SECTION 71.61. Protests/Dispute Resolution

(a) Any actual or prospective bidder, offeror, or contractor alleging to have been aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Division Director of the Administrative Services Division (the Director). Such protests must be in writing and received in the Director's 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 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 agency 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 Secretary of State's office shall not proceed further with the solicitation or with the award of the contract unless the Director makes a written determination that the award of contract without delay is necessary to protect substantial 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 to identifiable interested parties.

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

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

(1) If the Director 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 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, and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3) If the Director 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 nullifying the contract.

(f) The Director's determination on a protest may be appealed by an interested party to the Secretary of State. An appeal of the Director's determination must be in writing and must be received in the Secretary of State's office no later than 10 working days after the date of the Director's determination. The appeal shall be limited to review of the Director'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, Director's determination, and the appeal and prepare a written opinion with recommendation to the Secretary of State. Copies of the general counsel's recommendation shall be mailed to the appealing party, and other interested parties.

(h) When a protest has been appealed to the Secretary of State under subsection (f) of this section a decision issued in writing by the Secretary of State shall be the final administrative action of the agency.

Source Note: The provisions of this §71.61 adopted to be effective April 9, 2002, 27 TexReg 2813