67-9232. CHALLENGES AND APPEALS. (1) Bid specifications.

(a) There shall be, beginning with the date of receipt of notice, a period of not more than ten (10) working days in which any vendor, qualified and able to sell or supply the items to be acquired, may notify the administrator in writing of his intention to challenge the specifications and shall specifically state the exact nature of his challenge. The specific challenge shall describe the location of the challenged portion or clause in the specification document, unless the challenge concerns an omission, explain why any provision should be struck, added or altered, and contain suggested corrections.

(b) Upon receipt of the challenge, the administrator shall either deny the challenge, and such denial shall be considered the final agency decision, or he shall present the matter to the director for appointment of a determinations officer. If the director appoints a determinations officer, then all vendors, who are invited to bid on the property sought to be acquired, shall be notified of the appeal and the appointment of a determinations officer and may indicate in writing their agreement or disagreement with the challenge within five (5) days. The notice to the vendors may be electronic. Any vendor may note his agreement or disagreement with the challenge. The determinations officer may, on his own motion, refer the challenge portion and any related portions of the challenge to the author of the specification to be rewritten with the advice and comments of the vendors capable of supplying the property, rewrite the specification himself and/or reject all or any part of any challenge. If specifications are to be rewritten, the matter shall be continued until the determinations officer makes a final determination of the acceptability of the revised specifications.

(c) The administrator shall reset the bid opening no later than fifteen (15) days after final determination of challenges or the amendment of the specifications. If the administrator denies the challenge, then the bid opening date shall not be reset.

(d) The final decision of the determinations officer or administrator on the challenge to specifications shall not be considered a contested case within the meaning of the administrative procedure act; provided that a vendor disagreeing with specifications may include such disagreement as a reason for asking for appointment of a determinations officer pursuant to subsection (3) of this section.

(2) Nonresponsive bids.

(a) There shall be, beginning with the day following receipt of notice of rejection, a period of five (5) working days in which a bidder whose bid was found nonresponsive may appeal such decision to the director of the department of administration. A nonresponsive bid, within the meaning of this chapter, is a bid that does not comply with the bid invitation and specifications and shall not apply to a vendor whose bid is considered but who is determined not to be the lowest responsible bidder as defined in this chapter. The director shall:

(i) Deny the application; or

(ii) Appoint a determinations officer to review the record and submit a recommended order to the director to affirm or reverse the administrator’s decision of bid nonresponsiveness.

(b) The director shall, upon receipt of a written recommendation from the determinations officer, sustain, modify or reverse the administrator’s nonresponsive bid decision. An appeal conducted under the provisions of this subsection shall not be considered a contested case and shall not be subject to judicial review under the provisions of chapter 52, title 67, Idaho Code.

(3) Lowest responsible bidder.

(a) A vendor whose bid is considered may, within five (5) working days following receipt of notice that he is not the lowest responsible bidder, apply to the director for appointment of a determinations officer. The application shall set forth in specific terms the reasons why the administrator’s decision is thought to be erroneous. Upon receipt of the application, the director shall within five (5) working days:

(i) Deny the application, and such denial shall be considered the final agency decision;

(ii) Appoint a determinations officer to review the record to determine whether the administrator’s selection of the lowest responsible bidder is correct; or

(iii) Appoint a determinations officer with authority to conduct a contested case hearing in accordance with the provisions of chapter 52, title 67, Idaho Code.

(b) A determinations officer appointed pursuant to paragraph (a)(ii) of this subsection shall inform the director by written recommendation whether, in his opinion, the administrator’s selection of the lowest responsible bidder is correct. The determinations officer in making this recommendation may rely on the documents of record, statements of employees of the state of Idaho participating in any phase of the selection process, and statements of any vendor submitting a bid. A contested case hearing shall not be allowed and the determinations officer shall not be required to solicit statements from any person. Upon receipt of the recommendation from the determinations officer, the director shall sustain, modify or reverse the decision of the administrator on the selection of the lowest responsible bidder, or the director may appoint a determinations officer pursuant to paragraph (a)(iii) of this subsection.

(c) A determinations officer appointed pursuant to paragraph (a)(iii) of this subsection shall conduct a contested case hearing and upon conclusion of the hearing shall prepare findings of fact, conclusions of law and a recommended order for the director of the department of administration. Upon receipt of the findings of fact, conclusions of law and recommended order, the director shall enter a final order sustaining, modifying or reversing the decision of the administrator on the selection of the lowest responsible bidder.

(4) Sole source procurement.

(a) In the case of a sole source procurement, there shall be a period of not more than five (5) working days from the last date of public notice in which any vendor, able to sell or supply the property to be acquired, may notify the administrator, in writing, of his intention to challenge the sole source procurement and briefly explain the nature of the challenge.

(b) Upon receipt of the challenge, the director shall either:

(i) Deny the application; or

(ii) Appoint a determinations officer to review the record and submit a recommended order to the director to affirm or reverse the administrator’s sole source determination.

(c) The director shall, upon receipt of a written recommendation from the determinations officer, sustain, modify or reverse the administrator’s sole source determination. An appeal conducted under the provisions of this subsection shall not be considered a contested case and shall not be subject to judicial review under the provisions of chapter 52, title 67, Idaho Code.

(5) The administrator may, on his own initiative, file a complaint with the director for a hearing before a determinations officer. The director shall appoint a determinations officer who shall make written recommendations to the director and the director shall render whatever decision is necessary to resolve the complaint.

(6) The director is hereby authorized and directed to appoint a determinations officer whenever one is required by this chapter. The officer shall meet and render whatever determination is called for. When a complaint is filed pursuant to subsection (2) of this section, no bid may be awarded until the final decision is rendered by the director; provided that in all other cases where a determinations officer is appointed by the director, the director shall have the power to allow the acquisition contract to be awarded to the successful bidder prior to or after the decision of the determinations officer if he determines such award to be in the best interests of the state. Any determinations officer appointed pursuant to this section shall exist only for the duration of unresolved complaints on an acquisition and shall be dismissed upon resolution of all such complaints. The determinations officer shall be guided in his determination by the best economic interests of the state for both the near future and more extended periods of time. In addition to the powers conferred on the determinations officer, the director may:

(a) Impose the penalty prescribed by section 67-9231(3), Idaho Code;

(b) Enjoin any activity that violates this chapter;

(c) Direct that bids be rejected or sustained;

(d) Direct that specifications be rejected, sustained or modified; and

(e) Direct further legal action.

(7) Challenges or appeals conducted pursuant to subsection (1), (2), (3)(a)(i) or 3(a)(ii) of this section shall not be considered to be a contested case as that term is defined in the administrative procedure act. An appeal conducted pursuant to subsection (3)(a)(iii) of this section shall be conducted as a contested case according to the provisions of chapter 52, title 67, Idaho Code.

History:

[67-9232, added 2016, ch. 289, sec. 4, p. 802.]