ARTICLE IX. - LEGAL AND CONTRACTUAL REMEDIES

Sec. 28-75(1). "Adequate evidence" means more than mere accusation but less than substantial evidence. Consideration shall be given to the amount of credible information available, reasonableness in view of surrounding circumstances, corroboration, and other inferences that may be drawn from the existence or absence of affirmative facts.

Sec. 28-75(2). "Affiliate" means any person whose governing instruments requires it to be bound by the decision of another person or whose governing board includes enough voting representatives of the other person to cause or prevent action, whether or not the power is exercised. It may also include persons doing business under a variety of names, or where there is a parent-subsidiary relationship between persons.

Sec. 28-75(3). "Debarment" means an action taken by the director under this article to prohibit a person from participating in city procurements.

Sec. 28-75(4). "Filed" means delivery to the contract officer or to the director, whichever is applicable. A time and date of receipt shall be documented in a verifiable manner for purposes of filing.

Sec. 28-75(5). "Governing instruments" means those legal documents that establish the existence of an organization and define its powers including articles of incorporation or association, constitution, charter and by-laws.

Sec. 28-75(6). "Interested party" means an actual or prospective bidder, respondent or offeror whose economic interest may be affected substantially and directly by the issuance of a solicitation, the award of a contract or by the failure to award a contract. Whether an economic interest exists will depend upon the circumstances of each case. An interested party does not include a supplier, subconsultant or subcontractor to an actual or prospective bidder, respondent or offeror.

Sec. 28-75(7). "Receipt" means the earlier of actual receipt or the first attempted delivery by certified mail, or by any other means that provides evidence of the attempt, to the persons' last known address.

Sec. 28-75(8). "Substantial evidence" means such relevant evidence as a reasonable person might accept as sufficient to support a particular conclusion.

Sec. 28-75(9). "Suspension" means an action taken by the director under this article temporarily disqualifying a person from participating in city procurements.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-76. - Authority of the contract officer.

The contract officer shall have the authority to settle and resolve protests and contract claims. Appeals from the decisions of the contract officer may be made to the director pursuant to the provisions of this article.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-77. - Right to protest.

Any actual interested party who is aggrieved in connection with the solicitation or award of a contract may protest to the contract officer.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-78. - Filing of a protest.

Content of protest. The protest shall be in writing and shall include the following information:

(a)

The name, address, telephone number and email address of the protestant;

(b)

The signature of the protestant or its representative;

(c)

Identification of the solicitation or contract number;

(d)

A detailed statement of the legal and factual grounds of the protest including copies of relevant documents; and

(e)

The form of relief requested.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-79. - Time for filing protests.

Sec. 28-79(1). Protests concerning improprieties in a solicitation. Protests based upon alleged improprieties in a solicitation that are apparent before the solicitation due date shall be filed not less than five (5) working days before the solicitation due date.

Sec. 28-79(2). In cases other than those covered in subsection (1) of this section, protests shall be filed within ten (10) days after the aggrieved person knows or should have known of the facts giving rise thereto; however, in no event shall the protest be filed later than ten (10) days after issuance of notification of award.

Sec. 28-79(3). The contract officer, without waiving the city's right to dismiss the protest for lack of timeliness, may consider any protest that is not filed timely.

Sec. 28-79(4). The contract officer shall give notice of the protest to the successful contractor if award has been made or, if no award has been made, to all interested parties. Interested parties have the right to intervene.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-80. - Stay of procurements during the protest.

In the event of a timely protest under section 28-79, the city may proceed further with the solicitation or with the award of the contract unless the director makes a written determination that there is a reasonable probability that the protest will be sustained or that the stay of procurement is not contrary to the substantial interests of the city.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-81. - Confidential information.

Sec. 28-81(1). Material submitted by a protestant shall not be withheld from any interested party except to the extent that the withholding of information is permitted or required by law or as determined pursuant to section 28-5.

Sec. 28-81(2). If the protestant believes the protest contains material that should be withheld, a statement advising the contract officer of this fact shall accompany the protest submission in accordance with section 28-5.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-82. - Decision by the contract officer.

