N.Y. Comp. Codes R. & Regs. tit. 2 § 24.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 24.5 - Appeal of Public Contracting Entity's Protest Determination

(a) Time to file an appeal.

1. An interested party may file an appeal of a public contracting entity's protest determination with the Bureau of Contracts within ten business days of receiving the public contracting entity's protest determination.

2. In its appeal, the interested party shall set forth the basis on which it challenges the public contracting entity's protest determination. The interested party shall also include, as an exhibit to its appeal, a copy of the initial bid protest submitted to the public contracting entity and the determination of such bid protest issued by the public contracting entity.

(b) Service and delivery.

1. The protesting party must simultaneously deliver a copy of the appeal to the public contracting entity and the successful bidder, and shall provide evidence of such delivery, either by showing that an electronic copy has been provided, or by attaching to the appeal an affirmation in writing as to such delivery.

2. Where the public contracting entity upholds the protest and the initial successful bidder files the appeal, a copy of the appeal shall be served on the original protesting party.

3. In the case of an appeal related to a procurement that resulted in contract awards to multiple successful bidders, the Bureau of Contracts shall determine, in its sole discretion, whether any or all of the successful bidders should be provided with a copy of the appeal and an opportunity to respond.

(c) Answers to the appeal.

1. The public contracting entity may file an answer to the appeal with the Bureau of Contracts simultaneously with the delivery of the contract to the Bureau of Contracts for its review, or within seven business days of the filing of the appeal, whichever is later. A copy of the public contracting entity's answer shall be simultaneously delivered to the protesting party and the successful bidder, and the public contracting entity must provide evidence of such delivery, either by showing that an electronic copy has been provided, or by attaching to the answer an affirmation in writing as to such delivery.

2. If there are multiple successful bidders, the public contracting entity shall deliver a copy of its answer to the successful bidders at the direction of the Bureau of Contracts.

3. The successful bidder (or, where the public contracting entity upholds the agency level protest, the original protesting party) may file an answer to the appeal with the Bureau of Contracts no later than the date that the public contracting entity is required to file its answer. If the successful bidder chooses to file an answer, it must simultaneously deliver a copy of such answer to the public contracting entity and the protesting party, and it must provide evidence of such delivery, either by showing that an electronic copy has been provided, or by attaching to the answer an affirmation in writing as to such delivery.

(d) The answers to the appeal, if submitted, shall constitute the final submission permitted as of right under this section. The Bureau of Contracts is not required to consider any additional filings or any materials submitted beyond those filings specifically set forth in this section in rendering its determination of the appeal.

(e) The Bureau of Contracts may, in its sole discretion and for good cause shown, waive any deadline set forth in this section.

(f) Where appropriate, the Bureau of Contracts may require the public contracting entity, the protesting party, the successful bidder, or any other interested party, to address additional issues identified by the Bureau of Contracts and submit further information regarding the procurement.

(g) Nothing herein shall preclude the Bureau of Contracts from obtaining information relevant to the procurement from any outside source, as it deems appropriate. Reliance on outside source information, if any, will be identified by Bureau of Contracts in its written determination.

(h) The Bureau of Contracts shall issue a written determination, contemporaneously with its final action on the contract, addressing the issues raised by the appeal. The Bureau of Contracts shall provide a copy of the determination to all interested parties. The determination shall be made part of the procurement record.

N.Y. Comp. Codes R. & Regs. Tit. 2 § 24.5

Adopted New York State Register January 25, 2017/Volume XXXIX, Issue 04, eff. 1/25/2017