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TITLE 34PUBLIC FINANCE
PART 1COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 20TEXAS PROCUREMENT AND SUPPORT SERVICES
SUBCHAPTER GCONTRACT PROCEDURES
RULE §20.384Protests

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

  (1) Comptroller's office--The Office of the Comptroller of Public Accounts, an agency of the state.

  (2) Chief clerk--deputy comptroller of the comptroller's office.

  (3) Director--director of Texas Procurement and Support Services of the comptroller's office.

  (4) General counsel--general counsel of the comptroller's office.

  (5) Interested parties--All vendors who have submitted bids, proposals or other expressions of interest for the provision of goods or services pursuant to a contract with Texas Procurement and Support Services of the comptroller's office.

  (6) Using agency--A state agency, governmental entity or other entity involved in the contract.

(b) Any actual or prospective bidder, offeror, or contractor who considers himself to have been aggrieved in connection with the solicitation, evaluation, or award of a contract by Texas Procurement and Support Services may formally protest to the director of Texas Procurement and Support Services. Such protests must be made in writing and received by the director of Texas Procurement and Support Services within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested. Formal protests must conform to the requirements of subsections (b) and (d) of this section, and shall be resolved through use of the procedures that are described in subsections (e) - (i) of this section. The protesting party must mail or deliver copies of the protest to the using agency and other interested parties.

(c) In the event of a timely protest under this section, the state shall not proceed further with the solicitation or award of the contract unless the chief clerk, after consultation with the director of Texas Procurement and Support Services and the using agency, makes a written determination that the contract must be awarded without delay, to protect the best interests of the state.

(d) A formal protest must be sworn and contain:

  (1) a specific identification of the statutory or regulatory provision that the protesting party alleges has been violated;

  (2) a specific description of each action by Texas Procurement and Support Services that the protesting party alleges to be a violation of the statutory or regulatory provision that the protesting party has identified pursuant to paragraph (1) of this subsection;

  (3) a precise statement of the relevant facts;

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

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

  (6) a statement that copies of the protest have been mailed or delivered to the using agency and all other identifiable interested parties.

(e) The director of Texas Procurement and Support Services may settle and resolve the dispute over the solicitation or award of a contract at any time before the matter is submitted on appeal to the general counsel. The director of Texas Procurement and Support Services may solicit written responses to the protest from other interested parties.

(f) If the protest is not resolved by mutual agreement, the director of Texas Procurement and Support Services shall issue a written determination that resolves the protest.

  (1) If the director of Texas Procurement and Support Services determines that no violation of statutory or regulatory provisions has occurred, then the director of Texas Procurement and Support Services shall inform the protesting party, the using agency, and other interested parties by letter that sets forth the reasons for the determination.

  (2) If the director of Texas Procurement and Support Services 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 director of Texas Procurement and Support Services shall inform the protesting party, the using agency, and other interested parties of that determination by letter that details the reasons for the determination and the appropriate remedy.

  (3) If the director of Texas Procurement and Support Services determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, then the director of Texas Procurement and Support Services shall inform the protesting party, the using agency, and other interested parties of that determination by letter that details the reasons for the determination. This letter may include an order that declares the contract void.

(g) The protesting party may appeal a determination of a protest by the director of Texas Procurement and Support Services to the general counsel. An appeal of the director's determination must be in writing and received in the office of the general counsel by not later than 10 working days after the date on which the director has sent written notice of his determination. The scope of the appeal shall be limited to review of the director's determination. The protesting party must mail or deliver to the using agency and all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.

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

(i) The following requirements shall apply to a protest that the general counsel refers to the chief clerk.

  (1) The general counsel shall deliver copies of the appeal and any responses by interested parties to the chief clerk.

  (2) The chief clerk may consider any documents that agency staff or interested parties have submitted.

  (3) The chief clerk shall issue a written letter of determination of the appeal to the parties which shall be final. In a subsequent open meeting conducted by the chief clerk under §20.383 of this title (relating to Open Meetings for Certain Contract Awards), the chief clerk shall inform the Statewide Procurement Advisory Council of any such recent determinations by the chief clerk on any contract awards made in any open meeting attended by the council.

  (4) A protest or appeal that is not filed timely shall not be considered unless good cause for delay is shown or the chief clerk determines that an appeal raises issues that are significant to agency procurement practices or procedures in general.

  (5) A written decision that either the chief clerk or the general counsel has issued shall be the final administrative action of the comptroller's office.

(j) Texas Procurement and Support Services shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of Texas Procurement and Support Services.


Source Note: The provisions of this §20.384 adopted to be effective September 1, 2007, 32 TexReg 5378

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