19-11-244. Resolution of protested solicitations and awards.

19-11-244. Resolution of protested solicitations and awards. (a)(1) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation of a contract may protest by presenting a written notice at least seventy-two (72) hours before the filing deadline for the solicitation response to the State Procurement Director or the head of a procurement agency. (2) Any actual bidder, offeror, or contractor who is aggrieved in connection with the award of a contract may protest to the: (A) Director; or (B) Head of a procurement agency. (3) The protest shall be submitted in writing within fourteen (14) calendar days after the award or notice of anticipation to award has been posted. (4) A protest submitted by an aggrieved person under this section shall: (A) Be limited to one (1) or more of the following grounds: (i) The award of the contract exceeded the authority of the director or the procurement agency; (ii) The procurement process violated a constitutional, statutory, or regulatory provision; (iii) The director or the procurement agency failed to adhere to the rules of the procurement as stated in the solicitation, and the failure to adhere to the rules of the procurement materially affected the contract award; (iv) The procurement process involved responses that were collusive, submitted in bad faith, or not arrived at independently through open competition; or (v) The award of the contract resulted from a technical or mathematical error made during the evaluation process; and (B) State facts that substantiate each ground on which the protest is based. (b)(1)(A) The director, the head of a procurement agency, or a designee of either officer may settle and resolve a protest concerning the solicitation or award of a contract before rendering an administrative protest determination. (B)(i) A meeting in an attempt to settle or resolve a protest is not a public meeting. (ii) However, a final settlement or resolution of a protest made under this section shall not be kept secret, sealed, or withheld from public disclosure. (2) The authority to settle or resolve a protest under this section shall be exercised in accordance with laws governing the Arkansas State Claims Commission, which has exclusive jurisdiction over all claims against the state in connection with the solicitation or award of a contract, and the rules promulgated by the director. (c)(1) If a protest is not settled or resolved by mutual agreement under subsection (b) of this section, the director, the head of a procurement agency, or a designee of either officer shall promptly issue an administrative protest determination in writing. (2) The administrative protest determination shall state the reasons for the action taken. (d) A copy of the decision under subsection (c) of this section shall be mailed or otherwise furnished within five (5) days after it is written to the protestor and any other party intervening. (e) An administrative protest determination under subsection (c) of this section is: (1) Final and conclusive; and (2) Not an order as defined in the Arkansas Administrative Procedure Act, § 25-15-201 et seq. (f) In the event of a timely protest under subsection (a) of this section, the state shall not execute a contract that is the result of the protested solicitation or award unless the director or the head of the relevant procurement agency makes a written determination that the execution of the contract without delay is necessary to protect substantial interests of the state. (g) When the protest is sustained and the successfully protesting bidder or offeror was denied the contract award, the protesting bidder or offeror may be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs, through the commission. (h) An actual or prospective bidder, offeror, or contractor who is aggrieved by a protest submitted under this section that was without merit or intended purely to delay the award of a contract may bring a private cause of action for tortious interference with a business expectancy against the person or entity that submitted the protest.