34 Tex. Admin. Code § 1.72 - Protests of Agency Purchases
(a) The
following words and terms, when used in this subchapter, shall have the
following meaning unless the context clearly indicates otherwise.
(1) Agency--The Office of the Comptroller of
Public Accounts.
(2)
Comptroller--Comptroller of Public Accounts.
(3) Deputy Comptroller--Deputy Comptroller of
Public Accounts.
(4) Director of
Agency Administration--Director of Agency Administration Division of the
Comptroller of Public Accounts.
(5)
General Counsel--General Counsel of the Comptroller of Public
Accounts.
(6) Interested
parties--All vendors who have submitted bids or proposals for the provision of
goods or services pursuant to a contract with the Comptroller of Public
Accounts.
(b) Any actual
or prospective bidder, offeror, or contractor who considers himself to have
been aggrieved in connection with the agency's solicitation, evaluation, or
award of a contract may formally protest to the Director of Agency
Administration. Such protests must be made in writing and received in the
office of the Director of Agency Administration 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
this subsection and subsection (d) of this section, and will be resolved
through use of the procedures that are described in subsections (e) through (i)
of this section. The protesting party must mail or deliver copies of the
protest to the agency and other interested parties.
(c) In the event of a timely protest under
this section, the agency will not proceed further with the solicitation or
award of the contract unless the Deputy Comptroller, after consultation with
the using division and the Director of Agency Administration, makes a written
determination that the contract must be awarded without delay, to protect the
best interests of the agency.
(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
the agency 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 agency and all other
identifiable interested parties.
(e) The Director of Agency Administration 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 of the
agency. The Director of Agency Administration may solicit written responses to
the protest from other interested parties.
(f) If the protest is not resolved by mutual
agreement, the Director of Agency Administration will issue a written
determination that resolves the protest.
(1)
If the Director of Agency Administration determines that no violation of
statutory or regulatory provisions has occurred, then the director shall inform
the protesting party, the agency, and other interested parties by letter that
sets forth the reasons for the determination.
(2) If the Director of Agency Administration
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 shall inform the protesting party, the 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 Agency Administration
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
shall inform the protesting party, the 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 Agency Administration to
the General Counsel of the agency. An appeal of the director's determination
must be in writing and received in the office of the agency's 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 will be limited to
review of the director's determination. The protesting party must mail or
deliver to the 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 Deputy Comptroller 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 Deputy Comptroller.
(1) The General Counsel will deliver copies
of the appeal and any responses by interested parties to the Deputy
Comptroller.
(2) The Deputy
Comptroller may consider any documents that agency staff or interested parties
have submitted.
(3) The Deputy
Comptroller will issue a written letter of determination of the appeal, to the
parties which shall be final.
(A) A protest
or appeal that is not filed timely will not be considered unless good cause for
delay is shown or the Deputy Comptroller determines that an appeal raises
issues that are significant to agency procurement practices or procedures in
general.
(B) A written decision
that either the Deputy Comptroller or the General Counsel has issued shall be
the final administrative action of the agency.
(j) The agency will maintain all
documentation on the purchasing process that is the subject of a protest or
appeal in accordance with the agency's retention schedule.
Notes
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