Oklahoma Administrative Code
Title 260 - Office of Management and Enterprise Services
Chapter 115 - Procurement
Subchapter 3 - Supplier Provisions
Section 260:115-3-19 - Supplier's Protest
Universal Citation: OK Admin Code 260:115-3-19
Current through Vol. 41, No. 13, March 15, 2024
(a) A supplier may protest a contract award by a state agency or OMES to the State Purchasing Director. All remedies available to suppliers through the sealed bid process pursuant to the Oklahoma Central Purchasing Act are also available to online bidders in an online bidding process.
(1)
Supplier notification. A supplier shall submit written notice to
the State Purchasing Director of a protest of an award of contract by a state
agency or OMES within ten (10) business days of contract award. The supplier
protest notice shall state all facts and reasons in specificity for protest.
(2)
State Purchasing
Director review and determination. The State Purchasing Director shall
review the supplier's protest and contract award documents.
(A) The State Purchasing Director may
determine to respond to the protest or delegate the responsibility by written
notice to the state agency that awarded the contract.
(B) The State Purchasing Director or state
agency, whichever is applicable, shall send written notice of the decision to
deny or sustain the protest to the supplier within ten (10) business days of
receipt of the protest.
(3)
Supplier appeal of decision to deny
protest. The supplier may appeal a denial of protest by the State
Purchasing Director or a state agency to the OMES Director.
(A) Such appeal shall be filed by the
supplier within ten (10) business days of the date of the State Purchasing
Director's or state agency's notice of denial pursuant to 75 O.S.
§§309 et seq.
(B) The
OMES Director may enter an order staying contract performance upon such terms
and conditions as the OMES Director determines to be proper. Any request for
stay of contract performance must be made in writing and filed during the ten
(10) business day time period in which an appeal may be commenced to the OMES
Director. The OMES Director shall have continuing jurisdiction to modify any
such orders made in connection with a stay during the pendency of the appeal as
appropriate under the circumstances presented.
(4)
Director actions and
determination. The OMES director may hear the appeal or assign the
supplier's appeal to an Administrative Law Judge retained by the agency.
(A) If the appeal is assigned to an
Administrative Law Judge, the Administrative Law Judge shall review the appeal
for legal authority and jurisdiction. If legal authority and jurisdictional
requirements are met, the Administrative Law Judge shall conduct an
administrative hearing and provide proposed findings of fact and conclusions of
law to the OMES Director.
(B) If
the appeal is heard by the OMES Director, the OMES Director shall have all
powers granted by law including all powers delegated to the Administrative Law
Judge by this section.
(C) The OMES
Director shall send written notice of the final order sustaining or denying the
supplier's appeal to the parties.
(D) The cost of actions necessary to process
a supplier's appeal, together with any other expenses incurred due to the
appeal, shall be paid by the state agency responsible for the initial
solicitation.
(5)
Conduct of administrative hearing. Administrative hearings shall
be conducted in accordance with the Administrative Procedures Act [Reference 75
O.S. §§250 et seq.] and the following procedures:
(A)
Prehearing conference. A
prehearing conference shall be scheduled to determine the legal or factual
issues which shall be limited to those brought by the supplier in its initial
protest to the State Purchasing Director.
(B)
Burden of proof. The burden
of proof shall be upon the supplier, which must prove its case by a
preponderance of the evidence. A preponderance of the evidence is that evidence
which, in light of the record as a whole, leads the Administrative Law Judge to
believe a fact is more probably true than not true.
(C)
Representation. Corporations
must be represented by legal counsel in accordance with Oklahoma law. Legal
counsel must be licensed or registered pursuant to the Rules Creating and
Controlling the Oklahoma Bar Association.
(D)
Proper parties. In addition
to the supplier protesting the contract award, OMES, the supplier awarded the
contract and the state agency for which the bid was let may participate in the
bid protest proceedings as a proper party.
(E)
Discovery. The conduct of
discovery is governed by the Administrative Procedures Act, 75 O.S.
§§ 309 et seq. and other applicable law.
(F)
Authority of the Administrative Law
Judge. The Administrative Law Judge may:
(i) Establish a scheduling order;
(ii) Establish reasonable procedures such as
authorizing pleadings to be filed by facsimile or electronic mail;
(iii) Rule on all interlocutory motions;
(iv) Require briefing of any or
all issues;
(v) Conduct hearings;
(vi) Rule on the admissibility of
all evidence;
(vii) Question
witnesses; and
(viii) Make proposed
findings of facts and conclusions of law to the OMES
Director.
(G)
Remedies. The Administrative Law Judge may recommend that the OMES
Director deny the supplier's appeal or that the contract award be cancelled and
rebid.
(6)
Supplier
appeal of OMES Director decision to deny appeal. If the OMES Director
denies a supplier's appeal, the supplier may appeal pursuant to provisions of
75 O.S. §§ 309 et seq.
(b) An agency making an acquisition pursuant to 74 O.S. §85.5(T) shall conduct all actions and bear all costs associated with the protest or appeal of a contract award.
Disclaimer: These regulations may not be the most recent version. Oklahoma may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.