| (a) Any person aggrieved by the terms of any formal
solicitation may protest the agency's action to the director of administration.
If the director of administration cannot resolve the protest, the
aggrieved party may appeal the director of administration's decision
to the executive director. If the executive director cannot resolve
the protest, the aggrieved party may appeal the executive director's
decision to the Texas Lottery Commission. At any time, the executive
director may refer a protest directly to the Texas Lottery Commission
for determination. The procedures applicable to an appeal to the commission
will then apply.
(b) A protest of the terms of any formal solicitation
must be filed electronically with the commission's general counsel,
by email to legal.input@lottery.state.tx.us, within 72 hours after
issuance of the formal competitive solicitation. The protestant must
include its email address with the protest. A protest is considered
timely filed if it is electronically filed before the filing deadline.
An electronically filed protest is deemed filed when transmitted to
the protestant's electronic filing service provider. Unless otherwise
requested by the commission, the protestant is not required to file
a paper copy of its protest. For good cause shown by the protestant,
the commission may allow an alternate form of filing. The electronically
filed protest must be in a text-searchable PDF format. The protestant
is solely responsible for ensuring its protest is complete and filed
timely with the office of the general counsel. A protest not filed
timely will not be considered, and the protestant will be so notified
in writing by the commission's general counsel by electronic notice
sent to the protestant's designated email address. A protestant may
supplement its timely filed protest. The deadline to supplement is
5 p.m. central time, 10 calendar days after the formal solicitation
is issued.
(c) To be considered, a protest must contain:
(1) a specific identification of the statutory provision,
rule provision, or procurement procedure allegedly violated;
(2) a brief statement of the relevant facts;
(3) an identification of the issue or issues to be
resolved;
(4) arguments and authorities in support of the protest;
and
(5) an affidavit that the contents of the protest are
true and correct.
(d) In the event of a timely filed protest of a formal
competitive solicitation, the agency will suspend the solicitation
pending resolution of the protest unless the executive director determines,
in writing, that such action is not necessary to protect the interests
of the lottery.
(e) The director of administration will review the
protest, and the solicitation file, and will make a written determination
of the protest, which may include canceling the solicitation. The
director of administration's written determination will be served
by email on the protestant. Confirmation that the notice was sent
to an email address designated for the receipt of correspondence will
be conclusive proof that delivery was made. The decision of the director
of administration may be appealed to the executive director. The appeal
must be filed electronically with the commission's general counsel
by 5 p.m. the next business day after issuance of the written determination.
An appeal is considered timely filed if it is electronically filed
before the filing deadline. An electronically filed appeal is deemed
filed when transmitted to the protestant's electronic filing service
provider.
(f) On appeal of the director of administration's determination,
the executive director will review the protest, the solicitation file,
any responses, and the director of administration's determination,
including any reasoning that supports the determination. The executive
director will then make a written determination of the appeal, which
may include canceling the solicitation. The executive director's written
determination will be served, by email on the protestant. Confirmation
that the notice was sent to an email address designated for the receipt
of correspondence, will be conclusive proof that delivery was made.
An appeal to the Texas Lottery Commission of the determination of
the executive director must be filed electronically with the commission's
general counsel by 5 p.m. the next business day after issuance of
the written determination. An appeal is considered timely if it is
electronically filed before the filing deadline. An electronically
filed appeal is deemed filed when transmitted to the protestant's
electronic filing service provider.
(g) On timely receipt of the notice of appeal to the
Texas Lottery Commission, the general counsel will appoint a staff
attorney who did not participate in drafting the solicitation and
did not render legal advice with respect to the solicitation to evaluate
the protest. The staff attorney will make a written recommendation
to the Texas Lottery Commission, including proposed findings of fact
and conclusions of law.
(h) The Texas Lottery Commission, at its discretion,
may allow oral argument by the protestant and any necessary agency
staff. The Texas Lottery Commission may limit the time for oral argument.
Oral argument must be based solely on the written protest. The executive
director may be present to respond to questions and will have the
opportunity to make a presentation to the Texas Lottery Commission
regarding the protest of the terms of the formal competitive solicitation.
The staff attorney who made the written recommendation to the Texas
Lottery Commission may also be present to respond to any questions.
(i) The Texas Lottery Commission will make a written
determination of the protest. To make its determination, the Commission
will review:
(1) The protest;
(2) The solicitation file;
(3) The oral argument, and executive director's presentation,
if any;
(4) The executive director's determination, including
any reasoning that supports the determination; and
(5) The staff attorney's recommendation. The written
determination on the protest may include a determination canceling
the solicitation. The Texas Lottery Commission's written determination
will be served by email on the protestant. Confirmation that the notice
was sent to an email address designated for the receipt of correspondence,
will be conclusive proof that delivery was made. The Texas Lottery
Commission's determination shall be administratively final when issued.
|
| Source Note: The provisions of this §401.102 adopted to be effective March 16, 2009, 34 TexReg 1845; amended to be effective April 25, 2013, 38 TexReg 2507; amended to be effective December 31, 2015, 40 TexReg 9632 |
