| (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 Commission's Director
of Procurement. Such protests must be in writing and received by the
Director of Procurement within 10 working days after such aggrieved
person knows, or should have known, of the occurrence of the action
which is protested. Formal protests must conform to the requirements
of this subsection and subsection (c) of this section, and shall be
resolved in accordance with the procedure set forth in subsections
(d) and (e) of this section. Copies of the protest must be mailed
or delivered by the protesting party to the Commission and other interested
parties. For the purposes of this section, "interested parties" means
all vendors who have submitted bids or proposals for the contract
involved.
(b) In the event of a timely protest or appeal under
this section, the state shall not proceed further with the solicitation
or with the award of the contract unless the Executive Director, after
consultation with the Director of Procurement, makes a written determination
that the award of contract without delay is necessary to protect the
best interests of the state.
(c) A formal protest must be sworn and 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 using agency and other identifiable interested
parties.
(d) The Director of Procurement shall have the authority,
prior to appeal to the Executive Director of the Commission, to settle
and resolve the dispute concerning the solicitation or award of a
contract. The Director of Procurement may solicit written responses
to the protest from other interested parties.
(e) If the protest is not resolved by mutual agreement,
the Director of Procurement will issue a written determination on
the protest.
(1) If the Director of Procurement determines that
no violation of rules or statutes has occurred, he shall so inform
the protesting party and other interested parties by letter which
sets forth the reasons for the determination.
(2) If the Director of Procurement determines that
a violation of the rules or statutes has occurred in a case where
a contract has not been awarded, he shall so inform the protesting
party, the using agency, and other interested parties by letter which
sets forth the reasons for the determination and the appropriate remedial
action.
(3) If the Director of Procurement determines that
a violation of the rules or statutes has occurred in a case where
a contract has been awarded, he shall so inform the protesting party
and other interested parties by letter which sets forth the reasons
for the determination, which may include ordering the contract void.
(f) The Director of Procurement's determination on
a protest may be appealed by the protesting party to the Executive
Director of the Commission. An appeal of the Director of Procurement's
determination must be in writing and must be received in the Executive
Director's office no later than 10 working days after the date of
the Director of Procurement's determination. The appeal shall be limited
to review of the Director of Procurement's determination. Copies of
the appeal must be mailed or delivered by the protesting party to
the Commission and other interested parties and must contain a certified
statement that such copies have been provided.
(g) The Executive Director may confer with the Commission's
General Counsel in his review of the matter appealed. The Executive
Director may, in his discretion, refer the matter to the Commissioners
for their consideration at a regularly scheduled open meeting or issue
a written decision on the protest.
(h) When a protest has been appealed to the Executive
Director under subsection (f) of this section and has been referred
to the Commissioners by the Executive Director under subsection (g)
of this section, the following requirements shall apply:
(1) Copies of the appeal and responses of interested
parties, if any, shall be mailed to the Commissioners.
(2) All interested parties who wish to make an oral
presentation at the open meeting are requested to notify the Commission's
General Counsel at least 48 hours in advance of the open meeting.
(3) The Commissioners may consider oral presentations
and written documents presented by staff and interested parties. The
Commission Chair shall set the order and amount of time allowed for
presentations.
(4) The Commissioners' determination of the appeal
shall be by duly adopted resolution reflected in the minutes of the
open meeting, and shall be final.
(i) Unless good cause for delay is shown or the Commission
determines that a protest or appeal raises issues significant to procurement
practices or procedures, a protest or appeal that is not filed timely
will not be considered.
(j) A decision issued either by the Commissioners in
open meeting, or in writing by the Executive Director, shall be the
final administrative action of the Commission.
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