Operating Rules - Chapter 17 - Hearing Procedures for Disputes Arising Under Denver Water Contracts

CHAPTER 17 — HEARING PROCEDURES FOR DISPUTES ARISING UNDER DENVER WATER CONTRACTS

17.01 Application of this Chapter. The hearing and appeal procedures established by this Chapter 17 shall apply to all contract claims appealed by a contractor for an administrative hearing as required by provisions contained in certain Denver Water contracts. Compliance with provisions of this Chapter 17 shall be a jurisdictional prerequisite to any action brought under the applicable contract, and failure of compliance shall bar such actions.

17.02 Appointment of Hearing Officer. Denver Water’s CEO/Manager may serve as the Hearing Officer and hold the administrative hearing, or in the Manager’s sole discretion, the Manager may designate another person to serve as a Hearing Officer with authority to conduct the administrative hearing. The Hearing Officer may be an officer, employee or agent of Denver Water, provided that the Hearing Officer has not participated in any manner in the disputed claim being appealed.

17.03 Jurisdiction of Hearing Officer.

17.03.1 Hearing Officer to Decide. If either the contractor or Denver Water raises a question concerning whether any issue or claim raised in such administrative hearing is within the scope of the applicable contract, such question shall be decided by the Hearing Officer.

17.03.2 Scope of Relief. The Hearing Officer may resolve the contract dispute by granting any remedy or relief that the Hearing Officer deems just and equitable and within the scope of any agreement between the parties. The Hearing Officer shall not have the authority to alter or make any finding contrary to Denver Water’s Operating Rules or Engineering Standards or the specific terms of the contract between the parties, or to compel specific performance.

17.04 Conduct of Hearings. The Hearing Officer will preside at the hearing and maintain order and decorum. The Hearing Officer will conduct the hearing as informally as possible and in an orderly and efficient manner.

17.04.1 Notice of Hearing. The Hearing Officer will provide written notice to the contractor and Denver Water of the date, time and location of the hearing. The presentation of evidence shall not exceed three business days per party unless the Hearing Officer determines that the number or complexity of the issues requires more time. The hearing may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement.

17.04.2 Attendance. Denver Water and the contractor shall have authorized representatives at the hearing, who may include legal counsel. If the contract dispute involves subcontractor claims, the contractor shall assure the presence at the hearing of authorized representatives of the appropriate subcontractor. If necessary to conduct an effective hearing, the Hearing Officer may apply to the Denver Municipal Court to issue a subpoena to compel the attendance of a witness.

17.04.3 Rights of the Parties. At the hearing, each party shall have the right to present evidence, testimony and argument and the right to confront and cross-examine the other party’s witnesses. Witnesses will testify under oath or affirmation. Witnesses may be sequestered at the discretion of the Hearing Officer.

17.04.4 Exchange of Evidence. If all parties consent, the Hearing Officer may authorize up to 10 hours total per party of depositions under oath to be conducted prior to the hearing. At least 15 days prior to a scheduled hearing date, the parties shall exchange and simultaneously submit to the Hearing Officer the exhibits to be offered at the hearing, a list of any agreed upon facts, and lists of witnesses to be examined at the hearing along with a description of their testimony. If a party intends to examine an expert witness at the hearing, a written summary of the expert’s testimony or the expert’s report, if one has been prepared, shall be included in the exchange and submission required by this subsection. The summary shall contain the qualifications of the expert and a complete statement describing the substance, basis and reasons for all opinions to be expressed, but the summary need not meet the standards of related rules of civil procedure. No other pre-hearing discovery will be allowed unless it appears that one party has previously acquired documents related to the hearing under the Colorado Open Records Act or by other means, in which case the hearing officer may allow additional discovery to the other party as necessary to remedy any imbalance in the information available to the parties. Discovery shall be limited as described in this paragraph unless all parties to the hearing agree otherwise.

17.04.5 Evidence. The Hearing Officer will receive and consider any evidence, including testimony of witnesses and documentary evidence or other exhibits, without strict adherence to rules of evidence that govern judicial or administrative proceedings, except that privileges such as attorney-client and work product shall apply. The Hearing Officer will endeavor to consider only relevant and trustworthy evidence and will reject any evidence that the Hearing Officer determines is irrelevant or untrustworthy. The Hearing Officer shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence the Hearing Officer deems to be cumulative or irrelevant. The hearing shall consist of presentation of evidence by each party, followed by rebuttal and sur-rebuttal evidence if appropriate. Upon mutual agreement, the parties may waive the oral portion of the hearing and submit the dispute based on written submissions and other agreed upon evidence.

17.04.6 Objections and Motions. The Hearing Officer will rule on all objections and may guide the discussion of issues by asking questions of the parties in order to obtain expeditiously all information the Hearing Officer considers necessary. The Hearing Officer may entertain motions, including motions to dispose of all or part of a claim in general accordance with Civil Procedure Rules 41 and 56, and motions that may expedite the proceedings. The Hearing Officer may also make preliminary rulings and enter interlocutory orders.

17.04.7 Burden of Proof. The contractor shall have the burden of proof to show the correctness of the position of the contractor. Claims for monetary damages shall be supported by actual costs whenever possible rather than by estimate or opinion, and shall be supported by invoices, time cards and similar business records. The Hearing Officer may utilize his or her experience, technical competency, and specialized knowledge in the evaluation of evidence presented.

17.04.8 Recording. Hearings shall be recorded by electronic means, and transcripts of such recordings shall be made at the expense of the party requesting the transcript. The contractor may employ at its own expense a court reporter.

17.04.9 Costs. Except as specifically provided in this subsection 17.04, each party shall pay its own costs.

17.05 Decision of Hearing Officer. The Hearing Officer’s decision shall be based upon evidence adduced at the hearing and the applicable law of Colorado. The decision and award of the Hearing Officer may not include interest. The Hearing Officer’s final decision and award, if any, shall be provided in writing to both Denver Water and the contractor within fourteen (14) days of the completion of the hearing. In difficult or complex cases, this time reasonably may be extended by the Hearing Officer. The Hearing Officer’s decision and award, if any, shall be final and binding on the parties.

17.06 Final Determination and Judicial Review. The decision of the Hearing Officer shall be considered the final order of Denver Water and may be reviewed under Rule 106(a)(4) of the Colorado Rules of Civil Procedure upon petition by any party. The District Court of the Second Judicial District of the state shall have jurisdiction to review all questions of law and fact determined by the Hearing Officer under Rule 106(a)(4).