Sec. 28-82(1). The contract officer shall issue a written decision within fourteen (14) days after a protest has been filed pursuant to section 28-78. The decision shall contain an explanation of the basis of the decision.

Sec. 28-82(2). The contract officer shall furnish a copy of the decision to the protestant, by certified mail, return receipt requested, or by any other method that provides evidence of receipt.

Sec. 28-82(3). The time limit for decisions set forth in subsection (1) of this section may be extended by the director for a reasonable time not to exceed thirty (30) days. The contract officer shall notify the protestant in writing that the time for the issuance of a decision has been extended and the date by which a decision will be issued.

Sec. 28-82(4). If the contract officer fails to issue a decision within the time limits set forth in subsection (1) or (3) of this section, the protestant may proceed as if the contract officer had issued an adverse decision.

Sec. 28-82(5). The contract officer's decision shall contain a statement regarding the appeals process that is available pursuant to this article.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-83. - Remedies.

Sec. 28-83(1). If the contract officer sustains the protest in whole or part and determines that a solicitation, evaluation process, proposed contract award, or contract award does not comply with the procurement code, the officer shall implement an appropriate remedy.

Sec. 28-83(2). In determining an appropriate remedy, the contract officer shall consider all the circumstances surrounding the procurement or proposed procurement including, but not limited to:

(a)

The seriousness of the procurement deficiency;

(b)

The degree of prejudice to other interested parties or to the integrity of the procurement process;

(c)

The good faith of the parties;

(d)

The extent of performance;

(e)

Costs to the city;

(f)

The urgency of the procurement; and

(g)

The impact of the relief on the using agency's mission.

Sec. 28-83(3). An appropriate remedy may include one or more of the following:

(a)

Reject all bids, responses or proposals;

(b)

Terminate the contract;

(c)

Reissue the solicitation;

(d)

Issue a new solicitation;

(e)

Award a contract consistent with the procurement code;

(f)

Such other relief as is determined necessary to ensure compliance with the Charter and this chapter.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-84. - Appeals to the director.

Sec. 28-84(1). [Appeal.] An appeal from a decision entered or deemed to be entered by the contract officer shall be filed with the director within seven (7) days from the date the decision is issued. The appellant shall also file a copy of the appeal with the contract officer.

Sec. 28-84(2). Content of appeal. The appeal shall contain:

(a)

The information set forth in section 28-78, including the identification of confidential information in the manner set forth in section 28-81;

(b)

A copy of the decision of the contract officer; and

(c)

The precise factual or legal error in the decision of the contract officer from which an appeal is taken.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-85. - Notice of appeal.

Sec. 28-85(1). The director shall give notice of the appeal to the successful contractor if award has been made or, if no award has been made, to interested parties. Such interested parties shall have the right to request copies of the appeal and to intervene in the proceedings.

Sec. 28-85(2). The director shall, upon request, furnish copies of the appeal to those named in subsection (1) of this section subject to the provisions of section 28-81.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-86. - Stay of procurement during appeal.

If an appeal is filed during the procurement and before an award of a contract and the procurement or award of the contract was stayed by the director pursuant to section 28-80, the filing of an appeal shall automatically continue the stay unless the director makes a written determination that the procurement or award of the contract without delay is necessary to protect substantial interests of the city.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-87. - Contract officer report.

Sec. 28-87(1). [Report.] The contract officer shall file a report on the appeal with the director within seven (7) days from the date the appeal is filed. At the same time, the contract officer shall furnish a copy of the report to the appellant by certified mail, return receipt requested or any other method that provides evidence of receipt, and to any interested parties who have responded to the notice given pursuant to section 28-85(2). The report shall contain copies of:

(a)

The appeal;

(b)

Any other documents that are relevant to the protest; and

(c)

A statement by the contract officer setting forth findings, actions, recommendations and any additional evidence or information necessary to determine the validity of the appeal.

Sec. 28-87(2). Extension for filing of report.

