a:\newslw.96 [4]Alan Lee MitchellStephen De'ak201999-04-01T23:18:00Z2006-07-01T22:25:00Z2006-07-01T22:25:00Z111656646 5515779611.8026 FURRER & SCOTT LLCConsider . . .VOL. 8, ISSUE 2 April, 1999Law OfficesFURRER & SCOTT LLC9185 SW BURNHAM ST. POST OFFICE BOX 23414TIGARD, OR 97223 TIGARD, OR 97281(503) 620-4540 -- (800) 334-8986 -- FAX: (503) 620-4315www.furrer-scott.comARE YOU WORKING ON HIGHER EDUCATION PUBLIC WORKS?If so, your rights to be paid may be limited.A recent article in the Daily Journal of Commerce noted that the Oregon Health Sciences University’s board had approved a $4.9 million remodel of the hospital facility.As long-time readers of this newsletter will recall, the Fall, 1995 issue discussed the 1995 legislation that changed OHSU from a state agency to an “independent public corporation.” A major aspect of that change is that OHSU is no longer subject to the provisions of Chapter 279 of the Oregon Revised Statutes.ORS Chapter 279 includes provisions such as Oregon’s Little Miller Act (requiring payment bonds); Oregon’s Little Davis-Bacon Act (prevailing wages); the Prompt Pay provisions; the retainage provisions and the maximum working hour provisions.In addition, ORS Chapter 351, which includes statutes concerning the Oregon State System of Higher Education, expressly excludes all state higher education facilities from almost all of the provisions of ORS Chapter 279. Examples of these facilities are the University of Oregon, Oregon State University and the Oregon Institute of Technology.Thus, contractors or others who are interested in being involved with any project at OHSU or any state higher education institution should investigate all of these issues before entering into any contract or subcontract or providing any labor or materials or rental equipment.At a minimum, contractors should verify whether any payment bond has been provided for the project and actually obtain a copy of that bond before becoming involved with the project. Otherwise, unless you have a contract directly with the public body, your only remedy may be against the prime contractor.ARE YOU PROPERLY REGISTERED?Many contractors are registered with the CCB as “specialty” contractors rather than “general” contractors. Under the CCB rules, the distinction between these two different categories can be so slight that it is possible to “cross the line” without knowing that you are doing so.“Specialty contractors” are defined as those contractors who are not “general contractors.” “General contractors” are those contractors who meet both of the following two conditions:They supervise or perform, in whole or in part, more than two unrelated building trades or crafts; andThe sum of all contracts on any single property, including labor and materials, exceeds $2,500.Thus, a plumbing subcontractor who is registered as a “specialty contractor” and who only performs plumbing work can generally work on any project, no matter the size. However, if that same plumbing subcontractor hires an excavator and a concrete subcontractor on a project whose total “value” exceeds $2,500, then the plumbing subcontractor would need to be registered as a “general” contractor.Of course, incorrect registration exposes a contractor to a number of potential consequences, including but not limited to enforcement penalties assessed by the CCB.REVERSE-SIDE CONTRACT TERMSIn today’s business world, many transactions take place solely via facsimile machines. For instance, your customer may call you with an order and you will fill out a sales invoice and fax it to the buyer in confirmation of the deal.If your sales invoice or other document has terms and conditions on its reverse side and you fail to send both sides of the document, then the buyer may not be bound by those reverse-side terms.A New York case illustrates this issue. In First Security Mortgage Co. v. Goldmark Plastics Compounds, 862 F Supp 918 (E.D.N.Y. 1994), the parties’ practice was for the buyer to call in an order and the seller to fax a confirming copy of the bill of lading.While this worked fine for many years, problems arose after the seller went out of business and was taken over by its bank. The bank sued the buyer for unpaid invoices and the buyer defended by saying that the goods were defective.The bank tried to use the defense that the bills of lading included disclaimers of warranties and limitations of liability. Unfortunately for the bank, these terms were on the reverse side of the bills of lading, which sides were never sent to the buyer.The court held that these terms were not binding on the buyer because it had neither received nor agreed to those terms. Thus, the bank had no defense to the buyer’s defective goods claims.This case illustrates that, while it may be inconvenient to fax the backside of every document, failing to do so can have potentially serious impacts. The rule for every transaction should be to include all of the terms every time.NEW MODEL PUBLIC CONTRACT RULESThe Oregon Attorney General’s office recently published its new Model Public Contract Rules Manual. Many state and local public contracting agencies adopt this manual in whole or in part.The manual also contains selected ORS statutes, administrative rules and other reference materials. It also includes commentary by the Attorney General.Copies of the manual may be purchased from:Department of JusticePublications Section1162 Court Street NESalem, OR 97310Telephone: (503) 378-5555, ext. 325.CAUTION: As of the date of this newsletter, the rules contained in the manual are model rules only and are not binding until they are specifically adopted by each agency or public body. Further, many public bodies make revisions or amendments to the model rules. Therefore, before relying on any rules in the Manual, contact the relevant public body to obtain a copy of the rules that the body has adopted.MORE WEBSITES:www.sos.state.or.us/cgi-bin/uccsrch.htm: This is the Oregon Secretary of State’s website for searching filings under the Oregon Uniform Commercial Code. These filings are used to perfect security interests in personal property.www.sos.state.or.us/BlueBook/1997_98. This is the on-line version of the 1997-1998 Oregon Blue Book, the official state directory for all Oregon government departments and other related resources.FIRM NEWS:MARK YOUR CALENDARS for, July 24, 1999 when FURRER & SCOTT LLC, in connection with Lorman Seminars and a panel of experts, will be conducting a NEW all-day seminar on Oregon residential construction law issues. The seminar will present both legal and practical perspectives. Speakers will include MICHAEL J. SCOTT and THOMAS J. MURPHY, both with Furrer & Scott LLC; CHRISTOPHER E. MARTIN, sole practitioner attorney; TOM BREWER, Associate Broker with Equity Group Realtors, Inc.; ELAINE WILCOX, Assistant Vice President with Washington Mutual Bank; C. CLEVELAND ABBE, Counsel with Oregon Title Insurance Company; and CRAIG P. SMITH, Deputy Administrator, KRISTIE PATTON, Program Manager for the Registration/Renewal Section, and RONALD J. MAKINSON, contract regional investigator – all three with the Oregon Construction Contractors Board. If you would like a brochure about this seminar, please contact Gayle L. Allen at Furrer & Scott LLC.This newsletter is published quarterly by the law firm of Furrer & Scott LLC for the benefit of its clients and friends and is intended to inform them about legal matters of interest. While this information is meant to be current, we do not promise or guarantee that the information is correct, complete or up-to-date. This information is not intended to be, and should not be considered to be, legal advice. No actions should be undertaken in reliance hereon without professional legal counsel. Alan L. Mitchell, Editor