PART VII. 
LEGAL AND CONTRACTUAL REMEDIES



 



§103D-701  Authority to resolve protested
solicitations and awards.  (a)  Any actual or prospective bidder, offeror,
or contractor who is aggrieved in connection with the solicitation or award of
a contract may protest to the chief procurement officer or a designee as
specified in the solicitation.  Except as provided in sections 103D-303 and
103D-304, a protest shall be submitted in writing within five working days
after the aggrieved person knows or should have known of the facts giving rise
thereto; provided that a protest of an award or proposed award shall in any
event be submitted in writing within five working days after the posting of
award of the contract under section 103D-302 or 103D-303, if no request for
debriefing has been made, as applicable; provided further that no protest based
upon the content of the solicitation shall be considered unless it is submitted
in writing prior to the date set for the receipt of offers.



(b)  The chief procurement officer or a
designee, prior to the commencement of an administrative proceeding under
section 103D-709 or an action in court pursuant to section 103D-710, may settle
and resolve a protest concerning the solicitation or award of a contract.  This
authority shall be exercised in accordance with rules adopted by the policy
board.



(c)  If the protest is not resolved by mutual
agreement, the chief procurement officer or a designee shall promptly issue a
decision in writing to uphold or deny the protest.  The decision shall:



(1)  State the reasons for the action taken; and



(2)  Inform the protestor of the protestor's right to
an administrative proceeding as provided in this part, if applicable.



(d)  A copy of the decision under subsection
(c) shall be mailed or otherwise furnished immediately to the protestor and any
other party intervening.



(e)  A decision under subsection (c) shall be
final and conclusive, unless any person adversely affected by the decision
commences an administrative proceeding under section 103D-709.



(f)  In the event of a timely protest under
subsection (a), no further action shall be taken on the solicitation or the
award of the contract until the chief procurement officer makes a written
determination that the award of the contract without delay is necessary to
protect substantial interests of the State.



(g)  In addition to any other relief, when a
protest is sustained and the protestor should have been awarded the contract
under the solicitation but is not, then the protestor shall be entitled to the
actual costs reasonably incurred in connection with the solicitation, including
bid or proposal preparation costs but not attorney's fees. [L Sp 1993, c 8, pt
of §2; am L 1997, c 352, §23; am L 1999, c 162, §1; am L 2003, c 52, §7]



 



Note



 



  Procurement statistics on protests (repealed July 1, 2011).  L
2009, c 175, §7.



 



Case Notes



 



  A "substantial interest determination" pursuant to
subsection (f) must specifically identify the state interests involved and
articulate why it is necessary for the protection of those interests that the
contract be awarded without delay.  85 H. 431, 946 P.2d 1.



  Award and performance of library automation services contract
violated subsection (f) where award of contract without delay was not necessary
to protect any substantial state interest.  85 H. 431, 946 P.2d 1.



  Chief procurement officer authorized under §§103D-203 and
103D-204 (pre-1997) to make substantial interest determination under subsection
(f) for public library system was superintendent of education and not
administrator of state procurement office.  85 H. 431, 946 P.2d 1.



  Substantial interest determination improper and did not
satisfy subsection (f) to the extent determination was based on assessment of
merits of unsuccessful bidder's protest.  85 H. 431, 946 P.2d 1.



  Where the evaluation process is so fundamentally flawed that
determination of who should have been awarded the contract was not, and cannot
be, made, and the contract has already been awarded in bad faith and in
violation of subsection (f), a successful protester who was not awarded the
contract is entitled to recover bid preparation costs under subsection (g).  85
H. 431, 946 P.2d 1.



  Where timely protest made by unsuccessful bidder, award and
execution of contract by agency head with successful bidder without substantial
interest determination by chief procurement officer was violation of subsection
(f) and in bad faith.  85 H. 431, 946 P.2d 1.