Ariz. Admin. Code § R6-6-2115 - Legal and Contractual Remedies

Current through Register Vol. 27, No. 52, December 24, 2021

A. The remedies in this Section apply to protests of the posting of a Request for Qualified Vendor Applications, the denial of a Qualified Vendor Application in its entirety, or denial of one or more services included in the Qualified Vendor Application. An applicant or Qualified Vendor may protest by filing:
1. A written Request for Problem Solving with the Division Assistant Director, or
2. A Notice of Protest with the Department procurement officer.
B. Request for Problem Solving.
1. The Qualified Vendor or Qualified Vendor Applicant shall include the following information in the Request for Problem Solving:
a. Name, address, and telephone number of the protester,
b. Signature of the protester or its representative,
c. Identification of the adverse action by the Division that is in dispute,
d. A statement of the legal and factual grounds of the intended protest, including copies of any relevant documents, and
e. The relief requested.
2. The Qualified Vendor or Qualified Vendor Applicant shall file the Request for Problem Solving with the Division within 21 days of the date the Qualified Vendor or Applicant receives notice of the action.
3. The Request for Problem Solving is deemed filed when the Division receives the written document.
4. Within 21 days of the filing the Request for Problem Solving, the Assistant Director shall reach resolution or determine that resolution cannot be reached.
5. If resolution is reached and documented, the Qualified Vendor or Qualified Vendor Applicant shall not be entitled to pursue further legal remedies with regard to the protested issue.
6. If resolution cannot be reached, the Assistant Director shall issue written verification to the Qualified Vendor or Qualified Vendor Applicant that the matter was not resolved. To pursue further review, the Qualified Vendor or Applicant shall file a Notice of Protest with the Department procurement officer, within 14 days of the issuance of verification.
C. Notice of Protest.
1. The protester shall include the following information in the Notice of Protest:
a. Name, address, and telephone number of the protester,
b. Signature of the protester or its representative,
c. Identification of the action by the Division that is in dispute,
d. A statement of the legal and factual grounds of the intended protest including copies of any relevant documents, and
e. The relief requested.
2. The protester shall file the Notice of Protest with the Department procurement officer within 21 days of the date the protester receives notice of the action or within 14 days of issuance of the verification of non-resolution through the Problem Solving process from the Assistant Director.
3. The Notice of Protest is deemed filed when the Department procurement officer receives the written document.
4. If a Notice of Protest is filed before the award of Qualified Vendor Agreements, the Division may enter into Qualified Vendor Agreements unless the Department procurement officer makes a written determination that there is reasonable probability that the protest will be sustained and that delay is consistent with the best interests of the state.
5. If applicable, the protester shall include in the Notice of Protest a copy of the original Request for Problem Solving documentation and of the verification from the Assistant Director.
6. If the Department procurement officer sustains the protest in whole or part, and determines that the Request for Qualified Vendor Applications, proposed Qualified Vendor Agreement, or Qualified Vendor Agreement denial does not comply with applicable statutes and rules, the Department procurement officer shall implement an appropriate remedy as prescribed in subsection (C)(8).
7. In determining the appropriate remedy, the Department procurement officer shall consider the following:
a. Circumstances surrounding the procurement or proposed procurement,
b. The seriousness of the procurement deficiency,
c. The degree of prejudice to other interested parties,
d. The degree of prejudice to the integrity of the procurement system,
e. The good faith of the parties,
f. The extent of performance,
g. The costs to the state,
h. The urgency of the procurement, and
i. The impact of the relief on the Department's mission.
8. The Department procurement officer may consider the following actions, alone or in combination, as an appropriate remedy:
a. Decline to exercise an option to renew under the Qualified Vendor Agreement,
b. Terminate the Qualified Vendor Agreement,
c. Reissue the Request for Qualified Vendor Applications,
d. Issue a new Request for Qualified Vendor Applications,
e. Include the Qualified Vendor in the list of respondents to a Vendor Call for Services,
f. Award a Qualified Vendor Agreement as provided in these procurement rules, or
g. Any other remedial action that is reasonable and appropriate under the circumstances.
9. Within 21 days of receipt of the Notice of Protest, the Department procurement officer shall send a written decision to the protester by certified mail, return receipt requested, or by any other method that provides evidence of receipt and shall send a copy of the decision to the Division. The Department procurement officer shall explain the reasons for the conclusions reached in the decision.
10. Upon receipt of the decision from the Department procurement officer, the protester may file an appeal with the Department's Office of Appeals as authorized in A.R.S. §§ 41-1991, 41-1992(A) through (C), excluding any references to review by the Appeals Board, and A.R.S. § 41-1993(A).
11. The protester may proceed to the next level of appeal if the protester does not receive a response within 21 days.
12. Upon receipt of the decision from the Department's Office of Appeals, the protester may seek relief through the Superior Court as provided in A.R.S. § 12-901 et seq.

Notes

Ariz. Admin. Code § R6-6-2115
New Section made by exempt rulemaking at 9 A.A.R. 170, effective February 1, 2003 (Supp. 03-1). Amended by exempt rulemaking at 9 A.A.R. 4656, effective October 9, 2003 (Supp. 03-4).

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