Or. Admin. Code § 177-038-0220

Current through Register Vol. 63, No. 10, October 1, 2024

Section 177-038-0220 - Protest of Large Contract Awards and Alternative Procurements; Appeals; Judicial Review

(1) Protest of Large Contract Awards:

(a) Award Protest Opportunity: Any Offeror who submitted an Offer in response to a Large Procurement may protest the Award by submitting a protest to the Lottery within five Days following the date of the Award notice, unless a different time period is specified in the Solicitation Document.

(b) Award Protest Content: All Award protests must be received in writing and signed either in writing or electronic form by the Offeror's authorized representative. The Award protest must be received by the Lottery by the time set forth in Subsection (1)(a) above, and provide relevant legal and factual arguments that:

(A) All lower Bids or higher ranked Proposers are ineligible to receive the Award because they are not Responsive; or

(B) The Lottery committed a material violation of a provision in the Solicitation Document or of an applicable statute or administrative rule that resulted in prejudice to the Offeror that caused the Lottery to not issue an Award to that Offeror.

(c) Lottery's Response: The Lottery's Senior Procurement Manager or designee will review each timely-submitted Award protest and will issue a written response to the Offeror within three Business Days following the Lottery's receipt of the protest.

(A) Response Content: The Lottery's written response may include the Senior Procurement Manager's or designee's decision affirming or denying the Award protest, a notice to the Offeror that Lottery needs additional time to evaluate the protest, or a request for additional information from the Offeror that the Lottery may need to evaluate the protest.

(B) Follow-up Response: The Lottery will issue a follow-up response to the Offeror within a reasonable time following the Lottery's notice to the Offeror that the Lottery needs additional time to evaluate the Award protest or following Lottery's receipt of the additional information Lottery has requested from the Offeror.

(2) Appeal of Protest Determination:

(a) Appeal to the Director:

(A) General: If the Offeror disagrees with the Senior Procurement Manager's Award protest decision, the Offeror may appeal the decision to the Director by submitting a written appeal to the Director within three Business Days following the date of the Lottery's notice to the Offeror setting forth Lottery's decision in response to the Award protest.

(B) Process: The Director will review each timely-submitted appeal of the Senior Procurement Manager's Award protest decision and will issue a written response to the Offeror within three Business Days following the Director's receipt of the appeal. The Director may include in the written response the Director's affirmation, rejection or modification of the Senior Procurement Manager's Award protest decision, a notice to the Offeror that the Director needs additional time to evaluate the appeal, or a request for additional information from the Offeror that the Director may need to evaluate the appeal.

(C) Director's Follow-up Response: The Director will issue a follow-up response to the Offeror within a reasonable time following the Director's notice to the Offeror that the Director needs additional time to evaluate the appeal or following the Director's receipt of the additional information the Director has requested from the Offeror.

(b) Appeal to Commission:

(A) General: If the Offeror disagrees with the Director's decision on the appeal of the Senior Procurement Manager's Award protest decision, the Offeror may appeal the Director's decision to the Commission by submitting a written appeal to Commission, through the Director, within two Business Days following the date of the Director's decision.

(B) Process: When considering the appeal of the Director's decision, the Commission may either:

(i) Review the protest documents and other information presented to the Senior Procurement Manager and to the Director. The Commission will issue a written response to the appeal of the Director's decision within a reasonable time following the Commission's receipt of the appeal. The Commission may include in the written response the Commission's affirmation, rejection or modification of the Director's decision on the appeal of the Senior Procurement Manager's Award protest decision, a notice to the Offeror that the Commission needs additional time to evaluate the appeal, or a request for additional information from the Offeror that the Commission may need to evaluate the appeal; or

(ii) Confirm in writing the Director's decision and issue such decision as the Lottery's final order with respect to the protest.

(C) Commission's Follow-up Response: If the Commission decides to review the Director's decision pursuant to Subsection 2(b)(B)(i) above, the Commission will issue a follow-up response to the Offeror within a reasonable time following the Commission's notice to the Offeror that the Commission needs additional time to evaluate the appeal or following the Commission's receipt of the additional information the Commission has requested from the Offeror.

(3) Late Protests; Late Appeals: The Lottery will not consider an Offeror's protest or appeal submitted after the timelines specified for submission in this rule.

(4) Judicial Review: An Offeror who submitted a protest may seek judicial review of the Commission's decision according to ORS Chapter 183 for orders in other than contested cases.

(5) Successful Protest: If the Lottery or a court of competent jurisdiction sustains any or all of a protest, the Lottery may, in its sole discretion, withdraw the Award and issue a subsequent Award, or withdraw the Award and cancel the Offeror selection process. The Lottery may, at any time after cancellation of the Offeror selection process or Award withdrawal, conduct a new Offeror selection process, including issuing a new Invitation to Bid or a new Request for Proposals with the same or revised terms, conditions and Specifications as used in the original Solicitation Document.

Or. Admin. Code § 177-038-0220

LOTT 8-2018, adopt filed 09/28/2018, effective 10/1/2018

Statutory/Other Authority: ORS Chapter 461 & Oregon Constitution, Article XV, §4(4)

Statutes/Other Implemented: ORS 461.400, ORS 461.410, ORS 461.420, ORS 461.430 & ORS 461.440