(a) Definitions. The following words and terms, when
used in this subchapter, have the following meaning unless the context
clearly indicates otherwise.
(1) Commission--The Public Utility Commission of Texas.
(2) Purchasing officer--A commission employee who has
received certification as a Texas Public Purchaser and who is responsible
for assisting with commission purchases, and who has been designated
the purchasing officer for the purchase in question.
(3) Interested parties--All vendors who have submitted
bids or proposals for the provision of goods or services in accordance
with a solicitation for a contract with the commission.
(b) Protest procedures. Any actual or prospective bidder,
offeror, proposer or contractor who considers himself to have been
aggrieved in connection with the commission's solicitation, evaluation,
or award of a contract may formally protest to the purchasing officer.
Such protests must be made in writing and received by the purchasing
officer within ten working days after the protesting party knows,
or should have known, of the occurrence of the action that is protested.
Protests must conform to the requirements of this subsection and subsection
(d) of this section, and must be resolved through use of the procedures
that are described in subsections (e) - (j) of this section. The protesting
party must mail or deliver copies of the protest to the purchasing
officer and other interested parties.
(c) Stay of contract award. In the event of a timely
protest under this section, the commission will not proceed further
with the solicitation or award of the contract unless the executive
director, after consultation with the purchasing officer and the general
counsel, makes a written determination that the contract must be awarded
without delay, to protect the best interests of the commission.
(d) Protest requirements. A protest must be sworn and
contain:
(1) a specific identification of the statutory or regulatory
provision that the protesting party alleges has been violated;
(2) a specific description of each action by the commission
that the protesting party alleges to be a violation of the statutory
or regulatory provision that the protesting party has identified in
accordance with paragraph (1) of this subsection;
(3) a precise statement of the relevant facts;
(4) a statement of any issues of law or fact that the
protesting party contends must be resolved;
(5) a statement of the argument and authorities that
the protesting party offers in support of the protest; and
(6) a statement that copies of the protest have been
mailed or delivered to the commission and all other identifiable interested
parties.
(e) Purchasing officer's role and responsibilities.
The purchasing officer will conduct a review of issues raised by the
protesting parties and will have the following role and responsibilities
in resolving the protest issues among the parties:
(1) The purchasing officer may settle and resolve the
dispute over the solicitation or award of a contract at any time before
the matter is submitted on appeal to the executive director.
(2) The purchasing officer may solicit written responses
to the protest from other interested parties.
(3) If the protest is not resolved by mutual agreement,
the purchasing officer will issue a written determination on the protest.
The purchasing officer will consult with the general counsel in preparing
a written determination.
(4) If the purchasing officer determines that no violation
of statutory or regulatory provisions has occurred, then the purchasing
officer must inform the protesting party, the executive director,
and other interested parties by letter that states the reasons for
the determination.
(5) If the purchasing officer determines that a violation
of any statutory or regulatory provisions may have occurred in a situation
in which a contract has not been awarded, then the purchasing officer
must inform the protesting party, the executive director, and other
interested parties of that determination by letter that states the
reasons for the determination and the appropriate remedy.
(6) If the purchasing officer determines that a violation
of any statutory or regulatory provisions may have occurred in a situation
in which a contract has been awarded, then the purchasing officer
must inform the protesting party, the executive director, and other
interested parties of that determination by letter that states the
reasons for the determination. This letter may include a declaration
that the contract is void.
(f) Appeal from purchasing officer determination. The
protesting party may appeal a determination of a protest by the purchasing
officer to the executive director of the commission. An appeal of
the purchasing officer's determination must be in writing and received
in the executive director's office no later than ten working days
from the date the purchasing officer issued written notice of his
determination. The scope of the appeal is limited to a review of the
purchasing officer's determination. The protesting party must mail
or deliver to the purchasing officer and all other interested parties
a copy of the appeal, which must contain a certified statement that
such copies have been provided.
(g) Executive director review or reference of appeal.
The executive director will confer with general counsel in the review
of the matter appealed. The executive director may consider any documents
that the commission staff or interested parties may have submitted.
At the discretion of the executive director, the matter may be referred
to the commissioners for their consideration in a regularly scheduled
open meeting or the executive director may issue a written decision
on the protest.
(h) Appeals referred to commission. The following requirements
apply to a protest that the executive director has referred to the
commissioners:
(1) The executive director will deliver copies of the
appeal and any responses by interested parties to the commissioners.
(2) The commissioners may consider any documents that
commission staff or interested parties have submitted.
(3) The commissioners may confer with general counsel
in their review of the matter appealed.
(4) The commissioners' determination of the appeal
will be made on the record and reflected in the minutes of the open
meeting, and will be final.
(i) Written determination of appeal. A determination
issued either by the commissioners in open meeting, or in writing
by the executive director, will be the final administrative action
of the commission.
(j) Protest or appeal not timely filed. A protest or
appeal that is not filed timely will not be considered unless good
cause for delay is shown or the executive director determines that
an appeal raises issues that are significant to commission procurement
practices or procedures in general.
(k) Document retention. The commission will maintain
all documentation on the purchasing process that is the subject of
a protest or appeal in accordance with the commission's retention
schedule.
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