Bill Text: HI HB1671 | 2012 | Regular Session | Amended
Bill Title: Procurement Code; Protest; Administrative Proceedings
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2012-07-10 - (S) Vetoed on 07-10-12 - Returned from the Governor without approval (Gov. Msg. No. 1391). [HB1671 Detail]
Download: Hawaii-2012-HB1671-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1671 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
H.D. 2 |
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STATE OF HAWAII |
Proposed |
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A BILL FOR AN ACT
RELATING TO PROCUREMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§103D- Procurement statistics. The state procurement office shall keep statistics on solicitations and awards protested under section 103D-701 for the purpose of improving procurement procedures. The statistics shall include information on protests involving inadvertent errors and amounts forfeited from procurement protests."
SECTION 2. Section 103D-701, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:
"(b) The chief procurement officer or a
designee, prior to the commencement of an administrative proceeding under
section 103D-709 or an action in court pursuant to section 103D-710, may settle
and resolve a protest concerning the solicitation or award of a contract[.]
within ten business days after the receipt of the protest. This
authority shall be exercised in accordance with rules adopted by the policy
board.
(c) If the protest is not resolved by mutual
agreement, the chief procurement officer or a designee shall [promptly]
issue a decision in writing to uphold or deny the protest[.] no later
than twenty business days after receipt of the protest. The decision
shall:
(1) State the reasons for the action taken; and
(2) Inform the protestor of the protestor's right to an administrative proceeding as provided in this part, if applicable."
SECTION 3. Section 103D-709, Hawaii Revised Statutes, is amended to read as follows:
"§103D-709 Administrative proceedings for review. (a) The several hearings officers appointed by the director of the department of commerce and consumer affairs pursuant to section 26-9(f) shall have jurisdiction to review and determine de novo, any request from any bidder, offeror, contractor, or person aggrieved under section 103D-106, or governmental body aggrieved by a determination of the chief procurement officer, head of a purchasing agency, or a designee of either officer under section 103D-310, 103D-701, or 103D-702.
(b) Hearings to review and determine any request made pursuant to subsection (a) shall commence within twenty-one calendar days of receipt of the request. The hearings officers shall have power to issue subpoenas, administer oaths, hear testimony, find facts, make conclusions of law, and issue a written decision which shall be final and conclusive unless a person or governmental body adversely affected by the decision commences an appeal in the circuit court of the circuit where the case or controversy arises under section 103D-710. Hearings officers shall issue written decisions not later than forty-five days from the receipt of the request under subsection (a).
(c) Only
parties to the protest made and decided pursuant to sections 103D-701, 103D-709(a),
103D-310(b), and [[]103D-702(g)[]] may initiate a proceeding
under this section. The party initiating the proceeding shall have the burden
of proof, including the burden of producing evidence as well as the burden of
persuasion. The degree or quantum of proof shall be [a preponderance of the]
clear and convincing evidence. All parties to the proceeding shall be
afforded an opportunity to present oral or documentary evidence, conduct
cross-examination as may be required, and argument on all issues involved. [The
rules of evidence shall apply.] Fact finding under section 91-10 shall
apply.
(d) Any bidder, offeror, contractor, or person that is a party to a protest of a solicitation or award of a contract under section 103D-302 or 103D-303 that is decided pursuant to section 103D-701 may initiate a proceeding under this section; provided that:
(1) For contracts with an estimated value of less than $1,000,000, the protest shall concern a matter that is greater than $10,000; and
(2) For contracts with an estimated value of $1,000,000 or more, the protest shall concern a matter that is equal to no less than ten per cent of the estimated value of the contract.
(e) The party initiating a proceeding under subsection (d) shall pay to the department of commerce and consumer affairs a cash or protest bond in the amount of:
(1) $1,000 for a contract with an estimated value of less than $500,000;
(2) $2,000 for a contract with an estimated value of at least $500,000, but less than $1,000,000; or
(3) One-half per cent of the estimated value of the contract or not more than $10,000, whichever is less, if the estimated value of the contract is $1,000,000 or more.
If the initiating party prevails in the proceeding initiated under subsection (d), the cash or protest bond shall be returned to that party. If the initiating party does not prevail in the proceeding initiated under subsection (d), the cash or protest bond shall be deposited into the general fund.
[(d)] (f)
The hearings officers shall ensure that a record of each proceeding which
includes the following is compiled:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed;
(3) Offers of proof and rulings thereon;
(4) Proposed findings of fact;
(5) A recording of the proceeding which may be transcribed if judicial review of the written decision is sought under section 103D-710.
[(e)] (g)
No action shall be taken on a solicitation or an award of a contract while a
proceeding is pending, if the procurement was previously stayed under section
103D-701(f).
[(f)] (h)
The hearings officer shall decide whether the determinations of the chief
procurement officer or the chief procurement officer's designee were in
accordance with the Constitution, statutes, rules, and the terms and conditions
of the solicitation or contract, and shall order such relief as may be
appropriate in accordance with this chapter.
[(g)] (i)
The policy board shall adopt such other rules as may be necessary to ensure
that the proceedings conducted pursuant to this section afford all parties an
opportunity to be heard.
(j) As used in this section, "estimated value of the contract" or "estimated value", with respect to a contract, means either the amount of the lowest responsible and responsive bid under section 103D-302 or the bid amount of the responsible offeror whose proposal is determined in writing to be the most advantageous under section 103D-303, as applicable."
SECTION 4. Section 103D-710, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (c) to read:
"(c) Within
[twenty] ten calendar days of the filing of an application for
judicial review, the hearings officer shall transmit the record of the
administrative proceedings to the circuit court of the circuit where the case
or controversy arises."
2. By amending subsection (e) to read:
"(e) [Upon] No later than
thirty days from the filing of the application for judicial review, based upon
review of the record the circuit court may affirm the decision of the hearings
officer issued pursuant to section 103D-709 or remand the case with
instructions for further proceedings; or it may reverse or modify the decision
and order if substantial rights may have been prejudiced because the
administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the chief procurement officer or head of the purchasing agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of discretion[.];
provided that if an application for judicial review is not resolved on or before the thirtieth day from the filing of the application, the circuit court shall lose jurisdiction and the decision of the hearings officer shall not be disturbed. All time limitations on actions, as provided for in section 103D‑712, shall remain in effect."
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on July 1, 2112.
Report Title:
Procurement Code; Protest; Administrative Proceedings
Description:
Imposes time limits on rendering administrative and judicial review decisions; limits protests to those that are a minimum percentage of the contract value; requires posting of a protest bond, to be forfeited if the protesting party does not prevail. Effective July 1, 2112. (HB1671 HD2 PROPOSED)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
