SECTION 260:65-1-22. Contractor appeals process

(a)   If a contractor's claim has not been resolved after consideration by the consultant in accordance with the General Conditions for Construction Contracts, the claim shall be submitted in writing to the owner. The owner will render to the parties the owner's written decision relative to the claim, including any change in the contract sum or contract time or both within ten (10) calendar days.

(b)   The contractor may appeal the owner's decision by submitting written notice of a protest to the Director of Central Services within ten (10) calendar days of receiving the owner's decision.

(c)   The Director will review the protest and determine to hear the appeal or assign the appeal to an administrative law judge the Department retains.

(1)   If the appeal is assigned to an administrative law judge, the administrative law judge shall review the appeal for legal authority and jurisdiction.

(2)   If legal authority and jurisdictional requirements are met, the administrative law judge shall conduct an administrative hearing in accordance with the Administrative Procedures Act, 75 O.S. Section 309 et seq., and provide proposed findings of fact and conclusions of law to the Director.

(3)   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.

(d)   The Director shall send written notice to the contractor of the final decision sustaining or denying the contractor's appeal.

(e)   Administrative hearings shall be conducted in accordance with the Administrative Procedures Act [75 O.S. §250 et seq.] and the following procedures:

(1)   A prehearing conference shall be scheduled to determine the legal or factual issues which shall be limited to those brought by the contractor in its initial claim.

(2)   The burden of proof shall be upon the contractor, 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.

(3)   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.

(4)   In addition to the contractor and the Office of Management and Enterprise Services, the contractor awarded the contract and the state agency for which the bid was let may participate in the bid protest proceedings as a proper party.

(5)   The conduct of discovery is governed by the Administrative Procedures Act, 75 O.S. Section 309 et seq. and other applicable law.

(6)   The Administrative Law Judge may:

(A)   Establish a scheduling order;

(B)   Establish reasonable procedures such as authorizing pleadings to be filed by facsimile or electronic mail;

(C)   Rule on all interlocutory motions, including requests for a temporary stay of the contract award pending a final order from the Director;

(D)   Require briefing of any or all issues;

(E)   Conduct hearings;

(F)   Rule on the admissibility of all evidence;

(G)   Question witnesses; and

(H)   Make proposed findings of fact and conclusions of law to the Director.

(7)   The Administrative Law Judge may recommend that the Director deny the contactor's appeal or that the contract award be cancelled and rebid

(f)   If the Director denies a contractor's appeal, the contractor may appeal pursuant to provisions of 75 O.S., Section 309 et seq. of the Administrative Procedures Act.

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