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. The 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.
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 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. The contractor and Denver Water 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.
17.04.4 Exchange of Evidence. 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 and lists of witnesses to be examined at the hearing. 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. No other pre-hearing discovery will be allowed unless 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.
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. 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.
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 that dispose of all or part of a claim or that may expedite the proceedings, and 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.
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 general or certified shorthand 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. 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. 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).