§ 5.28.320. Appeal.

A.

Appeal to mayor. Any party bidding or submitting a proposal for a contract with the borough adversely affected by the provisions of this chapter, or regulations promulgated hereunder, or by any acts of the borough in connection with the award of a borough contract, may appeal to the mayor in a writing personally received at the office of the borough purchasing officer within 3 business days of the date of notice of intent to award a contract. The appeal may be hand delivered, delivered by mail, or by facsimile and must comply with the requirements of this section.

B.

Contents of appeal. A written appeal shall, at a minimum, contain the following:

1.

The name, address, and telephone number of the interested party filing the appeal;

2.

The signature of the interested party or the interested party's authorized representative;

3.

Identification of the proposed award at issue;

4.

A statement of the legal or factual grounds for the appeal;

5.

Copies of all relevant documents; and

6.

A fee in the amount listed in the most current Kenai Peninsula Borough Schedule of Rates, Charges and Fees shall be paid to the borough and must be received by the deadline for filing the written appeal. This fee shall be refundable if the appellant prevails in the appeal to the mayor or assembly.

C.

Rejection of appeal. The purchasing officer shall reject an untimely or incomplete appeal or an appeal filed without timely payment of the required fee. Such rejection shall be final and may be appealed to the superior court pursuant to Part VI of the Rules of Appellate Procedure.

D.

Stay of award. If a timely and complete appeal is filed with the fee, the award of the contract shall be stayed until all administrative remedies have been exhausted, unless the mayor determines in writing that award of the contract pending resolution of the appeal is in the best interests of the borough.

E.

Notice and response. Notice of the stay and appeal shall be delivered to any party who may be adversely affected by the mayor's decision by facsimile, first class mail or in person within 3 business days of receipt of a properly filed appeal.

F.

Mayor's decision. The mayor shall issue a written decision to the appellant within 10 business days of the date the appeal is filed. If multiple appeals have been filed, they may be consolidated for purposes of the decision. Copies of the appeal and decision shall be provided to any interested party requesting one. The decision may include any lawful action, including without limitation an amendment of all or any part of the recommended award. For good cause shown the mayor may extend the date for the decision for such additional period as may be necessary.

G.

Appeal to assembly. The mayor's decision may be appealed to the assembly by filing a notice of appeal to the assembly and requesting the mayor to forward the written appeal and the mayor's response to the assembly. The assembly shall conduct a de novo review of the issue appealed. The request to appeal to the assembly must be submitted in writing or by facsimile copy of a writing to the borough clerk within 3 business days of the mayor's decision. Any appeal not timely filed shall be rejected by the clerk and the appeal forever barred. Appeals to the assembly will be heard at the date and time established by the assembly president, not less than 12 nor more than 35 days after receipt of the appeal. For good cause the assembly president may shorten or extend the hearing date.

H.

Notice and record on appeal.

1.

The clerk shall provide all interested parties as defined in paragraph A. above including the appellant, the borough administration, and any other parties who submitted or bid or proposal who may be adversely affected by a decision of the assembly, notice of the appeal and scheduled hearing date within 3 business days of receipt of the notice of appeal. Such notice shall also advise the parties of their right to appear and be heard at the appeal, and shall also set forth a schedule for written statements and submission of evidence.

2.

The purchasing officer shall submit to the clerk the record of the bid or proposal process including the invitation to bid or request for proposal, any amendments thereto, all correspondence to or from all parties, the appeal filed to the mayor and supporting documentation, and the decision issued by the mayor. The clerk shall prepare the record on appeal, to include written statements and all evidence submitted, and provide copies to interested parties upon payment of appropriate copying fees in the amount listed in the most current Kenai Peninsula Borough Schedule of Rates, Charges and Fees. Prior to the scheduled hearing the clerk shall distribute copies of the record to all assembly members, the purchasing officer and the mayor.

I.

