SECTION 111.32. Protests/Dispute Resolution/Hearing

(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 Commission's Director of Procurement. Such protests must be in writing and received by the Director of Procurement within 10 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 of this subsection and subsection (c) of this section, and shall be resolved in accordance with the procedure set forth in subsections (d) and (e) of this section. Copies of the protest must be mailed or delivered by the protesting party to the Commission and other interested parties. For the purposes of this section, "interested parties" means all vendors who have submitted bids or proposals for the contract involved.

(b) In the event of a timely protest or appeal under this section, the state shall not proceed further with the solicitation or with the award of the contract unless the Executive Director, after consultation with the Director of Procurement, makes a written determination that the award of contract without delay is necessary to protect the best interests of the state.

(c) A formal protest must be sworn and 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 using agency and other identifiable interested parties.

(d) The Director of Procurement shall have the authority, prior to appeal to the Executive Director of the Commission, to settle and resolve the dispute concerning the solicitation or award of a contract. The Director of Procurement may solicit written responses to the protest from other interested parties.

(e) If the protest is not resolved by mutual agreement, the Director of Procurement will issue a written determination on the protest.

(1) If the Director of Procurement determines that no violation of rules or statutes has occurred, he shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination.

(2) If the Director of Procurement determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he shall so inform the protesting party, the using agency, and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3) If the Director of Procurement determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.

(f) The Director of Procurement's determination on a protest may be appealed by the protesting party to the Executive Director of the Commission. An appeal of the Director of Procurement's determination must be in writing and must be received in the Executive Director's office no later than 10 working days after the date of the Director of Procurement's determination. The appeal shall be limited to review of the Director of Procurement's determination. Copies of the appeal must be mailed or delivered by the protesting party to the Commission and other interested parties and must contain a certified statement that such copies have been provided.

(g) The Executive Director may confer with the Commission's General Counsel in his review of the matter appealed. The Executive Director may, in his discretion, refer the matter to the Commissioners for their consideration at a regularly scheduled open meeting or issue a written decision on the protest.

(h) When a protest has been appealed to the Executive Director under subsection (f) of this section and has been referred to the Commissioners by the Executive Director under subsection (g) of this section, the following requirements shall apply:

(1) Copies of the appeal and responses of interested parties, if any, shall be mailed to the Commissioners.

(2) All interested parties who wish to make an oral presentation at the open meeting are requested to notify the Commission's General Counsel at least 48 hours in advance of the open meeting.

(3) The Commissioners may consider oral presentations and written documents presented by staff and interested parties. The Commission Chair shall set the order and amount of time allowed for presentations.

(4) The Commissioners' 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 Commission 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) A decision issued either by the Commissioners in open meeting, or in writing by the Executive Director, shall be the final administrative action of the Commission.

Source Note: The provisions of this §111.32 adopted to be effective August 7, 2008, 33 TexReg 6129; amended to be effective July 7, 2016, 41 TexReg 3797