| (a) The purpose of this section is to provide a procedure
for vendors to protest purchases made by the Texas Real Estate Commission
("Commission") and the Texas Appraiser Licensing and Certification
Board (collectively "the agency"). Protests of purchases made by the
Texas Facilities Commission ("TFC") on behalf of the agency are addressed
in 1 Texas Administrative Code Chapter 111, Subchapter C (relating
to Complaints and Dispute Resolution). Protests of purchases made
by the Department of Information Resources (DIR) on behalf of the
agency are addressed in 1 Texas Administrative Code Chapter 201, §201.1
(relating to Procedures for Vendor Protests and the Negotiation and
Mediation of Certain Contract Disputes and Bid Submission, Opening
and Tabulation Procedures). Protests of purchases made by the Statewide
Procurement Division of the Comptroller of Public Accounts ("CPA")
on behalf of the agency are addressed in 34 Texas Administrative Code
Chapter 20, Subchapter F, Division 3 (relating to Protests and Appeals).
The rules of TFC, DIR, and the CPA are in the Texas Administrative
Code, which is on the Internet website of the Office of the Secretary
of State, Texas Register Division at: www.sos.state.tx.us/tac/index.shtml.
(b) Any actual or prospective bidder, offeror, or contractor
who believes they are aggrieved in connection with the solicitation,
evaluation, or award of a contract may formally protest to the agency.
Such protests must be in writing and received in the office of the
Director of Finance within ten working days after such aggrieved person
knows, or should have known, of the occurrence of the action which
is protested. Formal protests must conform to the requirements set
forth in subsection (c) of this section. Copies of the protest must
be mailed or delivered by the protesting party to all vendors who
have submitted bids or proposals for the contract involved.
(c) A formal protest must be sworn and contain:
(1) a specific identification of the statutory provision(s)
that the action complained of is alleged to have violated;
(2) a specific description of each act alleged to have
violated the statutory provision(s) identified in paragraph (1) of
this subsection;
(3) a precise statement of the relevant facts;
(4) an identification of the issue or issues to be
resolved;
(5) argument and authorities in support of the protest;
and
(6) a statement that copies of the protest have been
mailed or delivered to other identifiable interested parties.
(d) The Director of Finance shall have the authority,
prior to appeal to the Executive Director or his or her designee,
to settle and resolve the dispute concerning the solicitation or award
of a contract. The Director of Finance may solicit written responses
to the protest from other interested parties.
(e) If the protest is not resolved by mutual agreement,
the Director of Finance will issue a written determination on the
protest.
(1) If the Director of Finance determines that no violation
of rules or statutes has occurred, he or she shall so inform the protesting
party and interested parties by letter which sets forth the reasons
for the determination.
(2) If the Director of Finance determines that a violation
of the rules or statutes has occurred in a case where a contract has
not been awarded, he or she shall so inform the protesting party and
other interested parties by letter which sets forth the reasons for
the determination and any appropriate remedial action.
(3) If the Director of Finance determines that a violation
of the rules or statutes has occurred in a case where a contract has
been awarded, he or she shall so inform the protesting party and other
interested parties by letter which sets forth the reasons for the
determination and any appropriate remedial action. Such remedial action
may include, but is not limited to, declaring the purchase void; reversing
the award; and re-advertising the purchase using revised specifications.
(f) The Director of Finance's determination on a protest
may be appealed by an interested party to the Executive Director or
his or her designee. An appeal of the Director of Finance's determination
must be in writing and must be received in the office of the Executive
Director or his or her designee no later than ten working days after
the date of the Director of Finance's determination. The appeal shall
be limited to review of the Director of Finance's determination. Copies
of the appeal must be mailed or delivered by the appealing party to
other interested parties and must contain an affidavit that such copies
have been provided.
(g) The General Counsel shall review the protest, Director
of Finance's determination, and the appeal and prepare a written opinion
with recommendation to the executive director or his designee. The
executive director or his or her designee may, in his or her discretion,
refer the matter to TREC at a regularly scheduled open meeting or
issue a final written determination.
(h) When a protest has been appealed to the Executive
Director or his or her designee under subsection (f) of this section
and has been referred to the relevant Commission or Board of TREC
by the Executive Director or his or her designee under subsection
(g) of this section, the following requirements shall apply:
(1) Copies of the appeal, responses of interested parties,
if any, and General Counsel recommendation shall be mailed to the
TREC members and interested parties. Copies of the general counsel's
recommendation and responses of interested parties shall be mailed
to the appealing party.
(2) All interested parties who wish to make an oral
presentation at TREC's open meeting are requested to notify the office
General Counsel at least two working days in advance of the open meeting.
(3) TREC may consider oral presentations and written
documents presented by staff, the appealing party, and interested
parties. The chairman shall set the order and amount of time allowed
for presentations.
(4) TREC's determination of the appeal shall be by
duly adopted resolution reflected in the minutes of the open meeting
and shall be final.
(i) Unless good cause for delay is shown or the Executive
Director or his or her designee determines that a protest or appeal
raises issues significant to procurement practices or procedures,
a protest or appeal that is not filed timely will not be considered.
(j) In the event of a timely protest or appeal under
this section, a protestor or appellant may request in writing that
the agency not proceed further with the solicitation or with the award
of the contract. In support of the request, the protestor or appellant
is required to show why a stay is necessary and that harm to the agency
will not result from the stay. If the Executive Director determines
that it is in the interest of agency not to proceed with the contract,
the Executive Director may make such a determination in writing and
partially or fully suspend contract activity.
(k) A decision issued either by TREC in open meeting,
or in writing by the Executive Director or his or her designee, shall
constitute the final administrative action of the agency.
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