Or. Admin. Code § 414-070-0320

Current through Register Vol. 64, No. 1, January 1, 2025

Section 414-070-0320 - Reinstatement of Expired Contract; Retroactive Approval of Existing Contract

(1) Application. This rule applies to the reinstatement of expired or terminated Contracts (expired Contracts) and the retroactive approval of existing Contracts procured by the Department for Supplies and Services and for Architectural, Engineering and Land Surveying Services or Related Services ("Contracts"). This rule does not apply to mistakes that may occur in the solicitation process (see OAR 137-047-0470).

(2) Requirements to Reinstate an Expired Contract.

(a) Before expiration, the Contract was properly signed by all parties;

(b) Then the signed Contract expired;

(c) The Department reinstates the Contract:

(A) To fulfill its term, up to the maximum time period provided in the Contract or Solicitation; or

(B) To complete one or more deliverable(s) included within the Contract's Scope at the time of its expiration;

(d) The Department documents in the Procurement File the deliverable(s) to be completed at the time of the expired Contract's reinstatement; and

(e) If the Contractor has performed work under the Contract, the reinstatement does not apply to payments made for work performed between the expiration of the Contract and the date of any reinstatement.

(3) Requirements to Retroactively Approve an Existing Contract.

(a) The Contract exists and has not expired;

(b) The Contract was signed by all parties except that the required approval of the Designated Procurement Director (DPD) 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.

(4) Process. For either a reinstatement of an expired Contract or retroactive approval of an existing Contract, the Department must meet the following conditions:

(a) The Department must submit a Written request to the Department's Designated Procurement Director (DPD) if the Department is authorized under OAR 414-070-0010. If the Request is submitted to the DPD, the Department must follow its internal procedures.

(b) The Request must explain the following:

(A) The proposed reinstatement of the expired Contract or retroactive approval of the existing Contract.

(B) The background facts that led to the Request;

(C) The good faith basis for making the Request;

(D) The need for reinstatement of an expired Contract or retroactive approval of an existing Contract due to unforeseen or unavoidable conditions;

(E) The steps to prevent a reoccurrence. For examples:

(i) Improvement of Department's internal policies and procedures; and

(ii) Provision of new training or retraining; and

(F) Acknowledgement that the Request is in the best interest of the Department.

(c) 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. The Department must obtain all other approvals required for the Contract before any reinstatement, extension of time under Subsection (6), or retroactive approval becomes binding.

(d) The DPD as described in Subsection (3)(a), must approve the Request.

(5) Effect of Approval.

(a) An approved reinstatement of an expired Contract makes the Contract in full force and effect, as if it had not expired.

(b) An approved retroactive approval of an existing Contract makes the Contract in full force and effect, as if it had been approved by the DPD when the Contract was formed.

(c) The DPD may create any related Contract documents to implement the reinstatement or retroactive approval.

(d) The Department may make an approved payment after any related Contract documents are signed by the necessary parties.

(6) Amendments of a Reinstated Contract.

(a) If the Department requests reinstatement of an expired Contract, the Request of the Department may also include a request to amend the reinstated Contract for time only. The DPD, as appropriate, may approve this Request, including the amendment.

(b) The Department may amend a reinstated or retroactively approved Contract for purposes other than time in accordance with OAR 137-047-0800.

(7) The Department may combine in one document a Reinstatement of a Contract in accordance with this rule, Retroactive Approvals of that Contract in accordance with OAR 414-070-0320, and its Amendment in accordance with 137-047-0800, as needed.

Or. Admin. Code § 414-070-0320

DELC 132-2024, adopt filed 06/26/2024, effective 7/1/2024

Statutory/Other Authority: ORS 279A.065(5)(a)

Statutes/Other Implemented: ORS 279A.065(5)(a), ORS 279A.050, ORS 279A.070 & ORS 279A.140