SECTION 281.14. Vendor Protest Procedures

(a) The purpose of this section is to establish procedures for resolving vendor protests relating to purchasing issues.

(b) A vendor who submitted a written response to a solicitation may file a protest with the executive director for actions taken by the board on the following:

(1) the solicitation documents or actions associated with the publication of solicitation documents;

(2) the evaluation or method of evaluation for a solicitation; or

(3) the award of a contract.

(c) Filing requirements.

(1) To be considered, a protest must be:

(A) in writing and contain:

(i) the specific rule, statute or regulation the protesting vendor alleges the solicitation, contract award, or tentative award violated;

(ii) a specific description of each action by the board that the protesting vendor alleges is a violation of the statutory or regulatory provision the protesting vendor identified in subparagraph (A)(i) of this paragraph;

(iii) a precise statement of the relevant facts including:

(I) sufficient documentation to establish that the protest has been timely filed;

(II) a description of the adverse impact to the board and the state; and

(III) a description of the resulting adverse impact to the protesting vendor;

(iv) a statement of the argument and authorities that the protesting vendor offers in support of the protest; and

(v) an explanation of the subsequent action the vendor is requesting;

(B) signed by an authorized representative and the signature notarized; and

(C) filed with the board in the time period specified in this section.

(2) To be considered timely, the protest must be filed:

(A) by the end of the posted solicitation period, if the protest concerns the solicitation documents or actions associated with the publication of solicitation documents;

(B) by the day of the award of a contract resulting from the solicitation, if the protest concerns the evaluation or method of evaluation for a solicitation; or

(C) no later than 10 days after the notice of award, if the protest concerns the award.

(d) Timeliness of Protest.

(1) If a timely protest of a solicitation or contract award is filed under this section, the executive director may delay the solicitation or award of the contract if the executive director makes a determination that the contract must be awarded without delay to protect the best interests of the state.

(2) A protest that is filed untimely under this section shall not be considered unless the executive director determines that good cause for delay is shown or that a protest raises issues that are significant to the agency's procurement practices or procedures in general.

(e) Authority of the Executive Director to Settle the Protest.

(1) Upon receipt of a protest, the executive director may dismiss the protest if it is not timely or does not meet the requirements of this section.

(2) The executive director shall have the authority to settle and resolve the protest. The executive director may solicit written responses to the protest from other interested parties.

(3) If the protest is not resolved through mutual agreement, the executive director shall issue a written determination responding to the protest.

(f) Appeal.

(1) If a protest is based on a solicitation or contract award, the protesting party may appeal a determination of a protest by the executive director to the general counsel. An appeal of the executive director's determination must be in writing and received not later than 10 days after the date the executive director sent written notice of the executive director's determination. The scope of the appeal shall be limited to review of the executive director's determination. The protesting party must mail or deliver to all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.

(2) The general counsel may refer the matter to the board for consideration or may issue a written decision that resolves the protest.

(3) An appeal that is not filed timely shall not be considered unless good cause for delay is shown or the general counsel determines that an appeal raises issues that are significant to the agency's procurement practices or procedures in general.

(4) A written decision issued by the general counsel or the board shall be the final administrative action of the board.

(g) The board shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the board's records retention schedule.

Source Note: The provisions of this §281.14 adopted to be effective September 10, 2019, 44 TexReg 4870