(a) A vendor who is aggrieved by the solicitation,
evaluation, or award of a contract by ERS, hereinafter referred to
as the Protesting Party, may file a formal protest with the Director
of Procurement and Contract Oversight of ERS. Such protests must be
in writing and received in the Office of Procurement and Contract
Oversight within the time stated in subsection (d) of this section.
Formal protests must conform to the requirements of this subsection,
subsection (c), subsection (d), and, when applicable, subsection (e)
of this section, and shall be resolved in accordance with the procedure
set forth in subsections (f) - (m) of this section. Copies of the
protest must be mailed or delivered by the Protesting Party to ERS
and other Interested Parties. For the purposes of this section, "Interested
Parties" means all vendors who have submitted bids or proposals for
the applicable contract. The protest must be mailed or delivered to
Interested Parties contemporaneously with filing the protest with
the Director of Procurement and Contract Oversight of ERS.
(b) In the event of a timely protest or appeal under
this section, ERS shall not proceed further with the solicitation
or with the award of the contract unless the Executive Director of
ERS makes a determination that the award of the contract or implementation
of the contract without delay are necessary to protect the best interests
of ERS.
(c) A formal protest must be sworn and, under the penalties
of perjury, 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; and
(5) argument and authorities in support of the protest.
(d) To be considered timely, the protest must be filed:
(1) by the end of the posted solicitation period, if
the protest concerns the solicitation documents or actions associated
with the publication of solicitation documents; or
(2) no later than 10 calendar days after the notice
of award, if the protest concerns the award.
(e) If ERS determines that it may need to utilize the
services of an actuary, consultant, or another professional (Professional
Services) in its efforts to resolve the protest, the Protesting Party
shall be required to post a bond in an amount no less than the estimated
cost to ERS for such Professional Services. The amount of the bond
shall be determined in the sole discretion of ERS. The Protesting
Party shall post the bond within five calendar days of notice from
ERS that such bond is required or shall be deemed to have waived the
right to protest.
(1) If such Professional Services are utilized by ERS
and the bid protest is not finally resolved in favor of the Protesting
Party, the Protesting Party shall be required to forfeit its bond.
(2) If such Professional Services are not utilized
by ERS and/or the bid protest is finally resolved in favor of the
Protesting Party, the Protesting Party's bond shall be returned to
the Protesting Party after final resolution of the bid protest.
(f) The Director of Procurement and Contract Oversight
of ERS may accept written responses to the protest from Interested
Parties and ERS staff.
(g) The Director of Procurement and Contract Oversight
of ERS may confer with the General Counsel of ERS in his/her review
of the protest.
(h) The Director of Procurement and Contract Oversight
of ERS shall have the authority to settle and resolve the protest.
(i) If the protest is not resolved by mutual agreement,
the Director of Procurement and Contract Oversight of ERS will issue
a written determination on the protest.
(1) If the Director of Procurement and Contract Oversight
of ERS determines that no violation of rules or statutes has occurred,
he/she shall so inform the Protesting Party and Interested Parties
by letter that sets forth the reasons for the determination.
(2) If the Director of Procurement and Contract Oversight
of ERS determines that a violation of the rules or statutes has occurred
in a case where a contract has not been awarded, he/she shall so inform
the Protesting Party and Interested Parties by letter which sets forth
the reasons for the determination and the appropriate remedial action.
(j) The determination of a protest by the Director
of Procurement and Contract Oversight may be appealed by the Protesting
Party to the Deputy Executive Director of ERS. An appeal of the determination
by the Director of Procurement and Contract Oversight of ERS must
be in writing and must be received in the office of the Deputy Executive
Director of ERS no later than 10 calendar days after the date of the
determination by the Director of Procurement and Contract Oversight.
The appeal shall be limited to the review of the determination by
the Director of Procurement and Contract Oversight. Copies of the
appeal must be mailed or delivered by the Protesting Party to ERS
and Interested Parties contemporaneously with filing the appeal to
the Deputy Executive Director of ERS. The appeal must contain a certified
statement that such copies have been served on all parties as required
by this subsection.
(k) The Deputy Executive Director of ERS may confer
with the General Counsel of ERS in his/her review of the matter appealed.
(l) An appeal that is not filed timely shall not be
considered unless good cause for delay is shown. The Deputy Executive
Director shall determine if good cause exists. Good Cause means that
a person's failure to act was not because of a lack of due diligence
the exercise of which would have caused a reasonable person to take
prompt and timely action. A failure to act based on ignorance of the
law or facts reasonably discoverable through the exercise of due diligence
does not constitute good cause.
(m) A decision issued in writing by the Deputy Executive
Director of ERS shall be the final administrative action of ERS, and
no further appeal shall be permitted.
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