OAR 736-146-0060: Payment Authorization of Cost Overruns for Goods or Services including Architectural, Engineering and Land Surveying Services and Related Services Contracts

(1) Payments on contracts that exceed the maximum contract consideration require approval from the department’s designated procurement officer and may require approval from the Attorney General pursuant to OAR 137-045-0015. Approval may be provided if there is compliance with all of the following: (a) The original contract was duly executed and, if required, approved by the Attorney General. (b) The original contract has not expired, been terminated, or been reinstated under OAR 736-147-0070 as of the date written approval to increase the contract amount is granted. (c) The cost overrun is not associated with any change in the statement of work set out in the original 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 original 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 the department and funds are available for payment under the contract. (g) An officer or employee of the department has presented a written report to the department’s designated 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 the department’s designated procurement officer that the original contract and the circumstances of the overrun satisfy the conditions stated above. (h) The department’s designated procurement officer approves in writing the payment of the overrun, or such portion of the overrun amount as the department’s designated procurement officer determines may be paid consistent with the conditions of this rule. If the department's designated procurement officer has signed the contract or has immediate supervisory responsibility over performance of the contract, that person must designate an alternate delegate to grant or deny written approval of payment. (2) The department must obtain an Attorney General’s approval of the contract amendment, if such approval is required by ORS 291.047, before making any overrun payment.