3. hold a hearing on the protest, following the procedures below, if there is a genuine issue of material fact or law that needs to be resolved in order to determine whether it should be upheld. The fact that a Protest Officer holds a hearing, considers a protest, or issues a written decision does not affect a person’s right to, at a later date, question or challenge the Protest Officer’s jurisdiction to hold the hearing, consider the protest, or render the decision. A Protest Officer’s determination of facts relating to a protest is final and conclusive on appeal unless shown to be arbitrary and capricious or clearly erroneous. Utah Code § 63G-6a-1603(1), (2), (3), (4)(e), (10) (2017) Protest records The Protest Officer shall record each protest hearing. Regardless of whether a hearing is held, the Protest Officer shall preserve all records and other evidence relied upon in reaching the written decision. Such records may not be destroyed until the decision, and any appeal of the decision, becomes final. The Protest Officer shall submit the protest appeal record to the Procurement Policy Board within seven days after (a) notice of an appeal of the decision or (b) a request from the chair of the Procurement Policy Board. Utah Code § 63G-6a-1603(4)(d) (2017) Hearing process For purposes of a protest hearing, the Protest Officer may subpoena witnesses and compel their attendance, may subpoena documents for production at the hearing, may obtain additional factual information, and may obtain testimony from experts, the person filing the protest, representatives of the District, or others. The Rules of Evidence do not apply to a protest hearing. The deliberations of the Protest Officer may be held in private. Utah Code § 63G-6a-1603(4), (5)(a) (2017) Written determination A Protest Officer shall promptly issue a written decision regarding any protest that is not settled by mutual agreement. The decision shall state the reasons for the action taken, inform the protestor of the right to judicial or administrative review as provided in the District’s procurement policies and the Procurement Code, and state the amount of the security deposit or bond required for a further appeal. The person issuing the decision shall mail, email, or otherwise immediately furnish a copy of the decision to the protestor. If the Protest Officer does not issue the written decision regarding a protest within 30 calendar days after the day on which the protest was filed with the Protest Officer, or within a longer period as may be agreed upon by the parties, the protester may proceed as if an adverse decision had been received. Utah Code § 63G-6a-1603(6), (9) (2017) Effect of determination A determination is effective until stayed or reversed on appeal, except as provided above. The determination is final and conclusive unless the protestor files an appeal with the Procurement Policy Board. Utah Code § 63G-6a-1603(7), (8)(a) (2017) Finding of a violation before the contract is awarded
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