1. (a) The purpose of this rule is to provide for the efficient and effective resolution of protests related to contract purchases made by the Commission.
2. (b) These procedures are consistent with those of the Texas Comptroller of Public Accounts (34 Texas Administrative Code §20.384). In the event of a direct conflict between the two rules, the procedures in §20.384 shall control.
3. (c) Any actual or prospective bidder, offeror, or contractor claiming to have been aggrieved in connection with the solicitation, evaluation, or award of a contract by the Commission may submit a formal protest to the General Counsel of the Commission (General Counsel). Protests must be in writing and received by the General Counsel within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is the subject of the protest. Formal protests must conform to this subsection (c) and subsection (e) of this section, and shall be resolved through the procedures described in subsections (f) - (l) of this section. The protesting party must mail or deliver copies of the formal protest to all interested parties.
4. (d) In the event a formal protest is timely received, the Commission shall not proceed further with the solicitation, evaluation, or award a contract unless the General Counsel, after consultation with the Commission's Executive Director, makes a written determination that a contract must be awarded without delay to protect the best interests of the state.

5. (e) A formal protest must be sworn and contain:

   1. (1) a specific identification of the statutory or regulatory provision(s) that the protesting party alleges has been violated;
   2. (2) a specific description of each action that the protesting party alleges to be a violation of the statutory or regulatory provision(s);
   3. (3) a statement of the relevant facts;
   4. (4) a statement of any issues of law or fact that the protesting party contends must be resolved;
   5. (5) a statement of the argument and authorities that the protesting party offers in support of the protest; and
   6. (6) a statement that copies of the formal protest have been mailed or delivered to all identifiable interested parties.
6. (f) The General Counsel may settle and resolve the dispute over the solicitation, evaluation, or award of a contract at any time before the matter is submitted on appeal to the Executive Director of the Commission (Executive Director). The General Counsel may solicit written responses to the formal protest from interested parties.

7. (g) If the protest is not resolved by mutual agreement, the General Counsel shall send a determination letter resolving the formal dispute to the protesting party and interested parties. The determination letter shall set for the reasons for the determination; and

   1. (1) If the General Counsel determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has not been awarded, include in the determination letter the appropriate remedy for the violation; or
   2. (2) If the General Counsel determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, may declare the awarded contract to be void.
8. (h) The protesting party may appeal a determination of a protest by the General Counsel to the Executive Director. An appeal of the General Counsel's determination must be in writing and received in the office of the Executive Director no later than 10 working days from the date notice of the determination was sent. The protesting party's appeal must contain a certified statement that a copy of the appeal was sent to all interested parties. The scope of the appeal shall be limited to a review of the General Counsel's determination.
9. (i) The Executive Director may refer the matter to the Commission for consideration or may issue a written decision regarding the appeal.

10. (j) The following requirements shall apply to a formal protest that the Executive Director refers to the Commission:

    1. (1) The Executive Director shall deliver copies of the appeal and any responses by interested parties to each Commissioner.
    2. (2) The Commission may consider any documents that Commission staff or interested parties have submitted.
    3. (3) The Commission shall issue a written letter of determination of the appeal to the protesting party and all interested parties which shall be final.
11. (k) A formal protest or an appeal of a determination that is not filed timely shall not be considered unless good cause for delay is shown or the General Counsel determines that an appeal raises issues that are significant to Commission procurement practices or procedures in general.
12. (l) A determination issued by either the Executive Director or the Commission shall be the final administrative action of the Commission.
13. (m) The Commission shall maintain all documentation on the purchasing process that is the subject of a formal protest or appeal in accordance with the records retention schedule of the Commission.

Source Note:The provisions of this §253.3 adopted to be effective November 2, 2010, 35 TexReg 9677.