Idaho § 67-5711E - CHALLENGES

§ 67-5711E. CHALLENGES

(1) As used in this section:

(a) "Administrator" means the administrator of the division of public works.

(b) "Director" means the director of the department of administration.

(c) "Hearing officer" has the same meaning as provided for in section 67-5201 , Idaho Code.

(d) "Nonresponsive bid" means a bid that does not comply with a bid invitation and specifications and does not include a bidder whose bid is considered but who is determined not to be the lowest responsible bidder.

(2) An entity that was a primary bidder or primary proposer may challenge the administrator’s decision pursuant to the provisions of this section under the following circumstances:

(a) A bidder’s bid was found nonresponsive;

(b) A bidder’s bid was considered pursuant to section 67-5711C , Idaho Code, and the bidder was found not to be the lowest responsible bidder;

(c) A professional service firm’s proposal was considered pursuant to section 67-2320 , Idaho Code, and was not selected for award; or

(d) A design-build firm’s proposal was considered pursuant to section 67-5711A , Idaho Code, and was not selected for award.

(3) The administrator may, on his own initiative, file a challenge seeking resolution of any matter presented to the administrator for a decision.

(4) Challenges shall be submitted to the director within five (5) business days of the notice of the challenged decision. The challenge shall set forth in specific terms the reasons why the bidder challenges the administrator’s decision as erroneous and shall provide available documentation supporting such reasons.

(5) Upon receipt, the director shall act pursuant to this subsection within five (5) business days.

(a) Upon receipt of a challenge where no request for qualifications was issued the director shall:

(i) Affirm the decision of the administrator, which shall be considered the final agency decision;

(ii) Modify the decision of the administrator;

(iii) Affirm the challenge and issue recommendations to the administrator; or

(iv) Request a hearing officer to review the record and recommend to the director to affirm, modify, or reverse the administrator’s decision.

(b) Upon receipt of a challenge where a request for qualifications was issued the director shall request a hearing officer to:

(i) Review the record and recommend to the director to affirm, modify, or reverse the administrator’s decision; or

(ii) Conduct a contested case hearing.

(c) A hearing officer appointed pursuant to paragraph (b)(ii) of this subsection shall conduct a contested case hearing and upon conclusion of the hearing shall prepare findings of fact, conclusions of law, and a recommended order for the director. Upon receipt of the findings of fact, conclusions of law, and recommended order, the director shall enter a final order affirming, modifying, or reversing the decision of the administrator.

(d) In addition to the requirements of section 67-5270 , Idaho Code, the challenging bidder shall also file a protest bond in an amount equal to twenty-five percent (25%) of the allocated budget for the construction of the public works capital improvements.

(i) If the allocated budget was not included in the request for qualifications, the director shall set the value of the protest bond at a reasonable amount that does not exceed twenty-five percent (25%) of the anticipated capital expenditures to complete the public works improvements.

(ii) If the challenge is successful, the protest bond will be returned to the challenging bidder within fourteen (14) days of the final decision having been made.

(iii) If the challenge is not successful, a claim may be made against the protest bond by the public entity in an amount equal to the expenses incurred by the public entity because of the challenge. Such expenses must be documented and may include but are not limited to legal fees, court costs, escalated material prices, and other direct damages related to the challenge. The remainder of the bond shall be released after the claim has been satisfied.

(6) When a challenge is submitted under this section, the administrator shall not execute a contract until the challenge is concluded. However, the director shall have the power to allow a contract to be awarded to the successful bidder if he determines such award to be in the best interest of the state.

[67-5711E, added 2024, ch. 189, sec. 1, p. 684.]