§103D-709  Administrative proceedings forreview.  [Repeal and reenactment on July 1, 2011.  L 2009, c 175, §14(2).] (a)  The several hearings officers appointed by the director of thedepartment of commerce and consumer affairs pursuant to section 26-9(f) shallhave jurisdiction to review and determine de novo, any request from any bidder,offeror, contractor, or person aggrieved under section 103D-106, orgovernmental body aggrieved by a determination of the chief procurementofficer, head of a purchasing agency, or a designee of either officer undersection 103D-310, 103D-701, or 103D-702.

(b)  Hearings to review and determine anyrequest made pursuant to subsection (a) shall commence within twenty-onecalendar days of receipt of the request.  The hearings officers shall havepower to issue subpoenas, administer oaths, hear testimony, find facts, makeconclusions of law, and issue a written decision not later than forty-five daysfrom the receipt of the request under subsection (a), that shall be final andconclusive unless a person or governmental body adversely affected by thedecision commences an appeal in the circuit court of the circuit where the caseor controversy arises under section 103D-710.

(c)  Only parties to the protest made anddecided pursuant to sections 103D-701, 103D-709(a), 103D-310(b), and103D-702(g) may initiate a proceeding under this section.  The party initiatingthe proceeding shall have the burden of proof, including the burden ofproducing evidence as well as the burden of persuasion.  The degree or quantumof proof shall be a preponderance of the evidence.  All parties to theproceeding shall be afforded an opportunity to present oral or documentaryevidence, conduct cross-examination as may be required, and argument on all issuesinvolved.  Fact finding under section 91-10 shall apply.

(d)  Any bidder, offeror, contractor, or personthat is a party to a protest of a solicitation or award of a contract undersection 103D-302 or 103D-303 that is decided pursuant to section 103D-701 mayinitiate a proceeding under this section; provided that:

(1)  For contracts with an estimated value of lessthan $1,000,000, the protest concerns a matter that is greater than $10,000; or

(2)  For contracts with an estimated value of$1,000,000 or more, the protest concerns a matter that is equal to no less thanten per cent of the estimated value of the contract.

(e)  The party initiating a proceeding fallingwithin subsection (d) shall pay to the department of commerce and consumeraffairs a cash or protest bond in the amount of:

(1)  $1,000 for a contract with an estimated value ofless than $500,000;

(2)  $2,000 for a contract with an estimated value of$500,000 or more, but less than $1,000,000; or

(3)  One-half per cent of the estimated value of thecontract if the estimated value of the contract is $1,000,000 or more; providedthat in no event shall the required amount of the cash or protest bond be morethan $10,000.

If the initiating party prevails in theadministrative proceeding, the cash or protest bond shall be returned to thatparty.  If the initiating party does not prevail in the administrativeproceeding, the cash or protest bond shall be deposited into the general fund.

(f)  The hearings officers shall ensure that arecord of each proceeding which includes the following is compiled:

(1)  All pleadings, motions, intermediate rulings;

(2)  Evidence received or considered, including oraltestimony, exhibits, and a statement of matters officially noticed;

(3)  Offers of proof and rulings thereon;

(4)  Proposed findings of fact;

(5)  A recording of the proceeding which may betranscribed if judicial review of the written decision is sought under section103D-710.

(g)  No action shall be taken on a solicitationor an award of a contract while a proceeding is pending, if the procurement waspreviously stayed under section 103D-701(f).

(h)  The hearings officer shall decide whetherthe determinations of the chief procurement officer or the chief procurementofficer's designee were in accordance with the Constitution, statutes, rules,and the terms and conditions of the solicitation or contract, and shall ordersuch relief as may be appropriate in accordance with this chapter.

(i)  The policy board shall adopt such otherrules as may be necessary to ensure that the proceedings conducted pursuant tothis section afford all parties an opportunity to be heard.

(j)  As used in this section, "estimatedvalue of the contract" or "estimated value," with respect to acontract, means the lowest responsible and responsive bid under section103D-302, or the bid amount of the responsible offeror whose proposal isdetermined in writing to be the most advantageous under section 103D-303, asapplicable. [L Sp 1993, c 8, pt of §2; am L 1997, c 352, §23; am L 1999, c 162,§7; am L 2001, c 251, §2; am L 2007, c 142, §2; am L 2009, c 175, §9]

 

Case Notes

 

  Where, if after awardof contract, chief procurement officer finds no violation of law, but after denovo review pursuant to this section, hearings officer finds otherwise,§103D-705 requires hearings officer to determine whether to ratify or terminatecontract as provided in §103D-707(1)(A) and (B).  85 H. 431, 946 P.2d 1.

  Where nothing inprocurement code or this section gave hearings officer authority to remandaward of contract to agency for reevaluation of proposals, remand was in excessof statutory authority.  85 H. 431, 946 P.2d 1.