1. (a) A person who is aggrieved by an award of a contract may protest a purchasing agency's failure to follow procedures established by this chapter, rules adopted by the policy board, or a request for proposals in selecting a provider and awarding a purchase of health and human services contract, provided the contract was awarded under section 103F-402 or 103F-403. Amounts payable under a contract awarded under section 103F-402 or 103F-403, and all other awards of health and human services contracts may not be protested and shall be final and conclusive when made.
2. (b) The protest shall be submitted to the head of the purchasing agency, in writing, within five working days after the postmark date on the notice of award.

3. (c) The head of the purchasing agency, or a designee, may settle and resolve a protest by one or more of the following means:

   1. (1) Amending or canceling a request for proposal;
   2. (2) Terminating the contract which was awarded;
   3. (3) Initiating a new process to award a contract;
   4. (4) Declaring the contract null and void from the time of its award; or

   5. (5) Affirming the purchasing agency's contract award decision.

      This authority shall be exercised in accordance with rules adopted by the policy board.

4. (d) If the protest is not resolved by mutual agreement, the head of the purchasing agency, or a designee, shall promptly issue a decision in writing. The decision shall:

   1. (1) State the reasons for the action taken; and

   2. (2) Inform the protesting person of the protester's right to reconsideration as provided in this part.

      A copy of the written decision shall be mailed or otherwise furnished to the person who initiated the protest.

5. (e) A decision under subsection (d) shall be final and conclusive unless a request for reconsideration is submitted to the chief procurement officer under section 103F-502.

[L 1997, c 190, pt of §2]

Case Notes

As nothing in this chapter expressly precluded judicial review, it did not violate the separation of powers doctrine; judicial review was available in connection with chapter 103F by way of a declaratory action under §632-1. 127 H. 76, 276 P.3d 645 (2012).

Although §632-1 generally endorses declaratory relief in civil cases, it disallows such relief where a statute provides a special form of remedy for a specific type of case; where this chapter provided for a protest process under this section through §103F-504, and §103F-504 limited the protestor to an administrative process as the "exclusive means" to resolve contract disputes, declaratory relief under §632-1 was unavailable because §632-1 specifically mandates that the statutory remedy provided in this chapter must be followed. 125 H. 200 (App.), 257 P.3d 213.

Under the express terms of §103D-709(c), petitioner could not seek review of the chief procurement officer’s decision on a chapter 103F health and human services contract pursuant to chapter 103D unless the protest was decided under one of the sections listed in §103D-709(c); §103D-709(c) thus foreclosed petitioner from seeking review of the chief procurement officer’s decision made pursuant to this section under the procedures of §103D-709. 127 H. 76, 276 P.3d 645 (2012).

Under the circumstances of the case, the decisions of the administrative officers of the department of education to reject the proposal of petitioner that responded to a request for proposals to provide health and human services under contracts pursuant to this chapter were subject to judicial review; §§103F-502(c) and 103F-504 and this section do not prohibit judicial review. 127 H. 263, 277 P.3d 988 (2012).