Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
45A.170(d),
45A.285
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
45A.035 authorizes the Secretary of the
Finance and Administration Cabinet to promulgate administrative regulations for
the implementation of the Kentucky Model Procurement Code, KRS Chapter 45A.
This administrative regulation establishes a more definitive filing deadline
for written protests relative to individual solicitations and defines the
information required to be contained in all written protests in order to allow
more efficient, expeditious, and on the record resolution of protests.
Section 1.
(1) For purposes of computing the two (2)
calendar week deadline for the submission of protests pursuant to
KRS
45A.285(2), the following
presumptions shall apply:
(a) For protests
based upon alleged improprieties in a solicitation for bids or proposals which
relate to the solicitation documents themselves, the facts giving rise to the
protest shall be presumed to have been known to the protester on the date the
solicitation, or a modification to it, was posted to the Commonwealth of
Kentucky's eProcurement Web site,
www.eprocurement.ky.gov. Alleged
improprieties in a solicitation for bids or proposals may include disputes
arising from specifications requiring items deemed to be equivalent or a sole
brand in accordance with
KRS
45A.170(d).
(b) For protests based upon alleged
improprieties in the award of a contract, the facts giving rise to the protest
shall be presumed to have been known to the protester on the date the notice of
award of a contract was posted to the Commonwealth of Kentucky's eProcurement
Web site,
www.eprocurement.ky.gov.
(2) The presumption may be overcome
by a showing that the facts giving rise to the protest were not and should not
have been known to the protester on the date established by subsection (1)(a)
or (b) of this section.
Section
2. A protest filed in accordance with
KRS
45A.285 shall be in writing and shall contain
the following information:
(1) Name, address,
fax and telephone numbers, and e-mail address of the protester;
(2) Solicitation or contract
number;
(3) Detailed statement of
the legal and factual grounds for the protest, including a description of the
prejudice resulting to the protester;
(4) Identification of documents which the
protestor believes necessary to assess the factual or legal basis of the
protest;
(5) Statement as to the
nature of relief requested;
(6) The
date the facts giving rise to the protest became known to the protester;
and
(7) If necessary to rebut the
presumption established by Section 1(1) of this administrative regulation, all
relevant factual information establishing the timeliness of the protest under
KRS
45A.285(2) and purported to
be sufficient for a justifiable finding of timeliness under that statutory
provision. Failure to comply with this subsection, if necessary, shall
conclusively render the protest untimely.
Section 3.
(1) A protest shall be filed with the
Secretary of the Finance and Administration Cabinet by personal delivery, U.S.
mail, or by a private express mail service. The Secretary of the Finance and
Administration Cabinet shall not accept a protest submitted by electronic
transmission, including facsimile transmission or electronic mail.
(2) For the purposes of
KRS
45A.285, "filed" shall mean actual receipt by
the Office of the Secretary of the Finance and Administration
Cabinet.
(3) A protest which, on its
face, is untimely, fails to establish standing to protest, or fails to include
the information required by Section 2 of this administrative regulation, shall
be summarily determined and denied.
STATUTORY AUTHORITY:
KRS
45A.035