Bill Text: HI SB2457 | 2012 | Regular Session | Amended
Bill Title: Procurement; Protest; Administrative Proceedings; Small Purchases; Electronic Procurement
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2012-04-18 - (S) Received notice of appointment of House conferees (Hse. Com. No. 619). [SB2457 Detail]
Download: Hawaii-2012-SB2457-Amended.html
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THE SENATE |
S.B. NO. |
2457 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
S.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[.];
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 as provided in subsection (c).
(b) Hearings to review and determine any
request made pursuant to subsection [(a)] (a)(1) shall [commence]
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 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;
(3) The hearings officers shall ensure that a record is compiled of each proceeding which shall include the following:
(i) All pleadings, motions, and intermediate rulings;
(ii) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed;
(iii) Offers of proof and rulings thereon;
(iv) Proposed findings of fact; and
(v) A recording of the proceeding which may be transcribed if judicial review of the written decision is sought under section 1030-710; 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 Hawaii 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 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. The review shall be conducted based upon the record of the protest proceedings under section 103D-701, and briefs and oral argument. No new evidence or new issues not raised in the proceedings before the procuring agency shall be introduced, except that the hearings officer appointed to hear the case, if evidence is offered that is clearly newly discovered evidence and material to the just decision on appeal, may admit new evidence; 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:
(A) Shall affirm the decision of the purchasing agency;
(B) Remand the case with instructions for further proceedings; or
(C) Reverse the decision, but only 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 view of the reliable, probative, and substantial evidence on the whole record;
provided that if an application for review is not resolved by 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 proceedings under sections 103D-310,
103D-701, 103D-709, and 103D0-702 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 upon its approval.
Report Title:
Procurement; Administrative Proceedings
Description:
Amends administrative review proceedings under Hawaii public procurement code. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
