Current through Register Vol. 63, No. 3, March 1, 2024
(1) Generally. To
protect the integrity of the competitive Procurement process and to assure fair
treatment of Offerors, a Contracting Agency should carefully consider whether
to permit waiver, correction or withdrawal of Offers for certain
mistakes.
(2) Contracting Agency
Treatment of Mistakes. A Contracting Agency shall not allow an Offeror to
correct or withdraw an Offer for an error in judgment. If the Contracting
Agency discovers certain mistakes in an Offer after Opening, but before Award
of the Contract, the Contracting Agency may take the following action:
(a) A Contracting Agency may waive, or permit
an Offeror to correct, a minor informality. A minor informality is a matter of
form rather than substance that is evident on the face of the Offer, or an
insignificant mistake that can be waived or corrected without prejudice to
other Offerors. Examples of minor informalities include an Offeror's failure
to:
(A) Return the correct number of Signed
Offers or the correct number of other documents required by the Solicitation
Document;
(B) Sign the Offer in the
designated block, provided a Signature appears elsewhere in the Offer,
evidencing an intent to be bound; and
(C) Acknowledge receipt of an Addendum to the
Solicitation Document, provided that it is clear on the face of the Offer that
the Offeror received the Addendum and intended to be bound by its terms; or the
Addendum involved did not affect price, quality or delivery.
(b) A Contracting Agency may
correct a clerical error if the error is evident on the face of the Offer or
other documents submitted with the Offer, and the Offeror confirms the
Contracting Agency's correction in Writing. A clerical error is an Offeror's
error in transcribing its Offer. Examples include typographical mistakes,
errors in extending unit prices, transposition errors, arithmetical errors,
instances in which the intended correct unit or amount is evident by simple
arithmetic calculations (for example, a missing unit price may be established
by dividing the total price for the units by the quantity of units for that
item, or a missing or incorrect total price for an item may be established by
multiplying the unit price by the quantity when those figures are available in
the Offer). Unit prices shall prevail over extended prices in the event of a
discrepancy between extended prices and unit prices.
(c) A Contracting Agency may permit an
Offeror to withdraw an Offer based on one or more clerical errors in the Offer
only if the Offeror shows with objective proof and by clear and convincing
evidence:
(A) The nature of the
error;
(B) That the error is not a
minor informality under this subsection or an error in judgment;
(C) That the error cannot be corrected or
waived under subsection (b) of this section;
(D) That the Offeror acted in good faith in
submitting an Offer that contained the claimed error and in claiming that the
alleged error in the Offer exists;
(E) That the Offeror acted without gross
negligence in submitting an Offer that contained a claimed error;
(F) That the Offeror will suffer substantial
detriment if the Contracting Agency does not grant the Offeror permission to
withdraw the Offer;
(G) That the
Contracting Agency's or the public's status has not changed so significantly
that relief from the forfeiture will work a substantial hardship on the
Contracting Agency or the public it represents; and
(H) That the Offeror promptly gave notice of
the claimed error to the Contracting Agency.
(d) The criteria in subsection (2)(c) of this
rule shall determine whether a Contracting Agency will permit an Offeror to
withdraw its Offer after Closing. These criteria also shall apply to the
question of whether a Contracting Agency will permit an Offeror to withdraw its
Offer without forfeiture of its Bid bond (or other Bid or Proposal security),
or without liability to the Contracting Agency based on the difference between
the amount of the Offeror's Offer and the amount of the Contract actually
awarded by the Contracting Agency, whether by Award to the next lowest
Responsive and Responsible Bidder or the most Advantageous Responsive and
Responsible Proposer, or by resort to a new solicitation.
(3) Rejection for Mistakes. The Contracting
Agency shall reject any Offer in which a mistake is evident on the face of the
Offer and the intended correct Offer is not evident or cannot be substantiated
from documents submitted with the Offer.
(4) Identification of Mistakes after Award.
The procedures and criteria set forth above are Offeror's only opportunity to
correct mistakes or withdraw Offers because of a mistake. Following Award, an
Offeror is bound by its Offer, and may withdraw its Offer or rescind a Contract
entered into pursuant to this division 47 only to the extent permitted by
applicable law.
Stat. Auth.: ORS
279A.065 &
279B.055
Stats. Implemented: ORS
279B.055
