Utah Admin. Code R354-9-104 - Protest Officer Responsibilities and Authority - Proceedings on Protest - Effect of Decision

(1) After a protest is filed, the Procurement Official shall determine whether the protest is timely filed and complies fully with the requirements of Section R354-9-103.

(2) If the Procurement Official determines that the protest is not timely filed or that the protest does not fully comply with Section R354-9-103, the Procurement Official shall dismiss the protest without holding a hearing.

(3) If the Procurement Official determines that the protest is timely filed and complies fully with Section R354-9-103 the Procurement Official shall:

(a) dismiss the protest without holding a hearing if the Procurement Official determines that the protest alleges facts that, if true, do not provide an adequate basis for the protest;

(b) uphold the protest without holding a hearing if the Procurement Official determines that the undisputed facts of the protest indicate that the protest should be upheld; or

(c) hold a hearing on the protest if there is a genuine issue of material fact or law that needs to be resolved to determine whether the protest should be upheld.

(4)

(a) If a hearing is held on a protest, the Procurement Official may:

(i) subpoena witnesses and compel their attendance at the protest hearing;

(ii) subpoena documents for production at the protest hearing;

(iii) obtain additional information; and

(iv) obtain testimony from experts, the person filing the protest, representatives of the CRAU, or others to assist the Procurement Official to decide on the protest.

(b) The Rules of Evidence do not apply to a protest hearing.

(c) A rulemaking authority shall make rules relating to intervention in a protest, including designating:

(i) who may intervene; and

(ii) the time and manner of intervention.

(d) A Procurement Official shall:

(i) record each hearing held on a protest under this section;

(ii) regardless of whether a hearing on a protest is held under this section, preserve any records and other evidence relied upon in reaching the Procurement Official's written decision until the decision, and any appeal of the decision, becomes final; and

(iii) if the Protestor appeals the Procurement Official's decision, submit the Protest Appeal Record to the Procurement policy board chair within seven days after receiving:

(A) notice that an appeal of the Procurement Official's decision has been filed under Section R354-10-103; or

(B) a request for the Protest Appeal Record from the chair of the Procurement policy board.

(e) A Procurement Official's holding a hearing, considering a protest, or issuing a written decision under this section does not affect a person's right to late question or challenge the Procurement Official's jurisdiction to hold the hearing, consider the protest, or issue the decision.

(5) The deliberations of a Procurement Official may be held in private.

(6)

(a) A Procurement Official shall promptly issue a written decision regarding any protest, unless the protest is settled by mutual agreement.

(b) The decision shall:

(i) state the reasons for the action taken;

(ii) inform the Protestor of the right to judicial or administrative review as provided in this chapter; and

(iii) indicate the amount of the security deposit or bond required under Section R354-10-104.

(c) A person who issues a decision under Subsection (6)(a) shall mail, email, or otherwise immediately furnish a copy of the decision to the Protestor.

(7) A decision described in this section is effective until stayed or reversed on appeal, except to the extent provided in Section R354-12-103.

(8)

(a) A decision described in Subsection (6)(a) that is issued in relation to the CRAU is final and conclusive unless the Protestor files an appeal under Section R354-10-103.

(b) A decision described in Subsection (6)(a) that is issued in relation to a legislative Procurement unit, a judicial Procurement unit, a nonadopting local government Procurement unit, or a public transit district is final and conclusive unless the Protestor files an appeal under Section R354-11-102.

(9) If the Procurement Official does not issue the written decision regarding a protest within 30 calendar days after the day on which the protest was filed with the Procurement Official, or within a longer period as may be agreed upon by the parties, the Protestor may proceed as if an adverse decision had been received.

(10) A determination under this section by the Procurement Official regarding an issue of fact may not be overturned on appeal unless the decision is arbitrary and capricious or clearly erroneous.

(11) An individual is not precluded from acting and may not be disqualified or required to be recused from acting, as a Procurement Official because the individual also acted in another capacity during the Procurement process, as required or allowed in this rule.

Notes

Utah Admin. Code R354-9-104

Adopted by Utah State Bulletin Number 2022-02, effective 12/28/2021