A. Protest:
1. Protest Permitted: A protestor may file a protest with the purchasing manager or designee only in accordance with the requirements set forth in this section.
2. Content of Protest: For a protest to be considered by the purchasing manager or designee, the protest must be in writing and contain the following:
a. The protestor's name, mailing address, and daytime telephone number, the signature of the protestor or protestor's attorney, and the date the protest is signed;
b. In sufficient detail to provide adequate review by the purchasing manager or designee (i) a statement of facts, (ii) an explanation of the relief sought, (iii) a recitation of the reasons for and legal authority in support of the protest, and (iv) a statement supporting the protestor's claim of standing.
c. A protest may not be considered unless it contains facts and evidence that, if true, would establish:
(1) A violation of this chapter or other applicable law or rule;
(2) The procurement unit's failure to follow a provision of a solicitation;
(3) An error made by an evaluation committee or conducting procurement unit;
(4) A bias exercised by an evaluation committee or an individual committee member, excluding a bias that is a preference arising during the evaluation process because of how well a solicitation response meets criteria in the solicitation;
(5) A failure to correctly apply or calculate a scoring criterion; or
(6) That specifications in a solicitation are unduly restrictive or unduly anticompetitive.
d. A protest may not be based on:
(1) The rejection of a solicitation response due to a protestor's failure to attend or participate in a mandatory conference, meeting, or site visit held before the deadline for submitting a solicitation response;
(2) A vague or unsubstantiated allegation; or
(3) A person's claim that, despite the city abiding by noticing requirements herein, the person did not receive individual notice or received the notice late.
3. Timing of Protest:
a. Bids: A protest arising from an invitation for bid shall be submitted prior to the closing date for receiving bids unless the protestor did not know and could not reasonably have known of the facts giving rise to the protest prior to such time, but in any event, all such protests shall be submitted within five (5) business days after the award of contract.
b. Proposals: A protest arising from a request for proposal shall be submitted prior to the closing date for receiving proposals unless the protestor did not know and could not reasonably have known of the facts giving rise to the protest prior to such time, but in any event, all such protests shall be submitted within five (5) business days after the notice of award is posted by the purchasing manager.
c. Quotes, Purchase Orders, Multi-Stage, Approved Vendor List Selection: A protest arising from a request for quotes, purchase order, multi-stage procurement, and approved vendor list selection shall be submitted within five days after the protestor knew or should have known of the facts giving rise to the protest, but in any event, all such protests shall be submitted in accordance with the following deadlines:
(1) For quotes, within five (5) business days from the due date;
(2) For purchase orders that do not result from a competitive solicitation process, within five (5) business days from the date of the purchase order;
(3) For multi-stage procurements, within five (5) business days from the date the protester was notified that they were not being selected to advance to the next stage or being selected as the winning offeror; and
(4) For approved vendor list selection, within five (5) business days after the notice of award is posted by the purchasing manager.
d. Calculation of Days: For purposes of this chapter, the following rules shall be followed in calculating business days:
(1) A person shall exclude the business day of the event that triggers the applicable timeline;
(2) A person shall count every day except intermediate Saturdays, Sundays, and city holidays;
(3) A person shall include the last business day of the period; and
(4) A business day shall begin at 8:00 a.m. and close at 5:00 p.m. pursuant to the time indicated in the city clerk's office.
4. Procurement Process During Protest Period: In the event of a timely protest, the city may proceed with the procurement, or the purchasing manager or designee may suspend the procurement process, in his or her sole discretion, for so long as he or she determines is appropriate.
5. Purchasing Manager Assistance: The purchasing manager, or designee, may designate other individual(s) to assist in reviewing the protest, which assistance may include finding facts, analyzing the protest, and making recommendations to the purchasing manager, or designee.
6. Discovery of Documents: The purchasing manager or designee may request additional information from the protestor or from other persons to decide the protest. The protestor shall have three (3) business days to provide all information requested by the purchasing manager or designee reasonably needed to decide the protest. The purchasing manager may dismiss the protest if the protestor fails to provide the requested information within the three (3) business days.
7. Decision on Protest: The purchasing manager, or designee shall review and decide protests, and shall issue a written decision to the protestor within thirty (30) business days of receipt of the protest. If the purchasing manager fails to issue a written determination within thirty (30) business days, said failure shall be considered the equivalent of an order denying the protest.
B. Appeal of the Purchasing Manager's Final Decision:
1. Appeal Permitted: The protestor may appeal the written decision of the purchasing manager by filing (i) an appeal with the city recorder and (ii) the bond required by this section with the administrative services or finance department, within five (5) business days from the purchasing manager’s written decision on the protest, or if no written decision is provided by the purchasing manager, within thirty-five (35) business days from the filing of the protest.
