Current through Register Vol. 63, No. 12, December 1, 2024
(1)
Generally. To protect the integrity of the competitive procurement process and
to assure fair treatment of Offerors, ODOT should carefully consider whether to
permit waiver, correction or withdrawal of Offers for certain
mistakes.
(2) Treatment of
Mistakes. ODOT shall not allow an Offeror to correct or withdraw an Offer for
an error in judgment. If ODOT discovers certain mistakes in an Offer after
Opening, but before Award of the Contract, ODOT may take the following action:
(a) ODOT 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) ODOT 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 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) ODOT 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 ODOT does not grant the Offeror permission to withdraw the
Offer;
(G) That ODOT's or the
public's status has not changed so significantly that relief from the
forfeiture will work a substantial hardship on ODOT or the public it
represents; and
(H) That the
Offeror promptly gave notice of the claimed error to ODOT.
(d) The criteria in subsection (2)(c) of this
rule shall determine whether ODOT will permit an Offeror to withdraw its Offer
after Closing. These criteria also shall apply to the question of whether ODOT
will permit an Offeror to withdraw its Offer without forfeiture of its Bid bond
(or other Bid or Proposal security), or without liability to ODOT based on the
difference between the amount of the Offeror's Offer and the amount of the
Contract actually awarded by ODOT, whether by Award to the next lowest
Responsive and Responsible Bidder or the most Advantageous Responsive and
Responsible Proposer, or by Award of a Contract from a new
solicitation.
(3)
Rejection for Mistakes. ODOT 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
only to the extent permitted by applicable law.
Statutory/Other Authority: ORS
184.619,
279A.065 & 279A.070
Statutes/Other Implemented: ORS
279A.050(3),
279A.065(6)
& 279A.070
