200 KAR 5:380. Protests.

      RELATES TO: KRS 45A.285

      STATUTORY AUTHORITY: KRS 45A.035

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 45A.035 authorizes the Secretary of the Finance and Administration Cabinet to promulgate administrative regulations for the implementation of the Kentucky Model Procurement Code (KRS Chapter 45A). KRS 45A.285 authorizes the filing of a protest by a prospective vendor with respect to a Model Procurement Code solicitation, or the award of a contract from bids or proposals submitted in response to a solicitation, within two (2) calendar weeks after the aggrieved person knows or should have known of the facts giving rise to the prospective vendor’s protest. KRS 45A.285 further requires that any protest be in writing. The Finance and Administration Cabinet has utilized the Internet in recent years to post requests for sealed bids and proposals in response to RFP’s, in addition to notice of an award of contracts, in accordance with KRS 45A.080(3), (5), and KRS 45A.085(2). This administrative regulation establishes a more definitive filing deadline for written protests relative to individual solicitations and defines the information required to be contained in all written protests in order to allow more efficient, expeditious, and on the record resolution of protests.

      Section 1. (1) For purposes of computing the fourteen (14) calendar day deadline for the submission of protests pursuant to KRS 45A.285(2), the following presumptions shall apply:

      (a) For protests based upon alleged improprieties in a solicitation for bids or proposals which relate to the solicitation documents themselves, the facts giving rise to the protest shall be presumed to have been known to the protester on the date the solicitation, or a modification to it, was posted to the Commonwealth of Kentucky’s eProcurement web site.

      (b) For protests based upon alleged improprieties in the award of a contract, the facts giving rise to the protest shall be presumed to have been known to the protester on the date the contract award was posted to the Commonwealth of Kentucky’s eProcurement web site.

      (2) The presumption may be overcome upon presentation of clear and convincing evidence showing that the facts giving rise to the protest were not and should not have been known to the protester on the date established by subsection (1)(a) or (b) of this section.

      Section 2. A protest filed in accordance with KRS 45A.285 shall be in writing and shall contain the following information:

      (1) Name, address, and fax and telephone numbers of the protester;

      (2) Solicitation or contract number;

      (3) Detailed statement of the legal and factual grounds for the protest, including a description of the prejudice resulting to the protester;

      (4) Copies of documents ready reference to which is believed necessary to assess the factual or legal basis of the protest;

      (5) Statement as to the form of relief requested;

      (6) The date the facts giving rise to the protest became known to the protester; and

      (7) If necessary to rebut the presumption established by Section 1(1) of this administrative regulation, all relevant factual information establishing the timeliness of the protest under KRS 45A.285(2) and purported to be sufficient for a justifiable finding of timeliness under that statutory provision. Failure to comply with this subsection, if necessary, shall conclusively render the protest untimely. (31 Ky.R. Am 702; eff. 11-5-2004.)