Current through Register Vol. 35, No. 18, September 24, 2024
This section governs the exclusive administrative review
procedure and remedy to address prequalification calculations performed under
18.27.11 NMAC.
A. To protest the
department's application of a prequalification score to a bid, the contractor
must follow the bidding dispute resolution procedures in the current edition of
the New Mexico Department of Transportation Standard Specifications for
Highway and Bridge Construction, section 103.3.
B. Administrative review of a
prequalification calculation is available only for a contractor seeking
reconsideration of its own score. The department shall reject a request for
administrative review of another contractor's score.
C. To be considered by the department, a
request for administrative review shall strictly conform in timing form and
service of filing as provided in this section. Any request for administrative
review that does not comply with these directives may be rejected and deemed
denied.
(1) Form: the request shall be in
writing. The request shall include a plain statement of the issue, grounds for
reconsideration, and requested relief.
(2) Timing: The request for review shall be
served within 10 days of the date the office of inspector general posts the
prequalified contractors and subcontractors list.
(3) Service: A request shall be served on the
department cabinet secretary with a contemporaneous copy provided to the office
of inspector general and the office of general counsel at the respective
address for each.
(a) A request may be served
in person, by certified mail, return receipt requested, or by delivery by a
nationally recognized courier. Service cannot be perfected and the department
shall not consider requests made by electronic mail or facsimile.
(b) Service shall be made during the
department's normal business hours. Any service made after business hours will
be considered effective the next business day.
D. The department cabinet secretary shall,
within 10 days of receipt of a conforming request, provide written notice to
the contractor of the department's decision resolving the matter or submitting
the matter to an informal hearing.
(1) Notice
of the election to refer the matter for an informal hearing shall designate a
neutral person or the cabinet secretary as the hearing officer.
(2) Notice of the election submitting the
matter to an informal hearing shall stay application of the contractor's Pqfra
pending completion of the administrative remedy.
E. The designated hearing officer shall,
within 10 days of the notice of appointment, provide written notice of the
scheduled informal hearing date, time and location.
(1) The notice of hearing will be provided to
the parties no later than seven calendar days before the chosen hearing
date.
(2) The hearing officer has
the discretion to determine the location of the hearing and whether telephonic
or video appearance will be allowed.
(3) No continuances of the hearing will be
granted except as determined by the hearing officer.
(4) The hearing officer shall set the
deadlines and method for pre-hearing submittals no later than three business
days before the hearing.
F. The informal hearing shall be a hearing on
the record. The hearing officer will conduct the hearing as informally as is
practicable to facilitate fact-finding. The formal rules of civil procedure,
formal discovery processes and the formal rules of evidence shall not apply to
the conduct of the informal hearing.
(1) The
hearing officer shall determine the degree of formality of the hearing, the
total time allotted for the informal hearing and how the time will be
apportioned between the parties.
(2) Legal representation is not required but
any party may choose to have legal counsel present. Legal counsel is prohibited
from testifying but may offer opening or closing statements.
(3) The contractor has the burden of proof to
show by substantial evidence the department incorrectly performed the
prequalification factor calculation.
(4) A party may call its own witnesses to
provide relevant testimony but may not subpoena or cross-examine witnesses. The
hearing officer shall have the exclusive authority to question any party or
witness.
(5) A party may provide
written documents to the hearing officer, including relevant laws, rules,
regulations, specifications to support the party's position, at least three
business days prior to the hearing date. Presentation of such evidence shall be
made electronically to the hearing officer and opposing party, whenever
practicable. During a hearing, a party may offer additional written evidence to
the hearing officer with copy to opposing party. Such evidence may be added to
the record at the hearing officer's discretion.
(6) Before concluding the hearing, the
hearing officer may hold the proceeding open for three days after the hearing
date for receipt of supplemental evidence, material or closing statements. When
directed, parties may timely supplement the record after the hearing by
providing such materials to the informal hearing officer and the opposing
party.
G. The hearing
officer's final written decision concludes the administrative remedy and
constitutes the department's final agency action on the matter.
(1) The hearing officer shall issue the
written decision within seven calendar days of the conclusion of the
administrative hearing proceedings unless the deadline is otherwise extended by
the hearing officer. The deadline for issuing the determination shall not
exceed twenty-one calendar days from the conclusion of the hearing proceedings
or April 30, whichever occurs first.
(a) To
reach a decision, the hearing officer may use any reliable information, no
matter the source. If the hearing officer uses information not provided by
either party that information shall be entered into the record and the use of
that information will be documented in the written decision.
(b) In the written decision, the hearing
officer will make findings concerning the credibility of witness testimony and
the reliability, significance and sufficiency afforded the evidence on the
record.
(2) The hearing
officer shall be responsible for maintaining a record of the evidence and
proceeding during the administrative review. After completion of the decision,
the hearing officer shall provide the department with a certified copy of the
record. The administrative record shall be maintained by the department for
seven years after the date of the decision on the matter.
H. The department shall implement the hearing
officer's decision for the May bid openings.
(1) If a party remains aggrieved by the
hearing officer's decision that party may seek judicial review.
(2) Judicial review shall be an appellate,
record review and must be brought in the first judicial district
court.
(3) If the matter is
submitted to judicial review, each party shall bear its own costs and attorney
fees.
