Title 3 . Commerce, Community, and Economic Development

Chapter 108 . Financial and Technical Assistance for Energy Systems, Facilities, and Equipment

Section 910. Protests

3 AAC 108.910. Protests

(a) A person who is adversely affected by a proposed or final action of the authority under this chapter or who has a contract claim against the authority under this chapter may submit to the authority a protest or claim in accordance with this section, except as otherwise provided by statute or required as a condition of assistance received by the authority under 3 AAC 105.120.

(b) A protester or claimant may submit a protest or claim by facsimile transmission, by mail, or by personal delivery to the authority. A protest or claim must be in writing, must be signed by the protester, and must include

(1) the name, address, and telephone number of the protester or claimant;

(2) the signature of the protester or claimant, or the protester's or claimant's representative;

(3) identification of the solicitation, contract, or other matter at issue;

(4) a detailed statement of the legal and factual grounds for the protest or claim, including copies of relevant documents; and

(5) a statement of the remedy requested; in a protest of a procurement action, the protester is limited to remedies that would apply in a protest under AS 36.30.

(c) To be considered, unless the authority agrees to consider an untimely protest or claim for good cause shown,

(1) a protest based on alleged improprieties in a bid or solicitation must be received by the authority at least 10 days before the due date of the bid or proposal;

(2) a contract claim must be received by the authority within 90 days after the contractor becomes aware of the basis of the claim or should have known of the basis of the claim, whichever is earlier; and

(3) a protest of other action of the authority, including a notice of intent to award a contract, must be received by the authority within 10 days after the authority provides notice of the action.

(d) Upon receiving a protest or claim, the authority will provide notice of the protest or claim to other interested persons.

(e) The authority's procurement manager shall provide the decision of the authority as to procurement protests and contract claims. The procurement manager shall issue a written decision on a procurement protest within 15 days after receipt of all relevant information from the protester and the authority, and shall issue a written decision on a contract claim within 90 days after receipt of all relevant information from the contractor and the authority, unless the executive director extends the time for decision for good cause shown. A protester or claimant who is dissatisfied with a decision of the procurement manager may appeal the decision to the board of directors of the authority or, if the board of directors has authorized the executive director to make the final decision of the authority, to the executive director. A protester must submit its appeal of a procurement action within 10 days after the protester receives the procurement manager's decision.

(f) Upon receiving an appeal of a procurement protest or contract claim under (e) of this section or a protest of other action of the authority, the executive director shall review the protest or claim, relevant information from agency staff, and other relevant information, and shall

(1) prepare a recommended decision for consideration by the board of directors of the authority;

(2) conduct a hearing and prepare a recommended decision for consideration by the board of directors of the authority;

(3) designate a hearing officer to conduct a hearing and prepare a recommended decision for consideration by the board of directors of the authority; or

(4) refer the matter to a mediator or arbitrator for resolution, subject to approval of the resolution by the board of directors of the authority.

(g) The board of directors of the authority will adopt a recommended decision prepared under (f) of this section, adopt the recommended decision with modifications, reject the recommended decision, or return the recommended decision to the executive director or hearing officer for additional findings.

(h) In conducting a hearing under this section, the hearing officer or executive director may

(1) hold prehearing conferences to settle, simplify, or identify the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding;

(2) require parties to state their positions concerning the various issues in the proceeding;

(3) require parties to produce for examination those relevant witnesses and documents under their control;

(4) rule on motions and other procedural matters;

(5) regulate the course of the hearing and conduct of the participants;

(6) establish time limits for submission of motions or memoranda;

(7) impose appropriate sanctions against a person who fails to obey an order relating to the hearing procedures, including

(A) prohibiting the person from asserting or opposing designated claims or defenses or introducing designated matters into evidence;

(B) excluding all testimony of an unresponsive or evasive witness; and

(C) excluding a person from further participation in the hearing;

(8) take official notice of a material fact not appearing in evidence, if the fact among the traditional matters subject to judicial notice; and

(9) administer oaths or affirmations.

(i) The board of directors of the authority may delegate to the executive director authority to make the final decision regarding protests of procurement actions, protests of other actions of the authority, and contract claims, as the board determines is appropriate.

(j) A decision by the board of directors of the authority, or by the executive director on matters delegated to the executive director, is a final decision for purposes of judicial review.

History: Eff. 5/12/2005, Register 174

Authority: AS 42.45.400

AS 44.83.080