Review of prequalification and debarment decisions
(1) The procedure for appeal from the denial, revocation or revision of a prequalification under ORS 279B.125 (Application for prequalification), or from a debarment under ORS 279B.130 (Debarment of prospective bidders and proposers), shall be in accordance with this section and is not subject to ORS chapter 183 except when specifically provided by this section.
(2) Upon receipt of a notice from a contracting agency of a prequalification decision under ORS 279B.125 (Application for prequalification) or of a decision to debar under ORS 279B.130 (Debarment of prospective bidders and proposers), a prospective bidder or proposer that wishes to appeal the decision shall, within three business days after receipt of the notice, notify the contracting agency that the prospective bidder or proposer appeals the decision as provided in this section.
(3) Immediately upon receipt of the prospective bidder’s or proposer’s notice of appeal, the contracting agency shall:
(a) If the contracting agency is a state contracting agency, notify the Director of the Oregon Department of Administrative Services.
(b) If the contracting agency is a local contracting agency, notify the appropriate local contract review board.
(4) Upon the receipt of notice from the contracting agency under subsection (3) of this section, the director or board shall promptly notify the person appealing and the contracting agency of the time and place of the hearing. The director or board shall conduct the hearing and decide the appeal within 30 days after receiving the notice from the contracting agency. The director or board shall set forth in writing the reasons for the hearing decision.
(5) At the hearing the director or board shall consider de novo the notice of denial, revocation or revision of a prequalification or the notice of debarment, the standards of responsibility listed in ORS 279B.110 (Responsibility of bidders and proposers) (2) on which the contracting agency based the denial, revocation or revision of the prequalification or the reasons listed in ORS 279B.130 (Debarment of prospective bidders and proposers) (2) on which the contracting agency based the debarment, and any evidence provided by the parties. In all other respects, a hearing before the director shall be conducted in the same manner as a contested case under ORS 183.417 (Procedure in contested case hearing) (1) to (4) and (7), 183.425 (Depositions or subpoena of material witness), 183.440 (Subpoenas in contested cases), 183.450 (Evidence in contested cases) and 183.452 (Representation of agencies at contested case hearings). Hearings before a board shall be conducted under rules of procedure adopted by the board.
(6) The director or board may allocate the director’s or board’s costs for the hearing between the person appealing and the contracting agency whose prequalification or debarment decision is being appealed. The allocation shall be based upon facts found by the director or board and stated in the final order that, in the director’s or board’s opinion, warrant such allocation of costs. If the final order does not allocate the costs for the hearing, the costs shall be paid as follows:
(a) If the decision to deny, revoke or revise a prequalification of a person as a bidder or the decision to debar a person is upheld, the costs shall be paid by the person appealing the decision.
(b) If the decision to deny, revoke or revise a prequalification of a person as a bidder or the decision to debar a person is reversed, the costs shall be paid by the contracting agency whose prequalification or debarment decision is the subject of the appeal.
(7) A decision of the director or board may be reviewed only upon a petition, filed within 15 days after the date of the decision, in the circuit court of the county in which the director or board has its principal office. The circuit court shall reverse or modify the decision only if it finds:
(a) The decision was obtained through corruption, fraud or undue means;
(b) There was evident partiality or corruption that operated to the substantial prejudice of the petitioner on the part of the director or board or any of the board’s members; or
(c) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the decision, and the miscalculation or mistake operated to the substantial prejudice of the petitioner.
(8) The procedure provided in this section is the exclusive means of judicial review of the decision of the director or board. The judicial review provisions of ORS 183.480 (Judicial review of agency orders) and writs of review and mandamus as provided in ORS chapter 34, and other legal, declaratory and injunctive remedies, are not available.
(9) The circuit court may stay the letting of the contract that is the subject of the petition in the same manner as a suit in equity. When the court determines that there has been an improper debarment or denial, revocation or revision of a prequalification and the contract has been let, the court may proceed to take evidence to determine the damages, if any, suffered by the petitioner and may award such damages as the court may find as a judgment against the director or board. The court may award costs and attorney fees to the prevailing party. [2003 c.794 §87; 2007 c.288 §12]
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