OAR 731-146-0180: Mistakes in Offers

(1) Generally. To protect the integrity of the competitive procurement process and to assure fair treatment of Offerors, ODOT should carefully consider whether to permit waiver, correction or withdrawal of Offers for certain mistakes. (2) Treatment of Mistakes. ODOT shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If ODOT discovers certain mistakes in an Offer after Opening, but before Award of the Contract, ODOT may take the following action: (a) ODOT 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) ODOT 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 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) ODOT 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 ODOT does not grant the Offeror permission to withdraw the Offer; (G) That ODOT's or the public's status has not changed so significantly that relief from the forfeiture will work a substantial hardship on ODOT or the public it represents; and (H) That the Offeror promptly gave notice of the claimed error to ODOT. (d) The criteria in subsection (2)(c) of this rule shall determine whether ODOT will permit an Offeror to withdraw its Offer after Closing. These criteria also shall apply to the question of whether ODOT will permit an Offeror to withdraw its Offer without forfeiture of its Bid bond (or other Bid or Proposal security), or without liability to ODOT based on the difference between the amount of the Offeror's Offer and the amount of the Contract actually awarded by ODOT, whether by Award to the next lowest Responsive and Responsible Bidder or the most Advantageous Responsive and Responsible Proposer, or by Award of a Contract from a new solicitation. (3) Rejection for Mistakes. ODOT 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 only to the extent permitted by applicable law.