Utah Admin. Code R354-10-103 - Appointment of Procurement Appeals Panel - Proceedings

(1)

(a) Subject to R354-10-104, a Protestor may appeal to the chair of the Board a protest decision of the Procurement Official that is subject to this rule 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 R354-9-104 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 1-9-103(4); or

(ii) the day on which the 30-day period described in Subsection R354-9-104(9) ends, if a written decision is not issued before the end of the 30-day period.

(b) A notice of appeal under Subsection (1)(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.

(2) 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 R354-9-103; or

(b) new or additional evidence not considered by the Procurement Official.

(3)

(a) A person may not appeal from a protest described in Section R354-9-103, 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 R354-9-104(9), or a longer period agreed to by the parties, has passed.

(b) The CRAU may not appeal a protest decision or other determination made by the Procurement Official.

(4)

(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 Procurement Official for the Protest Appeal Record.

(b) Within seven days after the chair receives the Protest Appeal Record from the Procurement Official, the Appointing Officer shall, in consultation with the attorney general's office or approved outside counsel:

(i) review the appeal to determine whether the appeal complies with the requirements of Subsections (2), (3), and (4) and Section R354-10-104; 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)(a)(i); or

(B) conduct an administrative review sitting as the Procurement Appeals Panel or appoint a Procurement Appeals Panel to conduct an administrative review of any claim in the appeal that has not been dismissed under Subsection (5)(a)(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. The Appointing Officer selects the panel members. The members may be:

(i) a member of the Board; or

(ii) a designee of a member appointed under Subsection (5), 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 CRAU 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.

(5)

(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 Appointing Officer chose to either hear the appealed or, if appoint a panel, 30 days after the Procurement Appeals Panel is appointed, or before a later date that any 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.

(6) 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).

(7) A Procurement Appeals Panel:

(a) may dismiss an appeal if the appeal does not comply with the requirements of this rule; and

(b) shall uphold the protest decision unless the protest decision is arbitrary and capricious or clearly erroneous.

(8) 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 Procurement Official.

(9)

(a) The deliberation 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.

(10) 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.

(11) If a Procurement Appeals Panel determines that the decision of the Procurement Official is arbitrary and capricious or clearly erroneous, the Procurement Appeals Panel:

(a) shall remand the matter to the Procurement Official, to cure the problem or render a new decision;

(b) may recommend action that the Procurement Official 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).

(12) The Procurement Official may adopt policies 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.

(13) The Rules of Evidence do not apply to a hearing held by a Procurement Appeals Panel.

(14) Rule R354-13 applies to the records involved in the process described in this section, including the decision issued by a Procurement Appeals Panel.

Notes

Utah Admin. Code R354-10-103

Adopted by Utah State Bulletin Number 2022-03, effective 12/28/2021