Fremont Municipal Code Art. VIII Protests and Appeals

(a) Application. These protest procedures shall apply to the following contract procurements:

(1) Contracts for personal property acquisition in an amount more than $25,000.

(2) Contracts for public project construction in an amount more than $30,000.

(3) Contracts for services, excluding public project construction, in an amount more than $100,000.

(4) Contracts subject to the solicitation requirements set forth in Section 3.20.160 in an amount more than $100,000.

(5) Contracts designated by the city manager.

(b) Eligibility to Protest. Protests may be submitted only by a party that has submitted a bid or proposal in response to the contract solicitation. A subcontractor of a bidder or proposer may not submit a protest. A party may not rely on a protest submitted by another party, but must timely pursue its own protest.

(c) Notice of Decision. After a decision to award a contract subject to these protest provisions has been made, the city shall issue a notice of intent to award by posting the notice on the designated public bulletin boards and on the city’s bid results web page.

(d) Time to Submit Protest. All protests must be submitted in writing to the purchasing division before 5:00 p.m. on the fifth business day after the date of posting of the city’s notice of intent to award. The protester shall bear the risk of nondelivery within the time period specified above regardless of the method of delivery selected (facsimile, electronic mail, delivery service, United States mail service).

(e) Form of Protest. All protests shall be in writing and shall contain a complete statement of: the legal grounds for the protest; all the facts relevant to the protest; and the form of relief requested and the legal basis for such relief. All protests shall be accompanied by all documentation supporting the grounds for the protest. The protest shall include the name, address and telephone number of the protesting party and the person representing the protesting party, if any.

(f) Effect of Failure to Comply with Protest Procedures. The procedures set forth in this section (including the time limits for filing a protest and required information) are mandatory and are the sole and exclusive remedy of a bidder or proposer to dispute the award of a contract subject to these procedures. A protest that does not comply with these procedures may be summarily rejected. Failure to comply with these procedures shall constitute a waiver of any right to further pursue the protest including the filing of a Government Code Claim or other legal proceedings.

(g) Investigation of Protest. Upon timely filing of a protest that contains all the required information, the city shall notify the party whose bid or proposal is subject to the protest and may investigate the protest. If additional information is requested by the city, the party from whom it is requested shall deliver the information to the city within the time period specified by the city.

(h) Review and Determination of Protest. The city’s project manager in consultation with the city attorney shall make a recommendation regarding the bid protest to the awarding body. As used in this section, awarding body means the city manager or designee for contracts subject to this section and within the city manager’s award authority as set forth in Section 3.20.070(b), or the city council for all other contracts subject to this section.

(1) The awarding body shall consider and determine the protest based upon the written information provided by the parties, the recommendations of the city staff, and oral presentations at the meeting at which the protest is considered.

(2) Protest determinations made in accordance with this section by the awarding body shall be final and conclusive. Therefore, protest determinations made by the city manager as the awarding body shall not be subject to the appeal hearing process set forth in Section 3.20.340 or the appeal process set forth in Chapter 1.25 and shall be subject only to such judicial review as may be available under state or federal law.

(3) The filing of a protest shall not preclude the awarding body from rejecting all bids or proposals and directing staff to perform a new solicitation for a contract. (Ord. 8-2011 § 15(B), 7-12-11. 1990 Code § 2-9800.)

(a) A determination made by the city council pursuant to this chapter shall only be subject to such judicial review as may be available under state or federal law.

(b) Any person aggrieved by a determination made by the city manager pursuant to this chapter may appeal the determination only by complying with the requirements set forth in this section. Such an aggrieved person shall be referred to in this section as “appellant.”

(c) No later than 10 calendar days after the city provides written notice of the determination made by the city manager, the appellant shall submit a written appeal to the city manager along with a complete written description of all factual and legal bases for the appeal.

(d) The city manager shall appoint a hearing officer and provide the appellant with written notice of the date, time, and place of a hearing on the appeal. The written notice from the city shall be provided no later than 15 calendar days after the city’s receipt of the appellant’s written appeal. The hearing shall be held no later than 30 calendar days after the city’s receipt of the appellant’s written appeal.

(e) At the hearing, the appellant and the city shall each be provided an opportunity to be represented by legal counsel, and to present or rebut any evidence (documents, testimony, or other) on the issues raised in the appeal.

(f) The hearing officer shall consider relevant evidence presented during the hearing, and provide a written decision on the appeal to the city and the appellant, no later than 15 calendar days after the close of the hearing.

(g) The dates identified in this section for providing notices may be continued only by order of the hearing officer, or by consent of the city and the appellant.

(h) The hearing officer’s decision shall be a final and conclusive decision, and shall not be subject to the appeal process set forth in Chapter 1.25. The hearing officer’s decision shall only be subject to such judicial review as may be available under state or federal law. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 15(C), 7-12-11. 1990 Code § 2-9801.)