Quasi-judicial process. The borough assembly shall act in its quasi-judicial capacity when considering an appeal under this section and shall accordingly remain impartial and refrain from ex parte contact with any interested party regarding a specific invitation to bid or request for proposals from the time it has been issued. Any assembly member found to have violated this provision shall be recused from participation in the appeal.

J.

Written arguments and evidence. Written arguments and submittals of evidence shall be filed in the following manner:

1.

Written arguments due. Written arguments shall be filed by the parties on a date set by the clerk no later than 5 business days prior to the hearing. All exhibits, evidence, and affidavits supporting a party's position shall be filed on the date written arguments are due.

2.

Party participation. Any eligible party wishing to participate in the appeal must submit its mailing address, telephone and facsimile numbers, if any, to the clerk, in writing, within 5 business days of the clerk issuing notice of the appeal. The clerk shall provide the parties, the mayor and assembly with written submittals before the hearing date.

K.

Hearing. The following procedures shall be followed by the assembly for conduct of the hearing:

1.

No new evidence. Evidence not submitted to the clerk 5 business days prior to the hearing, may not be considered by the assembly unless good cause is shown. Good cause may include, but is not limited to, evidence that was not available to the party presenting the evidence at the time it was due to the clerk. Any objection to new evidence by any party shall be made at the time of the hearing before the assembly.

2.

The following order and time limitations shall be followed for the hearing, unless for good cause shown the assembly permits a change:

a.

Appellant's Opening Presentation;

b.

Administration's Opening Presentation;

c.

Opening Presentation by any other Party;

d.

Rebuttal by the Appellant;

e.

Rebuttal and closing by the Administration;

f.

Rebuttal by any other interested party; and

g.

Sur-Rebuttal and closing by the Appellant.

3.

If the appellant or representative is not present when called, the assembly shall consider any written presentation, evidence, and documents presented to it pursuant to and thereafter proceed according to the remaining applicable provisions of this chapter.

4.

All persons presenting evidence shall do so under oath, administered by the borough clerk.

5.

The hearing shall be conducted informally with respect to the introduction of evidence. Irrelevant evidence may be excluded by the presiding officer. Each interested party shall have a total of no more than 30 minutes to present their case. Each party shall be responsible for dividing their 30 minutes between oral presentation, argument, testimony (including witness testimony), and rebuttal. The board may expand or limit the length of the hearing depending on its complexity, or take other action to expedite the proceedings. Cross-examination will not be permitted during presentation of the case. If a witness testifies during presentation of either the appellant's or any other parties' case, unless excused by the board with the concurrence of the appellant and all other parties, the witness must remain available in the assembly room to be called to testify during rebuttal by the appellant and the administration or other interested party. Assembly questions and parties' responses shall not be included in the time limitation.

L.

Decision.

1.

The assembly may either uphold the mayor's decision, remand the matter back to the mayor or order a rejection of all bids or proposals. The assembly shall make written findings of fact which are supported by the substantial evidence in the record, written conclusions and an order. The assembly member chairing the hearing shall execute the order. If the matter is remanded to the mayor, any further appeals of the mayor's decision shall be to the superior court pursuant to Part VI of the Alaska Rules of Appellate Procedure.

2.

"Substantial evidence" means relevant evidence a reasonable mind might accept to support a conclusion.

3.

The clerk shall serve the written decision on the parties in person or by mail within 10 business days after the oral decision. If facsimile service is requested by a party, service by U.S. mail shall follow.

M.

Appeal to superior court. Appeals may be taken from the written decision of the assembly within 30 days of the date of the decision pursuant to Part VI of the Alaska Rules of Appellate Procedure.

(Ord. No. 2011-32, §§ 10, 11, 9-20-11; Ord. No. 2010-32, §§ 1—3, 10-12-10; Ord. No. 2003-10, § 1, 4-15-03; Ord. No. 96-07, § 1, 1996; Ord. No. 87-29, § 1(part), 1987)