OAR 137-049-0350
Mistakes

(1)

Generally. To protect the integrity of the competitive Procurement process and to assure fair treatment of Offerors, a Contracting Agency should carefully consider whether to permit waiver, correction or withdrawal of Offers for certain mistakes.

(2)

Contracting Agency Treatment of Mistakes. A Contracting Agency shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If the Contracting Agency discovers certain mistakes in an Offer after Opening, but before Award of the Contract, the Contracting Agency may take the following action:

(a)

A Contracting Agency 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)

A Contracting Agency 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 Contracting Agency’s correction in Writing. A clerical error is an Offeror’s error in transcribing its Offer. Unit prices shall prevail over extended prices in the event of a discrepancy between extended prices and unit prices.

(c)

A Contracting Agency 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 the Contracting Agency does not grant the Offeror permission to withdraw the Offer;

(G)

That the Contracting Agency’s or the public’s status has not changed so significantly that relief from the forfeiture will work a substantial hardship on the Contracting Agency or the public it represents; and

(H)

That the Offeror promptly gave notice of the claimed error to the Contracting Agency.

(d)

The criteria in subsection (2)(c) of this rule shall determine whether a Contracting Agency will permit an Offeror to withdraw its Offer after Closing. These criteria also shall apply to the question of whether a Contracting Agency will permit an Offeror to withdraw its Offer without forfeiture of its Bid bond (or other Bid or Proposal security), or without liability to the Contracting Agency based on the difference between the amount of the Offeror’s Offer and the amount of the Contract actually awarded by the Contracting Agency, whether by Award to the next lowest Responsive and Responsible Bidder or the best Responsive and Responsible Proposer, or by resort to a new solicitation.

(3)

Rejection for Mistakes. The Contracting Agency 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 49 only to the extent permitted by applicable law.

Source: Rule 137-049-0350 — Mistakes, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=137-049-0350.

137‑049‑0100
Application 137‑049‑0110
Policies 137‑049‑0120
Definitions 137‑049‑0130
Competitive Bidding Requirement 137‑049‑0140
Contracts for Construction Other Than Public Improvements 137‑049‑0150
Emergency Contracts 137‑049‑0160
Intermediate Procurements 137‑049‑0200
Solicitation Documents 137‑049‑0210
Notice and Advertising Requirements 137‑049‑0220
Prequalification of Offerors 137‑049‑0230
Eligibility to Bid or Propose 137‑049‑0240
Pre-Offer Conferences 137‑049‑0250
Addenda to Solicitation Documents 137‑049‑0260
Request for Clarification or Change 137‑049‑0270
Cancellation of Solicitation Document 137‑049‑0280
Offer Submissions 137‑049‑0290
Bid or Proposal Security 137‑049‑0300
Facsimile Bids and Proposals 137‑049‑0310
Electronic Procurement 137‑049‑0320
Pre-Closing Modification or Withdrawal of Offers 137‑049‑0330
Receipt, Opening and Recording of Offers 137‑049‑0340
Late Bids, Late Withdrawals and Late Modifications 137‑049‑0350
Mistakes 137‑049‑0360
First-Tier Subcontractors 137‑049‑0370
Disqualification of Persons 137‑049‑0380
Bid or Proposal Evaluation Criteria 137‑049‑0390
Offer Evaluation and Award 137‑049‑0395
Notice of Intent to Award 137‑049‑0400
Documentation of Award 137‑049‑0410
Time for Contracting Agency Acceptance 137‑049‑0420
Negotiation With Bidders Prohibited 137‑049‑0430
Negotiation When Bids Exceed Cost Estimate 137‑049‑0440
Rejection of Offers 137‑049‑0450
Protest of Contractor Selection, Contract Award 137‑049‑0460
Performance and Payment Security 137‑049‑0470
Substitute Contractor 137‑049‑0490
Foreign Contractor 137‑049‑0600
Purpose 137‑049‑0610
Definitions for Alternative Contracting Methods 137‑049‑0620
Use of Alternative Contracting Methods 137‑049‑0630
Findings, Notice and Hearing 137‑049‑0640
Competitive Proposals 137‑049‑0645
Requests for Qualifications (RFQ) 137‑049‑0650
Requests for Proposals (“RFP”) 137‑049‑0660
RFP Pricing Mechanisms 137‑049‑0670
Design-Build Contracts 137‑049‑0680
Energy Savings Performance Contracts (ESPC) 137‑049‑0690
Construction Manager/General Contractor Services (“CM/GC Services”) 137‑049‑0800
Required Contract Clauses 137‑049‑0810
Waiver of Delay Damages Against Public Policy 137‑049‑0815
BOLI Public Works Bond 137‑049‑0820
Retainage 137‑049‑0830
Contractor Progress Payments 137‑049‑0840
Interest 137‑049‑0850
Final Inspection 137‑049‑0860
Public Works Contracts 137‑049‑0870
Specifications 137‑049‑0880
Records Maintenance 137‑049‑0890
Contracting Agency Payment for Unpaid Labor or Supplies 137‑049‑0900
Contract Suspension 137‑049‑0910
Changes to the Work and Contract Amendments
Last Updated

Jun. 8, 2021

Rule 137-049-0350’s source at or​.us