Appeal procedure for prequalification and disqualification decisions
- • hearing
- • costs
- • judicial review
(1) The procedure for appeal from a disqualification or denial, revocation or revision of a prequalification by a contracting agency shall be in accordance with this section and is not subject to ORS chapter 183 except when specifically provided by this section.
(2) Promptly upon receipt of notice of appeal from a contracting agency as provided for by ORS 279C.445 (Appeal of disqualification), the Director of the Oregon Department of Administrative Services or the local contract review board shall 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 notification from the contracting agency. The director or board shall set forth in writing the reasons for the decision.
(3) In the hearing the director or board shall consider de novo the notice of disqualification or denial, revocation or revision of a prequalification, the reasons listed in ORS 279C.440 (Disqualification from consideration for award of contracts) (2) on which the contracting agency based the disqualification or the standards of responsibility listed in ORS 279C.375 (Award of contract or multiple contracts) (3)(b) on which the contracting agency based the denial, revocation or revision of the prequalification 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).
(4) The director may allocate the director’s cost for the hearing between the person appealing and the contracting agency whose disqualification or prequalification decision is being appealed. The allocation shall be based upon facts found by the director and stated in the final order that, in the director’s opinion, warrant such allocation of the costs. If the final order does not allocate the director’s costs for the hearing, the costs shall be paid as follows:
(a) If the decision to disqualify or deny, revoke or revise a prequalification of a person is upheld, the director’s costs shall be paid by the person appealing the disqualification or prequalification decision.
(b) If the decision to disqualify or deny, revoke or revise a prequalification of a person as a bidder is reversed by the director, the director’s costs shall be paid by the contracting agency whose disqualification or prequalification decision is the subject of the appeal.
(5) The 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 on the part of the director or board or any of its members.
(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.
(6) 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.
(7) The circuit court may, in its discretion, 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 disqualification 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 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 §125; 2005 c.103 §26; 2007 c.288 §13]
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