Current through Register Vol. 63, No. 12, December 1, 2024
(1)
Application. This rule applies to the Reinstatement of expired or terminated
Contracts and the Retroactive Approval of existing Contracts. This rule does
not apply to mistakes that may occur in the solicitation process. This rule
allows Reinstatement of expired or terminated Contracts and Retroactive
Approval to occur simultaneously.
(2) Definitions.
(a) "Procurement Authority" means a person
within ODOT with delegated authority to execute a Contract.
(b) "Reinstatement" means the restoration of
an expired or terminated Contract in order to:
(A) Complete one or more deliverables within
the scope of the Contract at the time of its expiration or termination,
or
(B) Fulfill its term, up to the
maximum time period provided in the Contract before its expiration or
termination.
(c)
"Retroactive Approval" means the documentation of Procurement Authority
approval on an existing Contract which was previously signed by all parties
except the required Procurement Authority.
(3) Requirements to Reinstate an Expired or
Terminated Contract.
(a) Before expiration or
termination, the Contract was properly signed by all parties;
(b) Then the signed Contract expired or was
terminated;
(c) No more than one
year has passed since the Contract expiration or termination date;
(d) ODOT reinstates the Contract by
amendment:
(A) To fulfill its term, up to the
maximum time period provided in the Contract; or
(B) To complete one or more deliverable(s)
included within the Contract's scope at the time of its expiration or
termination;
(e) ODOT
documents in the Procurement File the deliverable(s) to be completed at the
time of the Contract's Reinstatement; and
(f) If the Contractor has performed work
under the Contract, the Reinstatement does not apply to payments made for work
performed between the expiration or termination of the Contract and the date of
any Reinstatement.
(4)
Requirements to Retroactively Approve an Existing Contract.
(a) The Contract exists and has not
expired;
(b) The Contract was
signed by all parties except the required Procurement Authority approval was
lacking;
(c) If the Contractor has
performed work under the Contract, the Retroactive Approval does not apply to
payments made for work performed between the start of the Contract and the date
of any Retroactive Approval.
(5) Process. The following must be met for
either a Reinstatement or Retroactive Approval of a Contract, or both:
(a) The Contract Administrator must submit a
Written request to the ODOT Chief Procurement Officer or delegate. The request
must explain the following:
(A) Either the
proposed Reinstatement or Retroactive Approval of the Contract, or
both.
(B) The background facts that
led to the request;
(C) The good
faith basis for making the request;
(D) The need for either Reinstatement or
Retroactive Approval of a Contract, or both, due to unforeseen or unavoidable
conditions;
(E) The steps to
prevent a reoccurrence. For example:
(i)
Improvement of internal policies and procedures; and
(ii) Provision of new training or retraining;
and
(F) Acknowledgement
that the request is in the best interest of ODOT.
(b) ODOT must obtain all other approvals
required for the Contract, including but not limited to: Attorney General's
approval of legal sufficiency under ORS
291.047 or ratification under 291.049. All approvals required for the Contract must be
obtained before any Reinstatement or Retroactive Approval becomes
binding.
(c) The ODOT Chief
Procurement Officer or delegate must approve the request before theContract
Reinstatement amendment or Retroactive Approval becomes
effective.
(6) Effect of
Approval.
(a) With the exception of
subsection (3)(f), an approved Reinstatement makes the Contract in full force
and effect, as if it had not expired.
(b) With the exception of subsection (4)(c),
an approved Retroactive Approval makes the Contract in full force and effect,
as if it had been approved by the Procurement Authority when the Contract was
formed.
(c) ODOT may make an
approved payment after any related Contract documents are signed by the
necessary parties.
(7)
ODOT may combine an amendment to reinstate a Contract and a Retroactive
Approval of that Contract in accordance with this rule.
(8) Terminated Contracts. If a Contract has
been terminated for any reason, ODOT may enter into a new Contract with the
same party to perform the obligations not completed under the former
Contract.
Statutory/Other Authority: ORS
184.619,
279A.065(6)(a)
& 279A.070
Statutes/Other Implemented: ORS
279A.050(3),
279A.065 & 279A.070
