3.21.290 Administrative review of bid protests

3.21.290 Administrative review of bid protests.

A. Policy. The city establishes these administrative review procedures for bid protests to promote the fair and efficient resolution of such disputes over contracts awarded by the city pursuant to the provisions of this chapter regarding bids and requests for proposals. Bid protest procedures are established to ensure the integrity of the public bidding process. Time is of the essence in any bid protest. All bid documents the city issues shall be deemed to contain language advising bidders of the right to protest the determination of the successful bid as set out in this section. (For purposes of this section, the term “bidder” includes the term “proposer,” the term “bid” includes the term “proposal,” and the term “intended awardee” means the bidder named in the purchasing officer’s notice of intent to award.)

B. Time Lines for Protests. A protest based on alleged improprieties or ambiguities in an invitation to bid or a request for proposals must be filed with the purchasing officer at least 10 days before the due date of the bid or proposal. Failure to meet this time line shall constitute a waiver of the protesting party’s rights and a bar on any further action regarding this matter. A protest based upon alleged improprieties in an intended award of a contract must be filed with the purchasing officer with a copy previously served upon the intended awardee within two business days after a notice of intent to award the contract is issued. Failure to meet this time line shall constitute a waiver of the protesting party’s rights and a bar on any further action regarding this matter.

C. Bid Protest. The bid protest shall be in writing on a form provided by the purchasing officer. The protest shall include the following:

1. The name, address, telephone number, and continuously operating fax number of the protester;

2. Identification of the invitation or request at issue;

3. A detailed statement of the legal and factual grounds of the protest, including copies of relevant documents;

4. The form of relief requested;

5. Certification under oath that the claim is made in good faith and that the supporting data are accurate and complete to the best of the bidder’s knowledge and belief; and

6. The signature of the protester or the protester’s representative.

If the protest is not timely or does not meet the requirements of this subsection (C), it shall be denied.

D. Purchasing Officer Decision. The purchasing officer shall conduct a review in consultation with the city attorney. Within three business days of receipt of the bid protest, unless the purchasing officer needs more time, the purchasing officer shall issue a determination. The determination shall be in writing, supported by findings and conclusions addressing the issues raised in the bid protest. The decision shall include a statement substantially as follows:

This is the final decision of the purchasing officer. This decision may be appealed. If you appeal, you must deliver your appeal, along with $250, to the city clerk within three business days after service by fax or otherwise of the purchasing officer’s decision.

The determination shall be served on the bid protester and the intended awardee by fax and U.S. mail.

E. Stay of Award. If a protest is filed, the award may be made unless the purchasing officer determines in writing that a:

1. Reasonable probability exists that the protest will be sustained; or

2. Stay of the award is not contrary to the best interests of the city.

The purchasing officer is under no duty to stay the award.

1. If the purchasing officer sustains a protest in whole or in part, the purchasing officer shall implement an appropriate remedy.

2. In determining an appropriate remedy, the purchasing officer shall consider the circumstances surrounding the solicitation or procurement including the seriousness of the procurement deficiencies, the degree of prejudice to other interested parties or to the integrity of the procurement system, the good faith of the parties, the extent the procurement has been accomplished, costs to the city and other impacts on the city of a proposed remedy, and the urgency of the procurement to the welfare of the city.

3. Notwithstanding subsections (F)(1) and (2) of this subsection, if a protest is sustained in whole or part, the protester’s damages are limited to reasonable bid or proposal preparation costs.

G. Notice of Appeal. The bid protester or intended awardee may appeal the purchasing officer’s decision on a bid protest as follows:

1. Time Line for Filing an Appeal. An appeal must be received by the clerk’s office within three business days after service by fax or otherwise upon appellant of the purchasing officer’s decision along with a filing fee in the amount of $250.00. Failure to file and submit the fee within three business days shall result in an appeal being denied as untimely without further process and shall constitute a waiver of the protesting party’s rights and a bar on any further action.

2. Procedure for Filing. An appeal shall be filed on a form provided by the clerk. The clerk’s form shall require the party to provide the following information:

a. Information on the bid including the bid number and the subject matter of the bid;

b. Information on the party filing the appeal, including the business name of the party, contact information including full name of the business, name of a contact, address, telephone number, and fax number;

c. If the party is represented by counsel, the name, address, telephone number, and fax of counsel; and

d. Certification that a copy of all the appeal documents have been served on all other bidders who participated in any way in the bid protest, including, without limitation, the purchasing officer and the intended awardee (if the protest was not granted) or the bid protester (if the protest was granted).

H. Hearing Officer Review. A hearing officer shall be appointed and shall have jurisdiction over the bid protest appeal. The clerk’s office shall contact the hearing officer when the appeal is filed. The appointment should be made within two business days of the filing of the appeal.

I. Clerk’s Notice. The clerk shall give notice of the appeal to the city and all parties participating in the protest by fax, if available, and shall supplement the fax notice with notice by U.S. mail or personal delivery within two business days of the filing of the appeal.

J. Record. Within three business days of receiving notice of appeal, the purchasing officer shall submit the record of the bid to the clerk. The clerk shall mail the record to the parties within two business days of receipt by the clerk.

K. Hearing Date and Briefing Schedule. The hearing officer shall set a hearing date at least 10 calendar days and no later than 20 calendar days from the date the record is mailed or personally served. The hearing officer shall issue a calendaring notice for briefing and exhibit filing. The calendaring notice shall be served by fax and mail. Unless otherwise agreed to by the parties, the briefing date shall be set by the hearing officer as follows:

1. Briefs. Briefs shall be drafted to conform with the Alaska Rules of Civil Procedure and shall be served on participating parties and filed no later than five calendar days before the hearing. Briefs may include an appendix with evidence upon which the party intends to rely at hearing.

2. Exhibits. All exhibits shall be served on participating parties and filed with the hearing officer no later than five calendar days before the hearing.

3. Service of all material shall be by fax and, if necessary, an alternative means to assure timely service of readable documents.

1. Representation. All parties may be represented by counsel.

2. Conduct of Hearing. The hearing shall be conducted in an informal matter and the hearing officer has the discretion to conduct the hearing in a manner which enables the issues and facts to be presented in an efficient manner that conforms to due process.

a. The parties shall have the right to present witnesses and evidence.

b. The parties shall have the right to cross-examine opposing witnesses and rebut evidence.

c. The hearing will be open to the public.

d. The hearing shall be recorded.

3. The hearing officer shall review the city’s award of the contract using a preponderance of evidence standard with the burden of proof on the person appealing from or protesting the purchasing officer’s determination.

M. Finding and Decision. The hearing officer’s findings are limited to rejecting or upholding the notice of intent to award the contract. If the hearing officer rejects the notice of intent to award, the matter shall be remanded to the city for further action. The hearing officer’s decision will be written findings of fact and conclusions of law and be made within five days of the end of the hearing. The decision shall include a statement substantially as follows:

This is the final decision of the hearing officer. This decision may be appealed to court. If you appeal, you must commence your lawsuit in the Superior Court for the State of Alaska at Palmer within thirty (30) days after your receipt of this decision.

The hearing officer shall deliver the written decision to the clerk and serve the written decision on the parties by fax and by mail.

N. Appeal to Superior Court. An appeal may be made from the written decision of the hearing officer pursuant to the Alaska Rules of Appellate Procedure to the superior court for the state of Alaska at Palmer only. (Ord. 644 § 4, 2004)