17 AAC 45.920. Appeal

(a) This section applies to an appeal of a decision made by the department on a protest under 17 AAC 45.297 or 17 AAC 45.910. A decision subject to appeal under this section is subject to review only as provided under this section.

(b) Except as provided under (c) of this section, the commissioner must receive an appeal within 30 calendar days after

(1) the earliest date that the department mailed or delivered the decision being appealed to the appellant or the appellant's representative;

(2) the date that the department orally conveyed the decision to the appellant or the appellant's representative, if the department did not put the decision in writing; or

(3) the date the department's decision on the protest was due, if the department has not mailed, delivered, or orally conveyed a decision on the protest to the appellant or the appellant's representative by that date.

(c) The commissioner must receive an appeal of a decision on a protest of a matter under 17 AAC 45.300 - 17 AAC 45.399 within seven calendar days after the date described in (b)(1) - (3) of this section, as applicable.

(d) An appeal must be in writing, must be signed by the appellant or the appellant's representative, and must include

(1) a reference to any case, agreement, or application number under which the decision was made;

(2) a copy of the decision being appealed, if written, or, if either the decision was not written or a copy of the decision is not available to the appellant, a summary description of the decision;

(3) a detailed statement of the factual and legal basis of the appeal, including a statement of the facts alleged to be in dispute and a copy of the relevant documents, and a statement of the remedy requested;

(4) the address of the appellant or the appellant's representative to whom any notice or decision concerning the appeal is to be mailed or delivered;

(5) a reference, by case, agreement, or application number, if applicable, to any other affected agreement, contract, lease, permit, concession, or application; and

(6) if a material fact is disputed and a hearing is desired, a request for a hearing.

(e) An appellant appealing a decision on a protest of a matter under 17 AAC 45.300 - 17 AAC 45.399 must mail or deliver a copy of the appeal documents filed with the commissioner to any other bidder or proposer, as applicable, at the same time the appellant mails or delivers the appeal to the commissioner.

(f) The proper and timely filing of an appeal under this section shall stay the decision being appealed until the appeal is decided unless and until the commissioner determines in writing that it is contrary to the best interest of the state to stay the decision beyond the date of that determination or another stated date.

(g) The commissioner shall appoint a department employee or other qualified person who did not have any direct involvement in the decision being appealed to serve as the review officer for the appeal.

(h) The review officer shall hold a hearing if a hearing is requested and the review officer finds that material facts are in dispute. The review officer may consider an appeal without a hearing if the review officer finds that no material facts are in dispute.

(i) In a hearing under this section,

(1) the review officer shall, at least 21 calendar days before the hearing or such lesser time as agreed to by the review officer and all known parties, provide to the appellant and other interested parties written notice of the time and place for the hearing;

(2) the review officer shall regulate the order of testimony and presentation of the appeal;

(3) interested persons may attend, give testimony, or submit written statements;

(4) formal rules of evidence do not apply; however, testimony must be given under oath; and

(5) the hearing must be recorded and will be transcribed at the request and expense of the person requesting the transcript.

(j) The appellant has the burden to prove by a preponderance of the evidence that the appellant is entitled to the remedy requested.

(k) The review officer shall provide a written recommendation to the commissioner. The commissioner shall

(1) accept the review officer's recommendation;

(2) reject the review officer's recommendation and remand the recommendation back to the review officer with instructions; or

(3) issue a written decision based on the appeal record.

( l ) The commissioner will mail or deliver to the appellant or the appellant's representative and to any other bidder or proposer or their representatives a copy of any decision or order the commissioner issues on the appeal.

(m) The commissioner's decision on the appeal is a final administrative decision of the department that may be appealed to the superior court under the Alaska Rules of Appellate Procedure.

History: Eff. 3/28/2002, Register 161

Authority: AS 02.15.020

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