OAR 731-005-0670: Rejection of an Offer

(1) Rejection of an Offer. (a) ODOT may reject any Offer upon finding that to accept the Offer may impair the integrity of the procurement process or that rejecting the Offer is in the public interest. (b) ODOT shall reject an Offer upon ODOT’s finding that the Offer: (A) Is contingent upon ODOT’s acceptance of terms and conditions (including Specifications) that differ from the Solicitation Document; (B) Takes exception to terms and conditions (including Specifications); (C) Attempts to prevent public disclosure of matters in contravention of the terms and conditions of Solicitation Document or in contravention of applicable law; (D) Offers Work or goods that fail to meet the Specifications of the Solicitation Document; (E) Is late; (F) Is not in substantial compliance with the Solicitation Documents; or (G) Is not in substantial compliance with all prescribed public solicitation procedures. (c) ODOT shall reject an Offer upon ODOT’s finding that the Offeror: (A) Has not been prequalified as required as set forth in OAR Chapter 731, Division 7, the Offeror's prequalification application is not received at ODOT's address shown in the prequalification application at least 10 days prior to bid opening, the Offeror is not prequalified in the class(es) of work designated in the special provisions, or the Offeror's prequalification is not otherwise approved by ODOT; (B) Has been Disqualified; (C) Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries has declared and the Contract is for a Public Work; (D) Is listed as not qualified by the Construction Contractors Board; (E) Has not met the requirements of ORS 279A.105 if required by the Solicitation Document; (F) Has not submitted properly executed Bid security as required by the Solicitation Document; (G) Has failed to provide the certification required under section (3) of this rule; or (H) Is nonresponsible. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. Before awarding a Contract, ODOT must have information that indicates that the Offeror meets the applicable standards of responsibility. To be a Responsible Offeror, ODOT must determine that the Offeror: (i) Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to demonstrate the capability of the Offeror to meet all contractual responsibilities; (ii) Has completed previous contracts of a similar nature with a satisfactory record of performance. A satisfactory record of performance means that to the extent the costs associated with and time available to perform a previous contract were within the Offeror’s control, the Offeror stayed within the time and budget allotted for the procurement and otherwise performed the contract in a satisfactory manner. ODOT should carefully scrutinize an Offeror’s record of Contract performance if the Offeror is or recently has been materially deficient in Contract performance. In reviewing the Offeror’s performance, ODOT should determine whether the Offeror’s deficient performance was expressly excused under the terms of Contract, or whether the Offeror took appropriate corrective action. ODOT may review the Offeror’s performance on both private and public Contracts in determining the Offeror’s record of Contract performance. ODOT shall make its basis for determining an Offeror nonresponsible under this paragraph part of the solicitation file; (iii) Has a satisfactory record of integrity. An Offeror may lack integrity if ODOT determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to ODOT. ODOT may find an Offeror nonresponsible based on the lack of integrity of any Entity having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror’s performance of the Contract or a parent company, predecessor or successor Entity). ODOT may find an Offeror nonresponsible based on previous convictions of offenses related to obtaining or attempting to obtain a Contract or subcontract or in connection with the Offeror’s performance of a contract or subcontract. The standards for Conduct Disqualification under OAR 731-005-0710 may be used to determine an Offeror’s integrity. ODOT shall make its basis for determining that an Offeror is nonresponsible under this paragraph part of the solicitation file; (iv) Is legally qualified to Contract with ODOT; and (v) Has supplied all necessary information in connection with the inquiry concerning responsibility. If the Offeror fails to promptly supply information requested by ODOT concerning responsibility, ODOT shall base the determination of responsibility upon any available information, or may find the Offeror nonresponsible. (2) Form of Business Entity. For purposes of this rule, ODOT may investigate any Entity submitting an Offer. The investigation may include that Entity’s officers, directors, owners, affiliates, or any other Entity acquiring ownership of the Entity to determine application of this rule or to apply the disqualification provisions of ORS 279C.440 to 279C.450 and OAR 731-005-0710. (3) Certification of Non-Discrimination. The Offeror shall certify and deliver to ODOT Written certification, as part of the Offer, that the Offeror has not discriminated against minority, women or emerging small business enterprises or against a business enterprise that is owned or controlled by or that employs a disabled veteran as defined in ORS 408.225 in obtaining any required subcontracts.