2011 ORS § 279B.405¹
Protests and judicial review of solicitations
(1) As used in this section:
(a) Brand name means a brand name specification as defined in ORS 279B.200 (Definitions for ORS 279B.200 to 279B.240).
(b) Legally flawed means that a solicitation document contains terms or conditions that are contrary to law.
(c) Unnecessarily restrictive means that specifications limit competition arbitrarily, without reasonably promoting the fulfillment of the procurement needs of a contracting agency.
(2) A prospective bidder, proposer or offeror for a public contract solicited under ORS 279B.055 (Competitive sealed bidding), 279B.060 (Competitive sealed proposals) or 279B.085 (Special procurements) may file a protest with the contracting agency if the prospective bidder, proposer or offeror believes that the procurement process is contrary to law or that a solicitation document is unnecessarily restrictive, is legally flawed or improperly specifies a brand name. If a prospective bidder, proposer or offeror fails to timely file such a protest, the prospective bidder, proposer or offeror may not challenge the contract on grounds under this subsection in any future legal or administrative proceeding.
(3) The contracting agency, pursuant to rules adopted under ORS 279A.065 (Model rules generally), shall notify prospective bidders, proposers or offerors of the time and manner in which a protest under this section may be filed and considered. Before seeking judicial review, a prospective bidder, proposer or offeror must file a protest with the contracting agency and exhaust all available administrative remedies.
(4) The contracting agency shall consider the protest if the protest is timely filed and contains the following:
(a) Sufficient information to identify the solicitation that is the subject of the protest;
(b) The grounds that demonstrate how the procurement process is contrary to law or how the solicitation document is unnecessarily restrictive, is legally flawed or improperly specifies a brand name;
(c) Evidence or supporting documentation that supports the grounds on which the protest is based; and
(d) The relief sought.
(5) If the protest meets the requirements of subsection (4) of this section, the contracting agency shall consider the protest and issue a decision in writing. Otherwise, the contracting agency shall promptly notify the prospective bidder, proposer or offeror that the protest is untimely or that the protest failed to meet the requirements of subsection (4) of this section and give the reasons for the failure.
(6) The contracting agency shall issue a decision on the protest in accordance with rules adopted under ORS 279A.065 (Model rules generally) no fewer than three business days before bids, proposals or offers are due, unless a written determination is made by the agency that circumstances exist that justify a shorter time limit.
(7) A decision of a contracting agency on a protest under this section, including a protest of a special procurement, is subject to judicial review only if the action or writ of review is filed before the opening of bids, proposals or offers.
(8)(a) A decision of a state contracting agency on a protest under this section is reviewable by the Circuit Court for Marion County or the circuit court for the county in which the principal offices of the state contracting agency are located.
(b) A decision of a local contracting agency on a protest under this section is reviewable by the circuit court for the county in which the principal offices of the local contracting agency are located.
(9) If judicial review of a contracting agencys decision on a protest under this section is sought, the contracting agency may not proceed with contract execution unless the contracting agency determines that there is a compelling governmental interest in proceeding or that the goods and services are urgently needed. If the contracting agency makes such a determination, the contracting agency shall set forth the reasons for the determination in writing and immediately provide them to the prospective bidder, proposer or offeror that filed the protest. Thereafter, after joining the contractor as a party to the litigation and upon motion from the person filing the protest, the court may nonetheless stay the performance of the contract if the court finds that the contracting agencys determination of the existence of a compelling governmental interest in proceeding with contract execution, or the contracting agencys determination that the goods or services were urgently needed, was not supported by substantial evidence or constituted a manifest abuse of discretion. In granting a stay, the court may require the person seeking the stay to post a bond in an amount sufficient to protect the contracting agency and the public from costs associated with delay in contract performance.
(10) In its review, the court shall give due deference to any factual decision made by the contracting agency and may not substitute its judgment for that of the contracting agency, but shall review all questions of law de novo. Thereafter:
(a) If a contract has not been executed and the court rules in favor of the party that sought judicial review, the court shall remand the procurement process to the contracting agency for a determination of whether and how to continue with the procurement process in light of the courts decision.
(b) In addition to the relief provided for in paragraph (a) of this subsection, if a contract has been executed, the court shall include in its order a determination whether the party that signed the contract with the contracting agency is entitled to reimbursement under the conditions of, and calculated in the same manner as provided in, ORS 279C.470 (Compensation for contractor on contract declared void by court). Notwithstanding that ORS 279C.470 (Compensation for contractor on contract declared void by court) otherwise applies only to public improvement contracts, under this paragraph the court shall apply ORS 279C.470 (Compensation for contractor on contract declared void by court) to both public improvement contracts and other public contracts of contracting agencies.
(c) The court may award costs and attorney fees to the prevailing party. [2003 c.794 §84; 2007 c.764 §11]