Iowa Code r. 129-11.3 - Filing an appeal
(1)
Notice
of intent to appeal. Any vendor that filed a timely bid or proposal
and that is aggrieved or adversely affected by an award ("appellant"),
including a decision of the purchasing entity to disqualify a vendor, may
appeal the decision by filing a notice of intent to appeal with the entity
issuing the competitive selection documents or other applicable solicitation
documents ("purchasing entity") to the purchasing entity's address as
identified in the competitive selection documents or other applicable
solicitation documents. The purchasing entity must actually receive the notice
of intent to appeal within the time frame specified in the competitive
selection documents or other applicable solicitation documents for the notice
of intent to appeal and thereby the appeal to be considered timely. If the
competitive selection documents or other applicable solicitation documents are
silent on the time frame to appeal, the time frame shall be five days from the
date of the issuance of the notice of intent to award. Failure to timely file a
notice of intent to appeal will result in dismissal.
(2)
Initial disclosures-public,
redacted proposals and evaluation materials. Following the purchasing
entity's receipt of the notice of intent to appeal, the purchasing entity will
transmit to the appellant a public copy from which claimed confidential or
proprietary information has been excised of the awardee's proposal and, to the
extent applicable, evaluation committee materials, documentation, analysis, and
results. Upon written request of the appellant, the purchasing entity will
provide a public copy from which claimed confidential or proprietary
information has been excised of unsuccessful vendors' proposals. The appellant
shall be entitled to no additional discovery, materials, or information in
furtherance of the appellant's appeal unless and until the proceedings advance
to a second-tier review.
(3)
Notice of appeal. Within five days of the appellant's receipt
of the initial disclosures required by subrule 11.3(2), the appellant shall
file a formal notice of appeal with the purchasing entity to the purchasing
entity's address as identified in the competitive selection documents or other
applicable solicitation documents. Such notice of appeal shall conform to and
comply with the form and format and content requirements set forth in subrules
11.3(4) and 11.3(5). The purchasing entity must actually receive the notice of
appeal within the five-day time frame. Failure to timely file a notice of
appeal will result in dismissal.
(4)
Form and format. Notices
of appeal should be concise and logically arranged. No other technical forms of
pleading are required.
(5)
Contents. Notice pleading is not permitted. The notice of
appeal shall:
a. Include the name, address,
email address, and telephone and facsimile numbers of the vendor;
b. Be signed by the vendor or the vendor's
authorized representative;
c.
Identify the specific award forming the basis of the vendor's
challenge;
d. Set forth information
establishing the timeliness of the appeal;
e. State the specific legal and factual
grounds upon which the vendor is appealing the award, in a manner that ties the
underlying factual assertions to the legal grounds forming the basis of the
appeal;
f. Describe how the vendor
is aggrieved or adversely affected by the award;
g. If applicable, explain whether and why the
vendor failed to raise the issue(s) raised in the appeal through a request for
clarification process or other question and answer process available during the
competitive selection process;
h.
State that the vendor agrees and consents to, and by submitting its notice of
appeal to the purchasing entity stipulates to the entry of, a protective order
as a condition precedent to receiving any documents or information containing
or comprised of, in whole or in part, confidential or proprietary information
relevant to the vendor's appeal should the matter proceed to a second-tier
review; and
i. Set forth the
specific relief requested, i.e., whether the vendor is requesting that the
award be reversed in its entirety or remanded back to the purchasing entity to
correct any legal errors.
(6)
Public records. A notice
of appeal shall be considered a public record and may be distributed to third
parties, including to the vendor's competitors, in accordance with rule
129-11.4 (8B). If the vendor believes the notice of appeal contains information
that should be maintained by the purchasing entity as proprietary or
confidential in accordance with applicable law, the vendor must conspicuously
identify such a request on the first page of the notice of appeal; mark each
page upon which confidential or proprietary information appears; submit a
public copy from which claimed confidential or proprietary information has been
excised (information must be excised in such a way as to allow the public to
determine the general nature of the information removed and to retain as much
of the otherwise public evidence and information as possible); enumerate the
specific grounds in Iowa Code chapter 22 or other applicable law that support
treatment of the specific information as confidential in the notice of appeal;
and explain why disclosure of the specific information would not be in the best
interest of the public in the notice of appeal. Notwithstanding the foregoing,
intervenors, including competitors of the vendor filing the notice of appeal,
may still receive an unredacted copy of a notice of appeal subject to the
protective order requirements and processes set forth in this
chapter.
(7)
Failure to
comply. An appeal may be dismissed for failure to comply with any of
the requirements of this rule.
Notes
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