Alabama Administrative Code Chapter 355-4-6 — Authority to Resolve Protests; Debarment and Suspension; Authority to Resolve Contract Controversies

355 State of Alabama Department of Finance

Ala. Admin. Code r. 355-4-6-.01 Authority To Resolve Protested Solicitations And Awards

(1) Definitions.

(a) Interested Party. Interested party means an actual or prospective bidder or offeror who may be aggrieved by the solicitation or award of a contract or by a protest.

(b) Procurement Record. Procurement Record means the complete, contemporaneous documentation of an agency's procurement process, to include all documents generated or considered by the State during the procurement process.

(c) Protester. Protester means any bona fide actual or prospective bidder or offeror who is aggrieved in connection with the solicitation or the award of a contract and who files an intent to protest or a protest.

(2) Presumption of Correctness. Decisions by the Chief Procurement Officer or Head of a Procurement Agency during the procurement process are presumed lawful and reasonable unless proven otherwise. The burden of proof is on a protestor to show not just mere error in the procurement process, but error causing it prejudice to the satisfaction of the Chief Procurement Officer or head of a Purchasing Agency for a protest to be sustained and relief to be granted.

(3) Filing of Intent to Protest or Protest.

(a) When Filed. An intent to protest or a protest is considered filed when received by the Chief Procurement Officer.

(b) Timing and Manner of Intent to Protest or Protest. Intent to protest a solicitation, an amendment to a solicitation, or an intent to award, must be filed within five calendar days of the issuance of such solicitation, amendment to a solicitation, or intent to award. Thereafter, a formal protest must be filed no later than seven calendar days from the filing of the notice of intent to protest (i.e., no later than twelve days from the action being protested). An intent to protest is not required if a formal protest is filed in lieu of an intent to protest within the initial five days permitted.

(b) Subject of Intent to Protest or Protest. As set forth in this rule, protesters may file an intent to protest or protest on any phase of solicitation or award including but not limited to, specifications preparation, bid solicitation, or award. Protesters may also protest the disclosure of information marked confidential in the bid or offer if the disclosure provided a party with an unfair competitive advantage.

(c) Form. The written protest shall include as a minimum the following:

1. the name and address of the protester and the email address of the protester's representative;

2. appropriate identification of the procurement, and, if a contract has been awarded, its number;

3. a statement of the grounds of the protest and the relief requested with enough particularity to give notice of the issues to be decided; and

4. supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated.

(d) An intent to protest or protest that does not contain the information required by subsection (c) must be denied.

(4) [Reserved.]

(5) Stay of Procurements During Protest. When a protest has been timely filed and before an award has been made, the Chief Procurement Officer or the head of a Purchasing Agency shall make no award of the contract until the protest has been settled unless the Chief Procurement Officer makes a written determination, after consulting with the head of the Using Agency or the head of the Purchasing Agency, that the award of the contract without delay is necessary to protect substantial interests of the State.

(6) Receipt, Review, and Decision by the Chief Procurement Officer. Upon receipt of a protest containing all information required by this Rule, if the protest is not resolved by mutual agreement within 10 days in accordance with Code of Ala. 1975, §41-4-16l(c), the Chief Procurement Officer will conduct an administrative review of the protest and the procurement record. Upon the completion of the administrative review, the Chief Procurement Officer shall issue a written decision as expeditiously as possible. During the administrative review of a protest, the Chief Procurement Officer may request information from the using agency and any interested party.

(7) Effect of Judicial or Administrative Proceedings. If an action concerning the protest has commenced in court, the Chief Procurement Officer shall not act on the protest but refer the protest to the Attorney General. After consulting with the Attorney General, the Chief Procurement Officer may proceed with a solicitation or award of a contract in accordance with Code of Ala. 1975, §41-4-16l(f). This Section shall not apply where a court requests that a decision be made on a protest by the Chief Procurement Officer or the head of a Purchasing Agency.

History

• Author: Department of Finance, Legal Division
• Authority: Code of Ala. 1975, §§41-4-161.
• New Rule: Published June 30, 2022; effective August 14, 2022; operative October 1, 2022. Amended: Published March 31, 2026; effective May 15, 2026.

