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



(1)  If the person awarded the contract has not acted
fraudulently 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 interests
of the State; or



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



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



(A)  The contract may be declared null and
void; or



(B)  The contract may be ratified and affirmed,
or modified, if the action is in the best interests of the State, without
prejudice to the State's rights to such damages as may be appropriate. [L Sp
1993, c 8, pt of §2; am L 1999, c 162, §5]



 



Case Notes



 



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



  Where, if after award of contract, chief procurement officer
finds no violation of law, but after de novo review pursuant to §103D-709,
hearings officer finds otherwise, §103D-705 requires hearings officer to
determine 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 body
to terminate the contract, the hearings officer did not fail to carry out the
officer's responsibilities under the procurement code because the officer did
not need to consider the best interest of the State in accepting the parties'
termination of the contract.  93 H. 155, 997 P.2d 567.