317:2-1-14. Contract award protest process
(a) Protest process. Suppliers who respond to a solicitation issued and awarded by the Authority pursuant to 74 Oklahoma Statutes (O.S.) ' 85.5 (N) may protest the award of a contract under such solicitation 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.
(b) State Purchasing Director review and determination. The State Purchasing Director will review the supplier's protest and contract award documents.
(1) The State Purchasing Director may determine to respond to the protest or delegate the responsibility to OHCA by written notice to OHCA.
(2) The State Purchasing Director or OHCA, as applicable, will send to the supplier written notice of the decision to deny or sustain the protest within ten (10) business days of receipt of the protest.
(c) Supplier appeal of decision to deny protest. The supplier may appeal a denial of protest by the State Purchasing Director or OHCA to the Office of Management and Enterprise Services (OMES) Director.
(1) The supplier will file such appeal, if at all, within ten (10) business days of the date of the State Purchasing Director's or OHCA's notice of denial pursuant to 75 O.S. ' 309 et seq.
(2) 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.
(3) The OMES Director may hear the appeal or assign the supplier's appeal to an administrative law judge (ALJ) retained by OHCA.
(4) Administrative hearings conducted by OMES will be conducted in accordance with the Administrative Procedures Act at 75 O.S. '' 309 et seq., and the OMES director shall have all powers granted by law, including any powers delegated to an ALJ by this Section.
(5) Whenever the appeal is assigned to an ALJ retained by OHCA, the ALJ will review the appeal for legal authority and jurisdiction. If legal authority and jurisdictional requirements are met, the ALJ shall conduct an administrative hearing according to the hearing practices of OAC 317:2-1-5 and provide proposed findings of fact and conclusions of law to the OMES director.
(6) The OMES director or the ALJ, as applicable, will send written notice to the parties of the final order sustaining or denying the supplier's appeal.
(7) The cost of actions necessary to process a supplier's appeal, together with any other expenses incurred due to the appeal, will be paid by OHCA.
(8) Whenever the appeal is assigned to the ALJ retained by OHCA, the ALJ will:
(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;
(D) Require briefing of any or all issues;
(E) Conduct hearings in a forum and manner as determined by the ALJ;
(F) Rule on the admissibility of all evidence;
(G) Question witnesses;
(H) Impose appropriate sanctions against any person failing to obey an order of the ALJ or authorized under the rules in this Chapter which will include:
(i) Refusing to allow the person to assert or oppose designated claims or defenses, or prohibiting that person from introducing designated matters in evidence;
(ii) Excluding all testimony of an unresponsive or evasive witness; or
(iii) Expelling the person from further participation in the hearing;
(I) Take official notice of any material fact not appearing as evidence in the record, if the fact is among traditional matters of judicial notice;
(J) Administer oaths or affirmations;
(K) Determine the location of the hearing and manner in which it will be conducted;
(L) Allow either party to request that the hearing be recorded by a court reporter with costs to be borne by the requesting party. The original of such transcription, if ordered, will be given to the ALJ with a copy to be given to the requesting party;
(M) Recess and reconvene the hearing;
(N) Set and/or limit the time frame of the hearing;
(O) Make proposed findings of facts and conclusions of law to the OMES Director; and
(P) Recommend that the OMES Director deny the supplier's appeal or that the contract award be cancelled and rebid.
(d) 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.