Section 648-1-5 - APPEALS OF CONTRACT AWARD DECISIONSA.Request for Reconsideration. An aggrieved person may request a hearing for reconsideration of a contract award decision by filing a written petition with the Executive Director of the Efficiency Maine Trust within 14 calendar days of the notification of the contract award pursuant to Section 2(G)(8). The petition must meet the requirements of Section 5(B). When a petition is filed under this section, the Trust may not execute a contract with a winning bidder until the Trust has taken final agency action on the petition.B.Petition. Each petition for a hearing to reconsider a contract award decision must contain the award decision being appealed, the name of the aggrieved person, the facts that make the petitioner an aggrieved person and the specific nature of the grievance, including the Appeal Criteria specified in Section 5(D). The Chair of the Board or the Chair's designee shall grant a hearing to reconsider a contract award decision unless it is determined that: 1. The petitioner is not an aggrieved person;2. The request was made more than 14 calendar days after notification of award; or3. The request is capricious, frivolous or without merit. The Chair of the Board or the Chair's designee shall notify the petitioner in writing of the decision regarding the request for a hearing within 15 calendar days of receipt of the request. If a request for a hearing is granted, notification must be made at least 10 calendar days before the hearing date. The notification must include the date and location of the hearing and the names of the Appeal Committee members. In the event the request for hearing is denied, the notification shall constitute final agency action.
In the event that multiple petitions for a hearing to reconsider are granted on a single contract award, the Chair of the Board or the Chair's designee may, at its discretion, consolidate all petitions that relate to a single contract award decision.
C.Appeal Committee. The Appeal Committee consists of a quorum of the Executive Committee of the Board or, as necessary due to conflicts of Executive Committee members, a quorum of the Board. A trustee who has served on the Proposal Review Team for a contract award may not serve on the Appeal Committee for an appeal of that award. The Appeal Committee shall appoint a person to serve as presiding officer over the hearing. This person may be one of the Appeal Committee members or any other person who has no direct or indirect personal, professional or financial conflict of interest in the appeal. The presiding officer, if not from the ranks of the Appeal Committee, shall have no vote in the decision.
D.Review Criteria; Burden. The Appeal Committee will review, hold hearings on and decide all petitions to reconsider contract award decisions. A petition to reconsider a contract award decision will be denied unless the petitioner persuades the Appeal Committee that in making the contract award decision, the Proposal Review Team:1. Committed a material violation of statute or law;2. Committed irregularities resulting in fundamental unfairness; or3. Acted in an arbitrary or capricious manner. The evidence presented must specifically address and be limited to one or more of these criteria. Evidence of any type that cannot be related to these criteria may be ruled inadmissible by the presiding officer.
The petitioner has the burden of demonstrating that reconsideration should be granted.
E.Hearing Participants. The petitioner may participate alone or be represented by Counsel or other agent. The Proposal Review Committee shall be represented by the Trust and/or its counsel. Other contract award winning bidders may petition to intervene.Such petition to intervene shall be presented in writing to the Executive Director of the Trust who shall determine and allow or disallow participation in writing within 7 calendar days of receipt of the request to intervene. Copies of this notification of participation shall be sent to the Appeal Committee members, the presiding officer and the petitioner.F.Hearing Procedures1. The presiding officer shall control all aspects of the hearing, rule on points of order, and rule on all objections and may set time limits and question witnesses.2. The petitioner must present evidence to substantiate the specific grievances stated in the appeal. Brief opening statements directed to the Appeal Committee may be made by the petitioner, the Proposal Review Team and any intervenors, in that order. a. The petitioner shall present evidence first, using witnesses and exhibits who may be cross examined by the Proposal Review Team and the intervenors. Re-direct questioning related to issues raised during cross examination only may be done by the petitioner, followed by re-cross examination by the Proposal Reviews Team and intervenors.b. Witnesses may be called who can present factual information related directly to the appeal. All witnesses shall be sworn. To expedite the proceeding, testimony of any witness may be pre-filed in written form. If used, pre-filed testimony must be made available to the Proposal Review Team, the Appeal Committee, presiding officer and all intervenors on the preceding work day, a minimum of twenty-four (24) hours prior to the hearing. Every such witness shall be subject to cross examination.c. Exhibits relating to any issue of fact in the proceeding may be presented. Documentary evidence may be incorporated into the record by reference when the materials so incorporated are made available for examination by the parties before being received in evidence. The petitioner must furnish copies of all documentary evidence to the presiding officer, Appeal Committee, the Proposal Review Team and all intervenors. Any costs associated with this subparagraph are the responsibility of the petitioner and shall not be recovered by any judgement of the Appeal Committee.3. The Proposal Review Team and all intervenors shall have the opportunity to submit evidence relevant to the appeal through witnesses and exhibits. The procedures for presenting this evidence are the same as those for the petitioner, substituting the words "Proposal Review Team" or "intervenor" for petitioner. The order of examination and cross examination when the Proposal Review Team presents evidence is Proposal Review Team, all intervenors, and the petitioner. The order of the examination and cross examination when an intervenor presents evidence shall be remaining intervenors (if any), the Proposal Review Team and the petitioner.4. The Appeal Committee may ask questions for clarification at any point throughout the direct and cross examinations. In addition, the Appeal Committee may ask questions after the direct and cross examination, may request additional witnesses, and may recall any witness for additional questioning.5. All evidence received or considered shall be part of the record. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The presiding officer may exclude irrelevant or unduly repetitious evidence. No sworn written evidence shall be admitted unless the author is available for cross examination, except for good cause shown.G.Additional argument. The Appeal Committee or presiding officer on its own motion or at the request of the petitioner may require additional written argument, hold an oral argument, or hold an additional hearing on the petition. The presiding officer shall invite a representative of the contract award winning bidder to participate in any additional review of a contract award.H.Decision. The Appeal Committee shall consider all evidence entered into the record and shall determine whether the petitioner has established by a preponderance of the evidence that one or more of the standards set forth in Section 5(D) of these rules has been proven. On the basis of the record, the Appeal Committee may:1. Deny the petition to reconsider and uphold the contract award decision; or2. Reverse the contract award decision if it finds that the petitioner has made the demonstration required under Section 5(D) of these rules. If the Appeal Committee decides to reverse the contract award decision, the Efficiency Maine Trust Board may then: a. Remand the matter to the original or a newly constituted Proposal Review Team to review the bids and award a contract consistent with the written decision of the Appeal Committee;b. Decide to issue a new RFP, RFQ or PON and begin a new selection process; orc. Decide not to proceed with the program or project.I.Notice of Decision; Final Agency Action. The Appeal Committee or the presiding officer if so designated by the Committee shall notify the petitioner, the Proposal Review Team and all intervenors of its decision in writing within 15 calendar days following the final day of the hearing. Notification of the decision of the Appeal Committee regarding the petition to reconsider a contract award decision constitutes final agency action.95- 648 C.M.R. ch. 1, § 5