SECTION 97.208. Vendor Protests

(a) The purpose of this rule is to set forth the Department's procedures for resolving vendor protests relating to purchases as required by Texas Government Code Sections 2155.076 and 2260.052(c), and the adoption of rules of the Texas Comptroller of Public Accounts pursuant to Texas Government Code Section 2156.005(d).

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

(1) Commissioner--The Commissioner of the Credit Union Department, State of Texas.

(2) Department--The Credit Union Department, State of Texas.

(3) Deputy Commissioner--The Deputy Commissioner of the Credit Union Department, State of Texas.

(4) General Counsel--The General Counsel of the Credit Union Department, State of Texas.

(5) Interested Parties--All vendors who have submitted bids or proposals for the provision of goods or services to the Credit Union Department, State of Texas.

(c) A vendor who submitted a written response to a solicitation may file a protest with the Department for 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.

(d) This section does not apply to:

(1) the award of grants or subcontracts; or

(2) interagency or interlocal agreements executed in accordance with applicable law.

(e) The Department will not consider protests filed pursuant to this section as contested cases under the Administrative Procedure Act, Texas Government Code, Chapter 2001.

(f) To be considered timely, the protest must be in writing, sworn to, and received by the Department:

(1) no later than the date that responses to a solicitation are due, if the protest concerns the solicitation;

(2) no later than the date a contract resulting from the solicitation is awarded, if the protest concerns the evaluation or method of evaluation for the solicitation; or

(3) no later than 10 days after the notice of award of a contract is posted, if the protest concerns the award.

(g) The protesting vendor must file a protest with the Department by electronic mail submission to [e-mail] for review by the Deputy Commissioner.

(h) In addition to being in writing, sworn to, and timely, to be considered by the Department, a protest must contain:

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

(2) a specific description of each action by the Department that the protesting vendor alleges is a violation of the statutory or regulatory provision;

(3) a precise statement of relevant facts including:

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

(B) a description of the adverse impact to the Department and the state; and

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

(4) a statement of any issues of law or fact that the protesting vendor contends must be resolved;

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

(6) an explanation of the subsequent action the protesting vendor is requesting; and

(7) sworn statement that copies of the protest have been provided to the Department and all other identifiable interested parties by either hard-copy or electronic means.

(i) The Deputy Commissioner may settle and resolve the dispute over the solicitation or the award of the contract at any time before the matter is submitted on appeal to the Commissioner.

(j) Upon receipt of a protest, the Deputy Commissioner may:

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

(2) attempt to resolve the protest by mutual agreement; or

(3) dismiss the protest if:

(A) it is not timely; or

(B) it does not meet the requirements of this section.

(k) The Deputy Commissioner may confer with the General Counsel at any time during the review of the protest.

(l) If the protest is not resolved by mutual agreement, the Deputy Commissioner will issue a written determination that resolves the protest.

(1) If the Deputy Commissioner determines that no violation of statutory or regulatory provisions has occurred, then the Deputy Commissioner shall inform the protesting vendor, the Department, and other interested parties by letter that details the reasons for the determination.

(2) If the Deputy Commissioner determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has not been awarded, then the Deputy Commissioner shall inform the protesting vendor, the Department, and other interested parties of the determination by letter that details the reasons for the determination and the appropriate remedy.

(3) If the Deputy Commissioner determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, then the Deputy Commissioner shall inform the protesting vendor, the Department, and other interested parties of that determination by letter that details the reasons for the determination. This letter may describe appropriate remedial action including, but not limited to, concluding the contract is void; terminating the contract; and readvertising the solicitation.

(4) The Deputy Commissioner's written determination is the final administrative action by the Department on a protest filed under this subchapter unless the protesting vendor files an appeal of determination under subsection (m) of this section.

(m) The protesting vendor may appeal the Deputy Commissioner's determination on a protest to the Commissioner. An appeal of the Deputy Commissioner's determination must be in writing, sent by electronic mail submission to [e-mail], and received not later than 10 days after the date on which written notification of the Deputy Commissioner's determination was sent to the protesting vendor. The scope of the appeal will be limited to the review of the Deputy Commissioner's determination. With the appeal, the protesting vendor must submit a sworn statement that copies of the appeal have been provided to the Department and all other identifiable interested parties by either hard-copy or electronic means.

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

(2) The Commissioner may confer with the General Counsel at any time during the review of the appeal.

(3) The Commissioner may consider any documents that Department personnel or interested parties have submitted.

(4) The Commissioner will review the appeal of the Deputy Commissioner's determination and render a final decision on the appeal.

(5) A written decision issued by the Commissioner shall be the final administrative action of the Department.

(n) In the event of a properly filed protest under this section, and a contract award has not been made, the Department will not proceed further with the solicitation or award of the contract unless the Commissioner, after consultation with the Deputy Commissioner and General Counsel, makes a written determination that the contract must be awarded without delay, to protect the best interests of the Department.

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

(p) Pursuant to Texas Government Code Section 2156.005(d), the Department adopts by reference the rules of the Texas Comptroller of Public Accounts, Statewide Procurement and Support Services in 34 TAC §20.207 and §20.208 (relating to Competitive Sealed Bidding and Competitive Sealed Proposals).

(q) Pursuant to Texas Government Code Section 2260.052(c), the Department adopts by reference the rules of the Office of the Attorney General of Texas in 1 TAC Part 3, Chapter 68 (relating to Negotiation and Mediation of Certain Contract Disputes).

Source Note: The provisions of this §97.208 adopted to be effective October 9, 2022, 47 TexReg 6431