not perform lead-based paint activities or lead-based paint renovation unless the contractor is licensed by the CCB to perform such work and complies with several regulations requiring disclosures that must be made to the owner of a target facility or child-occupied facility and signage at the project describing the work to be performed and anticipated completion date. “Lead-based paint activities” is defined with reference to federal regulations and includes inspection, risk assessment and abatement. 40 C.F.R. 745.223.

“Lead-based paint renovation” is defined with reference to the federal definition of “renovation”. Such work is defined expansively as follows:

Renovation means the modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces, unless that activity is performed as part of an abatement as defined by this part (40 CFR 745.223). The term renovation includes (but is not limited to): The removal, modification or repair of painted surfaces or painted components (e.g., modification of painted doors, surface restoration, window repair, surfacepreparation activity (such as sanding, scraping, or other such activities that may generate paint dust)); the removal of building components (e.g., walls, ceilings, plumbing, windows); weatherization projects (e.g., cutting holes in painted surfaces to install blown-in insulation or to gain access to attics, planing thresholds to install weather-stripping), and interim controls that disturb painted surfaces. A renovation performed for the purpose of converting a building, or part of a building, into target housing or a child-occupied facility is a renovation under this subpart. The term renovation does not include minor repair and maintenance activities.

If an anticipated project falls within the new law a contractor must not only be licensed by the CCB to perform the work but also must comply with work practice standards, record keeping and reporting standards promulgated by the Oregon Department of Health and Human Services (DHS). The DHS standards can be found on their website: http://www.oregon.gov/DHS/ph/ leadpaint/docs/proposedtext.pdf. Failure to comply with the new law can lead to a fine of up to $5,000 for each violation, as well as civil liability. Since there are voluminous requirements for performing work under the new law, the fine under ORS 701.995 has the potential to be significant if numerous violations are found.

The above requirements are new under Oregon law. As such, the Oregon Courts have not yet had an opportunity to apply or construe it. As a result, there are some questions that have not yet been answered. For example, what is the scope of a contractor’s duty to inquire whether the building they have been hired to renovate is a child-occupied facility? Similarly, if such a duty exists how is a contractor supposed to find out whether the contractor is renovating a child-occupied facility?

On most projects, it will likely be apparent; however, some projects will undoubtedly involve mixed uses or common areas in which children under six are present enough for the site to be considered a “child-occupied facility”. The EPA regulations (40 CFR 745) explain that for common areas in public or commercial buildings which contain child-occupied facilities, the child-occupied facility encompasses only those common areas that are routinely used by children under age 6, such as restrooms and cafeterias. The EPA also explains that common areas like hallways, stairways and garages are not included because children only pass through such areas.

However, whether or not a contractor has an obligation to determine whether or not a project site may include a child-occupied facility is not answered expressly in the text of the new law or text of relevant federal regulations. Instead, the EPA provides comments about its regulations that can be found in the Federal Register, Vol. 73, No. 78, pg. 21707 that confirm the intent of the regulations is to impose an obligation on the renovation contractor to determine whether a building or any portion of it involves a child-occupied facility. The only guidance provided by the EPA to help contractors discharge this obligation is to suggest that a contractor should pay attention to the name of a building, observable evidence that indicate children are present and signage that may indicate child care is provided on site. The few examples provided of things a contractor should be on the lookout include the following:

  • A stand-alone child care center is likely to have a name that suggests that it provides child care.
  • The status of a child-occupied facility should be obvious upon entering the center.
  • Child care centers in office buildings are likely to have informational signs posted and the centers are likely to be identified in the building directory.
  • Elementary Schools are likely to have kindergarten classrooms.

The EPA explains that the contractor should also inquire about the presence of a child-occupied facility when contracting to perform renovation services in a public or commercial building. However, the EPA also explains that a contractor cannot rely solely upon a statement by the building owner or manager that there is no child-occupied facility in the building in the face of evidence to the contrary. As a result, it makes sense for contractors who work on any structure built prior to 1978 to address this issue in their contract with the project owner by both requiring certification as to whether any portion of a project involves a child-occupied facility and conducting an onsite inspection to be sure there isn’t any evidence that children under the age of 6 may be present. It may also be worthwhile to simply acquire the annual $50 Certified Lead-Based Paint Renovation Contractor’s License, take the training and treat every job involving a pre-1978 structure as if it was a child-occupied facility. Additional information about the new requirements and available classes for the training can be found at the following links:

http://www.epa.gov/compliance/resources/newsletters/civil/enfalert/leadpaint.pdf
http://www.oregon.gov/CCB/lead-based-paint.shtml