| (a) The purpose of this section is to provide a procedure
for vendors to protest purchases made by the Commission and the Board.
Protests of purchases made by the TFC on behalf of the Agency are
addressed in 1 TAC Chapter 111, Subchapter C (relating to Complaints
and Dispute Resolution). Protests of purchases made by DIR on behalf
of the Agency are addressed in 1 TAC §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 the Statewide Procurement Division of the Comptroller
on behalf of the Agency are addressed in 34 TAC Chapter 20, Subchapter
F, Division 3 (relating to Protests and Appeals). The rules of TFC,
DIR, and the Comptroller 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 believes they are aggrieved in connection with the solicitation,
evaluation, or award of a contract may formally protest to the Agency.
Such protests must be in writing and received in the office of the
Chief Financial Officer 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 Financial Officer shall have the authority,
prior to appeal to the Executive Director or the Executive Director's
designee, to settle and resolve the dispute concerning the solicitation
or award of a contract. The Chief Financial Officer may solicit written
responses to the protest from other interested parties.
(e) If the protest is not resolved by mutual agreement,
the Chief Financial Officer will issue a written determination on
the protest.
(1) If the Chief Financial Officer determines that
no violation of rules or statutes has occurred, the Chief Financial
Officer shall so inform the protesting party and interested parties
by letter which sets forth the reasons for the determination.
(2) If the Chief Financial Officer determines that
a violation of the rules or statutes has occurred in a case where
a contract has not been awarded, the Chief Financial Officer 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 Financial Officer determines that
a violation of the rules or statutes has occurred in a case where
a contract has been awarded, the Chief Financial Officer 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 Financial Officer's determination on
a protest may be appealed by an interested party to the Executive
Director or the Executive Director's designee. An appeal of the Chief
Financial Officer's determination must be in writing and must be received
in the office of the Executive Director or the Executive Director's
designee no later than ten working days after the date of the Chief
Financial Officer's determination. The appeal shall be limited to
review of the Chief Financial 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, the
Chief Financial Officer's determination, and the appeal and prepare
a written opinion with recommendation to the Executive Director or
the Executive Director's designee. The Executive Director or the Executive
Director's designee may, in their discretion, refer the matter to
the Commission at a regularly scheduled open meeting or issue a final
written determination.
(h) When a protest has been appealed to the Executive
Director or the Executive Director's designee under subsection (f)
of this section and has been referred to the relevant Commission or
Board by the Executive Director or the Executive Director's designee
under subsection (g) of this section, the following requirements shall
apply:
(1) Copies of the appeal, responses of interested parties,
if any, and the general counsel's recommendation shall be mailed to
the Commission 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 Commission's open meeting are requested to notify
the office of general counsel at least two working days in advance
of the open meeting.
(3) The Commission may consider oral presentations
and written documents presented by staff, the appealing party, and
interested parties. The chair of the Commission shall set the order
and amount of time allowed for presentations.
(4) The Commission's 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 the Executive Director's 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
the Agency 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 the Agency
will not result from the stay. If the Executive Director determines
that it is in the interest of the Agency 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 Commission in open
meeting, or in writing by the Executive Director or the Executive
Director's designee, shall constitute the final administrative action
of the Agency.
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| Source Note: The provisions of this §534.7 adopted to be effective March 16, 2021, 46 TexReg 1642; amended to be effective May 25, 2022, 47 TexReg 3053; amended to be effective September 11, 2024, 49 TexReg 7039 |
