(a) The purpose of this rule is to provide for the
efficient and effective resolution of protests related to contract
purchases made by the Commission.
(b) These procedures are consistent with those of the
Texas Comptroller of Public Accounts (Comptroller) (34 Tex. Admin.
Code §§20.533 - 20.538). In the event of a direct conflict
between the rules, the procedures in §§20.533 - 20.538 shall
control.
(c) In the event of a direct conflict with the Comptroller's
rules, the following terms used in the Comptroller rules shall be
defined as follows:
(1) Comptroller--The Commission.
(2) Chief Clerk--Commission Executive Director.
(3) Director--Commission General Counsel
(4) General Counsel--Commission General Counsel.
(5) Using Agency--The Commission.
(d) Any actual or prospective bidder, offeror, or contractor
claiming to have been aggrieved in connection with the solicitation,
evaluation or method of evaluation, award of a contract, or tentative
award by the Commission may submit a protest to the General Counsel.
Protests must be received by the General Counsel within 10 working
days after the protesting party knows, or should have known, of the
occurrence of the action that is the subject of the protest. A Protest
must conform to subsection (d) and subsection (f) of this section,
and shall be resolved through the procedures described in subsections
(g) - (n) of this section. The protesting party must mail or deliver
copies of the protest to all interested parties.
(e) In the event a protest is timely received, the
Commission shall not proceed further with the solicitation, evaluation,
or award a contract unless the General Counsel, after consultation
with the Commission's Executive Director, makes a written determination
that a contract must be awarded without delay to protect the best
interests of the state.
(f) A protest must be sworn and meet the requirements
of Comptroller §20.535(a)(1) (34 Tex. Admin. Code §20.535).
(g) The General Counsel may settle and resolve the
dispute over the solicitation, evaluation, award of a contract, or
tentative award at any time before the matter is submitted on appeal
to the Executive Director. The General Counsel may solicit written
responses to the protest from interested parties.
(h) If the protest is not resolved by mutual agreement,
the General Counsel shall send a determination letter resolving the
protest to the protesting party and interested parties. The determination
letter shall set for the reasons for the determination; and
(1) If the General Counsel determines that a violation
of any statutory or regulatory provisions has occurred in a situation
in which a contract has not been awarded, include in the determination
letter the appropriate remedy for the violation; or
(2) If the General Counsel determines that a violation
of any statutory or regulatory provisions has occurred in a situation
in which a contract has been awarded, may declare the awarded contract
to be void.
(i) The protesting party may appeal a determination
of a protest by the General Counsel to the Executive Director. An
appeal of the General Counsel's determination must be in writing and
received in the office of the Executive Director no later than 10
working days from the date notice of the determination was sent. The
protesting party's appeal must contain a certified statement that
a copy of the appeal was sent to all interested parties. The scope
of the appeal shall be limited to a review of the General Counsel's
determination.
(j) The Executive Director may refer the matter to
the Commission for consideration or may issue a written decision regarding
the appeal.
(k) The following requirements shall apply to a protest
that the Executive Director refers to the Commission:
(1) The Executive Director shall deliver copies of
the appeal and any responses by interested parties to each Commissioner.
(2) The Commission may consider any documents that
Commission staff or interested parties have submitted.
(3) The Commission shall issue a written letter of
determination of the appeal to the protesting party and all interested
parties which shall be final.
(l) A protest or an appeal of a determination that
is not timely received shall not be considered unless good cause for
delay is shown or the General Counsel determines that an appeal raises
issues that are significant to Commission procurement practices or
procedures in general.
(m) A determination issued by either the Executive
Director or the Commission shall be the final administrative action
of the Commission.
(n) The Commission shall maintain all documentation
on the purchasing process that is the subject of a protest or appeal
in accordance with the records retention schedule of the Commission.
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