2. Content of the Appeal: For an appeal to be considered by the administrative law judge, the appeal must be in writing and contain the following:
a. The appellant's name, mailing address, and daytime telephone number, the signature of the appellant or appellant's attorney, and the date the appeal is signed;
b. In sufficient detail to provide adequate review by the city, (i) a statement of facts, (ii) an explanation of the relief sought, (iii) a recitation of the reasons for and legal authority in support of the appeal, (iv) a statement supporting the appellant's claim of standing, and (v) a statement that a final decision has been made by the purchasing manager or that the time to deliver a decision on the appellant's protest by the purchasing manager has expired;
c. An attached copy of (i) all documents used as evidence or exhibits in the protest, (ii) any recording or other record of any proceeding, if applicable, and (iii) the purchasing manager or designee's written decision of the protest, if any.
3. Bond Required: A protestor that files an appeal under this section will not have it considered unless he or she also files a security deposit in the amount described herein with the administrative services or finance department before the expiration of the time to file an appeal. The entire security deposit shall be forfeited and be deposited in the general fund of the city if the administrative law judge makes a finding that (i) the appellant’s appeal fails and (ii) the protest or appeal was frivolous or that its primary purpose was to harass or cause a delay.
The amount of the security deposit shall be as follows:
a. $1,000, if the total contract value or purchase order is under $25,000;
b. $2,000, if the total contract value or purchase order is $25,000 or more but less than $50,000;
c. $4,000, if the total contract value or purchase order is $50,000 or more but less than $100,000;
d. $10,000, if the total contract value or purchase order is $100,000 or more but less than $250,000;
e. $20,000, if the total contract value or purchase order is $250,000 or more but less than $500,000;
f. $25,000, if the total contract value or purchase order is $500,000 or more but less than $1,000,000;
g. $50,000, if the total contract value or purchase order is $1,000,000 or more but less than $2,000,000;
h. $95,000, if the total contract value or purchase order is $2,000,000 or more but less than $4,000,000;
i. $180,000, if the total contract value or purchase order is $4,000,000 or more but less than $8,000,000;
j. $320,000, if the total contract value or purchase order is $8,000,000 or more but less than $16,000,000;
k. $600,000, if the total contract value or purchase order is $16,000,000 or more but less than $32,000,000; and
l. $1,100,000, if the total contract value or purchase order is $32,000,000 or more.
4. Scheduling of the Hearing: The administrative law judge shall review and hear the appeal. No later than five (5) business days after receiving a notice of appeal, the administrative law judge shall schedule a hearing on the appeal. Unless otherwise agreed to by the city and appellant, the hearing shall be held no sooner than five (5) business days and not later than thirty (30) business days from the date of the filing of the appeal.
5. Hearing: During the hearing before the administrative law judge, the appellant and the city's representatives shall be allowed to testify, present evidence, and comment on the issues. The administrative law judge may allow other interested persons to testify, comment, or provide evidence on the issues. Notwithstanding any other provisions of the code, appellant may not present evidence or testimony that was not presented in its protest or present new or additional arguments or grounds in support of its position that were not made in support of its protest.
6. Order: No later than fifteen (15) business days after the hearing, the administrative law judge shall issue a signed order either granting or denying the appeal, in whole or in part. If the administrative law judge fails to issue a decision within thirty (30) business days after the hearing, said failure shall be considered the equivalent of an order denying the appeal.
7. Basis of Order: The administrative law judge shall consider and decide the appeal based solely on (i) the appeal, (ii) the protest record, and (iii) the admissible evidence at the hearing. The administrative law judge may dismiss an appeal if the appeal does not comply with the requirements of this chapter; and shall uphold the protest decision unless the protest decision is found to be arbitrary and capricious or clearly erroneous.
8. Content of Order: The order of the administrative law judge shall include:
a. The decision on the appeal, and any reasons for the decision the administrative law judge may wish to provide;
b. A statement that any party to the appeal may appeal the decision to the Utah Court of Appeals; and
c. A determination as to whether the bond should be forfeited to the city pursuant to this chapter.
9. Appeal to the Utah Court of Appeals:
a. If an appellant appeals the dismissal, denial, or adverse decision of an administrative law judge, the appellant must file the appeal to the Utah court of appeals.
b. The Utah Court of Appeals:
(1) Shall consider the appeal as an appellate court;
(2) May not hear the matter as a trial de novo; and
(3) May not overturn a finding, dismissal, or decision unless the finding, dismissal, or decision, is arbitrary and capricious or clearly erroneous. (Ord. 19-54, 12-11-2019, Effective at 12 noon on January 6, 2020; amd. Ord. 21-04, 2-10-2021)