After back to back awards in 2007 & 2008 OPPA couldn’t pull off the three peat, but they roared back this year excelling in the areas of establishing a Men-tor of the Year Award, develop-ing a message board & list serve on the website, maintaining a relationship with the League of Oregon Cities, and tracking legislative issues surrounding public agencies and specifically to local government agencies. A huge thank you to the numer-ous members involved in the intense application process. Your efforts, once again, have proved to be outstanding.

After a one year hiatus they’re back on top. This August OPPA was presented with the NIGP

Large Chapter of the Year award at the NIGP Forum in San Anto-nio, Texas.

My time as OPPA’s President is passing quickly as the Board & Commit-tees are working

hard. I was proud to be included with close to 30 OPPA members as we accepted the Large Chap-ter of the Year award at the 2010 National Institute of Gov-ernmental Purchasing (NIGP) Annual Forum in San Antonio. This is the third time in the past four years OPPA has earned this award thanks to the hard work of the Board, Committees, and members. The September Bring-a-Buddy

Workshop was successful with 16 buddies in attendance. Positive feedback was received from our members. They felt it was useful to bring their co-worker, super-visor, or manager to the work-shop to learn about OPPA and see what we do. Be watching for OPPA’s new logo as it is rolled out this fall. Scholarship Committee is work-ing on a revamp of the scholar-ship program to better meet our members’ needs. OPPA has a new Facebook page; become a fan of OPPA and show your sup-port! We will soon have an arti-cle posted on Wikipedia, too! The 2011 proposed budget and suggested revisions to the Bylaws

will be voted on at the General Membership Meeting at the Fall Conference, November 4 & 5. Also, a proposal to reorganize the Director roles will be pre-sented to the membership to vote on. All of the Committees are work-ing hard; these are just a few of the exciting things the Board & Committees have been working on. I hope to see you at the Fall Conference for interesting speakers, networking with your colleagues, and to learn more about what OPPA has been up to. Our Chapter of the Year award will be proudly displayed. I am hopeful we will earn the award again next year!

OPPA Wins 2010 NIGP Large Chapter of the Year

President’s Message

Boilerplate O C T O B E R 2 0 1 0 V O L U M E 1 , I S S U E 2

2 0 1 0 - 1 1

O P P A B O A R D

President

Diane Seaton,

CPPO, CPPB

Vice President

Kim Dunston,

CPPB

Treasurer

Katie Shaw, CPPB

Secretary

Tim Hay, CPPB

Immediate Past

President

Tara Anderson,

CPPB, OPBC

Directors

Greg James, CPPB

Sandra Kalin

Kathleen George

Diane Seaton, CPPO, CPPB 2010-11 OPPA President

OPPA wins large Chapter o f the year 3 out of the last 4 years

I N S I D E T H I S

I S S U E

Secretary of

State’s Purchas-

ing Staff wins

2010 AEP Award

Liability for acts

of contracted

service providers

OR Housing &

Community Ser-

vice garners 3rd

straight Sterling

Agency Award

Are your

contracts in

order?

Training

Opportunities

P A G E 2

“A public

agency also may

or may not be

responsible for

damages to a

third party

caused by

contracted

service

providers”

Liability for Acts of Contracted Service Providers

on its behalf with respect to the conduct that gave rise to the 3P claim (of course, agen-cies should not, and generally do not authorize or intend contractors to act negligently), and (2) the agency has the right to control the day to day physical details of the manner of per-formance of the conduct that gave rise to the 3P claim (is similar to the control that an employer exercises over an employee). Possible outcomes: If the contractor’s act quali-

fies as the act of an agent, under the OTCA the public agency may be solely re-sponsible for the defense and payment of the claim.

If the contractor’s act does

NOT qualify as the act of an agent, the injured 3P may proceed against the contrac-tor, but not the agency.

º Even if the contractor’s

act does not qualify as the act of an agent, the public agency may get named as a defendant in a lawsuit and have legal expenses getting itself out.

Example: In an April 2009 OR Supreme Court case, the Court looked at the Port of Portland’s contract with a service provider to provide shuttle bus services at the airport. A bus rider sued the bus company and the Port for getting hurt because the driver negligently slammed on the

The State is generally immune from lawsuits for damages, however, it has chosen to give away some of that immunity by allowing itself and its public entities to be sued up to the limits described in the “Oregon Tort Claims Act” (OTCA).

