Oklahoma Administrative Code › Title 260 - Office of Management and Enterprise Services › Chapter 115 - Procurement › Subchapter 3 - Supplier Provisions › Section 260:115-3-19 - Supplier's Protest

Current through Vol. 41, No. 20, July 1, 2024
(a) A supplier may
				protest a contract award by a state agency or OMES to the State Purchasing
				Director. All remedies available to suppliers through the sealed bid process
				pursuant to the Oklahoma Central Purchasing Act are also available to online
				bidders in an online bidding process.
(1)
Supplier notification.
A supplier shall submit written notice to
				the State Purchasing Director of a protest of an award of contract by a state
				agency or OMES within ten (10) business days of contract award. The supplier
				protest notice shall state all facts and reasons in specificity for protest.
(2)
State Purchasing
				Director review and determination.
The State Purchasing Director shall
				review the supplier's protest and contract award documents.
(A) The State Purchasing Director may
				determine to respond to the protest or delegate the responsibility by written
				notice to the state agency that awarded the contract.
(B) The State Purchasing Director or state
				agency, whichever is applicable, shall send written notice of the decision to
				deny or sustain the protest to the supplier within ten (10) business days of
				receipt of the protest.
(3)
Supplier appeal of decision to deny
				protest.
The supplier may appeal a denial of protest by the State
				Purchasing Director or a state agency to the OMES Director.
(A) Such appeal shall be filed by the
				supplier within ten (10) business days of the date of the State Purchasing
				Director's or state agency's notice of denial pursuant to 75 O.S.
				§§309 et seq.
(B) The
				OMES Director may enter an order staying contract performance upon such terms
				and conditions as the OMES Director determines to be proper. Any request for
				stay of contract performance must be made in writing and filed during the ten
				(10) business day time period in which an appeal may be commenced to the OMES
				Director. The OMES Director shall have continuing jurisdiction to modify any
				such orders made in connection with a stay during the pendency of the appeal as
				appropriate under the circumstances presented.
(4)
Director actions and
				determination.
The OMES director may hear the appeal or assign the
				supplier's appeal to an Administrative Law Judge retained by the agency.
(A) If the appeal is assigned to an
				Administrative Law Judge, the Administrative Law Judge shall review the appeal
				for legal authority and jurisdiction. If legal authority and jurisdictional
				requirements are met, the Administrative Law Judge shall conduct an
				administrative hearing and provide proposed findings of fact and conclusions of
				law to the OMES Director.
(B) If
				the appeal is heard by the OMES Director, the OMES Director shall have all
				powers granted by law including all powers delegated to the Administrative Law
				Judge by this section.
(C) The OMES
				Director shall send written notice of the final order sustaining or denying the
				supplier's appeal to the parties.
(D) The cost of actions necessary to process
				a supplier's appeal, together with any other expenses incurred due to the
				appeal, shall be paid by the state agency responsible for the initial
				solicitation.
(5)
Conduct of administrative hearing.
Administrative hearings shall
				be conducted in accordance with the Administrative Procedures Act [Reference 75
				O.S. §§250 et seq.] and the following procedures:
(A)
Prehearing conference.
A
				prehearing conference shall be scheduled to determine the legal or factual
				issues which shall be limited to those brought by the supplier in its initial
				protest to the State Purchasing Director.
(B)
Burden of proof.
The burden
				of proof shall be upon the supplier, which must prove its case by a
				preponderance of the evidence. A preponderance of the evidence is that evidence
				which, in light of the record as a whole, leads the Administrative Law Judge to
				believe a fact is more probably true than not true.
(C)
Representation.
Corporations
				must be represented by legal counsel in accordance with Oklahoma law. Legal
				counsel must be licensed or registered pursuant to the Rules Creating and
				Controlling the Oklahoma Bar Association.
(D)
Proper parties.
In addition
				to the supplier protesting the contract award, OMES, the supplier awarded the
				contract and the state agency for which the bid was let may participate in the
				bid protest proceedings as a proper party.
(E)
Discovery.
The conduct of
				discovery is governed by the Administrative Procedures Act, 75 O.S.
				§§ 309 et seq. and other applicable law.
(F)
Authority of the Administrative Law
				Judge.
The Administrative Law Judge may:
(i) Establish a scheduling order;
(ii) Establish reasonable procedures such as
				authorizing pleadings to be filed by facsimile or electronic mail;
(iii) Rule on all interlocutory motions;
(iv) Require briefing of any or
				all issues;
(v) Conduct hearings;
(vi) Rule on the admissibility of
				all evidence;
(vii) Question
				witnesses; and
(viii) Make proposed
				findings of facts and conclusions of law to the OMES
				Director.
(G)
Remedies.
The Administrative Law Judge may recommend that the OMES
				Director deny the supplier's appeal or that the contract award be cancelled and
				rebid.
(6)
Supplier
				appeal of OMES Director decision to deny appeal.
If the OMES Director
				denies a supplier's appeal, the supplier may appeal pursuant to provisions of
				75 O.S. §§ 309 et seq.