| (a) Definitions. The following words and terms, when used in
this subchapter, shall 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 pursuant to a solicitation
for a contract with the commission.
(b) Protest procedures. Any actual or prospective bidder, offerer,
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 shall be resolved through
use of the procedures that are described in subsections (e) - (j) of this
section. The protesting party shall 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 shall 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 pursuant to 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 shall conduct a review of issues raised by the protesting parties
and shall 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
shall 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 shall 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 shall 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 after the date on which the purchasing
officer has sent written notice of his determination. The scope of the appeal
shall be limited to a review of the purchasing officer's determination. The
protesting party shall 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 shall 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
shall apply to a protest that the executive director has referred to the commissioners:
(1) The executive director shall 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 shall be
made on the record and reflected in the minutes of the open meeting, and shall
be final.
(i) Written determination of appeal. A determination issued
either by the commissioners in open meeting, or in writing by the executive
director, shall be the final administrative action of the commission.
(j) Protest/appeal not timely filed. A protest or appeal that
is not filed timely shall 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 shall 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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