OAR 731-146-0060: Payment Authorization of Cost Overruns

(1) Payments on Contracts that exceed the maximum contract consideration require prior written approval from ODOT’s Chief Procurement Officer and may require approval from the Department of Justice pursuant to OAR 137-045-0010 et seq. Approval may be provided if there is compliance with all of the following: (a) The Contract was duly executed and, if required, approved by the Attorney General. (b) The Contract has not expired or been terminated as of the date Written approval to increase the Contract amount is granted. (c) The cost overrun is for a change outside of the scope of the statement of work set out in the Contract. (d) The cost overrun arose out of extraordinary circumstances or conditions encountered in the course of contract performance that were reasonably not anticipated at the time the Contract, or the most recent amendment, if any, was signed. Such circumstances include, but are not limited to cost overruns that: (A) Address emergencies arising in the course of the Contract that require prompt action to protect the work already completed. (B) Comply with official or judicial commands or directives issued during contract performance. (C) Ensure that the purpose of the Contract will be realized. (e) The cost overrun was incurred in good faith, results from the good faith performance by the Contractor, and is no greater than the prescribed hourly rate or the reasonable value of the additional work or performance rendered. (f) Except for the cost overrun, the Contract and its objective are within the statutory authority of ODOT and ODOT currently has funds available for payment under the Contract. (g) An officer or employee of ODOT has presented a Written report to ODOT’s Chief Procurement Officer within 60 days of the discovery of the overrun that states the reasons for the cost overrun and demonstrates to the satisfaction of ODOT’s Chief Procurement Officer that the Contract and the circumstances of the overrun satisfy the conditions stated above. (h) ODOT’s Chief Procurement Officer approves in Writing the payment of the overrun, or such portion of the overrun amount as ODOT’s Chief Procurement Officer determines may be paid consistent with the conditions of this Rule. If ODOT’s Chief Procurement Officer has signed the Contract, or has immediate supervisory responsibility over performance of the Contract, ODOT's Chief Procurement Officer must designate an alternate delegate to grant or deny Written approval of payment. (2) Before making any overrun payment, ODOT must obtain Written approval from ODOT's Chief Procurement Officer per section (1)(h) and, if such approval is required by ORS 271.047, an Attorney General’s approval of the Contract amendment. This rule does not apply to payments made prior to obtaining all required approvals. (3) For this rule, references to ODOT's Chief Procurement Officer mean ODOT's Chief Procurement Officer or delegate.