OAR 731-146-0160: Reinstatement of Expired or Terminated Contract; Retroactive Approval of Existing Contract

(1) Application. This rule applies to the Reinstatement of expired or terminated Contracts and the Retroactive Approval of existing Contracts. This rule does not apply to mistakes that may occur in the solicitation process. This rule allows Reinstatement of expired or terminated Contracts and Retroactive Approval to occur simultaneously. (2) Definitions. (a) “Procurement Authority” means a person within ODOT with delegated authority to execute a Contract. (b) “Reinstatement” means the restoration of an expired or terminated Contract in order to: (A) Complete one or more deliverables within the scope of the Contract at the time of its expiration or termination, or (B) Fulfill its term, up to the maximum time period provided in the Contract before its expiration or termination. (c) “Retroactive Approval” means the documentation of Procurement Authority approval on an existing Contract which was previously signed by all parties except the required Procurement Authority. (3) Requirements to Reinstate an Expired or Terminated Contract. (a) Before expiration or termination, the Contract was properly signed by all parties; (b) Then the signed Contract expired or was terminated; (c) No more than one year has passed since the Contract expiration or termination date; (d) ODOT reinstates the Contract by amendment: (A) To fulfill its term, up to the maximum time period provided in the Contract; or (B) To complete one or more deliverable(s) included within the Contract’s scope at the time of its expiration or termination; (e) ODOT documents in the Procurement File the deliverable(s) to be completed at the time of the Contract’s Reinstatement; and (f) If the Contractor has performed work under the Contract, the Reinstatement does not apply to payments made for work performed between the expiration or termination of the Contract and the date of any Reinstatement. (4) Requirements to Retroactively Approve an Existing Contract. (a) The Contract exists and has not expired; (b) The Contract was signed by all parties except the required Procurement Authority approval was lacking; (c) If the Contractor has performed work under the Contract, the Retroactive Approval does not apply to payments made for work performed between the start of the Contract and the date of any Retroactive Approval. (5) Process. The following must be met for either a Reinstatement or Retroactive Approval of a Contract, or both: (a) The Contract Administrator must submit a Written request to the ODOT Chief Procurement Officer or delegate. The request must explain the following: (A) Either the proposed Reinstatement or Retroactive Approval of the Contract, or both. (B) The background facts that led to the request; (C) The good faith basis for making the request; (D) The need for either Reinstatement or Retroactive Approval of a Contract, or both, due to unforeseen or unavoidable conditions; (E) The steps to prevent a reoccurrence. For example: (i) Improvement of internal policies and procedures; and (ii) Provision of new training or retraining; and (F) Acknowledgement that the request is in the best interest of ODOT. (b) ODOT must obtain all other approvals required for the Contract, including but not limited to: Attorney General’s approval of legal sufficiency under ORS 291.047 or ratification under 291.049. All approvals required for the Contract must be obtained before any Reinstatement or Retroactive Approval becomes binding. (c) The ODOT Chief Procurement Officer or delegate must approve the request before theContract Reinstatement amendment or Retroactive Approval becomes effective. (6) Effect of Approval. (a) With the exception of subsection (3)(f), an approved Reinstatement makes the Contract in full force and effect, as if it had not expired. (b) With the exception of subsection (4)(c), an approved Retroactive Approval makes the Contract in full force and effect, as if it had been approved by the Procurement Authority when the Contract was formed. (c) ODOT may make an approved payment after any related Contract documents are signed by the necessary parties. (7) ODOT may combine an amendment to reinstate a Contract and a Retroactive Approval of that Contract in accordance with this rule. (8) Terminated Contracts. If a Contract has been terminated for any reason, ODOT may enter into a new Contract with the same party to perform the obligations not completed under the former Contract.