PART VII. LEGAL AND CONTRACTUAL REMEDIES

 

§103D-701  Authority to resolve protestedsolicitations and awards.  (a)  Any actual or prospective bidder, offeror,or contractor who is aggrieved in connection with the solicitation or award ofa contract may protest to the chief procurement officer or a designee asspecified in the solicitation.  Except as provided in sections 103D-303 and103D-304, a protest shall be submitted in writing within five working daysafter the aggrieved person knows or should have known of the facts giving risethereto; provided that a protest of an award or proposed award shall in anyevent be submitted in writing within five working days after the posting ofaward of the contract under section 103D-302 or 103D-303, if no request fordebriefing has been made, as applicable; provided further that no protest basedupon the content of the solicitation shall be considered unless it is submittedin writing prior to the date set for the receipt of offers.

(b)  The chief procurement officer or adesignee, prior to the commencement of an administrative proceeding undersection 103D-709 or an action in court pursuant to section 103D-710, may settleand resolve a protest concerning the solicitation or award of a contract.  Thisauthority shall be exercised in accordance with rules adopted by the policyboard.

(c)  If the protest is not resolved by mutualagreement, the chief procurement officer or a designee shall promptly issue adecision 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 toan 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 anyother party intervening.

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

(f)  In the event of a timely protest undersubsection (a), no further action shall be taken on the solicitation or theaward of the contract until the chief procurement officer makes a writtendetermination that the award of the contract without delay is necessary toprotect substantial interests of the State.

(g)  In addition to any other relief, when aprotest is sustained and the protestor should have been awarded the contractunder the solicitation but is not, then the protestor shall be entitled to theactual costs reasonably incurred in connection with the solicitation, includingbid or proposal preparation costs but not attorney's fees. [L Sp 1993, c 8, ptof §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).  L2009, c 175, §7.

 

Case Notes

 

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

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

  Chief procurement officer authorized under §§103D-203 and103D-204 (pre-1997) to make substantial interest determination under subsection(f) for public library system was superintendent of education and notadministrator of state procurement office.  85 H. 431, 946 P.2d 1.

  Substantial interest determination improper and did notsatisfy subsection (f) to the extent determination was based on assessment ofmerits of unsuccessful bidder's protest.  85 H. 431, 946 P.2d 1.

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

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