§ 2-1367. Appeals.

(a)

Determination of noncompliance. A responsible bidder that is determined to be nonresponsive to the requirements of this division, and that otherwise would have been awarded a contract, as determined in consultation with the chief procurement officer, shall receive a written determination by the director of the office of contract compliance, via certified mail, setting forth the reasons for the determination of non-responsiveness.

(b)

Decertification of an SBE Upon a decertification of an SBE, the office of contract compliance shall notify the affected party in writing, via certified mail, setting forth the reasons for the decertification.

(c)

Time for filing notice of appeal. Any business that has been decertified as an SBE, or against whom a final determination of non-responsiveness to the requirements of this division has been made by the office of contract compliance officer, may appeal the final determination of non-responsiveness or decertification of SBE status by filing a notice of appeal with the director of the office of contract compliance in writing within seven calendar days of receipt of the notice of the final determination of noncompliance or decertification.

(d)

Posting of appeal security. Any bidder that files an appeal to a final determination of non-responsiveness by the office of contract compliance must, at the time of filing, post security in the amount of one percent of the financial offer of the appellant or, in the event the bid/proposal does not involve a fixed financial offer either in the form of payment of monies to the city or payment of monies to the bidder, $100,000.00, to be tendered in the form of a bond or certified check. If the contract compliance hearing officer upholds the determination of the office of contract compliance, he or she shall assess against the appellant reasonable attorneys' fees and other administrative costs incurred by the city in reviewing and responding to the appeal. If the city is represented by its law department, such fees and costs will be calculated at the hourly rate of each attorney participating in the review and response to the appeal set forth in each attorney's most recent city paycheck times the number of hours worked by such participating attorneys on the appeal. If the city is represented by outside counsel, such fees and costs will be calculated at the billing rates of the firm's attorneys, plus all out of pocket costs of the firm concerning the appeal. Within 15 days of ruling against the appellant, the contract compliance hearing officer, in consultation with the city's law department and outside counsel, if any, will calculate the city's cost in reviewing and responding to the appeal and will apply the appellant's bond or certified check to the costs. Any remaining balance of the bond or certified check will be returned to the appellant.

(e)

Notice of hearing date and hearing. Within three calendar days of receipt of a notice of appeal from an aggrieved party, excluding official holidays, the contract compliance officer shall forward the notice to the contract compliance hearing officer.

(f)

Exhaustion of administrative remedies. A protestor shall be required to exhaust its administrative remedies before filing suit in any state or federal court based on a determination of non-responsiveness or decertification of SBE status by the office of contract compliance rendered pursuant to the city's small business opportunity ordinance.

(g)

Duties of contract compliance hearing officer. The duties of the contract compliance hearing officer shall be as follows:

(1)

The contract compliance hearing officer shall have exclusive jurisdiction to determine all appeals arising under this division.

(2)

The contract compliance hearing officer shall set a hearing date not more than seven calendar days from the date of receipt of the notice of appeal from the director of the office of contract compliance, excluding official holidays. The hearing officer shall cause notice of the hearing to be served upon all parties by certified U.S. mail. Such notice shall set forth with particularity the decision being appealed by the aggrieved business and shall include the hearing date, time and place.

(3)

At the hearing, all parties shall be provided a fair and impartial hearing and shall be allowed to produce any and all evidence in either party's possession concerning the final determination of non-responsiveness with the requirements of this division, or the decertification as an SBE.

(h)

Decision. Within seven calendar days after conclusion of the hearing, excluding official holidays, the contract compliance hearing officer shall make a written decision on the appeal, which decision shall affirm, alter or reverse the final determination of non-responsiveness or the decertification of SBE status by the office of contract compliance. The hearing officer shall decide whether the final determination of non-responsiveness or the decertification being appealed was in accordance with the law in existence at the time that the bidder was found to be non-responsive, at the time that the decertification was made, or at the time the penalties were imposed.

(i)

Notice of decision. Within seven calendar days after conclusion of the hearing, excluding official holidays, the contract compliance hearing officer shall issue written notice of the decision on the appeal to all parties. The notice of the decision shall be sent to all parties by certified U.S. mail and shall set forth the reasons for the decision.

(j)

Appeal. The decision of the hearing officer shall be binding on all parties, subject to the right of appeal as provided by O.C.G.A. § 5-4-1, et seq.

(Ord. No. 2009-78(09-O-1876), § 9, 12-15-09)