(a) Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation, evaluation,
or award of a contract may formally protest to the Deputy Commissioner
for Agency Operations and Communications (Deputy Commissioner). Such
protests must be in writing and received in the Deputy Commissioner's
office within 10 working days after such aggrieved person knows, or
reasonably should have known, of the occurrence of the action which
is protested, unless the director finds that good cause for delay
is shown, or determines that a protest or appeal raises issues significant
to the agency's procurement practices or procedures.
(b) Formal protests must conform to the requirements
of this subsection and subsection (d) of this section. Copies of the
protest must be mailed or delivered by the protestant to the other
interested parties. For the purposes of this section, "interested
parties" are all vendors who have submitted bids or proposals for
the contract involved. Names and addresses of all interested parties
may be obtained by sending a written request for this information
to the Deputy Commissioner.
(c) In the event of a timely protest or appeal under
this section, the agency shall not proceed further with the solicitation
or with the award of the contract unless the Deputy Commissioner makes
a written determination that the expeditious award of contract is
necessary to protect substantial interests of the state. A copy of
this determination shall be mailed to the protestant.
(d) A formal protest petition must be sworn and must
contain:
(1) a specific identification of the statutory or regulatory
provision(s) that the action complained of is alleged to have violated;
(2) a specific description of each act alleged to have
violated the statutory or regulatory provision(s) identified in paragraph
(1) of this subsection;
(3) a precise statement of the relevant facts;
(4) an identification of the issue or issues to be
resolved;
(5) argument and authorities in support of the protest;
and
(6) a statement that copies of the protest have been
mailed or delivered to the other interested parties.
(e) The Deputy Commissioner shall have the authority
to resolve the dispute concerning the solicitation or award of a contract.
The Deputy Commissioner may solicit written responses to the protest
petition from other interested parties, and if such a request is made,
the protestant shall be given notice of the Deputy Commissioner's
request and of any written responses to the request that are received.
(f) If the protest is not resolved by mutual agreement,
the Deputy Commissioner shall issue a written determination on the
protest.
(1) If the Deputy Commissioner determines that no violation
of rules or statutes has occurred, the protestant and other interested
parties shall be informed by a letter that sets forth the reasons
for the determination.
(2) If the Deputy Commissioner determines that a violation
of the rules or statutes has occurred in a case where a contract has
not been awarded, the protestant and other interested parties shall
be informed by a letter that sets forth the reasons for the determination
and the remedial action, if any, determined to be appropriate.
(3) If the Deputy Commissioner determines that a violation
of the rules or statutes has occurred in a case where a contract has
been awarded, the protestant and other interested parties shall be
informed by a letter which sets forth the reasons for the determination
and the remedial action, if any, determined to be appropriate. In
such a case, the Deputy Commissioner has the authority to declare
the contract void. If the contract is declared void, this fact shall
be included in the determination letter.
(g) The Deputy Commissioner's determination on a protest
may be appealed by an interested party to the Commissioner of Higher
Education (Commissioner). An appeal of the Deputy Commissioner's determination
must be in writing and must be received in the Commissioner's office
no later than 10 working days after the date of the Deputy Commissioner's
determination. An appeal of the determination shall be limited to
those issues raised in the protest petition and the determination
letter. Copies of the appeal must be mailed or delivered by the appealing
party to the other interested parties and must contain a sworn statement
that such copies have been provided.
(h) The Commissioner shall review the information provided
as described in subsection (d) of this section as well as the Deputy
Commissioner's requests for input, and any written responses previously
received from other interested parties, the written determination,
and the appeal, and shall issue a written decision on the protest
determination appeal.
(i) A decision issued in writing by the Commissioner
shall be the final administrative action of the agency.
(j) In performing their duties under this section,
the Commissioner and the Deputy Commissioner may consult with the
Comptroller of Public Accounts as well as Board employees, including
the office of the General Counsel of the Board, concerning the dispute.
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