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



(b)  Hearings to review and determine any
request made pursuant to subsection (a) shall commence within twenty-one
calendar days of receipt of the request.  The hearings officers shall have
power to issue subpoenas, administer oaths, hear testimony, find facts, make
conclusions of law, and issue a written decision not later than forty-five days
from the receipt of the request under subsection (a), that shall be final and
conclusive unless a person or governmental body adversely affected by the
decision commences an appeal in the circuit court of the circuit where the case
or controversy arises under section 103D-710.



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



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



(1)  For contracts with an estimated value of less
than $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 than
ten per cent of the estimated value of the contract.



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



(1)  $1,000 for a contract with an estimated value of
less 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 the
contract if the estimated value of the contract is $1,000,000 or more; provided
that in no event shall the required amount of the cash or protest bond be more
than $10,000.



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



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



(1)  All pleadings, motions, intermediate rulings;



(2)  Evidence received or considered, including oral
testimony, 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 be
transcribed if judicial review of the written decision is sought under section
103D-710.



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



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



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



(j)  As used in this section, "estimated
value of the contract" or "estimated value," with respect to a
contract, means the lowest responsible and responsive bid under section
103D-302, or the bid amount of the responsible offeror whose proposal is
determined in writing to be the most advantageous under section 103D-303, as
applicable. [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 award
of contract, chief procurement officer finds no violation of law, but after de
novo review pursuant to this section, hearings officer finds otherwise,
§103D-705 requires hearings officer to determine whether to ratify or terminate
contract as provided in §103D-707(1)(A) and (B).  85 H. 431, 946 P.2d 1.



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