SECTION 201.1. Procedures for Vendor Protests and the Negotiation and Mediation of Certain Contract Disputes and Bid Submission, Opening and Tabulation Procedures

(a) Vendor Protest Procedure.

(1) 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 position identified in the department's Vendor Protest Procedures. Such protests must be in writing and received in the appropriate office within 10 working days after the protesting party 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 paragraph (3) of this subsection, and shall be resolved in accordance with the procedure set forth in paragraphs (4) and (5) of this subsection. Copies of the protest must be mailed or delivered by the protesting party to the department and all respondents who have submitted bids, proposals or offers for the contract involved. Names and addresses of such respondents may be obtained by sending a written request for the information to the office identified in the department's Vendor Protest Procedures.

(2) In the event of a timely protest under paragraph (1) of this subsection, and an award has not been made, the department shall not proceed further with the solicitation or award of the contract unless the executive director, after consultation with the appropriate position as identified in the department's Vendor Protest Procedures makes a written determination that the award of contract without delay is necessary to protect substantial interests of the state.

(3) A formal protest must be sworn and contain:

(A) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(B) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in subparagraph (A) of this paragraph;

(C) a precise statement of the relevant facts;

(D) an identification of the issue(s) to be resolved;

(E) argument and authorities in support of the protest; and

(F) proof that copies of the protest have been mailed or delivered to all respondents who have submitted bids, proposals or offers for the contract involved. A certification that copies were supplied to all interested parties with a list of the addresses the protest was sent to will be accepted as proof of delivery of copies.

(4) The position identified in the department's Vendor Protest Procedures shall have the authority, prior to appeal to the executive director of the department, or his or her designee, to settle and resolve the dispute concerning the solicitation or award of a contract.

(5) The position identified in the department's Vendor Protest Procedures may solicit written responses to the protest from respondents who have submitted bids, proposals or offers for the contract involved and from other interested parties. Upon written request, the protesting party shall be given notice of the request and any written responses received.

(6) The position identified in the department's Vendor Protest Procedures may consult with legal counsel concerning the dispute.

(7) If the protest is not resolved by mutual agreement, the position identified in the department's Vendor Protest Procedures will issue a written determination on the protest.

(A) If the position identified in the department's Vendor Protest Procedures determines no violation of rules or statutes occurred, he or she shall so inform the protesting party and each respondent who submitted a bid, proposal or offer for the contract involved by letter. The letter shall set forth the reasons for the determination.

(B) In instances in which the contract has not been awarded, if the position identified in the department's Vendor Protest Procedures determines that a violation of the rules or statutes has occurred, he or she shall so inform the protesting party and each respondent who submitted a bid, proposal or offer for the contract involved by letter. The letter shall set forth the reasons for the determination and the appropriate remedial action.

(C) In instances in which the contract has been awarded, if the position identified in the department's Vendor Protest Procedures determines that a violation of the rules or statutes has occurred, he or she shall so inform the protesting party and each respondent who submitted a bid, proposal or offer for the contract by letter. The letter shall set forth the reasons for the determination and may conclude that the contract awarded is void.

(8) The determination of the position identified in the department's Vendor Protest Procedures on a protest may be appealed by the protesting party to the executive director of the department or his or her designee. An appeal of the determination of the position identified in the department's Vendor Protest Procedures must be written and must be received in the executive director's office no later than 10 working days after the date of the determination. The appeal shall be limited to review of the determination. A copy of the appeal must be mailed or delivered by the appealing party to the department and each respondent who submitted a bid, proposal or offer for the contract and must contain a certified statement that such copies have been provided. Failure of the protesting party to appeal the determination of the position identified in the department's Vendor Protest Procedures within 10 working days after the date of the determination renders the determination the final administrative action of the department on the protest.

(9) The executive director, or his or her designee, may confer with legal counsel in reviewing the matter appealed.

(10) The executive director, or his or her designee, shall review the protest petition, any requests for and written responses to the protest petition from any respondent who submitted a bid, proposal or offer for the contract or other interested parties, the determination and the appeal.

(11) The executive director, or his or her designee, may refer the matter to the board for consideration at a regularly scheduled open meeting or issue a written decision on the protest. If the matter is not referred to the board by the executive director, or his or her designee, the decision of the executive director, or his or her designee, is final.

(12) When a protest appealed under paragraph (8) of this subsection has been referred to the board under paragraph (11) of this subsection:

(A) Copies of the documents required by paragraph (10) of this subsection shall be mailed to the board.

(B) All interested parties who wish to make an oral presentation at the open meeting at which the board is scheduled to consider the protest shall notify the department general counsel at least 48 hours in advance of the open meeting.

(C) The board may consider oral presentations and written documents presented by staff and interested parties, including the protesting party and any respondent who submitted a bid, proposal or offer for the contract. The board chair shall set the order and length of time allowed for presentations.

(D) Board determination of the appeal shall be by duly adopted resolution reflected in the minutes of the open meeting, and shall be final.

(E) Unless good cause for delay is shown or the board 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.

(13) A decision issued by the board in open meeting, or in writing by the executive director, or his or her designee, or in writing by the position identified in the department's Vendor Protest Procedures, that is not appealed in a timely manner, shall be the final administrative action of the department.

(14) The department shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of the department.

(b) The department adopts by reference the rules of the Office of the Attorney General relating to the negotiation and mediation of certain contract disputes, as such rules may be amended from time to time. Such rules are codified in 1 TAC Chapter 68 and are located at the Office of the Secretary of State's website.

(c) The department adopts by reference the rule of the State of Texas Procurement authority relating to Bid Submission, Bid Opening and Tabulation, as such rule may be amended from time to time. The rule is codified in 34 TAC Chapter 20, §20.35 and is located at the Office of the Secretary of State's website.

Source Note: The provisions of this §201.1 adopted to be effective September 20, 2011, 36 TexReg 6141