Ala. Admin. Code r. 355-4-6-.02 Authority To Debar And Suspend

(1) Application. This Rule applies to all debarments or suspensions of persons from consideration for award of contracts imposed by the Chief Procurement Officer.

(2) Suspension.

(a) Initiation. After consultation with the affected Using Agency and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the Chief Procurement Officer that probable cause exists for debarment as set forth in Code of Ala. 1975, §41-4-162, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that:

1. the suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but not for a period in excess of three months;

2. bids or proposals will not be solicited from the suspended person, and, if they are received, they will not be considered during the period of suspension; and

3. if a hearing has not been held, the suspended person may request a hearing in accordance with Rule 355-4-6-.02(4) (Request for Hearing).

(b) Effect of Decision. A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the Chief Procurement Officer but otherwise shall only be ended when the suspension has been in effect for three months or a debarment decision takes effect.

(3) Initiation of Debarment Action. Written notice of the proposed debarment action shall be sent by certified mail or other method that allows a return receipt, with return receipt requested, to the contractor or prospective contractor. This notice shall:

(a) state that debarment is being considered;

(b) set forth the reasons for the action;

(c) state that if the contractor or prospective contractor so requests a hearing will be held, provided such request is received by the Chief Procurement Officer within ten days after the contractor or prospective contractor receives notice of the proposed action; and

(d) state that the contractor or prospective contractor may be represented by counsel.

Such notice shall also be sent to the affected Using Agency. The affected Using Agency is that agency that has used the supplies or services supplied by the contractor. If more than one affected Using Agency is involved the Chief Procurement Officer may designate one or more representatives to be consulted in respect to this action.

(4) Request for Hearing. A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the Chief Procurement Officer proposing the action within ten days of receipt of notice of the proposed action under Subsection (3) (Initiation of Debarment Action). If no request is received within the ten-day period, a final determination may be made as set forth in Subsection (8) (Determination of Hearing Officer; Final Decision) after consulting with the affected Using Agency.

(5) Notice of Hearing. If a hearing is requested, the Chief Procurement Officer may appoint a hearing officer to conduct the hearing and recommend a final decision. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail or other method that allows a return receipt, with return receipt requested, and shall state the nature and purpose of the proceedings. Copies shall be sent to the Using Agency.

(6) Authority of Hearing Officer. The hearing officer, in the conduct of the hearing, has the power, among others, to:

(a) hold informal conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding either by consent of the parties or upon such officer's own motion;

(b) require parties to state their positions with respect to the various issues in the proceeding;

(c) require parties to produce for examination those relevant witnesses and documents under their control;

(d) rule on motions, and other procedural items on matters pending before such officer;

(e) regulate the course of the hearing and conduct of participants therein;

(f) receive, rule on, exclude, or limit evidence, and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious;

(g) fix time limits for submission of written documents in matters before such officer;

(h) impose appropriate sanctions against any party or person failing to obey an order under these procedures, which sanctions may include:

1. refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

2. excluding all testimony of an unresponsive or evasive witness; and

3. expelling any party or person from further participation in the hearing;

(i) take official notice of any material fact not appearing in evidence in the record, if such fact is among the traditional matters of judicial notice; and

(j) administer oaths or affirmations.

(7) Hearings Procedures.

(a) Hearings shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements. The weight to be attached to evidence presented in any particular form will be within the discretion of the hearing officer. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The hearing officer may require evidence in addition to that offered by the parties.

(b) A hearing may be recorded but need not be transcribed except at the request and expense of the contractor or prospective contractor. A record of those present, identification of any written evidence presented, and copies of all written statements and a summary of the hearing shall be sufficient record.

(8) Determination of Hearing Officer; Final Decision.

