SECTION 260:65-1-12. Bid protests

  A bidder may protest a contract award by a state agency or the Construction and Properties Department to the State Construction Administrator. All remedies available to bidders through the sealed bid process pursuant to the Public Building Construction and Planning Act or the Oklahoma Central Purchasing Act are also available to online bidders in an online bidding process.

(1)   Bidder notification. A bidder shall submit written notice to the Administrator of a protest of an award of contract by a state agency or the Department within ten (10) business days of contract award. The protest notice shall state bidder facts and reasons for protest.

(2)   State Construction Administrator review and determination. The Administrator shall review the bidder's protest and contract award documents. Written notice of the decision by the Administrator to sustain or deny the protest will be sent to the bidder within ten (10) business days of receipt of the protest.

(3)   Bidder appeal of State Construction Administrator denial. The bidder may appeal a denial of protest by the State Construction Administrator to the Director of Central Services. The bidder shall file a written appeal within ten (10) business days of the date of the Administrator's notice of denial pursuant to 75 O.S., Section 309 et seq.

(4)   Director actions and determination. The Director may hear the protest, assign the protest to an attorney employed by the Department, or assign the bidder's appeal to an administrative law judge the Department retains.

(A)   If the protest is assigned to an attorney employed by the Department or to an administrative law judge, the delegated party administrative law judge shall review the protest for legal authority and jurisdiction. If legal authority and jurisdictional requirements are met, the delegated party administrative law judge shall conduct an administrative hearing and provide proposed findings of fact and conclusions of law to the Director.

(B)   If the protest is heard by the Director, the Director shall have all powers granted by law including all powers delegated to the administrative law judge by this section.

(C)   The Director shall send written notice of the decision to sustain or deny final order sustaining or denying the contractor's appeal to the contractor parties.

(5)   Conduct of administrative hearing. Administrative hearings shall be conducted in accordance with the Administrative Procedures Act [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 bidder in its initial protest to the State Construction Administrator.

(B)   Burden of proof. The burden of proof shall be upon the bidder, 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 bidder protesting the contract award and the Office of Management and Enterprise Services, the bidder 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., Section 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, including requests for a temporary stay of the contract award pending a final order from the Director;

(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 Director.

(G)   Remedies. The Administrative Law Judge may recommend that the Director deny the bidder's appeal or that the contract award be cancelled and rebid.

(6)   Contractor appeal of Director denial. If the Director denies a bidder's appeal, the bidder may appeal pursuant to provisions of 75 O.S., Section 309 et seq.

[Source: Added at 31 Ok Reg 1423, eff 9-12-14]