| (a) The purpose of this section is to provide a procedure
for vendors to protest purchases made by the Teacher Retirement System
of Texas (TRS). Protests of purchases made by the Texas Facilities
Commission (facilities commission) on behalf of TRS 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 TRS
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 Texas Procurement
and Support Services of the Comptroller of Public Accounts (comptroller's
office) on behalf of TRS are addressed in 34 Texas Administrative
Code Chapter 20, Subchapter F, Division 3 (relating to Protests and
Appeals). The rules of the facilities commission, DIR, and the comptroller's
office 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 is aggrieved in connection with the solicitation, evaluation,
or award of a contract may formally protest to TRS. Such protests
must be in writing and received in the office of the chief officer
in whose area the action is (was) being processed 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 chief officer shall have the authority, prior
to appeal to the executive director or his designee, to settle and
resolve the dispute concerning the solicitation or award of a contract.
The chief officer may solicit written responses to the protest from
other interested parties.
(e) If the protest is not resolved by mutual agreement,
the chief officer will issue a written determination on the protest.
(1) If the chief officer 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 chief officer 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 chief officer 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 chief officer's determination on a protest
may be appealed by an interested party to the executive director or
his designee. An appeal of the chief officer's determination must
be in writing and must be received in the office of the executive
director or his designee no later than ten working days after the
date of the chief officer's determination. The appeal shall be limited
to review of the chief officer'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, chief
officer's determination, and the appeal and prepare a written opinion
with recommendation to the executive director or his designee. The
executive director or his designee may, in his or her discretion,
refer the matter to the Board of Trustees 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 designee under subsection (f) of this section and
has been referred to the Board of Trustees by the executive director
or his 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
Board 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 the open meeting are requested to notify the office
of the executive director or his designee at least 48 hours in advance
of the open meeting.
(3) The Board of Trustees 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) The Board of Trustees' 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 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
TRS 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 TRS will
not result from the stay. If the executive director determines that
it is in the interests of TRS 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 the Board of Trustees
in open meeting, or in writing by the executive director or his designee,
shall be the final administrative action of TRS.
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| Source Note: The provisions of this §51.2 adopted to be effective January 17, 1999, 24 TexReg 257; amended to be effective March 12, 2003, 28 TexReg 2120; amended to be effective April 1, 2011, 36 TexReg 2005; amended to be effective August 22, 2019, 44 TexReg 4324 |
