SECTION 260:65-1-23. Consultant appeals process

(a)   The owner and consultant shall endeavor to resolve claims, disputes and other matters in question between them by participating in a meeting to obtain a mutual agreement. If an agreement cannot be attained, the consultant may appeal by submitting written notice of a protest to the Director of Central Services within twenty-one (21) days of the settlement meeting immediately preceding the protest.

(b)   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 protest 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.

(c)   The Director shall send written notice to the consultant of the final order sustaining or denying the consultant's appeal.

(d)   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 consultant, who must prove his 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 consultant 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 consultant's appeal or that remedies be imposed.

(e)   If the Director denies a consultant's appeal, the consultant 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]