16 Tex. Admin. Code § 20.1 - Procedures for Filing and Resolving Protests of a Contract Solicitation or Award

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

(1) Appeal determination letter--The DFA's written decision on an appeal of a director's protest determination.

(2) Appeal file--The protest file, the appellant's written appeal, any comments filed by other interested parties, any information or recommendation prepared by the General Counsel, and the DFA's appeal determination letter.

(3) Appellant--A protestant or interested party who is aggrieved by a director's protest determination.

(4) Certified mail--A mailing made using United States Postal Service certified mail service, including return receipt requested.

(5) Commission--The Railroad Commission of Texas.

(6) Day--A day that is not a Saturday, Sunday, or Commission holiday.

(7) DFA--The Director of Finance and Administration or the DFA's delegate.

(8) Director--The Director of Finance or the director's delegate.

(9) General Counsel--The General Counsel of the Commission or the General Counsel's delegate.

(10) Interested party--A vendor, other than the protestant, who has submitted a bid or proposal for the contract that is the subject of a protest and who submits information, comments, or otherwise participates in a protest inquiry.

(11) Other vendor--A vendor, other than the protestant, who has submitted a bid or proposal for the contract that is the subject of a protest.

(12) Protest determination letter--The director's written decision on a protest.

(13) Protest file--All documents pertaining to a protest including the protestant's written protest; the director's notice to other vendors; vendors' comments filed with the director; notes, memoranda, and information compiled by the director in connection with a protest; and the director's protest determination letter.

(14) Protestant--Any actual or prospective bidder, offeror, or contractor aggrieved in connection with the Commission's solicitation, evaluation, or award of a contract.

(b) General provisions.

(1) Protests.

(A) Any protestant may file a protest with the director. A protestant shall conform the protest to the requirements of subsections (c) and (d) of this section.

(B) Except as provided in subparagraph (D) of this paragraph, the director shall have authority, prior to the filing of an appeal under subsection (f) of this section, to resolve a protest filed under this section.

(C) In the event that the director receives a timely, proper protest as defined in subsection (c) of this section, the director shall not proceed further with the solicitation or with the award of the contract in question unless the director makes a written determination that the award of the contract, without delay, is necessary to protect substantial interests of the state.

(D) Any protest determination that a contract should be declared void or rescinded and that is not appealed shall be forwarded to the DFA as if it were an appeal filed pursuant to subsection (f) of this section.

(E) A protest determination that does not declare a contract void or rescinded and that is not timely appealed shall be the final administrative action of the Commission.

(2) Appeals.

(A) Any appellant may file an appeal with the DFA. An appellant shall conform the appeal to the requirements of subsections (c) and (f) of this section.

(B) Except as provided in subparagraph (C) of this paragraph, the DFA shall have authority, prior to the filing of an appeal to the Commission under subsection (h) of this section, to resolve an appeal filed under this section.

(C) Any appeal determination that a contract should be declared void or rescinded and that is not appealed shall be forwarded to the Commission for final action pursuant to subsection (h) of this section.

(D) An appeal determination that does not result in a contract being declared void or rescinded and that is not timely appealed shall be the final administrative action of the Commission.

(3) Appeals to the Commission. Any appellant or interested party to an appeal may file an appeal to the Commission. An appellant or interested party appealing to the Commission shall conform the appeal to the requirements of subsections (c) and (h) of this section.

(c) Ground for filing protest, appeal, or appeal to the Commission; basis for non-consideration; dismissal.

(1) The absence of an award of a contract to a protestant, an appellant, or a person who appeals to the Commission shall not be a proper ground for protest or appeal, unless that protestant, appellant, or person makes a specific factual allegation that the failure to award a contract to that protestant, appellant, or person was the result of a violation of statutes or rules.

(2) Unless a protestant, appellant, or person who appeals to the Commission demonstrates good cause for delay, or the director, the DFA, or the Commission determines that a protest or appeal raises issues significant to procurement practices or procedures, the director, the DFA, and the Commission shall not consider a protest, an appeal, or an appeal to the Commission that is not timely filed pursuant to subsections (d), (f), or (h) of this section.

(3) The director, the DFA, or the Commission may dismiss a protest or an appeal that fails to state a proper ground; that is untimely; or that is incomplete when filed.

(d) Contents of protest; deadline for filing protest.

(1) A protestant shall file a protest in writing with the director no later than the tenth day after the protestant knows or should have known of the occurrence of the action that is protested.

(2) A protest shall be sworn and notarized and shall contain:

(A) the name and address of the protestant;

(B) identification of the procurement to which the protest is directed;

(C) a specific citation to or identification of every statute or rule that the protestant alleges has been violated;

(D) a precise statement of the relevant facts;

(E) identification of the issue or issues to be resolved; and

(F) argument and authorities, if any, in support of the protest.

(e) Director's obligation in protest inquiry.

(1) No later than the tenth day following receipt of a timely, complete protest that sets forth proper grounds for relief, the director shall notify by certified mail all other vendors for the procurement that is the subject of the protest. The notice shall consist of a copy of the written protest, an invitation to the other vendors to submit comments and/or a request to participate in the protest inquiry, and a deadline by which the other vendors must respond to the director. The deadline shall be not less than ten days from the date the other vendors receives the director's notice.

(2) In reviewing the protest, the director shall consider all comments that may be filed by other vendors. The director may request additional information from the protestant, the other vendors, or another source, and may consider this information in reviewing the protest.

