| (a) An aggrieved person who is not satisfied with a
decision, procedure, or service received from agency staff of the
commission or who is an actual or prospective bidder, grantee, or
contractor aggrieved in connection with a solicitation, evaluation,
or award may file a protest with the director and librarian in accordance
with this rule.
(b) A protest must be submitted to the director and
librarian within 21 days after the person knows or should have known
of the matter that is protested. The director and librarian has the
discretion to allow a protest filed after 21 days if the protestant
shows good cause for the late filing or if the protest raises an issue
significant to the general policies and procedures of the commission.
(c) The protestant shall mail or deliver a copy of
the protest to all interested persons. The director and librarian
will furnish a list of interested persons to a protestant. For protests
of a competitive selection (bid, contract, or grant), interested persons
shall include all persons who have submitted a bid, proposal, or application.
(d) A protest must be in writing and identified as
a protest under commission rule 13 TAC §2.55 and contain the
following:
(1) a description of the protestant's interest in the
matter;
(2) the issue(s) to be resolved and remedy(s) requested;
(3) the protestant's argument supporting the protest,
including a statement of relevant facts and applicable law, specifying
the statutes, rules, or other legal authority alleged to have been
violated;
(4) the protestant's affirmation that facts set forth
in the protest are true; and
(5) a certification that a copy of the protest has
been mailed or delivered to all interested persons.
(e) Upon receipt of a protest conforming to the requirements
of this section, the agency shall not proceed with the solicitation,
award, or contract until the protest is resolved, unless the director
and librarian makes a written determination that delay would harm
the substantial interests of the state.
(f) The director and librarian has the authority to
decide, settle, or resolve the protest and will make a written determination.
The director and librarian may solicit written responses to the protest
from other parties. The director and librarian shall inform the protesting
party and other interested parties by letter of his determination,
how to appeal the determination to the commission, and how to respond
to any appeal that is filed.
(g) An interested party may appeal the determination
of the director and librarian. An appeal must be in writing and conform
to paragraphs (1) - (3) of this subsection:
(1) the appeal must be received in the office of the
director and librarian no later than 15 days after the date the determination
is mailed to interested parties;
(2) a copy of the appeal must be mailed or delivered
by the appealing party to all interested parties and contain a certification
of mailing or delivery;
(3) the appealing party must state whether or not an
opportunity is requested to make an oral presentation to the commission
in open meeting.
(h) The director and librarian shall refer the matter
to the commission for their consideration at an open meeting.
(i) The chair of the commission has the discretion
to allow an appeal filed more than 15 days after the director and
librarian's determination if the appealing party shows good cause
for the late filing or if the appeal raises an issue significant to
the general policies or procedures of the commission.
(j) An interested party may file a response to an appeal
of the determination of the director and librarian no later than 15
days after the appeal is mailed or delivered. The chair of the commission
has the discretion to allow a response filed more than 15 days after
the appeal of the determination by the director and librarian if the
interested party shows good cause for the late filing or if the response
raises an issue significant to the general policies or procedures
of the commission.
(k) Copies of the appeal and responses of interested
parties, if any, shall be mailed to the commission by the director
and librarian.
(l) The chair of the commission has the discretion
to decide whether or not a request for oral presentations will be
granted and will set the order and amount of time for oral presentations
that are allowed. The chair also has the discretion to decide whether
presentations and written documents presented by agency staff and
interested parties will be allowed.
(m) The commission will determine properly filed appeals
and make its decision in open meeting. The commission shall vote to
uphold or reverse the decision of the director and librarian. Failing
a majority vote of the commission to reverse, the director and librarian's
decision is upheld. The commission's decision is final and not subject
to judicial review under the statutes governing the commission.
(n) A decision issued either by the commission in open
meeting or in writing by the director and librarian shall be the final
administrative action of the commission.
(o) Documentation concerning a protest of a competitive
selection is part of the agency's records series for that selection
and is retained in accordance with the agency's approved records retention
schedule.
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| Source Note: The provisions of this §2.55 adopted to be effective September 7, 1998, 23 TexReg 9037; amended to be effective May 12, 2004, 29 TexReg 4463; amended to be effective March 12, 2024, 49 TexReg 1458 |
