63G-6a-1603. Protest officer responsibilities and authority — Proceedings on protest — Effect of decision.
(1)
After a protest is filed, the protest officer shall determine whether the protest is timely filed and complies fully with the requirements of Section 63G-6a-1602.
Terms Used In Utah Code 63G-6a-1603
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Days: means calendar days, unless expressly provided otherwise. See Utah Code 63G-6a-103
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Hearing: means a proceeding in which evidence, which may include oral testimony, or argument relevant to a protest is presented to a protest officer in connection with the protest officer's determination of an issue of fact or law or both. See Utah Code 63G-6a-1601.5
Judicial procurement unit: means :
(a)
the Utah Supreme Court;
(b)
the Utah Court of Appeals;
(c)
the Judicial Council;
(d)
a state judicial district; or
(e)
an office, committee, subcommittee, or other organization within the state judicial branch. See Utah Code 63G-6a-103
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Legislative procurement unit: means :
(a)
the Legislature;
(b)
the Senate;
(c)
the House of Representatives;
(d)
a staff office of the Legislature, the Senate, or the House of Representatives; or
(e)
a committee, subcommittee, commission, or other organization:
(i)
within the state legislative branch; or
(ii)
(A)
that is created by statute to advise or make recommendations to the Legislature;
(B)
the membership of which includes legislators; and
(C)
for which the Office of Legislative Research and General Counsel provides staff support. See Utah Code 63G-6a-103
Local government procurement unit: means :
(a)
a county, municipality, or project entity, and each office of the county, municipality, or project entity, unless:
(i)
the county or municipality adopts a procurement code by ordinance; or
(ii)
the project entity adopts a procurement code through the process described in Section 11-13-316;
(b)
(i)
a county or municipality that has adopted this entire chapter by ordinance, and each office or agency of that county or municipality; and
(ii)
a project entity that has adopted this entire chapter through the process described in Subsection 11-13-316; or
(c)
a county, municipality, or project entity, and each office of the county, municipality, or project entity that has adopted a portion of this chapter to the extent that:
(i)
a term in the ordinance is used in the adopted chapter; or
(ii)
a term in the ordinance is used in the language a project entity adopts in its procurement code through the process described in Section 11-13-316. See Utah Code 63G-6a-103
Nonadopting local government procurement unit: means :
(a)
a county or municipality that has not adopted 16, 17, 18, and 19; and
(b)
each office or agency of a county or municipality described in Subsection (50)(a). See Utah Code 63G-6a-103
Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
Procurement: means the acquisition of a procurement item through an expenditure of public funds, or an agreement to expend public funds, including an acquisition through a public-private partnership. See Utah Code 63G-6a-103
for the division or an independent procurement unit:
(i)
the procurement official;
(ii)
the procurement official's designee who is an employee of the procurement unit; or
(iii)
a person designated by rule made by the rulemaking authority; or
(b)
for a procurement unit other than an independent procurement unit, the chief procurement officer or the chief procurement officer's designee who is an employee of the division . See Utah Code 63G-6a-103
Public transit district: means a public transit district organized under 8. See Utah Code 63G-6a-103
Rulemaking authority: means :
(a)
for a legislative procurement unit, the Legislative Management Committee;
(b)
for a judicial procurement unit, the Judicial Council;
(c)
(i)
only to the extent of the procurement authority expressly granted to the procurement unit by statute:
(A)
for the facilities division, the facilities division;
(B)
for the Office of the Attorney General, the attorney general;
(C)
for the Department of Transportation created in Section 72-1-201, the executive director of the Department of Transportation; and
(D)
for any other executive branch department, division, office, or entity that has statutory procurement authority outside this chapter, the governing authority of the department, division, office, or entity; and
(ii)
for each other executive branch procurement unit, the board;
(d)
for a local government procurement unit:
(i)
the governing body of the local government unit; or
(ii)
an individual or body designated by the local government procurement unit;
(e)
for a school district or a public school, the board, except to the extent of a school district's own nonadministrative rules that do not conflict with the provisions of this chapter;
(f)
for a state institution of higher education, the Utah Board of Higher Education;
(g)
for the State Board of Education or the Utah Schools for the Deaf and the Blind, the State Board of Education;
(h)
for a public transit district, the chief executive of the public transit district;
(i)
for a special district other than a public transit district or for a special service district, the board, except to the extent that the board of trustees of the special district or the governing body of the special service district makes its own rules:
(i)
with respect to a subject addressed by board rules; or
(ii)
that are in addition to board rules;
(j)
for the Utah Educational Savings Plan, created in Section 53B-8a-103, the Utah Board of Higher Education;
(k)
for the School and Institutional Trust Lands Administration, created in Section 53C-1-201, the School and Institutional Trust Lands Board of Trustees;
(l)
for the School and Institutional Trust Fund Office, created in Section 53D-1-201, the School and Institutional Trust Fund Board of Trustees;
(m)
for the Utah Communications Authority, established in Section 63H-7a-201, the Utah Communications Authority board, created in Section 63H-7a-203; or
Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(2)
If the protest officer determines that the protest is not timely filed or that the protest does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest without holding a hearing.