(3) If a protest is not withdrawn by the protestant, the director shall issue a written determination on the protest by letter. The director shall provide a copy of the protest determination letter to the protestant and the interested parties by certified mail. The director's protest determination letter shall include the following information, as appropriate:

(A) If the director determines that no violation of rules or statutes has occurred, regardless of whether a contract has been awarded, the director shall so state and shall set forth the reasons for the determination. If no contract has been awarded, the director may proceed with the award of a contract.

(B) If the director determines that a violation of the rules or statutes has occurred in a case in which no contract has been awarded, the director shall so state and shall set forth the reasons for the determination and the appropriate remedial action. At the director's discretion, the director may proceed with the award of a contract.

(C) If the director determines that a violation of the rules or statutes has occurred in a case in which a contract has been awarded, the director shall so state and shall set forth the reasons for the determination and the appropriate remedial action, which may include declaring the contract void or rescinded.

(4) Any protest determination that declares a contract void or rescinded that is not appealed by an appellant shall be forwarded to the DFA to be reviewed pursuant to the procedure in subsection (g) of this section.

(f) Procedure on appeal.

(1) An appellant may appeal the director's protest determination to the DFA by filing a written notice of appeal with the DFA no later than the tenth day after the date the protestant or interested party receives the director's protest determination letter.

(2) An appeal shall be sworn and notarized and shall contain:

(A) the name and address of the appellant;

(B) identification of the procurement to which the protest was directed;

(C) identification of the director's protest determination letter to which the appeal is directed;

(D) a statement of every point of the director's protest determination letter which the appellant claims is incorrect; and

(E) argument and authorities, if any, in support of the appeal.

(g) DFA's obligation on appeal.

(1) No later than the tenth day following receipt of a timely, complete appeal, the DFA shall notify by certified mail all other interested parties in the protest inquiry and determination that is the subject of the appeal. The notice shall consist of a copy of the written appeal, an invitation to the other interested parties to submit comments and/or a request to participate in the appeal, and a deadline by which the interested party must respond to the DFA. In the event the DFA receives a protest determination forwarded under subsection (e)(4) of this section, the notice shall inform the protestant and all other interested parties in the protest inquiry that the director's protest determination has been forwarded to the DFA for review and shall include a deadline by which to respond to the DFA. The deadline shall be not less than ten days from the date the protestant or interested party receives the DFA's notice.

(2) Following the deadline for receipt of comments or requests to participate in the appeal, the DFA may forward to the General Counsel the protest file, the appeal, and any comments by interested parties, and request the General Counsel's review and written recommendation on the appeal.

(3) If an appeal is not withdrawn by the appellant, the DFA shall review the protest file, the appeal, any comments by interested parties, and any information or recommendation prepared by the General Counsel and shall issue a written determination on the appeal by letter. The DFA shall provide a copy of the appeal determination letter to the appellant and the appeal parties by certified mail. The DFA's appeal determination letter shall include the following information, as appropriate:

(A) If the DFA determines that the director's determination was substantially correct, the DFA shall so state and shall set forth the reasons for the determination.

(B) If the DFA determines that the director's determination was substantially incorrect, the DFA shall so state and shall set forth the reasons for the determination and the appropriate remedial action.

(C) Any appeal determination that results in a contract being declared void or rescinded and that is not appealed shall be forwarded to the Commission to be reviewed pursuant to the procedure in subsection (h) of this section.

(h) Procedure on appeal to the Commission. When a DFA's appeal determination is appealed to the Commission or when the DFA forwards an appeal determination to the Commission pursuant to subsection (g)(3)(C) of this section, the following requirements shall apply.

(1) A party to an appeal who is aggrieved by the DFA's appeal determination may appeal the determination to the Commission by filing a written notice of appeal with the General Counsel no later than the tenth day after the date the appellant or interested party receives the DFA's appeal determination letter.

(2) An appeal to the Commission shall be sworn and notarized and shall contain:

(A) the name and address of the person filing the appeal to the Commission;

(B) identification of the procurement to which the protest and appeal were directed;

(C) identification of the DFA's appeal determination letter to which the appeal to the Commission is directed;

(D) a statement of every point of the DFA's appeal determination letter which the person claims is incorrect; and

(E) argument and authorities, if any, in support of the appeal to the Commission.

(3) No later than the tenth day after receiving an appeal to the Commission or an appeal determination under subsection (g)(3)(C) of this section, the General Counsel shall schedule the appeal for consideration at an open meeting of the Commission. The General Counsel shall also notify, by certified mail, all parties to the appeal of the date on which the Commission will consider the appeal and shall the deadline by which parties shall file any additional comments or request to be heard in oral argument before the Commission at the scheduled open meeting. The deadline for party submissions shall be not less than ten days prior to the open meeting at which the matter is scheduled to be considered.

(4) The General Counsel shall provide to the Commission copies of the protest file, the appeal file, the appeal to the Commission, the General Counsel's notice, and the responses of the parties, if any.

(5) The Commission may consider all written materials and any oral arguments made in open meeting.

(6) The Commission's determination of the appeal or of a determination forwarded under subsection (g)(3)(C) of this section shall be by written order.

(i) In the event the director receives a protest, all documents collected by the Commission as part of a solicitation, evaluation, and/or award of a contract shall be retained by the Commission for a period of four years from the date of the initial procurement action. In addition, the Commission shall also retain the protest file, the appeal file, and any documents or Commission orders pertaining to a determination made by the Commission.

Notes

16 Tex. Admin. Code § 20.1

The provisions of this §20.1 adopted to be effective January 9, 2002, 27 TexReg 153