Section 411-602-4 - APPEALS1. An unsuccessful Proposer may appeal the award decision by filing a written objection to the contract award with the Executive Director within five (5) business days of the date of receipt of the award notice and must at the same time send a copy of the written objection to the successful Proposer who shall automatically be a party to the appeal unless the Proposer declines participation. The written objection must contain, at a minimum, specification of the basis for the objection(s), specification of the relief sought, and specification of whether or not a stay of the contract award and/or a hearing is requested. Failure to request a stay and/or a hearing at the time the written objection is filed shall foreclose a later request for stay and/or a hearing.2. The Executive Director may her/himself decide the appeal or may appoint an appeal assistant or an appeal committee to assist in reviewing the appeal and may charge the appeal assistant or committee to make a recommendation for final decision. If the Executive Director has been the selector or part of a selection committee, the Executive Director will delegate all of her/his authority and responsibility in the appeal process.3. No unsuccessful Proposer may participate in an appeal process unless it files its own appeal under this section. In the event that more than one unsuccessful Proposer files an appeal on a given contract award, the Executive Director may combine the appeals proceedings.4. If a stay of the contract award is requested, the Executive Director must grant the stay for a specified period of time or until the appeal has been resolved if, based on the evidence submitted by the unsuccessful Proposer who has requested the stay, the Executive Director finds all of the following: A. irreparable injury to the unsuccessful Proposer if a stay is not granted,B. a reasonable likelihood of success by the unsuccessful Proposer on the merits of the appeal, andC. no substantial harm to adverse parties, to the MSRS or to the general public by the granting of a stay. Notwithstanding these findings, the Executive Director will not grant a stay if the Executive Director determines that proceeding with the contract award and with contract implementation without delay is necessary in order for the MSRS to responsibly conduct its operations and programs.
The Executive Director may stay a contract award on the Executive Director's own motion if s/he determines that a stay is in the best interest of the MSRS or its members.
5. The Executive Director shall notify all parties to the appeal in writing of the decision regarding the issuance of a stay within seven (7) days of receipt of the request. Failure of the unsuccessful Proposer whohas requested a stay to obtain a stay does not affect the unsuccessful Proposer's right to a hearing on appeal, if a hearing was requested.6. If a hearing is requested, the Executive Director shall notify all parties of the date and location of the hearing. Any hearing must be held within ten (10) calendar days of the filing of the written objection to the contract award and shall be recorded by audiotape or other means. When an appeal hearing is held, the Executive Director shall issue to all parties a final written decision with supporting reason ordinarily within ten (10) calendar days of the hearing and shall notify all parties of the decision.7. If no hearing is requested, the Executive Director shall issue to all parties a final written decision with supporting reason, ordinarily within ten (10) calendar days of the filing of the appeal and shall notify all parties of the decision.8. The burden of proof on all aspects of an appeal lies with the unsuccessful Proposer.9. The evidence that an unsuccessful Proposer may present on the merits of the appeal is limited to specifically addressing that there has been one or more of the following: B. irregularity in the selection process creating fundamental unfairness; orC. an arbitrary or capricious award. The unsuccessful Proposer must establish by clear and convincing evidence one or more of A, B, and/or C in order to prevail in the appeal.
10. The Executive Director shall determine the result of the appeal and issue to all parties a final written decision with supporting reason, ordinarily within ten (10) calendar days of the hearing. The result can be only one or the other of the following: A. validation of the contract award under appeal; orB. invalidation of the contract award under appeal. Invalidation of the contract award constitutes a decision not to make a contract award.
11. The Executive Director on his/her own motion or at the request of a party, may extend any time frame in this Section if the Executive Director determines that to do so will not impair or impede the MSRS in carrying out its responsibilities.12. The determination of the Executive Director under paragraph 10 constitutes final agency action and, if adverse to the unsuccessful Proposer, shall entitle the unsuccessful Proposer to judicial review pursuant to 5 MRSA §11001et seq.94- 411 C.M.R. ch. 602, § 4