Current through Register Vol. 30, No. 38, September 20, 2024
A. Disputes related to contract performance.
This Section does not apply to a dispute related to contract performance. A
contract performance dispute is governed by 9 A.A.C. 34.
B. Resolution of a proposal protest. The
procurement officer issuing a RFP shall have the authority to resolve proposal
protests. An appeal from the decision of the procurement officer shall be made
to the Director.
C. Filing of a
protest.
1. A person may file a protest with
the procurement officer regarding:
a. A RFP
issued by the Administration,
b. A
proposed award, or
c. An award of a
contract.
2. A protester
shall submit a written protest and include the following information:
a. The name, address, and telephone number of
the protester;
b. The signature of
the protester or protester's representative;
c. Identification of a RFP or contract
number;
d. A detailed statement of
the legal and factual grounds of the protest including copies of any relevant
documents; and
e. The relief
requested.
D.
Time for filing a protest.
1. A protester
filing a protest alleging improprieties in an RFP or an amendment to an RFP
shall file the protest at least 14 days before the due date of receipt of
proposals.
2. Any protest alleging
improprieties in an amendment issued 14 or fewer days before the due date of
the proposal shall be filed before the due date for receipt of
proposals.
3. In cases other than
those covered in subsections (D)(1) and (2), a protester shall file a protest
no later than 10 days after the procurement officer makes the procurement file
available for public inspection.
E. Stay of procurement during the protest. If
a protester files a protest before the contract award, the procurement officer
may issue a written stay of the contract award. In considering whether to issue
a written stay of contract, the procurement officer shall consider but is not
limited to considering whether:
1. A
reasonable probability exists that the protest will be sustained, and
2. The stay of the contract award is in the
best interest of the state.
F. Stay of contract award during an appeal to
the Director. The Director shall automatically continue the stay of a contract
award if:
1. An appeal is filed before a
contract award, and
2. The
procurement officer issues a stay of the contract award under subsection (E),
unless
3. The Director issues a
written determination that the contract award is necessary to protect the best
interest of the state.
G. Decision by the procurement officer.
1. The procurement officer shall issue a
written decision no later than 14 days after a protest has been filed. The
decision shall contain an explanation of the basis of the decision.
2. The procurement officer shall furnish a
copy of the decision to the protester by:
a.
Certified mail, return receipt requested; or
b. Any other method that provides evidence of
receipt.
3. The
Administration may extend, for good cause, the time-limit for decisions in
subsection (G)(1) for a time not to exceed 30 days. The procurement officer
shall notify the protester in writing that the time for the issuance of a
decision has been extended and the date by which a decision shall be
issued.
4. If the procurement
officer fails to issue a decision within the time-limits in subsection (G)(1)
or (G)(3), the protester may proceed as if the procurement officer issued an
adverse decision.
H.
Remedies.
1. If the procurement officer
sustains the protest in whole or in part and determines that the RFP, proposed
contract award, or contract award does not comply with applicable statutes and
rules, the procurement officer shall order an appropriate remedy.
2. In determining an appropriate remedy, the
procurement officer shall consider all the circumstances of the procurement or
proposed procurement, including:
a.
Seriousness of the procurement deficiency,
b. Degree of prejudice to other interested
parties or to the integrity of the RFP process,
c. Good faith of the parties,
d. Extent of performance,
e. Costs to the state, and
f. Urgency of the procurement.
g. Best interest of the state.
3. An appropriate remedy may
include one or more of the following:
a.
Terminating the contract;
b.
Reissuing the RFP;
c. Issuing a new
RFP;
d. Awarding a contract
consistent with statutes, rules, and the terms of the RFP; or
e. Any relief determined necessary to ensure
compliance with applicable statutes and rules.
I. Appeals to the Director.
1. A person may file an appeal of a
procurement officer's decision with both the Director and the procurement
officer no later than five days from the date the decision is received. The
date the decision is received shall be determined under subsection
(G)(2).
2. The appeal shall
contain:
a. The information required in
subsection (C)(2),
b. A copy of the
procurement officer's decision,
c.
The alleged factual or legal error in the decision of the procurement officer
on which the appeal to the Director is based, and
d. A request for hearing unless the person
requests that the Director's decision be based solely upon the procurement
file.
J.
Dismissal. The Director shall not schedule a hearing and shall dismiss an
appeal with a written determination if:
1. The
appeal does not state a basis for protest,
2. The appeal is untimely under subsection
(I)(1), or
3. The appeal is
moot.
K. Hearing.
Hearings under this Section shall be conducted using the Arizona Administrative
Procedure Act under A.R.S. Title 41, Ch. 6.
