SECTION 67.201. Procedures Governing Bid Protests

(a) A vendor who is aggrieved by the solicitation, evaluation, or award of a contract by ERS, hereinafter referred to as the Protesting Party, may file a formal protest with the Director of Procurement and Contract Oversight of ERS. Such protests must be in writing and received in the Office of Procurement and Contract Oversight within the time stated in subsection (d) of this section. Formal protests must conform to the requirements of this subsection, subsection (c), subsection (d), and, when applicable, subsection (e) of this section, and shall be resolved in accordance with the procedure set forth in subsections (f) - (m) of this section. Copies of the protest must be mailed or delivered by the Protesting Party to ERS and other Interested Parties. For the purposes of this section, "Interested Parties" means all vendors who have submitted bids or proposals for the applicable contract. The protest must be mailed or delivered to Interested Parties contemporaneously with filing the protest with the Director of Procurement and Contract Oversight of ERS.

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

(c) A formal protest must be sworn and, under the penalties of perjury, 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; and

(5) argument and authorities in support of the protest.

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

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

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

(e) If ERS determines that it may need to utilize the services of an actuary, consultant, or another professional (Professional Services) in its efforts to resolve the protest, the Protesting Party shall be required to post a bond in an amount no less than the estimated cost to ERS for such Professional Services. The amount of the bond shall be determined in the sole discretion of ERS. The Protesting Party shall post the bond within five calendar days of notice from ERS that such bond is required or shall be deemed to have waived the right to protest.

(1) If such Professional Services are utilized by ERS and the bid protest is not finally resolved in favor of the Protesting Party, the Protesting Party shall be required to forfeit its bond.

(2) If such Professional Services are not utilized by ERS and/or the bid protest is finally resolved in favor of the Protesting Party, the Protesting Party's bond shall be returned to the Protesting Party after final resolution of the bid protest.

(f) The Director of Procurement and Contract Oversight of ERS may accept written responses to the protest from Interested Parties and ERS staff.

(g) The Director of Procurement and Contract Oversight of ERS may confer with the General Counsel of ERS in his/her review of the protest.

(h) The Director of Procurement and Contract Oversight of ERS shall have the authority to settle and resolve the protest.

(i) If the protest is not resolved by mutual agreement, the Director of Procurement and Contract Oversight of ERS will issue a written determination on the protest.

(1) If the Director of Procurement and Contract Oversight of ERS determines that no violation of rules or statutes has occurred, he/she shall so inform the Protesting Party and Interested Parties by letter that sets forth the reasons for the determination.

(2) If the Director of Procurement and Contract Oversight of ERS determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he/she shall so inform the Protesting Party and Interested Parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(j) The determination of a protest by the Director of Procurement and Contract Oversight may be appealed by the Protesting Party to the Deputy Executive Director of ERS. An appeal of the determination by the Director of Procurement and Contract Oversight of ERS must be in writing and must be received in the office of the Deputy Executive Director of ERS no later than 10 calendar days after the date of the determination by the Director of Procurement and Contract Oversight. The appeal shall be limited to the review of the determination by the Director of Procurement and Contract Oversight. Copies of the appeal must be mailed or delivered by the Protesting Party to ERS and Interested Parties contemporaneously with filing the appeal to the Deputy Executive Director of ERS. The appeal must contain a certified statement that such copies have been served on all parties as required by this subsection.

(k) The Deputy Executive Director of ERS may confer with the General Counsel of ERS in his/her review of the matter appealed.

(l) An appeal that is not filed timely shall not be considered unless good cause for delay is shown. The Deputy Executive Director shall determine if good cause exists. Good Cause means that a person's failure to act was not because of a lack of due diligence the exercise of which would have caused a reasonable person to take prompt and timely action. A failure to act based on ignorance of the law or facts reasonably discoverable through the exercise of due diligence does not constitute good cause.

(m) A decision issued in writing by the Deputy Executive Director of ERS shall be the final administrative action of ERS, and no further appeal shall be permitted.

Source Note: The provisions of this §67.201 adopted to be effective December 24, 2015, 40 TexReg 9302; amended to be effective September 12, 2017, 42 TexReg 4655