The dollar limits of liability recently increased (2009 SB 311). Under the OTCA, a public agency is liable for its own acts (those of its employees). A public agency also may or may not be responsible for damages to a third party (3P) caused by contracted service providers. In other words, contracted service providers: might qualify as agents, and

the agency might be ­responsible for defending and paying a 3P claim, or

they might not qualify as

agents, and the agency will not be responsible for pay-ing a 3P claim.

In most situations, the key is whether the contractor’s act that is the subject of the 3P claim meets the definitional requirements for being the act of an agent. The definition will vary on the statutory and case law that prevails in a jurisdic-tion. In Oregon, one must look at the contractor’s spe-cific conduct giving rise to the 3P tort claim and find: (1) the agency authorized or intended the contractor to act

brakes. The Court said that driving negligently was not in the scope of services author-ized by the Port, and that the Port did not have the right to control day to day details of how to drive the buses. There are also a few other, less likely, legal situations (strict liability, special statutory policy, etc.) where a public agency might be legally respon-sible for a contractor’s actions, but they are not explained here. Many public agency procure-ment contracts include an indemnification clause. What does that contractor’s indem-nification of the public agency do? While it can be customized, the indemnification typically requires the contractor to pay the public agency for: 1. Damage to 3Ps caused by

the contractor, but found by a court to be acting as the public agency’s agent. Through the indemnification clause, the contractor will most likely have to pay any public agency liability to 3Ps.

2. Legal defense costs if the agency is named in a lawsuit for acts caused by the con-tractor and not the agency’s fault. If the contractor was acting on their own, the indemnification means the contractor definitely will have to pay the public agency for legal defense costs.

Jon Walton,

J.D., CPPB,

OPBC,

Oregon

Business

Development

Department

B O I L E R P L A T E C O N T . O N P A G E 4

Are Your Contracts in Order? P A G E 3 V O L U M E 1 , I S S U E 2

Procurement can sometimes be an area of contention between Con-tract Officers and Program Staff. The Program Staff knows what they want; we know how to get them there. We just don’t always take the same roads. Procurement needs challenge our skills. Every procurement is differ-ent; there is no one size fits all. This is where I like to say we get crea-tive. We’re creative in the ways we approach each new request for a good or service. We do market

research, use fair and competitive processes, and tie deliverables back to the Department’s mission in order to obtain the best overall value for that department. We create acceptable approaches to the procurement process in a man-ner that keeps us compliant with laws and rules and still gets our Program Staff what they need. Our efforts are never in vein. Sometimes it may seem as though we go through a big hairy process, execute a contract and then never have to pick it up again. Much of this is due to the fact that we did such a good job in the first place. We equipped the Program Staff with the knowledge and resources to oversee the contract and assure that it runs smoothly. Other times

our efforts really get noticed. For example, when the Department suddenly gets a Public Records request from the media. Yes, that’s when the Contract Officer picks that file back up, checks it over, and remains confident that it’s a sound contract. It also just so happens to be when Program Staff, Managers, and Department heads come and ask you the very same thing. It could just as easily be our name making the front page, which is one of the reasons we do what we do and why what we do matters. We don’t circumvent anything just to get it done and make the Program Staff happy. Ultimately, whoever is authorizing that contract trusts that we’ve done our job to protect them and the Department.

Connie

Lelack, CPPB,

OPBC

OR Housing &

Community

Services

Achievement of

Excellence in

Procurement

Award

“The Program

Staff knows

what they

want; we know

how to get

them there.

We just don’t

always take

the same

roads”

Kudos for Secretary of State Purchasing Team The Oregon Secretary of State Purchasing Team has earned the 15th Annual Achievement of Excellence in Procurement Award (AEP) for 2010. The AEP award is designed to rec-ognize organizational excel-lence in procurement. The program is designed to meas-ure innovation, professional-ism, e-procurement, productiv-ity, and leadership attributes of the procurement function.

The Achievement of Excel-lence in Procurement is spon-sored by the National Purchas-ing Institute (NPI); the Califor-nia Association of Public Pur-chasing Officers (CAPPO), the Florida Association of Public Purchasing Officers (FAPPO), the Institute of Supply Manage-ment (ISM), the National Insti-tute of Governmental Purchas-ing (NIGP), the National Asso-ciation of State Procurement Officials (NASPO), the Na-tional Association of

Educational Procurement (NEAP), and the Texas Public Purchasing Association (TxPPA). The Oregon Secretary of State is the only state government agency in Oregon and 1 of only 12 state agencies in the United States to receive the award. A special “Thank you” to Linda Lichty for processing the appli-cation. It was a lot of work .

