SECTION 1.11. Protest Procedures for Resolving Vendor Protests Relating to Purchasing Issues

(a) 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 the Deputy Commissioner for Agency Operations and Communications (Deputy Commissioner). Such protests must be in writing and received in the Deputy Commissioner's office within 10 working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested, unless the director finds that good cause for delay is shown, or determines that a protest or appeal raises issues significant to the agency's procurement practices or procedures.

(b) Formal protests must conform to the requirements of this subsection and subsection (d) of this section. Copies of the protest must be mailed or delivered by the protestant to the other interested parties. For the purposes of this section, "interested parties" are all vendors who have submitted bids or proposals for the contract involved. Names and addresses of all interested parties may be obtained by sending a written request for this information to the Deputy Commissioner.

(c) In the event of a timely protest or appeal under this section, the agency shall not proceed further with the solicitation or with the award of the contract unless the Deputy Commissioner makes a written determination that the expeditious award of contract is necessary to protect substantial interests of the state. A copy of this determination shall be mailed to the protestant.

(d) A formal protest petition must be sworn and must contain:

(1) a specific identification of the statutory or regulatory 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 or regulatory 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 the other interested parties.

(e) The Deputy Commissioner shall have the authority to resolve the dispute concerning the solicitation or award of a contract. The Deputy Commissioner may solicit written responses to the protest petition from other interested parties, and if such a request is made, the protestant shall be given notice of the Deputy Commissioner's request and of any written responses to the request that are received.

(f) If the protest is not resolved by mutual agreement, the Deputy Commissioner shall issue a written determination on the protest.

(1) If the Deputy Commissioner determines that no violation of rules or statutes has occurred, the protestant and other interested parties shall be informed by a letter that sets forth the reasons for the determination.

(2) If the Deputy Commissioner determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, the protestant and other interested parties shall be informed by a letter that sets forth the reasons for the determination and the remedial action, if any, determined to be appropriate.

(3) If the Deputy Commissioner determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, the protestant and other interested parties shall be informed by a letter which sets forth the reasons for the determination and the remedial action, if any, determined to be appropriate. In such a case, the Deputy Commissioner has the authority to declare the contract void. If the contract is declared void, this fact shall be included in the determination letter.

(g) The Deputy Commissioner's determination on a protest may be appealed by an interested party to the Commissioner of Higher Education (Commissioner). An appeal of the Deputy Commissioner's determination must be in writing and must be received in the Commissioner's office no later than 10 working days after the date of the Deputy Commissioner's determination. An appeal of the determination shall be limited to those issues raised in the protest petition and the determination letter. Copies of the appeal must be mailed or delivered by the appealing party to the other interested parties and must contain a sworn statement that such copies have been provided.

(h) The Commissioner shall review the information provided as described in subsection (d) of this section as well as the Deputy Commissioner's requests for input, and any written responses previously received from other interested parties, the written determination, and the appeal, and shall issue a written decision on the protest determination appeal.

(i) A decision issued in writing by the Commissioner shall be the final administrative action of the agency.

(j) In performing their duties under this section, the Commissioner and the Deputy Commissioner may consult with the Comptroller of Public Accounts as well as Board employees, including the office of the General Counsel of the Board, concerning the dispute.

Source Note: The provisions of this §1.11 adopted to be effective February 26, 2004, 29 TexReg 1658; amended to be effective March 5, 2015, 40 TexReg 918