(a)

The contract officer may request in writing an extension of the time period setting forth the reason for extension.

(b)

The director's determination on the request shall be in writing, state the reasons for the determination and, if an extension is granted, set forth a new date for the submission of the report. The director shall notify the appellant in writing that the time for the submission of the report has been extended and the date by which the report will be submitted.

Sec. 28-87(3). Comments on report.

(a)

The appellant shall file comments on the contract officer's report with the director within seven (7) days after receipt of the report. Copies of the comments shall be provided by the appellant to the contract officer and all other interested parties. The comments must contain a statement or confirmation as to the appellant's requested form of relief.

(b)

The director may grant an extension on the time period to file comments pursuant to a written request made by the appellant within the period set forth in subsection (3)(a) of this section stating the reason an extension is necessary. The director's determination on the request shall be in writing, state the reasons for the determination and, if the extension is granted, set forth a new date for the filing of comments. The director shall notify the contract officer of any extension.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-88. - Dismissal before hearing.

The director shall dismiss, upon a written determination, an appeal before scheduling a hearing if:

Sec. 28-88(1). The appeal does not state a valid basis, including a detailed statement of the legal and factual grounds, for protest; or

Sec. 28-88(2). The appeal is untimely pursuant to section 28-84(1).

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-89. - Hearing.

Hearings on appeals of protest decisions shall be conducted in accordance with section 28-113.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-90. - Remedies.

If the director sustains the appeal in whole or part and determines that a solicitation, evaluation process, proposed award, or award does not comply with the Charter and/or this chapter, remedies may be implemented pursuant to section 28-83.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-91. - Filing of a contract claim.

Content of claim. The claim shall be in writing and shall include the following information:

(a)

The name, address, telephone number and email address of the claimant;

(b)

The signature of the claimant or its representative;

(c)

Identification of the solicitation or contract number;

(d)

A detailed statement of the legal and factual grounds of the claim including copies of relevant documents; and

(e)

The form of relief requested.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-92. - Contract officer's decision.

Sec. 28-92(1). [Written decision.l] If a contract claim cannot be resolved by mutual agreement, the contract officer shall, upon a written request by the contractor for a final decision, issue a written decision no more than sixty (60) days after the request is filed. Before issuing a final decision, the contract officer shall review the facts pertinent to the contract claim or controversy and secure any necessary assistance from legal, financial, procurement, and other advisors.

Sec. 28-92(2). Final decision. The contract officer shall furnish a copy of the decision to the contractor, by certified mail, return receipt requested, or by any other method that provides evidence of receipt. The decision shall include:

(a)

A description of the claim;

(b)

A reference to the pertinent contract provision;

(c)

A statement of the factual areas of agreement or disagreement;

(d)

A statement of the contract officer's decision, with supporting rationale;

(e)

A statement regarding the appeals process that is available pursuant to this article.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-93. - Issuance of a timely decision.

Sec. 28-93(1). The time limit for decisions set forth in section 28-92(1) may be extended for good cause. The contract officer shall notify the contractor in writing that the time for the issuance of a decision has been extended and the date by which a decision is anticipated.

Sec. 28-93(2). If the contract officer fails to issue a decision within sixty (60) days after the request on a claim is filed or within the time prescribed under subsection (1) of this section, the contractor may proceed as if the contract officer had issued an adverse decision.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-94. - Appeals to the director.

Sec. 28-94(1). [Appeal of final decision.] An appeal of a final decision of a contract officer on a claim shall be filed with the director within five (5) days from the date the decision is received. The appellant shall also file a copy of the appeal with the contract officer.

Sec. 28-94(2). Content of appeal. The appeal shall contain a copy of the decision of the contract officer and the basis for the precise factual or legal error in the decision of the contract officer from which an appeal is taken.

Sec. 28-94(3). [Hearing, mediation service or arbitration.] The director may assign the claim to a hearing in accordance with section 28-96 or to mediation services in accordance with section 28-97 or to arbitration in accordance with section 28-98.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-95. - City claims against a contractor.