(3)
If the protest officer determines that the protest is timely filed and complies fully with Section 63G-6a-1602, the protest officer shall:
(a)
dismiss the protest without holding a hearing if the protest officer determines that the protest alleges facts that, if true, do not provide an adequate basis for the protest;
(b)
uphold the protest without holding a hearing if the protest officer determines that the undisputed facts of the protest indicate that the protest should be upheld; or
(c)
hold a hearing on the protest if there is a genuine issue of material fact or law that needs to be resolved in order to determine whether the protest should be upheld.
(4)
(a)
If a hearing is held on a protest, the protest officer may:
(i)
subpoena witnesses and compel their attendance at the protest hearing;
(ii)
subpoena documents for production at the protest hearing;
(iii)
obtain additional factual information; and
(iv)
obtain testimony from experts, the person filing the protest, representatives of the procurement unit, or others to assist the protest officer to make a decision on the protest.
(b)
The Rules of Evidence do not apply to a protest hearing.
(c)
A rulemaking authority shall make rules relating to intervention in a protest, including designating:
(i)
who may intervene; and
(ii)
the time and manner of intervention.
(d)
A protest officer shall:
(i)
record each hearing held on a protest under this section;
(ii)
regardless of whether a hearing on a protest is held under this section, preserve all records and other evidence relied upon in reaching the protest officer’s written decision until the decision, and any appeal of the decision, becomes final; and
(iii)
if the protestor appeals the protest officer’s decision, submit the protest appeal record to the procurement policy board chair within seven days after receiving:
(A)
notice that an appeal of the protest officer’s decision has been filed under Section 63G-6a-1702; or
(B)
a request for the protest appeal record from the chair of the procurement policy board.
(e)
A protest officer’s holding a hearing, considering a protest, or issuing a written decision under this section does not affect a person’s right to later question or challenge the protest officer’s jurisdiction to hold the hearing, consider the protest, or issue the decision.
(5)
(a)
The deliberations of a protest officer may be held in private.
(b)
If the protest officer is a public body, as defined in Section 52-4-103, the protest officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.
(6)
(a)
A protest officer shall promptly issue a written decision regarding any protest, unless the protest is settled by mutual agreement.
(b)
The decision shall:
(i)
state the reasons for the action taken;
(ii)
inform the protestor of the right to judicial or administrative review as provided in this chapter; and
(iii)
indicate the amount of the security deposit or bond required under Section 63G-6a-1703.
(c)
A person who issues a decision under Subsection (6)(a) shall mail, email, or otherwise immediately furnish a copy of the decision to the protestor.
(7)
A decision described in this section is effective until stayed or reversed on appeal, except to the extent provided in Section 63G-6a-1903.
(8)
(a)
A decision described in Subsection (6)(a) that is issued in relation to a procurement unit other than a legislative procurement unit, a judicial procurement unit, a nonadopting local government procurement unit, or a public transit district is final and conclusive unless the protestor files an appeal under Section 63G-6a-1702.
(b)
A decision described in Subsection (6)(a) that is issued in relation to a legislative procurement unit, a judicial procurement unit, a nonadopting local government procurement unit, or a public transit district is final and conclusive unless the protestor files an appeal under Section 63G-6a-1802.
(9)
If the protest officer does not issue the written decision regarding a protest within 30 calendar days after the day on which the protest was filed with the protest officer, or within a longer period as may be agreed upon by the parties, the protester may proceed as if an adverse decision had been received.
(10)
A determination under this section by the protest officer regarding an issue of fact may not be overturned on appeal unless the decision is arbitrary and capricious or clearly erroneous.
(11)
An individual is not precluded from acting, and may not be disqualified or required to be recused from acting, as a protest officer because the individual also acted in another capacity during the procurement process, as required or allowed in this chapter.
