HOUSE OF REPRESENTATIVES |
H.B. NO. |
2119 |
TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to procurement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 103D-709, Hawaii Revised Statutes, is amended to read as follows:
"§103D-709 Administrative proceedings
for review. (a) The several hearings officers appointed by the director
of [the department of] commerce and consumer affairs pursuant to section
26-9(f) shall have jurisdiction to review and determine de novo, any request
from any bidder, offeror, contractor, or person aggrieved under section
103D-106, or governmental body aggrieved by a determination of the chief
procurement officer, head of a purchasing agency, or a designee of either
officer under section 103D-310, 103D-701, or 103D-702.
(b) Hearings to review and determine any
request made pursuant to subsection (a) shall commence within twenty-one
calendar days of receipt of the request. The hearings officers shall have power
to issue subpoenas, administer oaths, hear testimony, find facts, make
conclusions of law, and issue a written decision [which] that shall
be final and conclusive unless a person or governmental body adversely affected
by the decision commences an appeal in the circuit court of the circuit where
the case or controversy arises under section 103D-710.
(c) Only parties to the protest made and
decided pursuant to sections 103D-701, 103D-709(a), 103D-310(b), and [[]103D-702(g)[]]
may initiate a proceeding under this section. The party initiating the
proceeding shall have the burden of proof, including the burden of producing
evidence as well as the burden of persuasion. The degree or quantum of proof
shall be a preponderance of the evidence. All parties to the proceeding shall
be afforded an opportunity to present oral or documentary evidence, conduct
cross-examination as may be required, and argument on all issues involved. The
rules of evidence shall apply.
(d) The several hearings officers appointed by the director of commerce and consumer affairs pursuant to section 26-9(f) shall have exclusive jurisdiction to review, and determine de novo, any request from any bidder, offeror, contractor, or person aggrieved by a determination under section 103D-310 or 103D-701 relating to the solicitation or award of a contract under section 103D-302 or 103D-303; provided that the estimated value of the contract is less than $5,000,000.
The party initiating the proceeding shall pay to the department of commerce and consumer affairs a cash or protest bond in an amount equal to $10,000 plus one per cent of the total estimated value of the contract that is the subject of the proceeding. If the initiating party prevails in the administrative proceeding, the cash or protest bond shall be returned to that party. If the initiating party does not prevail in the administrative proceeding, the cash or protest bond shall be forfeited to the department of commerce and consumer affairs and shall be deposited into the general fund.
For the purposes of this subsection, "estimated value of the contract" means the lowest responsible and responsive bid under section 103D-302, or the bid amount of the responsible offeror whose proposal is determined in writing to be the most advantageous under section 103D-303, as applicable.
[(d)] (e) The hearings officers
shall ensure that a record of each proceeding which includes the following is
compiled:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed;
(3) Offers of proof and rulings thereon;
(4) Proposed findings of fact; and
(5) A recording of the proceeding which may be transcribed if judicial review of the written decision is sought under section 103D-710.
[(e)] (f) No action shall be
taken on a solicitation or an award of a contract while a proceeding is
pending, if the procurement was previously stayed under section 103D-701(f).
[(f)] (g) The hearings officer shall
decide whether the determinations of the chief procurement officer or the chief
procurement officer's designee were in accordance with the Constitution,
statutes, rules, and the terms and conditions of the solicitation or contract,
and shall order such relief as may be appropriate in accordance with this
chapter.
[(g)] (h) The policy board shall
adopt such other rules as may be necessary to ensure that the proceedings
conducted pursuant to this section afford all parties an opportunity to be
heard."
SECTION 2. Section 103D-710, Hawaii Revised Statutes, is amended to read as follows:
"§103D-710 Judicial review. (a) [Only
parties] Parties to proceedings under section 103D-709 who are
aggrieved by a final decision of a hearings officer under that section may
apply for judicial review of that decision. The circuit court shall have
exclusive jurisdiction to review and determine de novo, any request from
any bidder, offeror, contractor, or person aggrieved by a determination under
section 103D-310 or 103D-701 relating to the solicitation or award of a
contract under section 103D-302 or 103D-303; provided that the estimated value
of the contract is $5,000,000 or greater. The proceedings for review shall
be instituted in the circuit court of the circuit where the case or controversy
arises.
(b) An application for judicial review shall not operate as a stay of the decision rendered under section 103D-310, 103D-701, or 103D-709.
(c) Within twenty calendar days of the filing of an application for judicial review, the hearings officer or chief procurement officer or designee, as applicable, shall transmit the record of the administrative proceedings to the circuit court of the circuit where the case or controversy arises.
(d) The review shall be scheduled as
expeditiously as practicable. It shall be conducted on the record of the
administrative proceedings, and briefs and oral argument. [No] Except
as provided in subsection (a), no new evidence shall be introduced, except
that the circuit court may, if evidence is offered which is clearly newly
discovered evidence and material to the just decision of the appeal, admit the
same.
(e) Upon review of the record the circuit
court may affirm the decision of the hearings officer issued pursuant to
section 103D-709 or the chief procurement officer or designee issued
pursuant to section 103D-310 or 103D-701, as applicable, or remand the case
with instructions for further proceedings; or it may reverse or modify the
decision and order if substantial rights may have been prejudiced because [the
administrative] previous findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the chief procurement officer or designee or head of the purchasing agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Any party aggrieved by the decision of the circuit court may appeal in accordance with part I of chapter 641 and the appeal shall be given priority.
(g) As used in this section, "estimated value of the contract" means the lowest responsible and responsive bid under section 103D-302, or the bid amount of the responsible offeror whose proposal is determined in writing to be the most advantageous under section 103D-303, as applicable."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
INTRODUCED BY: |
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Report Title:
Procurement; Protests; Administrative Review; Judicial Review
Description:
Gives exclusive jurisdiction to DCCA hearing officers to hear protests of solicitations or awards of contracts with an estimated value of less than $5,000,000. Gives the circuit court exclusive jurisdiction to hear protests of solicitations or awards of contracts with an estimated value of $5,000,000 or more.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.