All contract claims asserted by the city against a contractor that are not resolved by mutual agreement shall promptly be referred by the contract officer to the director for a hearing, in accordance with section 28-96, or mediation, in accordance with section 28-97, or arbitration in accordance with section 28-98.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-96. - Hearing.

Hearings on appeals of claims decisions shall be conducted in accordance with section 28-113.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-97. - Mediation.

Contract claims may be resolved utilizing mediation services if the director determines the use of such services is in the best interest of the city.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-98. - Arbitration.

Contract claims may be resolved utilizing arbitration if the director determines the use of arbitration is in the best interest of the city. The claim shall be settled by arbitration in accordance with the current construction industry arbitration rules of the American Arbitration Association or, at the option of the city, in accordance with the provisions of the Arizona Revised Statutes, Article I, Chapter 9, Title 12.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-99. - Authority to debar or suspend.

The director has the sole authority to debar or suspend a person from participating in city procurements.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-100. - Debarment or suspension causes.

The causes for debarment or suspension shall be limited to the following:

Sec. 28-100(1). Conviction of any person or any affiliate of any person for commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.

Sec. 28-100(2). Conviction of any person or any affiliate of any person under any statute of the federal government, this state or any other state for embezzlement, theft, fraudulent schemes and artifices, fraudulent schemes and practices, bid rigging, perjury, forgery, bribery, falsification or destruction of records, or receiving stolen property; or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a city contractor and which conviction arises out of or obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.

Sec. 28-100(3). Conviction or civil judgment finding a violation by any person or affiliate of any person under state or federal antitrust statutes arising out of the response to a solicitation.

Sec. 28-100(4). Violations of contract provisions within three (3) years of current debarment action, as set forth below, of a character which are reasonably deemed to be so serious as to justify debarment action:

(a)

Abandonment of a contract without good cause; or

(b)

Knowingly fails without good cause to perform in accordance with the specifications or within the time limit provided in the contract;

(c)

Failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts, except that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; or

(d)

Failure to pay a contractor, subcontractor or material provider as required by A.R.S. section 32-1129.

Sec. 28-100(5). A determination by the Arizona Registrar of Contractors that the contractor has violated the provisions of A.R.S. § 32-1129 or a finding of responsibility by the municipal court for a violation of Tucson Code section 11-38.

Sec. 28-100(6). Any other cause that the director reasonably determines to be so serious and compelling as to affect responsibility as a city contractor, including suspension or debarment of such person or any affiliate of such person by another governmental entity for any cause listed in this section.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-101. - Matters not proper for debarment or suspension.

Any conviction or judgment dated more than three (3) years prior to the notice of suspension or notice of debarment shall not be a basis for any debarment or suspension of a person or an affiliate of a person.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-102. - Initiation of debarment.

Upon receipt of information concerning a possible cause for debarment, the director may investigate the possible cause. If the director has a reasonable basis to believe that a cause for debarment exists, the director may debar a person in accordance with this chapter.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-103. - Period of debarment.

Sec. 28-103(1). The period of time for a debarment shall not exceed three (3) years from the date of the debarment determination.

Sec. 28-103(2). If debarment is based solely upon debarment by another governmental agency, the period of debarment may run concurrently with the period established by that other debarring agency.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-104. - Notice.

If the director implements debarment, the director shall notify the person in writing within seven (7) days of the debarment action by certified mail, return receipt requested or by any other method that provides evidence of receipt. The person may submit a request to the director for an administrative hearing within fourteen (14) days of issuance of the director's debarment action. If a hearing is granted, it shall be conducted in accordance with this article.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-105. - Notice to affiliates.

Sec. 28-105(1). If the director proposes to debar an affiliate, the affiliate shall have a right to appear in any hearing on the proposed debarment to show mitigating circumstances.

Sec. 28-105(2). The affiliate shall in writing advise the director within thirty (30) days of receipt of the notice under section 28-104 of its intention to appear under subsection (1) of this section. Failure to provide written notice of appearance within the thirty-day period shall be a waiver of the right to appear in the hearing.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-106. - Imputed knowledge.

