| (a) Any bidder or proposer aggrieved by a contract
award 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 the 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 any contract award must be filed electronically
with the commission's general counsel, by email to legal.input@lottery.state.tx.us,
within 72 hours after receipt of notice of contract award. A copy
of the protest must be delivered to the successful bidder or proposer
at the same time that the protest or supplement is delivered to the
agency. 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 and a copy is sent to the successful bidder or proposer. 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 notice
of contract award.
(c) In the event of a protest of a contract award,
the successful bidder(s) or proposer(s) may file a written response
electronically to the protest within 72 hours after the office of
the general counsel's receipt of the protest or any supplemental filing.
The successful bidder(s) or proposer(s) must include its email address
with the response. A response is considered timely filed if it is
electronically filed before the filing deadline. An electronically
filed response is deemed filed when transmitted to the successful
bidder(s) or proposer(s)'s electronic filing service provider. The
electronically filed response must be in a text-searchable PDF format.
The successful bidder(s) or proposer(s) is solely responsible for
ensuring the response is complete and filed timely with the office
of the general counsel. Responses not filed timely will not be considered,
and the successful bidder(s) or proposer(s) will be so notified in
writing by the commission's general counsel by electronic notice sent
to the successful bidder(s) or proposer(s)'s designated email address.
(d) 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;
(5) an affidavit that the contents of the protest are
true and correct; and
(6) a certification that a copy of the protest has
been served on the successful proposer(s).
(e) In the event of a timely filed protest of a contract
award, the executive director will be notified and may abate the award
of the contract until the protest is finally resolved.
(f) The director of administration will review the
protest, the contract award file, any responses, and will make a written
determination of the protest, which may include canceling the award
of the contract. The director of administration's written determination
will be served, by facsimile or by email, on the protestant and the
successful bidder(s) or proposer(s). 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. of 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.
(g) The successful bidder(s) or proposer(s) may file
a response electronically to the appeal of a determination made by
the director of administration or the Executive Director within 24
hours after notice of the commission's receipt of the appeal. The
successful bidder(s) or proposer(s) must include its email address
with the response. A response is considered timely filed if it is
electronically filed before the filing deadline. An electronically
filed response is deemed filed when transmitted to the successful
bidder(s) or proposer(s)'s electronic filing service provider. Unless
otherwise requested by the commission, the successful bidder(s) or
proposer(s) is not required to file a paper copy of its response.
The electronically filed response must be in text-searchable PDF format.
The successful bidder(s) or proposer(s) is solely responsible for
ensuring the response is complete and filed timely with the office
of the general counsel. Responses not filed timely will not be considered,
and the respondent will be so notified in writing by the commission's
general counsel by electronic notice sent to the successful bidder(s)
or proposer(s)'s designated email address.
(h) On appeal of the director of administration's determination,
the executive director will review the protest, the contract award
file and 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 protest, which
may include abating the award of the contract. 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. of 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.
(i) On timely receipt of the protest and any response,
the general counsel will appoint a staff attorney who did not participate
in the decision to award the contract to evaluate the protest and
any response. The staff attorney will make a written recommendation
to the Texas Lottery Commission, including proposed findings of fact
and conclusions of law.
(j) The Texas Lottery Commission, at its discretion,
may allow oral argument by the protestant, the successful bidder or
proposer, and any necessary agency staff. The Texas Lottery Commission
may limit the time for oral argument. 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 contract award. The staff attorney who made the written recommendation
to the Texas Lottery Commission may also be present to respond to
any questions.
(k) 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 contract award file;
(3) Any responses;
(4) The oral argument, and Executive Director's presentation,
if any;
(5) The executive director's determination, including
any reasoning that supports the determination; and
(6) The staff attorney's recommendation. The written
determination of the protest will include findings of fact and conclusions
of law, and may include a determination voiding or sustaining the
contract. The Texas Lottery Commission's written determination will
be served by email on the protestant and all parties to the protest
proceedings. 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 §401.103 adopted to be effective March 16, 2009, 34 TexReg 1846; amended to be effective April 25, 2013, 38 TexReg 2507; amended to be effective December 31, 2015, 40 TexReg 9632 |
