Current through Register Vol. 63, No. 9, September 1, 2024
(1) Generally. To
protect the integrity of the competitive procurement process and to ensure fair
treatment of Offerors, DOC will carefully consider whether to permit waiver,
correction or withdrawal of Offers for certain mistakes.
(2) DOC's Treatment of Mistakes. DOC shall
not allow an Offeror to correct or withdraw an Offer for an error in judgment.
If DOC discovers certain mistakes in an Offer after Opening, but before award
of the Contract, DOC may take the following action:
(a) DOC 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) DOC 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 DOC'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) DOC 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 DOC does not grant the Offeror permission to withdraw the Offer;
and
(G) That the Offeror promptly
gave notice of the claimed error to DOC.
(d) The criteria in subsection (2)(c) of this
rule shall determine whether DOC will permit an Offeror to withdraw its Offer
after Closing.
(3)
Rejection for Mistakes. DOC 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 160 only to the extent permitted by
applicable law.
Statutory/Other Authority: ORS
179.040,
421.438,
423.020,
423.030,
423.075
Statutes/Other Implemented: ORS
179.040,
421.438,
423.020,
423.030,
423.075
