Or. Admin. R. 291-160-0140

Current through Register Vol. 63, No. 8, August 1, 2024

Section 291-160-0140 - Mistakes

(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.

Or. Admin. R. 291-160-0140

DOC 11-2022, adopt filed 11/7/2022, effective 1/1/2023

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