Guam § 5425 - Authority to Resolve Protested Solicitations and Awards.

§ 5425. Authority to Resolve Protested Solicitations and Awards.

(a) Right to Protest. Any actual or prospective bidder, offeror, or contractor who may be aggrieved in

connection with the method of source selection, solicitation or award of a contract, may protest to the Chief

Procurement Officer, the Director of Public Works or the head of a purchasing agency. The protest shall be

submitted in writing within fourteen (14) days after such aggrieved person knows or should know of the

facts giving rise thereto.

(b) Authority to Resolve Protests. The Chief Procurement Officer, the Director of Public Works, the

head of a purchasing agency, or a designee of one of these officers shall have the authority, prior to the

commencement of an action in court concerning the controversy, to settle and resolve a protest of an

aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a

contract. This authority shall be exercised in accordance with regulations promulgated by the Policy Office.

(c) Decision. If the protest is not resolved by mutual agreement, the Chief Procurement Officer, the

Director of Public Works, the head of a purchasing agency, or a designee of one of these officers shall

promptly issue a decision in writing. The decision shall:

(1) state the reasons for the action taken; and

(2) inform the protestant of its right to administrative and judicial review.

(d) Notice of Decision. A copy of the decision under Subsection (c) of this Section shall be mailed or

otherwise furnished immediately to the protestant and any other party intervening.

(e) Appeal. A decision under Subsection (c) of this Section including a decision there under regarding

entitlement to costs as provided by Subsection (h) of this Section, may be appealed by the protestant, to the

Public Auditor within fifteen (15) days after receipt by the protestant of the notice of decision.

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(f) Finality. A decision of the Public Auditor is final unless a person adversely affected by the decision

commences an action in the Superior Court in accordance with Subsection (a) of § 5480 of this Chapter.

(g) In the event of a timely protest under Subsection (a) of this Section or under Subsection (a) of §

5480 of this Chapter, Guam shall not proceed further with the solicitation or with the award of the contract

prior to final resolution of such protest, and any such further action is void, unless:

(1) The Chief Procurement Officer or the Director of Public Works after consultation with and

written concurrence of the head of the using or purchasing agency and the Attorney General or

designated Deputy Attorney General, makes a written determination that the award of the contract

without delay is necessary to protect substantial interests of Guam; and

(2) Absent a declaration of emergency by I Maga’håga/Maga’låhi, the protestant has been given

at least two (2) days notice (exclusive of Guam holidays); and

(3) If the protest is pending before the Public Auditor or the Court, the Public Auditor or Court

has confirmed such determination, or if no such protest is pending, no protest to the Public Auditor of

such determination is filed prior to expiration of the two (2) day period specified in Item (2) of

Subsection (g) of this Section.

(h) Entitlement to Costs. In addition to any other relief or remedy granted under Subsection (c) or (e)

of this Section or under Subsection (a) of § 5480 of this Chapter, including the remedies provided by

Subarticle B of Article 9 of this Chapter, when a protest is sustained, the protestant shall be entitled to the

reasonable costs incurred in connection with the solicitation and protest, including bid preparation costs,

excluding attorney’s fees, if:

(1) the protestant should have been awarded the contract under the solicitation but was not; or

(2) there is a reasonable likelihood that the protestant may have been awarded the contract but for

the breach of any ethical obligation imposed by Subarticle B of Article 11 of this Chapter or the willful

or reckless violation of any applicable procurement law or regulation. The Public Auditor shall have

the power to assess reasonable costs including reasonable attorney fees incurred by the government,

including its autonomous agencies and public corporations, against a protestant upon its finding that

the protest was made fraudulently, frivolously or solely to disrupt the procurement process.