Chapter 16.40
APPEALS AND REMEDIES

Sections:

16.40.010    Bid protests.

16.40.020    Contract claims.

16.40.030    Remedies for solicitations or awards in violations of law.

16.40.010 Bid protests.

A. Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the chief procurement officer.

B. The chief procurement officer shall have the authority to settle and resolve a protest filed under this section at any time prior to the commencement of a court action.

C. A protest with respect to an invitation for bids or request for proposals shall be submitted in writing prior to the opening of bids or the closing date for proposals, unless the aggrieved person did not know and should not have known of the facts giving rise to such protest prior to bid opening or the closing date for proposals. The protest shall be submitted within five calendar days after such aggrieved person knows or should have known of the facts giving rise thereto and shall, at a minimum, contain:

1. The name, address, and telephone number of the party filing the protest;

2. The signature of the party filing the protest or the party’s authorized representative;

3. Identification of the bid or proposal at issue;

4. A complete statement of the legal or factual grounds for the protest;

5. Copies of all relevant documents; and

6. A nonrefundable filing fee of $75.00.

D. Within five days of submittal of a timely protest, the protestor shall submit a protest security (bond or cashier’s check) in an amount not to exceed five percent or $20,000, whichever is less, of the protestor’s bid price or if bids have not yet been opened, the fund authorization in the purchasing bid file. If the protestor fails to submit the security as required in this section then the protest may be denied without further action.

1. If, after all the administrative and judicial remedies have been exhausted, the protest fails, the protest security shall be forfeited to the borough.

2. If, after all the administrative and judicial remedies have been exhausted, the protest is upheld in whole or in part, the protest security shall be returned to the protestor.

E. In the event of a timely protest under subsection (A) of this section, the chief procurement officer shall not proceed further with the solicitation or award of the contract until all administrative and judicial remedies have been exhausted or until the chief procurement officer, after consultation with the borough mayor, makes a determination on the record that the award of a contract without delay is necessary to protect substantial interests of the borough.

F. If the protest is not resolved by mutual agreement, the chief procurement officer, or his designee, shall promptly issue a decision in writing which shall state the reasons for the action taken and inform the protestor of the right to an administrative review.

G. An administrative appeal must be filed at the mayor’s office within 10 calendar days of the chief procurement officer’s decision. The appeal request shall identify in detail all factual or legal errors in the decision that form the basis for the appeal. The administrative appeal shall be heard by a hearing officer appointed by the mayor and shall be reviewed and determined de novo.

1. The hearing officer shall be a member of the State Bar for at least five years and experienced in contract or commercial matters.

2. The hearing officer shall hold a hearing unless it is determined in writing that the appeal or the underlying protest is untimely or if the appeal involves questions of law without genuine issues of fact.

3. Hearings shall be recorded and conducted informally with due regard for the rights of the parties involved.

4. The review shall be based on the provisions of this title and generally accepted principles of government purchasing.

5. The hearing officer’s decision may order that a bid or a proposal be accepted as the lowest responsive bid or proposal and may order any of the additional remedies set forth in FNSBC 16.40.030. The hearing officer, however, may not order the selection or rejection of any additive or deductive alternate or award attorney fees. Unless necessary to correct a failure to follow the procedures required by this title, the hearing officer may not substitute his judgment for the chief procurement officer on any matter vested within the chief procurement officer’s discretion and may not order the amendment of any specifications, any change in the criteria for selection of a proposal, or any amendment, reordering, or reassessment of any qualitative judgment in the rating of a proposal.

6. The hearing officer’s decision shall be in writing and contain findings of fact and conclusions of law. The decision shall include a decision concerning the refund of any bond.

H. In addition to any other relief, when a protest is sustained, and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, then the protesting bidder or offeror shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorney’s fees. (Ord. 2002-29 § 37, 2002; Ord. 82-69, 1982. 2004 Code § 16.65.010.)

16.40.020 Contract claims.

A. All claims by a contractor against the borough relating to a contract shall be submitted in writing. Claims relating to a contract that provides for arbitration shall be submitted in accordance with the provisions of the contract. Claims relating to any other contract shall be submitted to the chief procurement officer for a decision. Claims include, without limitation, controversies arising under a contract, and those based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission.

B. The decision of the chief procurement officer shall be promptly issued in writing, and shall be immediately mailed or otherwise furnished to the contractor. The decision shall state the reasons for the decision reached, and shall inform the contractor of its appeal rights under subsection (C) of this section.

C. The chief procurement officer’s decision shall be final and conclusive unless, within 10 calendar days from the date of receipt of the decision, the contractor mails or otherwise delivers a written appeal to the borough mayor or commences an action in a court of competent jurisdiction.

D. If the chief procurement officer does not issue a written decision regarding any contract controversy within 30 days after written request for a final decision, or within such longer period as may be agreed upon between the parties, then the aggrieved party may proceed as if an adverse decision had been received. (Ord. 2002-29 § 38, 2002; Ord. 97-011 § 2, 1997; Ord. 82-69, 1982. 2004 Code § 16.65.020.)

16.40.030 Remedies for solicitations or awards in violations of law.

A. If prior to bid opening or the closing date for receipt of proposals, the chief procurement officer, after consultation with the borough attorney, determines that a solicitation is in violation of federal, state or municipal law, then the solicitation shall be canceled or revised to comply with applicable law.

B. If after bid opening or the closing date for receipt of proposals, the chief procurement officer, after consultation with the borough attorney, determines that a solicitation or a proposed award of a contract is in violation of federal, state or municipal law, then the solicitation or proposed award shall be canceled.

C. If after an award, the chief procurement officer, after consultation with the borough attorney, determines that a solicitation or award of a contract was in violation of applicable law, then:

1. If the person awarded the contract has not acted fraudulently or in bad faith:

a. The contract may be ratified and affirmed, provided it is determined that so doing is in the best interests of the borough, or

b. The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to the termination;

2. If the person awarded the contract has acted fraudulently or in bad faith, the contract may be declared null and void or voidable, if such action is in the best interests of the borough. (Ord. 2002-29 § 40, 2002; Ord. 82-69, 1982. 2004 Code § 16.65.040.)