Department of Justice
Chapter 137
Division 49
MODEL RULES GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTS FOR CONSTRUCTION SERVICES
137-049-0440
Rejection of Offers
(1) Rejection of an Offer.
(a) A Contracting Agency 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) The Contracting Agency shall reject an Offer upon the Contracting Agency's finding that the Offer:
(A) Is contingent on the Contracting Agency’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 that fails to meet the Specifications of the Solicitation Document;
(E) Is late;
(F) Is not in substantial compliance with the Solicitation Documents;
(G) Is not in substantial compliance with all prescribed public solicitation procedures.
(c) The Contracting Agency shall reject an Offer upon the Contracting Agency’s finding that the Offeror:
(A) Has not been prequalified under ORS 279C.430 and the Contracting Agency required mandatory prequalification;
(B) Has been Disqualified;
(C) Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries and the Contract is for a Public Work;
(D) Is listed as not qualified by the Construction Contractors Board, if the Contract is for a Public Improvement;
(E) Has not met the requirements of ORS 279A.105 if required by the Solicitation Document;
(F) Has not submitted properly executed Bid or Proposal security as required by the Solicitation Document;
(G) Has failed to provide the certification required under section 3 of this rule;
(H) Is not Responsible. See OAR 137-049-0390(2) regarding Contracting Agency determination that the Offeror has met statutory standards of responsibility.
(2) Form of Business. For purposes of this rule, the Contracting Agency may investigate any Person submitting an Offer. The investigation may include that Person’s officers, Directors, owners, affiliates, or any other Person acquiring ownership of the Person to determine application of this rule or to apply the Disqualification provisions of ORS 279C.440 to 279C.450 and OAR 137-049-0370.
(3) Certification of Non-Discrimination. The Offeror shall certify and deliver to the Contracting Agency Written certification, as part of the Offer, that the Offeror has not discriminated and will not discriminate against any disadvantaged business enterprise, minority-owned business, women-owned business, emerging small business, or Veteran-owned business, in obtaining any required subcontracts. Failure to do so shall be grounds for disqualification.
(4) Contract and Subcontract Conditions. If a Contracting Agency awards a Contract to an Offeror that has been determined to be responsible under ORS 200.005(8) and ORS 200.045(3), or awards a Contract under ORS 279A.100:
(a) The Contracting Agency must provide, as a material condition of the Contract:
(A) That the Contractor must maintain its certification under ORS 200.055 throughout the term of the Contract and any extensions (if the Contracting Agency used the certification as a factor in or as a basis for the award of the Contract);
(B) That the Contractor must promptly pay each subcontractor that is certified under ORS 200.055 in accordance with ORS 279B.220, or 279C.570 and ORS 279C.580, whichever apply to the Contract;
(C) That the Contractor must include, in any subcontract the Contractor establishes in connection with the Contract, a provision that requires the subcontractor to maintain the subcontractor’s certification under ORS 200.055 throughout the term of the subcontract and any extensions (if the Contractor used the certification as a factor in or as a basis for the award of the subcontract);
(D) That the Contracting Agency may require the Contractor to terminate a subcontract with a subcontractor that fails to maintain its certification under ORS 200.055 throughout the term of the subcontract and any extensions.
(b) In the administration of Contracts that are subject to section (4) of this rule, the Contracting Agency must verify the Contractor’s and any subcontractor’s compliance with subsection (4)(a) of this rule.
(c) Subparagraph (4)(a)(A) of this section does not apply to an emerging small business that ceases to qualify as a tier one firm or a tier two firm (as ORS 200.005 defines those terms) due to the growth in the business’s number of full-time equivalent employees or in average annual gross receipts during the term of the Contract. This section (4) does not apply to an emerging small business for which a certification under ORS 200.055 expires during the term of the Contract or any extensions.
(5) Rejection of all Offers. A Contracting Agency may reject all Offers for good cause upon the Contracting Agency's Written finding it is in the public interest to do so. The Contracting Agency shall notify all Offerors of the rejection of all Offers, along with the good cause justification and finding.
(6) Criteria for Rejection of All Offers. The Contracting Agency may reject all Offers upon a Written finding that:
(a) The content of or an error in the Solicitation Document, or the solicitation process unnecessarily restricted competition for the Contract;
(b) The price, quality or performance presented by the Offerors is too costly or of insufficient quality to justify acceptance of the Offer;
(c) Misconduct, error, or ambiguous or misleading provisions in the Solicitation Document threaten the fairness and integrity of the competitive process;
(d) Causes other than legitimate market forces threaten the integrity of the competitive Procurement process. These causes include, but are not limited to, those that tend to limit competition such as restrictions on competition, collusion, corruption, unlawful anti-competitive conduct and inadvertent or intentional errors in the Solicitation Document;
(e) The Contracting Agency cancels the solicitation in accordance with OAR 137-049-0270; or
(f) Any other circumstance indicating that Awarding the Contract would not be in the public interest.
Statutory/Other Authority: ORS 279A.065
Statutes/Other Implemented: ORS 279A.105, 279A.110, 279C.375, 279C.380, 279C.395, OL 2015, ch 325 (HB 2716), OL 2015 & ch 565 (HB 3303)
History:
DOJ 27-2023, amend filed 12/27/2023, effective 01/02/2024
DOJ 18-2015, f. 12-31-15, cert. ef. 1-1-16
DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10
DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05