Ariz. Admin. Code § 9-22-604

Current through Register Vol. 30, No. 38, September 20, 2024

Section R9-22-604 - Contract or Proposal Protests; Appeals

A. Disputes related to contract performance. This Section does not apply to a dispute related to contract performance. A contract performance dispute is governed by 9 A.A.C. 34.

B. Resolution of a proposal protest. The procurement officer issuing a RFP shall have the authority to resolve proposal protests. An appeal from the decision of the procurement officer shall be made to the Director.

C. Filing of a protest.

1. A person may file a protest with the procurement officer regarding:

a. A RFP issued by the Administration,

b. A proposed award, or

c. An award of a contract.

2. A protester shall submit a written protest and include the following information:

a. The name, address, and telephone number of the protester;

b. The signature of the protester or protester's representative;

c. Identification of a RFP or contract number;

d. A detailed statement of the legal and factual grounds of the protest including copies of any relevant documents; and

e. The relief requested.

D. Time for filing a protest.

1. A protester filing a protest alleging improprieties in an RFP or an amendment to an RFP shall file the protest at least 14 days before the due date of receipt of proposals.

2. Any protest alleging improprieties in an amendment issued 14 or fewer days before the due date of the proposal shall be filed before the due date for receipt of proposals.

3. In cases other than those covered in subsections (D)(1) and (2), a protester shall file a protest no later than 10 days after the procurement officer makes the procurement file available for public inspection.

E. Stay of procurement during the protest. If a protester files a protest before the contract award, the procurement officer may issue a written stay of the contract award. In considering whether to issue a written stay of contract, the procurement officer shall consider but is not limited to considering whether:

1. A reasonable probability exists that the protest will be sustained, and

2. The stay of the contract award is in the best interest of the state.

F. Stay of contract award during an appeal to the Director. The Director shall automatically continue the stay of a contract award if:

1. An appeal is filed before a contract award, and

2. The procurement officer issues a stay of the contract award under subsection (E), unless

3. The Director issues a written determination that the contract award is necessary to protect the best interest of the state.

G. Decision by the procurement officer.

1. The procurement officer shall issue a written decision no later than 14 days after a protest has been filed. The decision shall contain an explanation of the basis of the decision.

2. The procurement officer shall furnish a copy of the decision to the protester by:

a. Certified mail, return receipt requested; or

b. Any other method that provides evidence of receipt.

3. The Administration may extend, for good cause, the time-limit for decisions in subsection (G)(1) for a time not to exceed 30 days. The procurement officer shall notify the protester in writing that the time for the issuance of a decision has been extended and the date by which a decision shall be issued.

4. If the procurement officer fails to issue a decision within the time-limits in subsection (G)(1) or (G)(3), the protester may proceed as if the procurement officer issued an adverse decision.

H. Remedies.

1. If the procurement officer sustains the protest in whole or in part and determines that the RFP, proposed contract award, or contract award does not comply with applicable statutes and rules, the procurement officer shall order an appropriate remedy.

2. In determining an appropriate remedy, the procurement officer shall consider all the circumstances of the procurement or proposed procurement, including:

a. Seriousness of the procurement deficiency,

b. Degree of prejudice to other interested parties or to the integrity of the RFP process,

c. Good faith of the parties,

d. Extent of performance,

e. Costs to the state, and

f. Urgency of the procurement.

g. Best interest of the state.

3. An appropriate remedy may include one or more of the following:

a. Terminating the contract;

b. Reissuing the RFP;

c. Issuing a new RFP;

d. Awarding a contract consistent with statutes, rules, and the terms of the RFP; or

e. Any relief determined necessary to ensure compliance with applicable statutes and rules.

I. Appeals to the Director.

1. A person may file an appeal of a procurement officer's decision with both the Director and the procurement officer no later than five days from the date the decision is received. The date the decision is received shall be determined under subsection (G)(2).

2. The appeal shall contain:

a. The information required in subsection (C)(2),

b. A copy of the procurement officer's decision,

c. The alleged factual or legal error in the decision of the procurement officer on which the appeal to the Director is based, and

d. A request for hearing unless the person requests that the Director's decision be based solely upon the procurement file.

J. Dismissal. The Director shall not schedule a hearing and shall dismiss an appeal with a written determination if:

1. The appeal does not state a basis for protest,

2. The appeal is untimely under subsection (I)(1), or

3. The appeal is moot.

K. Hearing. Hearings under this Section shall be conducted using the Arizona Administrative Procedure Act under A.R.S. Title 41, Ch. 6.

Ariz. Admin. Code § R9-22-604

Adopted effective July 16, 1985 (Supp. 85-4). Section repealed, new Section adopted by final rulemaking at 5 A.A.R. 607, effective February 5, 1999 (Supp. 99-1). Amended by final rulemaking at 8 A.A.R. 424, effective January 10, 2002 (Supp. 02-1). Amended by final rulemaking at 18 A.A.R. 2340, effective November 11, 2012 (Supp. 12-3).