18-554 C.M.R. ch. 120, § 3 - APPEAL HEARINGS

1. APPEAL COMMITTEE: The Appeal Committee shall consist of three (3) people, two appointed by the Commissioner of Administrative & Financial Services. The third person is the Director of the Division of Purchases or other designee of the Director of the Bureau of General Services. This Committee shall appoint a person to serve as presiding officer over the hearing. This person may be one of the Committee members or any other person who has no direct or indirect personal, professional or financial conflict of interest in the appeal This person cannot be an employee of any department affected by the contract. The presiding officer, if not from the ranks of the Appeal Committee shall have no vote in the decision but may provide advice, information or research at the request of the Committee.

The presiding officer shall control all aspects of the hearing, rule on points of order, rule on all objections and may question witnesses.

A recording secretary shall be furnished by the Division of Purchases to record by audio tape or other media the hearing of appeal. This person shall be responsible for scheduling additional hearing days and locations at the request of the Appeal Committee.

2. APPEAL CRITERIA: The burden of proof within the hearing of appeal lies with the petitioner. The evidence presented must specifically address and be limited to one or more of the following:

A. Violation of law;

B. Irregularities creating fundamental unfairness; or

C. Arbitrary or capricious award

Evidence of any type that cannot be related to this criteria may be ruled inadmissible by the presiding officer.

In the event multiple appeal hearing requests are granted on a single contract award, the Director of the Bureau of General Services may assign the Appeal Committee to hear all petitioners within the same hearing as a combined appeal.

3. PARTICIPANTS: The petitioners may participate alone or be presented by Counsel or other agent. The State shall be represented by the contracting agency and/or its Counsel. Other parties of interest may petition to intervene. Such petition shall be presented in writing to the Director of the Division of Purchases who shall determine and allow or disallow participation in writing within seven (7) calendar days of receipt of the request to intervene. Copies of this notification shall be sent to all Appeal Committee members, the presiding officer, the Appellant and the contracting State agency.

4. PRESENTATION OF EVIDENCE: The petitioner must present evidence to substantiate the specific grievances stated in the appeal. Brief opening statements directed to the Appeal Committee may be made by the petitioner, the contracting State agency and any intervenors, in that order.

A. The petitioner shall present evidence first, using witnesses and exhibits who may be cross examined by the State and the intervenors. Re-direct questioning related to issues raised during cross examination only may, be done by the petitioner, followed by re-cross examination by the State and intervenors.

B.Witnesses may be called who can present factual information related directly to the appeal. All witnesses shall be sworn. To expedite the proceeding, testimony of any witness may be prefiled in written form. If used, pre-filed testimony must be made available to the State, the Appeal Committee, presiding officer and all intervenors on the preceding work day, a minimum of twenty-four (24) hours prior to the hearing. Every such witness shall be subject to cross examination.

C. EXHIBITS: Exhibits relating to any issue of fact in the proceeding may be presented. Documentary evidence may be incorporated into the record by reference when the materials so incorporated are made available for examination by the parties before being received in evidence.

(1) COPIES: petitioner must furnish copies of all documentary evidence to the presiding officer, Appeal Committee, contracting State agency and all intervenors. Any costs associated with this subparagraph are the responsibility of the petitioner and shall not be recovered by any judgment of the Committee.

5. STATE/INTERVENOR EVIDENCE: The contracting State agency and all intervenors shall have the opportunity to subject evidence relevant to the appeal through witnesses and exhibits. The procedures for presenting this evidence are the same as those for the petitioner, substituting the words "contracting State agency" or "intervenor" for petitioner.

A. The order of examination and cross examination when the State presents evidence is state, all intervenors, and the petitioner.

B The order of the examination and cross examination when an intervenor presents evidence shall be remaining intervenors (if any), the State and the petitioner.

6. SUBPOENA OF WITNESSES: In the event a witness is not willing to voluntarily testify, the Appeal Committee, subject to the approval of the Attorney General, shall issue a subpoena to require attendance, testimony and the production of any evidence relating to any issue of fact in the proceeding.

A. EXPENSES; Any expenses incurred by witnesses called by any party or intervenor shall be sole responsibility of the petitioner and shall not be recovered by any judgment of the Committee.

7. APPEAL COMMITTEE: The Appeal Committee may ask questions for clarification at any point throughout the direct and cross examinations. In addition, the Appeal Committee may ask questions after the direct and cross examination, may request additional witnesses, and may recall any witness for additional questioning.

8. RECORD: All evidence received or considered shall be part of the record. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The presiding officer may exclude irrelevant or unduly repetitious evidence. No sworn written evidence shall be admitted unless the author is available for cross examination or subject to subpoena, except for good cause shown.

Notes

18-554 C.M.R. ch. 120, § 3