Current through Register Vol. 63, No. 9, September 1, 2024
(1) Rejection of
an Offer.
(a) A Contracting Agency may reject
any Offer upon finding that to accept the Offer may impair the integrity of the
Procurement process or that rejecting the Offer is in the public
interest.
(b) The Contracting
Agency shall reject an Offer upon the Contracting Agency's finding that the
Offer:
(A) Is contingent on the Contracting
Agency's acceptance of terms and conditions (including Specifications) that
differ from the Solicitation Document;
(B) Takes exception to terms and conditions
(including Specifications);
(C)
Attempts to prevent public disclosure of matters in contravention of the terms
and conditions of Solicitation Document or in contravention of applicable
law;
(D) Offers Work that fails to
meet the Specifications of the Solicitation Document;
(E) Is late;
(F) Is not in substantial compliance with the
Solicitation Documents;
(G) Is not
in substantial compliance with all prescribed public solicitation
procedures.
(c) The
Contracting Agency shall reject an Offer upon the Contracting Agency's finding
that the Offeror:
(A) Has not been
prequalified under ORS
279C.430 and the Contracting
Agency required mandatory prequalification;
(B) Has been Disqualified;
(C) Has been declared ineligible under ORS
279C.860 by the Commissioner of
Bureau of Labor and Industries and the Contract is for a Public Work;
(D) Is listed as not qualified by the
Construction Contractors Board, if the Contract is for a Public
Improvement;
(E) Has not met the
requirements of ORS 279A.105 if required by the
Solicitation Document;
(F) Has not
submitted properly executed Bid or Proposal security as required by the
Solicitation Document;
(G) Has
failed to provide the certification required under section 3 of this
rule;
(H) Is not Responsible. See
OAR 137-049-0390(2) regarding Contracting Agency determination that the Offeror
has met statutory standards of responsibility.
(2) Form of Business. For purposes of this
rule, the Contracting Agency may investigate any Person submitting an Offer.
The investigation may include that Person's officers, Directors, owners,
affiliates, or any other Person acquiring ownership of the Person to determine
application of this rule or to apply the Disqualification provisions of ORS
279C.440 to
279C.450 and OAR
137-049-0370.
(3) Certification of
Non-Discrimination. The Offeror shall certify and deliver to the Contracting
Agency Written certification, as part of the Offer, that the Offeror has not
discriminated and will not discriminate against any disadvantaged business
enterprise, minority-owned business, women-owned business, emerging small
business, or Veteran-owned business, in obtaining any required subcontracts.
Failure to do so shall be grounds for disqualification.
(4) Contract and Subcontract Conditions. If a
Contracting Agency awards a Contract to an Offeror that has been determined to
be responsible under ORS
200.005(8) and
ORS 200.045(3), or
awards a Contract under ORS
279A.100:
(a) The Contracting Agency must provide, as a
material condition of the Contract:
(A) That
the Contractor must maintain its certification under ORS
200.055 throughout the term of
the Contract and any extensions (if the Contracting Agency used the
certification as a factor in or as a basis for the award of the
Contract);
(B) That the Contractor
must promptly pay each subcontractor that is certified under ORS
200.055 in accordance with ORS
279B.220, or
279C.570 and ORS
279C.580, whichever apply to the
Contract;
(C) That the Contractor
must include, in any subcontract the Contractor establishes in connection with
the Contract, a provision that requires the subcontractor to maintain the
subcontractor's certification under ORS
200.055 throughout the term of
the subcontract and any extensions (if the Contractor used the certification as
a factor in or as a basis for the award of the subcontract);
(D) That the Contracting Agency may require
the Contractor to terminate a subcontract with a subcontractor that fails to
maintain its certification under ORS
200.055 throughout the term of
the subcontract and any extensions.
(b) In the administration of Contracts that
are subject to section (4) of this rule, the Contracting Agency must verify the
Contractor's and any subcontractor's compliance with subsection (4)(a) of this
rule.
(c) Subparagraph (4)(a)(A) of
this section does not apply to an emerging small business that ceases to
qualify as a tier one firm or a tier two firm (as ORS
200.005 defines those terms) due
to the growth in the business's number of full-time equivalent employees or in
average annual gross receipts during the term of the Contract. This section (4)
does not apply to an emerging small business for which a certification under
ORS 200.055 expires during the term
of the Contract or any extensions.
(5) Rejection of all Offers. A Contracting
Agency may reject all Offers for good cause upon the Contracting Agency's
Written finding it is in the public interest to do so. The Contracting Agency
shall notify all Offerors of the rejection of all Offers, along with the good
cause justification and finding.
(6) Criteria for Rejection of All Offers. The
Contracting Agency may reject all Offers upon a Written finding that:
(a) The content of or an error in the
Solicitation Document, or the solicitation process unnecessarily restricted
competition for the Contract;
(b)
The price, quality or performance presented by the Offerors is too costly or of
insufficient quality to justify acceptance of the Offer;
(c) Misconduct, error, or ambiguous or
misleading provisions in the Solicitation Document threaten the fairness and
integrity of the competitive process;
(d) Causes other than legitimate market
forces threaten the integrity of the competitive Procurement process. These
causes include, but are not limited to, those that tend to limit competition
such as restrictions on competition, collusion, corruption, unlawful
anti-competitive conduct and inadvertent or intentional errors in the
Solicitation Document;
(e) The
Contracting Agency cancels the solicitation in accordance with OAR
137-049-0270; or
(f) Any other
circumstance indicating that Awarding the Contract would not be in the public
interest.
Statutory/Other Authority: ORS
279A.065
Statutes/Other Implemented: ORS
279A.105,
279A.110,
279C.375,
279C.380,
279C.395, OL 2015, ch 325 (HB
2716), OL 2015 & ch 565 (HB 3303)
