| (a) Purpose. The purpose of this rule provides for
the Department's compliance with 34 TAC Chapter 20, Subchapter F,
Division 3, the rules of the Texas Comptroller of Public Accounts
addressing procurement, which require state agencies to adopt protest
procedures consistent with the Comptroller's procedures.
(b) Definitions. The following words and terms, when
used in this subchapter, shall have the following meanings, unless
the context clearly indicates otherwise.
(1) Board--The Governing Board of the Department.
(2) Department--The Texas Department of Housing and
Community Affairs.
(3) Interested Parties-- All vendors who have submitted
bids or proposals for the contract involved. A list of interested
parties is available upon request from the Department.
(4) Protest--A written objection submitted to the Department
by any actual or prospective bidder, offeror, or contractor who is
aggrieved in connection with the solicitation, evaluation, or award
of a procurement contract by the Department.
(c) These procedures are for Department procurements
only. Any actual or prospective bidder, offeror, or contractor who
is aggrieved in connection with a solicitation, evaluation, or award
may formally protest to the Department's Purchasing Officer.
(d) To be considered timely, the Protest must be filed
in accordance with the requirements of 34 TAC §20.535(b).
(e) To be considered complete, the Protest must be
in writing, signed by an authorized representative, notarized, and
contain:
(1) a specific identification of the statutory or regulatory
provision(s) that the Person submitting the Protest alleges to have
been violated;
(2) a specific description of each act made by the
Department that the Person submitting the Protest alleges to have
been violated specified in the statutory or regulatory provision(s)
identified in paragraph (1) of this Subsection;
(3) a precise statement of the relevant facts including:
(A) sufficient documentation to establish that the
Protest has been timely filed;
(B) a description of the adverse impact to the Department
or the state; and
(C) a description of the resulting adverse impact to
the protesting vendor;
(4) a statement of the argument and authorities that
the Person submitting the Protest offers in support of the Protest;
(5) an explanation of the subsequent action the Person
submitting the Protest is requesting; and
(6) except for a Protest that concerns the solicitation
documents or actions associated with the publication of solicitation
documents, a statement confirming that copies of the Protest have
been mailed or delivered to other identifiable Interested Parties.
(f) The Purchasing Officer shall have the initial authority
to settle and resolve the Dispute concerning the solicitation or award
of a contract. The Purchasing Officer may dismiss the Protest if it
is not timely filed or does not meet the requirements of this section.
The Purchasing Officer may solicit written responses to the Protest
from other Interested Parties.
(g) If the Protest is not resolved by mutual agreement,
the Purchasing Officer will provide a written recommendation to the
Department's Executive Director.
(h) The Executive Director shall issue a final written
determination on the Protest within 15 calendar days after receipt
of the Purchasing Officer's recommendation in accordance with the
requirements of 34 TAC §20.537(c).
(i) In the alternative, the Executive Director may,
in his or her discretion, refer the matter to the Department's Governing
Board for their consideration at a regularly scheduled meeting. The
decision of the Board shall be final.
(j) A protesting party may appeal the determination
of the Executive Director under Subsection (g) of this section to
the Department's Governing Board. An appeal of the Executive Director's
determination must be in writing and received by the Purchasing Officer
not later than 10 calendar days after the date the Executive Director
sent written notice of their determination. The scope of the appeal
shall be limited to review of the Executive Director's determination.
The protesting party must mail or deliver to all other interested
parties a copy of the appeal, which must contain a certified statement
that such copies have been provided.
(1) The appeal will be presented for consideration
at the next regularly scheduled meeting of the Governing Board. The
decision of the Governing Board shall be final.
(2) An appeal that is not filed timely shall not be
considered unless good cause for delay is shown in writing relating
to issues that are significant to agency procurement practices or
procedures, or the Department's General Counsel makes such a determination.
(k) All documents collected by the Department as part
of a solicitation, evaluation, and/or award of a contract shall be
retained with the procurement file according to Department's Records
Retention Schedule.
(l) The Department reserves all of its rights under
34 TAC §20.536. The Department may award a solicitation or award
without delay, in spite of a timely filed Protest, to protect the
best interests of the state.
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