The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the Chief Procurement Officer. Copies shall also be sent to the contractor or prospective contractor and the affected Using Agency. The contractor or prospective contractor shall have five days to file comments upon the hearing officer's determination. The Chief Procurement Officer may request oral argument. After consultation with the affected Using Agency, the Chief Procurement Officer shall issue a final decision. Both the hearing officer's determination and the final decision shall recite the evidence relied upon. When debarment is recommended or ordered, the length of the debarment (not to exceed three years), the reasons for such action, and to what extent affiliates are affected shall be set forth. In addition, the final determination shall inform the debarred person of its rights to administrative review under Code of Ala. 1975, §41-4-164 regarding Legal and Contractual Remedies.

If the Chief Procurement Officer acts as hearing officer under this section, he or she shall prepare a written determination of his or her findings. Such determination shall be sent to the contractor or prospective contractor and the affected Using Agency. The contractor or prospective contractor shall have five days to file comments upon the determination. After consultation with the affected Using Agency, the Chief Procurement Officer shall either affirm his or her original decision or issue a written amended decision. The Chief Procurement Officer's determination and amended decision, if any, shall recite the evidence relied upon.

(9) Effect of Debarment Decision. A debarment decision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until the Chief Procurement Office or Director of Finance orders otherwise or until the debarment period specified in the decision expires.

(10) Maintenance of List of Debarred and Suspended Persons. The Chief Procurement Officer shall maintain and update a list of debarred and suspended persons. The list shall be available to all agencies and political subdivisions of the State. Such list shall be available to the public in accordance with this Code and the Alabama Open Records Act.

History

• Author: Department of Finance, Legal Division
• Authority: Code of Ala. 1975, §41-4-162.
• New Rule: Published June 30, 2022; effective August 14, 2022; operative October 1, 2022.

Ala. Admin. Code r. 355-4-6-.03 Authority To Resolve Contract And Breach Of Contract Controversies

(1) General. It is the State's policy to try to resolve all controversies by mutual agreement without litigation. In the event of any dispute between the State and a contractor, senior officials of both parties shall meet and engage in a good faith attempt to resolve the dispute. Should that effort fail, and the dispute involves the payment of money, a contractor's sole remedy is the filing of a claim with the Board of Adjustment of the State of Alabama. For all other disputes arising under the terms of a contract which are not resolved by negotiation, the dispute will be resolved by the Chief Procurement Officer or head of a Purchasing Agency and his or her decision on the dispute will be final. The procedures to be followed for the resolution of disputes shall be prescribed by the Chief Procurement Officer and will depend on the complexity of the matter.

(2) Chief Procurement Officer or Head of a Purchasing Agency's Decision.

(a) Before issuing a final decision, the Chief Procurement Officer or head of a Purchasing Agency shall:

1. review the facts pertinent to the controversy; and

2. secure any necessary assistance from legal, fiscal, and other advisors.

(b) Final Decision. The Chief Procurement Officer or head of a Purchasing Agency shall immediately furnish a copy of the decision to the contractor by a method that provides evidence of receipt, and include in the decision:

1. a description of the controversy;

2. a reference to pertinent contract provisions;

3. a statement of the factual areas of agreement or disagreement; and

4. a statement of the Chief Procurement Officer or head of a Purchasing Agency's decision, with supporting rationale.

(c) Failure to Timely Issue Final Decision. If the Chief Procurement Officer or head of a Purchasing Agency does not issue a written decision within 120 days, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.

(d) Payments of Amounts Found Due. The amount determined payable pursuant to the decision, less any portion already paid, should be paid without delay. Such payment shall be without prejudice to the rights of either party.

(3) Controversies Involving State Claims Against the Contractor. All controversies involving claims asserted by the State against a contractor which cannot be resolved by mutual agreement shall be the subject of a decision by the Chief Procurement Officer or the head of a Purchasing Agency, as applicable.

(4) Disputes Clause. All contracts entered into under the State Procurement Code shall include a statement that disputes shall be resolved by utilizing the dispute resolution procedures set forth in this Rule.

History

• Author: Department of Finance, Legal Division
• Authority: Code of Ala. 1975, §41-4-62.
• New Rule: Published June 30, 2022; effective August 14, 2022; operative October 1, 2022.