(a) The purpose of this section is to establish procedures
for resolving vendor protests relating to purchasing issues.
(b) A vendor who submitted a written response to a
solicitation may file a protest with the executive director for actions
taken by the board on the following:
(1) the solicitation documents or actions associated
with the publication of solicitation documents;
(2) the evaluation or method of evaluation for a solicitation;
or
(3) the award of a contract.
(c) Filing requirements.
(1) To be considered, a protest must be:
(A) in writing and contain:
(i) the specific rule, statute or regulation the protesting
vendor alleges the solicitation, contract award, or tentative award
violated;
(ii) a specific description of each action by the board
that the protesting vendor alleges is a violation of the statutory
or regulatory provision the protesting vendor identified in subparagraph
(A)(i) of this paragraph;
(iii) a precise statement of the relevant facts including:
(I) sufficient documentation to establish that the
protest has been timely filed;
(II) a description of the adverse impact to the board
and the state; and
(III) a description of the resulting adverse impact
to the protesting vendor;
(iv) a statement of the argument and authorities that
the protesting vendor offers in support of the protest; and
(v) an explanation of the subsequent action the vendor
is requesting;
(B) signed by an authorized representative and the
signature notarized; and
(C) filed with the board in the time period specified
in this section.
(2) To be considered timely, the protest must be filed:
(A) by the end of the posted solicitation period, if
the protest concerns the solicitation documents or actions associated
with the publication of solicitation documents;
(B) by the day of the award of a contract resulting
from the solicitation, if the protest concerns the evaluation or method
of evaluation for a solicitation; or
(C) no later than 10 days after the notice of award,
if the protest concerns the award.
(d) Timeliness of Protest.
(1) If a timely protest of a solicitation or contract
award is filed under this section, the executive director may delay
the solicitation or award of the contract if the executive director
makes a determination that the contract must be awarded without delay
to protect the best interests of the state.
(2) A protest that is filed untimely under this section
shall not be considered unless the executive director determines that
good cause for delay is shown or that a protest raises issues that
are significant to the agency's procurement practices or procedures
in general.
(e) Authority of the Executive Director to Settle the
Protest.
(1) Upon receipt of a protest, the executive director
may dismiss the protest if it is not timely or does not meet the requirements
of this section.
(2) The executive director shall have the authority
to settle and resolve the protest. The executive director may solicit
written responses to the protest from other interested parties.
(3) If the protest is not resolved through mutual agreement,
the executive director shall issue a written determination responding
to the protest.
(f) Appeal.
(1) If a protest is based on a solicitation or contract
award, the protesting party may appeal a determination of a protest
by the executive director to the general counsel. An appeal of the
executive director's determination must be in writing and received
not later than 10 days after the date the executive director sent
written notice of the executive director's determination. The scope
of the appeal shall be limited to review of the executive director's
determination. The protesting party must mail or deliver to all other
interested parties a copy of the appeal, which must contain a certified
statement that such copies have been provided.
(2) The general counsel may refer the matter to the
board for consideration or may issue a written decision that resolves
the protest.
(3) An appeal that is not filed timely shall not be
considered unless good cause for delay is shown or the general counsel
determines that an appeal raises issues that are significant to the
agency's procurement practices or procedures in general.
(4) A written decision issued by the general counsel
or the board shall be the final administrative action of the board.
(g) The board shall maintain all documentation on the
purchasing process that is the subject of a protest or appeal in accordance
with the board's records retention schedule.
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