§103D-707  Remedies after an award.  Ifafter an award it is determined that a solicitation or award of a contract isin violation of law, then:

(1)  If the person awarded the contract has not actedfraudulently or in bad faith:

(A)  The contract may be ratified and affirmed,or modified; provided it is determined that doing so is in the best interestsof the State; or

(B)  The contract may be terminated and theperson awarded the contract shall be compensated for the actual expenses, otherthan attorney's fees, reasonably incurred under the contract, plus a reasonableprofit, with such expenses and profit calculated not for the entire term of thecontract but only to the point of termination;

(2)  If the person awarded the contract has actedfraudulently or in bad faith:

(A)  The contract may be declared null andvoid; or

(B)  The contract may be ratified and affirmed,or modified, if the action is in the best interests of the State, withoutprejudice to the State's rights to such damages as may be appropriate. [L Sp1993, c 8, pt of §2; am L 1999, c 162, §5]

 

Case Notes

 

  To determine whether ratification of an unlawfully awardedcontract is in State's best interests, consideration must be given to State'sinterest in achieving the purposes of the procurement code.  85 H. 431, 946P.2d 1.

  Where, if after award of contract, chief procurement officerfinds no violation of law, but after de novo review pursuant to §103D-709,hearings officer finds otherwise, §103D-705 requires hearings officer todetermine whether to ratify or terminate contract as provided in paragraph(1)(A) and (B).  85 H. 431, 946 P.2d 1.

  Whatever considerations may have driven the governmental bodyto terminate the contract, the hearings officer did not fail to carry out theofficer's responsibilities under the procurement code because the officer didnot need to consider the best interest of the State in accepting the parties'termination of the contract.  93 H. 155, 997 P.2d 567.