Mickey Kemper, CPPB

Oregon Secretary of State

B O I L E R P L A T E

Secretary of State Purchasing Team

(Left to Right) Front Row: Rob Rickard, CPPO, OPBC, Kate Brown Secretary of State; Second Row: Mickey Kemper, CPPB, Don Stew-art, CPPB, Linda Lichty, CPPB, Third Row: Jeff Morgan, CPPO, CPPB, and Brent Kibby, CPPB,: not pictured: Greg Lamb, CPPB

P A G E 4

“Assuming

there is

little risk

for small

value

contracts

is also a

bad idea.”

Liability for Acts of Contracted Service Providers continued from page 2

Requiring super high levels of insurance is not necessarily in the best interests of the public agency if the risks are negligi-ble; it can increase contract price and limit competition. Assuming there is little risk for small value contracts is also a bad idea. The public agency should examine every con-tracting situation and make a risk determination about how the contractor’s activities could cause losses to the agency or cause losses to a 3P as the public agency’s agent. There are lots of different risks to think about, and very few reliable shortcuts to a decent risk assessment. Adopting standard required insurance levels is not a precise way to cover foreseeable risks. One general observation is that there is a big general dif-ference in risks between (A) hiring a service provider to deliver services directly to the agency and (B) hiring a con-tractor to provide services on behalf of the agency (“contracting out” activities that could otherwise be pro-vided by agency employees) to the public or targeted “customers.” A more specific risk to think

3. Damages solely to the public agency (damage to our property, data, etc.) caused by the contractor.

Most public agency procure-ment contracts impose insur-ance requirements on the contractor. What does con-tractor insurance do? It provides more financial re-sources to help ensure the contractor is able pay the pub-lic agency for anything covered by the indemnification clause. (Although this discussion is about effects on agencies, of course a contractor’s insur-ance also pays the contractor’s liability for damaged third par-ties. Also, it is also possible in some cases for the contrac-tor’s insurance policy to cover the direct liability of an agency for its own negligence, al-though that rarely is part of indemnification in public agency contracting.) It is possible that a contractor is so well-capitalized or has access to other financial re-sources that insurance is not strictly necessary for them to be able to indemnify the agency against foreseeable risks, but except in that case, insurance is appropriate.

about, caused by SB 311, arises when a 3P has a large tort claim against a contracted service provider. If the OTCA limit is higher than the con-tractor’s insurance, the 3P may be more tempted than in the past to also sue the public agency, in the hope of dipping into a deeper pocket. If the contractor was not an agent, then the agency will not be liable but will have legal de-fense costs. Make sure the contractor has enough financial resources to cover those agency defense costs (in addi-tion to any other liability they may have). Assuming you have identified some risks and think insurance requirements are a good idea for a particular contract, there is a lot to say about types and amounts of insurance cover-age, and insurance policies, endorsements and certificates. Those issues are considered elsewhere. The general point is that good procurement practice is to carefully consider the most appropriate risk management for each contracting situation. Questions or comments? Email: jon.walton@state.or.us

B O I L E R P L A T E

DISCLAIMER: This is a general discussion and glosses over several exceptions. The mention of legal consequences in this docu-ment is for information and illustration purposes only, and not to be construed as a legal opinion for the reader or the reader’s organization. The reader should consult with their legal counsel to obtain a legal opinion appropriate for their circumstance.

For a useful recap of how indemnification works, see: http://www2.co.multnomah.or.us/Public/EntryPoint?ct=6848a28c8e0a7010VgnVCM3391260ac614acRCRD#mutual

For more information about the legal concept of being an agent, see Restatement (Third) of Agency from a law library.

For more information about risk assessment and insurance types, see:

http://www.oregon.gov/DAS/SSD/Risk/RiskToolkits.shtml

Enrolled Senate Bill 311

Printed pursuant to Senate Interim Rule

213.28 by order of the President of the Senate

in conformance with presession filing rules,

indicating neither advocacy nor opposition

on the part of the President. (at the request of Senate

Interim Committee on Judiciary for Oregon

Tort Claims Act Interim Task Force) (at the

request of Senate Interim Committee on

Judiciary for Oregon Tort Claims Act Interim

Task Force) – Relating to Oregon Tort Claims

Act; and declaring an emergency. 

