Section 3-4-9 Legal and Contractual Remedies

3-4-9 Legal and Contractual Remedies.

Debarment means an action taken by the Procurement Agent under this article to prohibit a person from participating in Town procurements.

Interested party means an actual or prospective bidder, respondent or offeror whose economic interest may be affected substantially and directly by the issuance of a solicitation, the award of a contract or by the failure to award a contract. Whether an economic interest exists will depend upon the circumstances of each case. An interested party does not include a supplier, subconsultant or subcontractor to an actual or prospective bidder, respondent or offeror.

Suspension means an action taken by the Procurement Agent temporarily disqualifying a person from participating in Town procurements.

1. Right to Protest. Any actual or prospective bidder, offeror, or respondent who is aggrieved in connection with the solicitation or award of a contract may protest to the Town Manager.

2. Authority to Resolve Protests. The Manager shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a contract. This authority shall be exercised in accordance with this article.

a. Content of Protest. The protest shall be in writing and shall include the following information:

i. The name, address, telephone number and email address of the protestant;

ii. The signature of the protestant or its representative;

iii. Identification of the solicitation or contract number;

iv. A detailed statement of the legal and factual grounds of the protest including copies of relevant documents; and

v. The form of relief requested.

i. A protest with respect to a solicitation shall be submitted in writing prior to the solicitation due date, unless the aggrieved person did not know and should not have known of the facts giving rise to the protest prior to the solicitation due date. In all cases the protest shall be submitted within ten (10) calendar days after such aggrieved person knows or should have known of the facts giving rise thereto. In no event shall the protest be filed later than ten (10) days following contract award.

ii. The Manager, without waiving the Town’s right to dismiss the protest for lack of timeliness, may consider any protest that is not filed timely.

iii. The Manager shall give notice of the protest to the successful contractor if award has been made or, if no award has been made, to all interested parties. Interested parties have the right to intervene.

4. Stay of Procurements during the Protest. In the event of a timely protest, the Town may proceed further with the solicitation or with the award of the contract unless the Manager makes a written determination that there is a reasonable probability that the protest will be sustained or that the stay of procurement is not contrary to the substantial interests of the Town.

5. Confidential Information. Material submitted by a protestant shall not be withheld from any interested party except to the extent that the withholding of information is permitted or required by law or as determined pursuant to this article.

If the protestant believes the protest contains material that should be withheld, a statement advising the Manager of this fact shall accompany the protest submission in accordance with this article.

6. Dismissal. The Manager may dismiss, upon a written determination, a protest if the protest is untimely pursuant to (citation to time for filing protests) or the protest does not contain a statement as to the legal or factual basis for protest.

7. Decision. The Manager shall issue a written decision within twenty-one (21) days after a protest has been filed in accordance with this article. The decision shall contain an explanation of the basis of the decision.

A copy of the decision shall be mailed or otherwise furnished immediately to the contractor.

If the Manager fails to issue a decision within the time limits set forth this section, the protestant may proceed as if the Manager had issued an adverse decision.

8. Remedies. If the Manager sustains the protest in whole or part and determines that a solicitation, evaluation process, proposed contract award, or contract award does not comply with the Town Procurement Code, the Manager shall implement an appropriate remedy. In determining an appropriate remedy, the Manager shall consider all the circumstances surrounding the procurement or proposed procurement including, but not limited to:

a. The seriousness of the procurement deficiency;

b. The degree of prejudice to other interested parties or to the integrity of the procurement process;

c. The good faith of the parties;

d. Costs to the Town; and

e. The urgency of the procurement,

An appropriate remedy may include one (1) or more of the following:

a. Reject all bids, proposals or offers;

b. Terminate the contract;

c. Reissue the solicitation;

d. Issue a new solicitation;

e. Award a contract consistent with the Procurement Code;

f. Such other relief as is determined necessary to ensure compliance with the code.

9. Finality of Decision. Decisions issued in accordance with this article shall be final and conclusive.

1. Applicability. This subsection applies to controversies between the Town and a contractor and which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission.

2. Authority to Resolve Claims. The Procurement Agent shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a claim of a contractor as described in this article. This authority shall be exercised in accordance with this article.

3. Content of Claim. The claim shall be in writing and shall include the following information:

a. The name, address, telephone number and email address of the claimant;

b. The signature of the claimant or its representative;

c. Identification of the contract number;

d. A detailed statement of the legal and factual grounds of the claim including copies of relevant documents; and

e. The form of relief requested.

4. Procurement Agent’s Decision. If a contract claim cannot be resolved by mutual agreement, the Procurement Agent shall, upon a written request by the contractor for a final decision, issue a written decision no more than sixty (60) days after the request is filed. Before issuing a final decision, the Procurement Agent shall review the facts pertinent to the contract claim or controversy and secure any necessary assistance from legal, financial, procurement, and other advisors.

a. Decision. The decision shall include:

i. A description of the claim;

ii. A reference to the pertinent contract provision;

iii. A statement of the factual areas of agreement or disagreement; and

iv. A statement of the Procurement Agent’s decision, with supporting rationale.

