Bill Text: HI HB2044 | 2012 | Regular Session | Amended
Bill Title: Procurement; Administrative Proceedings
Spectrum: Moderate Partisan Bill (Democrat 8-1)
Status: (Introduced - Dead) 2012-02-28 - (H) The committee(s) on FIN recommend(s) that the measure be deferred. [HB2044 Detail]
Download: Hawaii-2012-HB2044-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2044 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
H.D. 1 |
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STATE OF HAWAII |
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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. 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]:
(1) Review and determine de novo,
any request from any bidder, offeror, contractor, 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[.] pursuant
to subsection (b) below; and
(2) Review and determine any request from any bidder, offeror, contractor, person, 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-701 pursuant to subsection (c);
(b) Hearings to review and determine any request made pursuant to subsection (a)(1) shall be conducted as follows:
(1) Hearings 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[.];
(2) 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 by a preponderance of the 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 present argument on all issues involved;
(3) The hearings officer shall ensure that a record of each proceeding that includes the following is compiled:
(A) All pleadings, motions, intermediate rulings;
(B) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed;
(C) Offers of proof and rulings thereon;
(D) Proposed findings of fact; and
(E) A recording of the proceeding which may be transcribed if judicial review of the written decision is sought under section 103D-710; and
(4) The hearings officer shall decide whether the determinations of the chief procurement officer or the chief procurement officer's designee are in accordance with the state 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.
(c) [Only parties to the protest made and
decided an action taken 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 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.] Hearings
to review and determine any request made pursuant to subsection (a)(2) shall be
conducted as follows:
(1) Within ten calendar days of the filing of an application for review pursuant to subsection (a)(2), the chief procurement officer, head of a purchasing agency, or a designee of either officer shall transmit the record of the protest proceedings under section 103D-701 to the office of administrative hearings of the department of commerce and consumer affairs;
(2) The review shall be scheduled as expeditiously as practicable. It shall be conducted on the record of the protest proceedings under section 103D-701, and briefs and oral argument. New evidence and new issues that have not been raised in the proceedings before the purchasing agency, shall not be introduced, except that the hearings officer appointed to hear the case may, if evidence is offered which is clearly newly discovered evidence and material to the just decision on appeal, admit the same; and
(3) No later than thirty days from the filing of the application for administrative review, based upon review of the record, the appointed hearings officer may affirm the decision of the purchasing agency, remand the case with instructions for further proceedings, or reverse the decision if substantial rights may have been prejudiced because the findings, conclusions, decisions, or orders of the purchasing agency are found to be arbitrary, capricious, fraudulent, or clearly erroneous in the view of the reliable, probative, and substantial evidence on the whole record; provided that if an application for review is not resolved on or before the thirtieth day from the filing of the application, the hearings officer shall lose jurisdiction and the decision of the purchasing agency shall not be disturbed. All time limitations on actions, as provided for in section 103D-712, shall remain in effect.
(d) [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.] 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.
(e) 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) 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)] (f) 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."
SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect on July 1, 2112.
Report Title:
Procurement; Administrative Proceedings
Description:
Limits the hearing officer's review to the record of the procuring agencies below. Limits the review to a review of the written record of the procuring agency's protest proceedings for evidence of decisions that may be arbitrary, capricious, fraudulent, or clearly erroneous. Effective July 1, 2112. (HB2044 HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
