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

   1. (1) Board--the State Board for Educator Certification and its employees and agents;
   2. (2) Executive director--the board's executive director;
   3. (3) Executive staff council--the board's management staff other than the executive director, including the program directors and the general counsel;
   4. (4) Interested party--a vendor who has submitted a bid, offer, or proposal for the purchase at issue in a protest;
   5. (5) Purchase or purchasing process--a procurement delegated to the State Board for Educator Certification under Government Code, Chapter 2155, Chapter 2156, Chapter 2157, or Chapter 2158 or the rules adopted by the General Services Commission under those statutes;
   6. (6) Receive or receipt--actual receipt; and
   7. (7) Staff services officer--the board employee primarily responsible for the purchase of goods and services for the agency.
   8. (8) Vendor--an actual or prospective supplier of goods or services to the state.
2. (b) Purpose. The purpose of this section is to provide an internal procedure to be used by an interested party for protesting an alleged violation of applicable rules or statutes during the purchasing process. This section is consistent with the General Services Commission's rules governing resolution of vendor protests. If the staff services officer or the executive director is the subject of a protest, the board's general counsel shall assume the powers and duties of the person under this section.

3. (c) Protests. An interested party may file a formal protest with the staff services officer about a violation of applicable rules or statutes in the purchasing process that aggrieves the party. A protest shall be in writing and must be received by the staff services officer not later than the 14th calendar day after the purchase order or contract at issue has been executed.

   1. (1) The staff services officer will notify other interested parties that a protest has been filed over the purchase.
   2. (2) An interested party is entitled to receive copies of the protest and additional filings and to participate in the matter as provided by this section. Upon request, the staff services officer will provide the names and mailing addresses of the protesting party and other interested parties, as available.
4. (d) Status of purchase during protest and appeal. If the purchase being protested has not been awarded, upon the timely filing of a protest or appeal under these procedures, the executive director shall not proceed further with the purchase unless the executive director, in consultation with the staff services officer, makes a written determination that the purchase without delay is necessary to protect substantial interests of the State of Texas.

5. (e) Filing of protest. A formal protest shall be sworn to and contain the following items:

   1. (1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;
   2. (2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection;
   3. (3) a precise statement of the relevant facts;
   4. (4) an identification of the issue or issues to be resolved; and
   5. (5) argument and authorities in support of the protest.
6. (f) Failure to file timely or in proper form. The staff services officer shall dismiss a protest that does not comply with the requirements of this section, unless the executive director determines that good cause exists for the untimely or improper filing and the protest raises significant issues about the board's purchasing process.
7. (g) Informal resolution. The staff services officer shall have the authority, prior to any appeal to the executive director, to informally resolve a protest.

8. (h) Determination by staff services officer. The staff services officer may solicit written responses to the protest from other interested parties. If the protest is not resolved by mutual agreement, the staff services officer will issue a written determination on the protest and take appropriate remedial action, which may include voiding a purchase order or contract related to the protest.

   1. (1) If the staff services officer determines that no violation of rules or statutes has occurred, he or she shall so inform the protesting party and interested parties in writing, setting forth the reasons for the determination.
   2. (2) If the staff services officer determines that a violation of the rules or statutes has occurred in a case in which a purchase order has not been issued or a contract has not been awarded, he or she shall so inform the protesting party and interested parties in writing, setting forth the reasons for the determination and the appropriate remedial action.
   3. (3) If the staff services officer determines that a violation of the rules or statutes has occurred in a case in which a purchase order has been issued or a contract has been awarded, he or she shall so inform the protesting party and interested parties in writing, setting forth the reasons for the determination and the appropriate remedial action, which may include voiding the purchase order or contract.

9. (i) Appeal to executive director. The staff services officer's determination issued under subsection (h) of this section may be appealed by the protesting party or by an interested party to the executive director.

   1. (1) An appeal of the staff services officer's determination shall be in writing and must be received by the executive director not later than the 14th calendar day after the issuance of the staff services officer's written determination under subsection (g) of this section. The executive director shall dismiss an appeal that does not comply with requirements of this subsection. The staff services officer shall notify non-appealing interested parties of the appeal.
   2. (2) The appeal shall be limited to a review of the staff services officer's determination.
   3. (3) The executive director shall request one or more members of the executive staff council to review the staff services officer's determination and to provide the executive director with a written recommendation for disposition. Other interested parties may file responses to the appeal, and the executive director may consider them in making a decision or referring the matter to the board.
   4. (4) The executive director may issue a written decision on the appeal. A decision by the executive director shall be final and shall completely dispose of all the issues related to a protest, determination, or appeal under this section.
   5. (5) The executive director reserves the sole discretion to refer the matter to the board for the members' consideration at a regularly scheduled open meeting.

10. (j) Referral to board. When the executive director refers an appeal to the board, the following requirements shall apply.

    1. (1) Copies of the appeal, any responses to it by other interested parties, the staff services officer's written determination, and any recommendations or findings by the executive director or executive staff council members shall be provided to the board members. Copies of the appeal and any responses to it by other interested parties shall be made available to all interested parties.
    2. (2) All interested parties who wish to make an oral presentation at the open meeting during which the particular matter is to be considered should notify the executive director or a designee at least 48 hours before the meeting.
    3. (3) The board may consider oral presentations and written documents presented by staff and interested parties. The board's presiding officer shall set the order and amount of time allowed for presentations. The board may take the matter under advisement and decide the appeal at a subsequent open meeting.
    4. (4) The board's decision on the appeal shall be by duly adopted resolution reflected in the minutes of the open meeting and shall be final.
11. (k) Standards for maintaining documentation. The executive director or a designee will maintain all documentation about the purchasing process in accordance with the board's records retention schedule.

Source Note:The provisions of this §250.3 adopted to be effective February 3, 2000, 25 TexReg 574.