SECTION 210.2. Protest of Department Purchases under the State Purchasing and General Services Act

(a) Purpose. The purpose of this section is to provide a procedure for vendors to protest purchases made by the department. Purchases made by the Texas Procurement and Support Services division of the Comptroller of Public Accounts office on behalf of the department are addressed in 34 TAC Chapter 20.

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Government Code, Chapters 2151-2177, the State Purchasing and General Services Act.

(2) Board--Board of the Texas Department of Motor Vehicles.

(3) Department--Texas Department of Motor Vehicles.

(4) Division--An organizational unit in the department.

(5) Executive director--The executive director of the department.

(6) Interested party--A vendor that has submitted a bid, proposal, or other expression of interest for the purchase involved.

(7) Purchase--A procurement action for commodities or non-professional services under the Act.

(c) Filing of protest.

(1) An actual, prospective bidder, or offeror who is aggrieved in connection with the solicitation, evaluation, or award of a purchase, may file a written protest. The protest must be addressed to the attention of the executive director. The protest must be received in the office of the executive director within 10 working days after such aggrieved person knows, or should have known, of the action.

(2) The protest must be sworn and contain:

(A) the provision of or rule adopted under the Act that the action is alleged to have violated;

(B) a specific description of the alleged violation;

(C) a precise statement of the relevant facts;

(D) the issue to be resolved;

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

(F) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.

(d) Suspension of award or performance. If a protest or appeal of a protest has been filed, then the department will not proceed with the solicitation or the award of the purchase unless the executive director's designee, not below the level of division director, makes a written determination that the award of the purchase should be made without delay to protect substantial interests of the department. If the purchase has already been awarded, then the department will not allow the vendor to continue performance under the contract unless the executive director makes a written determination that continued vendor performance is necessary to protect substantial interests of the department.

(e) Informal resolution. The executive director's designee may informally resolve the dispute, including:

(1) soliciting written responses to the protest from other interested parties; and

(2) resolving the dispute by mutual agreement.

(f) Written determination. If the protest is not resolved by agreement, the executive director's designee will issue a written determination to the protesting party and interested parties which sets forth the reason of the determination. The designee may determine that:

(1) no violation has occurred; or

(2) a violation has occurred and it is necessary to take remedial action as appropriate to the circumstances, which may include:

(A) declaring the purchase void;

(B) reversing the award; or

(C) re-advertising the purchase using revised specifications.

(g) Appeal.

(1) An interested party may appeal the determination to the executive director. The written appeal must be received in the executive director's office no later than 10 working days after the date of the determination. The appeal is limited to a review of the determination.

(2) The appealing party must mail or deliver copies of the appeal to the executive director's designee and other interested parties with an affidavit that such copies have been provided.

(3) The general counsel of the department shall review the protest, the determination, the appeal, and prepare a written opinion with recommendation to the executive director.

(4) The executive director may:

(A) issue a final written determination; or

(B) refer the matter to the board for its consideration at a regularly scheduled open meeting.

(5) The board may consider oral presentations and written documents presented by the department and interested parties. The board chairman shall set the order and the amount of time allowed for presentation. The board's determination of the appeal shall be adopted by order and reflected in the minutes of the meeting.

(6) The decision of the board or executive director shall be final.

(h) Filing deadline. Unless the board determines that the appealing party has demonstrated good cause for delay or 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.

(i) Document retention. 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.

Source Note: The provisions of this §210.2 adopted to be effective February 4, 2010, 35 TexReg 661; amended to be effective December 7, 2014, 39 TexReg 9369