A copy of the decision shall be mailed or otherwise furnished immediately to the contractor.

If the Procurement Agent fails to issue a decision within the time limits set forth this section, the protestant may proceed as if the Procurement Agent had issued an adverse decision.

5. Finality of Decision. Decisions issued in accordance with this article shall be final and conclusive.

1. Authority. The Procurement Agent has the sole authority to debar or suspend a person from participating in Town procurements.

2. Debarment or Suspension Causes. The causes for debarment or suspension shall be limited to the following:

a. Conviction of any person or any affiliate of any person for commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.

b. Conviction of any person or any affiliate of any person under any statute of the federal government, this state or any other state for embezzlement, theft, fraudulent schemes and artifices, fraudulent schemes and practices, bid rigging, perjury, forgery, bribery, falsification or destruction of records, or receiving stolen property; or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a Town contractor and which conviction arises out of or obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.

c. Conviction or civil judgment finding a violation by any person or affiliate of any person under state or federal antitrust statutes arising out of the response to a solicitation.

d. Violations of contract provisions within three (3) years of current debarment action, as set forth below, of a character which are reasonably deemed to be so serious as to justify debarment action:

i. Abandonment of a contract without good cause; or

ii. Knowingly fails without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or

iii. Failure to perform or unsatisfactory performance in accordance with the terms of one (1) or more contracts, except that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; or

iv. Failure to pay a contractor, subcontractor or material provider as required by A.R.S. Section 32-1129.

v. Any other cause that the Procurement Agent reasonably determines to be so serious and compelling as to affect responsibility as a Town contractor, including suspension or debarment of such person or any affiliate of such person by another governmental entity for any cause listed in this section.

3. Initiation of Debarment. Upon receipt of information concerning a possible cause for debarment, the Procurement Agent may investigate the possible cause. If the Procurement Agent has a reasonable basis to believe that a cause for debarment exists, the Procurement Agent may debar a person in accordance with this article.

4. Period of Debarment. The period of time for a debarment shall not exceed three (3) years from the date of the debarment determination.

If debarment is based solely upon debarment by another governmental agency, the period of debarment may run concurrently with the period established by that other debarring agency.

a. If the Procurement Agent implements debarment, the Procurement Agent shall notify the person in writing within seven (7) days of the debarment action.

b. The notice of debarment shall state:

i. The basis for debarment;

ii. The period, including dates, of the debarment;

iii. That bids, proposals or offers shall not be solicited or accepted from the person and, if received, will not be considered; and

iv. That the person may request a meeting with the Procurement Agent to present additional facts pertinent to the case and request reconsideration of the decision to debar.

6. Suspension. The Procurement Agent may suspend a person from receiving any award in order to protect the Town’s interests.

a. Period and Scope of Suspension. The period of suspension shall not be more than sixty (60) days unless the Procurement Agent is informed of compelling reasons to extend the period of suspension.

b. Notice of Suspension. If the Procurement Agent implements suspension, the Procurement Agent shall notify the person in writing within seven (7) days of the suspension action. The person may submit a request to the Procurement Agent for an administrative hearing within fourteen (14) days of issuance of the Procurement Agent’s suspension action. If a hearing is granted, it shall be conducted in accordance with this article.

The notice of suspension shall state:

i. The basis for suspension;

ii. The period, including dates, of the suspension;

iii. That bids or proposals shall not be solicited or accepted from the person and, if received, will not be considered; and

iv. That the person may request a meeting with the Procurement Agent to present additional facts pertinent to the case and request reconsideration of the decision to suspend.

v. If a debarred or suspended party requests reconsideration by the Procurement Agent, the Procurement Agent shall issue a decision to reinstate or uphold the prior decision within fourteen (14) days of the meeting.

7. Reinstatement. The Procurement Agent may at any time after a final decision on debarment or suspension reinstate a debarred or suspended person or rescind the debarment or suspension upon a determination that the cause upon which the debarment or suspension is based no longer exists.

Any debarred or suspended person may request reinstatement by submitting a petition to the Procurement Agent supported by documentary evidence showing that the cause for debarment or suspension no longer exists or has been substantially mitigated.

The Procurement Agent may require a hearing on the request for reinstatement.

The decision on reinstatement shall be in writing and specify the factors on which it is based.

E. Judicial Review of Protests, Claims, Debarments or Suspensions. Any final decision of the Procurement Agent of a protest, claim, debarment or suspension under this article is subject to special action review by any party to the proceeding. Exhaustion of the procedures set forth in this code shall be a condition precedent to seeking judicial review and the party seeking review shall file the complaint within thirty (30) days of a final decision by the Procurement Agent.

F. Exclusive Remedy. Notwithstanding any law to the contrary, this article shall provide the exclusive procedure for asserting a claim or cause of action against this Town arising in relation to any procurement conducted under this article. ((O)08-03, 02/20/2008)