63G-6a-1702. Appeal to Utah StateProcurement Policy Board — Appointment of procurement appeals panel — Proceedings.
(1)
This part applies to all procurement units other than:
Terms Used In Utah Code 63G-6a-1702
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.
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
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
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
Remand: When an appellate court sends a case back to a lower court for further proceedings.
Responsible: means being capable, in all respects, of:
(a)
meeting all the requirements of a solicitation; and
(b)
fully performing all the requirements of the contract resulting from the solicitation, including being financially solvent with sufficient financial resources to perform the contract. See Utah Code 63G-6a-103
Solicitation: means an invitation for bids, request for proposals, or request for statement of qualifications. See Utah Code 63G-6a-103
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Uphold: The decision of an appellate court not to reverse a lower court decision.
(a)
a legislative procurement unit;
(b)
a judicial procurement unit;
(c)
a nonadopting local government procurement unit; or
(d)
a public transit district.
(2)
(a)
Subject to Section 63G-6a-1703, a protestor may appeal to the board a protest decision of a procurement unit that is subject to this part by filing a written notice of appeal with the chair of the board within seven days after:
(i)
the day on which the written decision described in Section 63G-6a-1603 is:
(A)
personally served on the party or the party’s representative; or
(B)
emailed or mailed to the address or email address provided by the party under Subsection 63G-6a-1602(4); or
(ii)
the day on which the 30-day period described in Subsection 63G-6a-1603(9) ends, if a written decision is not issued before the end of the 30-day period.
(b)
A notice of appeal under Subsection (2)(a) shall:
(i)
include the address of record and email address of record of the party filing the notice of appeal; and
(ii)
be accompanied by a copy of any written protest decision.
(c)
The deadline for appealing a protest decision may not be modified.
(3)
A person may not base an appeal of a protest under this section on:
(a)
a ground not specified in the person’s protest under Section 63G-6a-1602; or
(b)
new or additional evidence not considered by the protest officer.
(4)
(a)
A person may not appeal from a protest described in Section 63G-6a-1602, unless:
(i)
a decision on the protest has been issued; or
(ii)
a decision is not issued and the 30-day period described in Subsection 63G-6a-1603(9), or a longer period agreed to by the parties, has passed.
(b)
A procurement unit may not appeal a protest decision or other determination made by the procurement unit’s protest officer.
(5)
(a)
Within seven days after the chair of the board receives a written notice of an appeal under this section, the chair shall submit a written request to the protest officer for the protest appeal record.
(b)
Within seven days after the chair receives the protest appeal record from the protest officer, the appointing officer shall, in consultation with the attorney general’s office:
(i)
review the appeal to determine whether the appeal complies with the requirements of Subsections (2), (3), and (4) and Section 63G-6a-1703; and
(ii)
(A)
dismiss any claim asserted in the appeal, or dismiss the appeal, without holding a hearing if the appointing officer determines that the claim or appeal, respectively, fails to comply with any of the requirements listed in Subsection (5)(b)(i); or
(B)
appoint a procurement appeals panel to conduct an administrative review of any claim in the appeal that has not been dismissed under Subsection (5)(b)(ii)(A), if the appointing officer determines that one or more claims asserted in the appeal comply with the requirements listed in Subsection (5)(b)(i).
(c)
A procurement appeals panel appointed under Subsection (5)(a) shall consist of an odd number of at least three individuals, each of whom is:
(i)
a member of the board; or
(ii)
a designee of a member appointed under Subsection (5)(c)(i), if the designee is approved by the chair of the board.
(d)
The appointing officer shall appoint one of the members of the procurement appeals panel to serve as the coordinator of the panel.
(e)
The appointing officer may:
(i)
appoint the same procurement appeals panel to hear more than one appeal; or
(ii)
appoint a separate procurement appeals panel for each appeal.
(f)
The appointing officer may not appoint a person to a procurement appeals panel if the person is employed by the procurement unit responsible for the solicitation, contract award, or other action that is the subject of the protestor’s protest.
(g)
The appointing officer shall, at the time the procurement appeals panel is appointed, provide appeals panel members with a copy of the notice of appeal filed under Subsection (2) and the protest decision record.
(6)
(a)
A procurement appeals panel described in Subsection (5):
(i)
shall conduct an administrative review of the appeal within 30 days after the day on which the procurement appeals panel is appointed, or before a later date that all parties agree upon, unless the appeal is dismissed under Subsection (8)(a); and
(ii)
(A)
may, as part of the administrative review and at the sole discretion of the procurement appeals panel, conduct an informal hearing, if the procurement appeals panel considers a hearing to be necessary; and
(B)
if the procurement appeals panel conducts an informal hearing, shall, at least seven days before the hearing, mail, email, or hand-deliver a written notice of the hearing to the parties to the appeal.
(b)
A procurement appeals panel may, during an informal hearing, ask questions and receive responses regarding the appeal and the protest appeal record to assist the procurement appeals panel to understand the basis of the appeal and information contained in the protest appeal record, but may not otherwise take any additional evidence or consider any additional ground for the appeal.
(7)
A procurement appeals panel shall consider and decide the appeal based solely on:
(a)
the notice of appeal and the protest appeal record; and
(b)
responses received during an informal hearing, if an informal hearing is held and to the extent allowed under Subsection (6)(b).
(8)
A procurement appeals panel:
(a)
may dismiss an appeal if the appeal does not comply with the requirements of this chapter; and
(b)
shall uphold the protest decision unless the protest decision is arbitrary and capricious or clearly erroneous.
(9)
The procurement appeals panel shall, within seven days after the day on which the procurement appeals panel concludes the administrative review:
(a)
issue a written decision on the appeal; and
(b)
mail, email, or hand-deliver the written decision on the appeal to the parties to the appeal and to the protest officer.
(10)
(a)
The deliberations of a procurement appeals panel may be held in private.
(b)
If the procurement appeals panel is a public body, as defined in Section 52-4-103, the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its deliberations.
(11)
A procurement appeals panel may continue an administrative review under this section beyond the 30-day period described in Subsection (6)(a)(i) if the procurement appeals panel determines that the continuance is in the interests of justice.
(12)
If a procurement appeals panel determines that the decision of the protest officer is arbitrary and capricious or clearly erroneous, the procurement appeals panel:
(a)
shall remand the matter to the protest officer, to cure the problem or render a new decision;
(b)
may recommend action that the protest officer should take; and
(c)
may not order that:
(i)
a contract be awarded to a certain person;
(ii)
a contract or solicitation be cancelled; or
(iii)
any other action be taken other than the action described in Subsection (12)(a).
(13)
The board shall make rules relating to the conduct of an appeals proceeding, including rules that provide for:
(a)
expedited proceedings; and
(b)
electronic participation in the proceedings by panel members and participants.
(14)
The Rules of Evidence do not apply to a hearing held by a procurement appeals panel.
(15)
20, applies to the records involved in the process described in this section, including the decision issued by a procurement appeals panel.