Sec. 28-106(1). Improper conduct by a person may be imputed to an affiliate for purposes of debarment where the impropriety occurred in connection with the affiliate's duties for or on behalf of, or with the knowledge or approval of, the contractor.

Sec. 28-106(2). The improper conduct of a person or its affiliate having a contract with a contractor may be imputed to the contractor for purposes of debarment where the impropriety occurred in connection with the person's duties for or on behalf of, or with the knowledge or approval of, the contractor.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-107. - Suspension.

Sec. 28-107(1). The director may suspend a person from receiving any award in order to protect the city's interests.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-108. - Period and scope of suspension.

The period of suspension shall not be more than sixty (60) days unless the director is informed of compelling reasons to extend the period of suspension.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-109. - Suspension notice, hearing, determination and appeal.

Sec. 28-109(1). The director shall notify the person suspended by certified mail, return receipt requested or by any other method that provides evidence of receipt.

Sec. 28-109(2). The notice of suspension shall state:

(a)

The basis for suspension;

(b)

The period, including dates, of the suspension;

(c)

That bids or proposals shall not be solicited or accepted from the person and, if received, will not be considered; and

(d)

That the person may request a hearing on the suspension if the person files a written request for a hearing with the director within seven (7) days after receipt of the notice.

Sec. 28-109(3). If a suspended party requests a hearing, the director may arrange for a hearing.

Sec. 28-109(4). In the event a hearing is conducted, it shall occur to the extent practicable, in accordance with this article.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-110. - Reinstatement.

Sec. 28-110(1). The director may at any time after a final decision on debarment or suspension reinstate a debarred or suspended person or rescind the debarment or suspension upon a determination that the cause upon which the debarment or suspension is based no longer exists.

Sec. 28-110(2). Any debarred or suspended person may request reinstatement by submitting a petition to the director supported by documentary evidence showing that the cause for debarment or suspension no longer exists or has been substantially mitigated.

Sec. 28-110(3). The director may require a hearing on the request for reinstatement.

Sec. 28-110(4). The decision on reinstatement shall be in writing and specify the factors on which it is based.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-111. - Limited participation.

The director may allow a debarred or suspended person to participate in city contracts on a limited basis during the debarment or suspension period upon a written determination that participation is advantageous to the city. The determination shall specify the factors on which it is based and define the extent of the limits imposed.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-112. - Master list for suspension and debarment.

Sec. 28-112(1). The director shall maintain a master list of debarments and suspensions under this article.

Sec. 28-112(2). The master list shall show as a minimum the following information:

(a)

The names of those persons whom the city has debarred or suspended under this article;

(b)

The basis for the action;

(c)

The period of debarment or suspension, including the expiration date; and

(d)

The name of the debarring or suspending agency, if the city's debarment or suspension is based on debarment or suspension by another governmental agency.

Sec. 28-112(3). The master list shall include a separate section listing persons voluntarily excluded from participation in city contracts.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-113. - Hearing procedures.

Sec. 28-113(1). If a hearing is required or permitted under this article, the director shall appoint a hearing officer.

Sec. 28-113(2). If a hearing is required or permitted under this article, the hearing officer shall arrange for a prompt hearing and notify the parties of the time and place of the hearing.

Sec. 28-113(3). The hearing shall be conducted in an informal manner without formal rules of evidence or procedure.

Sec. 28-113(4). The hearing officer may:

(a)

Hold pre-hearing conferences to settle, simplify, or identify the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding;

(b)

Require parties to state their positions concerning the various issues in the proceeding;

(c)

Require parties to produce for examination those relevant witnesses and documents under their control;

(d)

Rule on motions and other procedural items on matters pending before such officer;

(e)

Regulate the course of the hearing and conduct of participants;

(f)

Establish time limits for submission of motions or memoranda;

(g)

Impose appropriate sanctions against any person failing to obey an order under these procedures, which may include:

(i)

Refusing to allow the person to assert or oppose designated claims or defenses, or prohibiting that person from introducing designated matters in evidence;

(ii)

Excluding all testimony of an unresponsive or evasive witness; and

(iii)

Expelling the person from further participation in the hearing;

(h)

Take official notice of any material fact not appearing in evidence in the record, if the fact is among the traditional matters of judicial notice;

(i)

Administer oaths or affirmations; and

(j)

Assess or apportion damages or costs associated with the hearing matter or the proceedings to the parties involved.

