(a)The purpose of this section is to provide a procedure
for vendors to protest purchases made by the Commission [
Texas Real Estate Commission ("Commission")] and the Board [
Texas Appraiser Licensing and Certification Board (collectively "the
agency")]. Protests of purchases made by the TFC [Texas
Facilities Commission ("TFC")] on behalf of the Agency [
agency] are addressed in 1 TAC [Texas Administrative
Code] Chapter 111, Subchapter C (relating to Complaints and
Dispute Resolution). Protests of purchases made by DIR [the
Department of Information Resources (DIR)] on behalf of the Agency
[agency] are addressed in 1 TAC [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 the Statewide Procurement Division of the Comptroller
[of Public Accounts ("CPA")] on behalf of the Agency [
agency] are addressed in 34 TAC [Texas Administrative
Code] Chapter 20, Subchapter F, Division 3 (relating to Protests
and Appeals). The rules of TFC, DIR, and the Comptroller [
CPA] 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
[agency]. Such protests must be in writing and received
in the office of the Chief Financial Officer [Director
of Finance] 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 [Director
of Finance] shall have the authority, prior to appeal to the
Executive Director or the Executive Director's [his
or her] designee, to settle and resolve the dispute concerning
the solicitation or award of a contract. The Chief Financial
Officer [Director of Finance] 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 [Director of Finance]
will issue a written determination on the protest.
(1)If the Chief Financial Officer [Director
of Finance] determines that no violation of rules or statutes
has occurred, the Chief Financial Officer [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 Financial Officer [Director
of Finance] 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 [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 Financial Officer [Director
of Finance] determines that a violation of the rules or statutes
has occurred in a case where a contract has been awarded, the
Chief Financial Officer [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 Financial Officer's [Director
of Finance's] determination on a protest may be appealed by
an interested party to the Executive Director or the Executive
Director's [his or her] designee. An appeal of the
Chief Financial Officer's [Director of Finance's]
determination must be in writing and must be received in the office
of the Executive Director or the Executive Director's [his
or her] designee no later than ten working days after the date
of the Chief Financial Officer's [Director of Finance's]
determination. The appeal shall be limited to review of the Chief
Financial Officer's [Director of Finance'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 [General Counsel]
shall review the protest, the Chief Financial Officer's [
Director of Finance's] determination, and the appeal and prepare
a written opinion with recommendation to the Executive Director [
executive director] or the Executive Director's [his
] designee. The Executive Director [executive
director] or the Executive Director's [his or
her] designee may, in their [his or her]
discretion, refer the matter to the Commission [TREC]
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 [his or her]
designee under subsection (f) of this section and has been referred
to the relevant Commission or Board [of TREC] by the Executive
Director or the Executive Director's [his or her]
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 [General Counsel]
recommendation shall be mailed to the Commission [TREC]
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 [TREC's] open
meeting are requested to notify the office of general counsel [
General Counsel] at least two working days in advance of the
open meeting.
(3)The Commission [TREC] may
consider oral presentations and written documents presented by staff,
the appealing party, and interested parties. The chair of the
Commission [chairman] shall set the order and amount
of time allowed for presentations.
(4)The Commission's [TREC'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 [his or her]
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 [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 [agency]
will not result from the stay. If the Executive Director determines
that it is in the interest of the Agency [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 [
TREC] in open meeting, or in writing by the Executive Director
or the Executive Director's [his or her] designee,
shall constitute the final administrative action of the Agency [
agency].
The agency certifies that
legal counsel has reviewed
the proposal and found it to be within the state agency's legal authority
to adopt.
Filed with the Office
of the Secretary of State on February 22, 2022
TRD-202200634 Abby Lee
Deputy General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: April 10, 2022
For further information, please call: (512) 936-3057
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