P A G E 5

The Sterling

Agency Award is

an advanced level

of recognition

B O I L E R P L A T E

Dori Palmer, CPPB

City of Eugene, at the

September Workshop

The Board’s desire to recruit new members and show the value of OPPA training , in-spired the first Bring-a-Buddy Workshop this September. OPPA members brought 16 Buddies to the Workshop. Buddies were treated to free registration, a small gift pack containing OPPA promotional gifts, informational materials, and the opportunity to net-work with members.

Bring-a-Buddy September Workshop a Hit Training topics included Pro-curement Audits, Contract Administration, and RFP Evaluations/Processes. The Program Committee re-ceived good responses on the post Workshop surveys such as “I think it was a good idea, and for the first one, it cer-tainly has promise.” and “With training budgets decreasing, this opportunity was really appreciated.”

The Workshop was held at a new venue, The Renaissance Inn in Keizer. This venue was selected through the use of an RFP process administered by the Program Committee. The overall impression of the facility by the mem-bership was above aver-age. As the survey says, “Good job OPPA folks?”

OPPA Buddy Dan Oven,

ODOT Supervisor,

focuses on the presentation

Oregon Housing & Community Services Receives the UPPCC Sterling Agency Award Through its Agency Certifica-tion Award program, the Uni-versal Public Procurement Certification Council (UPPCC) identifies organizations that have earned the distinguished and unique honor of achieving and/or maintaining a high per-centage of staff that are UPPCC Certified. This pro-gram was developed to recog-nize those organizations that have made a concerted effort to achieve procurement excel-lence.

Each agency category has a specified percentage of qualify-ing procurement staff that must be UPPCC certified in order to achieve the award. The Oregon, Housing & Com-munity Services has had 100% of it’s staff certified for the last three years. This places them a notch above most agencies nationally and earned them the Sterling Agency Award.

Do I foresee a fourth year of perfection on the horizon? Congratulations!

Camber Schlag, CPPB, OPBC accepts the Sterling Agency Award from Ann Peshoff, Director of the UPPCC at the 2011

NIGP Forum in San Antonio, Texas

1118 Lancaster DR NE, PMB #430

Salem, OR 97301

oppachapter@gmail.com

Congratulations to Oregon’s Newest Certified Public Purchasing Officer

(CPPO) and Certified Professional Public Buyer (CPPB) Designees! CPPO

Michael Perrie, CPPO, CPPB City of Portland CPPB Mary Bray, CPPB, J.D. Oregon State Lottery Ufemia Castaneda, CPPB Oregon Department of Admin. Services Denna Coleman, CPPB Oregon Department of Admin. Services Pam Johnson, CPPB Oregon Department of Admin. Services Don Stewart, CPPB Oregon Secretary of State Krystal-Lee Tabangcura, CPPB Portland Public Schools

OPPA Welcomes Our Newest Members!

Yassamin Alayan Clackamas Community College Denny Austin Roseburg Public Schools Sanjuana Cantu Oregon Youth Authority Scott Schneider, J.D. City of Portland Krystal-Lee Tabangcura Portland Public School Kayleen Warner-Arens Columbia Gorge Community College

Pat Albaugh Port of Cascade Locks

Ryan Allen Portland Public Schools

Training & Professional Development Opportunities

2010 OPPA

September

Workshop

Visit Us On Watch for Us on Wikipedia

We’re on the Web oppaweb.org

None of the opinions expressed by OPPA’s board or its members should be considered as legal advice or counsel. OPPA disclaims all warranties with regard to information published in the newsletter, whether submitted by OPPA or any third party. Boilerplate Editor: P. Kevin Walther, CPPB, kevin.walther@chemeketa.edu

2010 Training Course/Event Location Instructor

November 3rd Ethics: A Survival Kit for Public Procurement

Portland, OR Robin J. Rickard, CPPO, OPBC Oregon Secretary of State Chief Procurement Officer

November 4th & 5th OPPA Fall Conference Newport, OR Various

2011 Training Course/Event

January 27th OPPA Workshop TBD Various

February 3rd Fundamentals of Leadership and Management

Wilsonville, OR Theresa M. Gerhardt, CPPO, CPPB Fayette Country Board of Education Purchasing Assistant

March 10th Columbia Chapter/OPPA Workshop

TBD Various

May 25th -27th OPPA Spring Conference Bend, OR Various

Location Instructor

January 19th - 21st Planning, Scheduling &Requirements Analysis

Wilsonville, OR Darin Matthews, CPPO, C.P.M. Portland, OR Metro, Chief Procurement Officer

July 2010-Pro D

Creating Performance Based RFP’s

2010

NIGP

Forum