Sec. 28-113(5). A transcribed record of the hearing shall be made available at cost to the requesting party.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-114. - Recommendation by the hearing officer.

Sec. 28-114(1). The hearing officer shall make a recommendation to the director based on the evidence presented. The recommendation shall include findings of fact and conclusions of law.

Sec.28-114(2). The director may affirm, modify, or reject the hearing officer's recommendation in whole or in part, may remand the matter to the hearing officer with instructions, or make any other appropriate disposition.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-115. - Final decision by the director.

A decision by the director shall be final. The decision shall be sent to all parties by certified mail, return receipt requested or by any other method that provides evidence of receipt. The decision shall state that any party adversely affected may within ten (10) days request a rehearing with the director. If a stay was issued, the final decision by the director shall lift any such stay, unless the director determines that the continued stay is necessary to protect the substantial interest of the city.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-116. - Rehearing of director's decision.

Sec. 28-116(1). Any party, including a contract officer, who is aggrieved by the director's decision may file a written request for rehearing of the decision specifying the particular grounds.

(a)

The request for rehearing shall be filed with the director within ten (10) days after receipt of the decision and shall include any supporting affidavits.

(b)

The request shall be clearly designated as a "request for rehearing."

(c)

The director shall within five (5) days after the request is filed notify interested parties of the request by certified mail, return receipt requested or by any other method that provides evidence of receipt.

Sec. 28-116(2). An interested party may, within ten (10) days after receipt of the notice, file a response including opposing affidavits.

Sec. 28-116(3). Any argument not raised in the request or in a response is waived.

Sec. 28-116(4). The director may require the filing of written briefs and may provide for oral argument.

Sec. 28-116(5). A rehearing of the decision may be granted for any of the following causes:

(a)

Irregularity in the proceedings before the director or an abuse of discretion by the director, depriving the requesting party of a fair hearing;

(b)

Misconduct of the director, the director's staff, the hearing officer or any party;

(c)

Accident or surprise that could not have been prevented by ordinary prudence;

(d)

Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing;

(e)

Excessive or insufficient penalties;

(f)

Error in the admission or rejection of evidence or other error of law occurring at the hearing;

(g)

A showing that the decision is not justified by the evidence or is contrary to law.

Sec. 28-116(6). The director's decision concerning a request for rehearing shall be in writing and shall state the basis of the decision. A decision granting a rehearing shall specify with particularity the grounds on which the rehearing is granted, and the date, time and place of the rehearing. The rehearing shall cover only those matters specified in the decision.

Sec. 28-116(7). The director, within the time for filing a request for rehearing under this section, may, on the director's own initiative, order a rehearing of the director's decision for any reason for which the director might have granted a rehearing on request of a party.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-117. - Judicial review of protests, claims, debarments or suspensions.

Any final decision of the director of a protest (§ 28-77 et seq.), claim (§ 28-91 et seq.), debarment (§ 28-99 et seq.), or suspension (§ 28-99 et seq.) under this chapter is subject to special action review by any party to the proceeding. Exhaustion of the procedures set forth in this Code shall be a condition precedent to seeking judicial review and the party seeking review shall file the complaint within thirty (30) days of a final decision by the director.

(Ord. No. 10404, § 1, 5-15-07)

Sec. 28-118. - Exclusive remedy.

Notwithstanding any law to the contrary, this article shall provide the exclusive procedure for asserting a claim or cause of action against this city arising in relation to any procurement conducted under this chapter.

(Ord. No. 10404, § 1, 5-15-07)

Secs. 28-119—28-125. - Reserved.