Keeton-King Construction, Inc. v. State

WARREN, P. J. Keeton-King Construction, Inc. (petitioner) seeks review of our decision. 105 Or App 41, 802 P2d 711 (1990). We treat the petition as one for reconsideration, ORAP 9.15, allow it, modify our opinion and adhere to our opinion as modified. The trial court determined that the Department of General Services (DGS) had erroneously interpreted the law in concluding that the actions set out in ORS 200.045(2) (a)-(j) {since amended by Or Laws 1989, ch 1043, § 8) are mandatory and that petitioner’s failure to perform any one of them precludes a finding of good faith. We agree that DGS erroneously interpreted the law. Petitioner’s failure to advertise does not preclude a finding of good faith; it raises a rebuttable presumption that petitioner did not make a good faith effort to comply with the statutory goals. ORS 200.045(2); 105 Or App at 43. After DGS found that petitioner had not advertised, it should then have determined whether petitioner had overcome the rebuttable presumption against good faith. It did not do that. Therefore, our discussion of whether there was substantial evidence was premature. The trial court erred, because, having correctly decided that DGS had applied the wrong legal standard, it made its own finding about good faith. It should have remanded to DGS to allow it to apply the correct legal standard. ORS 183.484(4)(a)(B). We modify our opinion to remand to DGS to determine whether petitioner overcame the rebuttable presumption that it had not made a good faith effort to comply with the statutory goals. Reconsideration allowed; opinion modified and adhered to as modified; remanded to Department of General Services.