1. (a) A vendor who is aggrieved by the solicitation, evaluation, or award of a contract by ERS, hereinafter referred to as the Protesting Party, may file a formal protest with the ERS Chief Financial Officer. Such protests must be in writing and received in the ERS Chief Financial Officer's office within 10 calendar days after the Protesting Party knows, or reasonably should have known, of the occurrence of the action that is protested. Formal protests must conform to the requirements of this subsection, subsection (c) and, when applicable, subsection (d) of this section, and shall be resolved in accordance with the procedure set forth in subsections (f), (g) and (h) of this section. Copies of the protest must be mailed or delivered by the Protesting Party to ERS and other Interested Parties. For the purposes of this section, "Interested Parties" means all vendors who have submitted bids or proposals for the applicable contract. The protest must be mailed or delivered to Interested Parties contemporaneously with filing the protest with ERS' Chief Financial Officer.
2. (b) In the event of a timely protest or appeal under this section, ERS shall not proceed further with the solicitation or with the award of the contract unless the ERS Executive Director makes a written determination that the award of the contract or implementation of the contract without delay are necessary to protect the best interests of ERS.

3. (c) A formal protest must be sworn and, under the penalties of perjury, contain:

   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.

4. (d) If ERS utilized the professional services of an actuary in connection with any recommendation to award the contract to a vendor, then this subsection shall apply. If ERS determines that it may need to utilize the services of an actuary in its efforts to resolve the protest, the Protesting Party shall be required to post a bond in an amount no less than the estimated cost to ERS for such actuarial services. The amount of the bond shall be determined by the ERS Chief Financial Officer. The Protesting Party shall post the bond within five calendar days of notice from ERS that such bond is required or shall be deemed to have waived the right to protest.

   1. (1) If actuarial services are utilized by ERS and the bid protest is not finally resolved in favor of the Protesting Party, the Protesting Party shall be required to forfeit its bond.
   2. (2) If actuarial services are not utilized by ERS and/or the bid protest is finally resolved in favor of the Protesting Party, the Protesting Party's bond shall be returned to the Protesting Party after final resolution of the bid protest.
5. (e) The ERS Chief Financial Officer may confer with the ERS General Counsel and/or Director of Procurement in his/her review of the protest.
6. (f) The ERS Chief Financial Officer shall have the authority to settle and resolve the dispute concerning the solicitation or award of a contract, and may accept written responses to the protest from Interested Parties and ERS staff.

7. (g) If the protest is not resolved by mutual agreement, the ERS Chief Financial Officer will issue a written determination on the protest.

   1. (1) If the ERS Chief Financial Officer determines that no violation of rules or statutes has occurred, he/she shall so inform the Protesting Party and Interested Parties by letter that sets forth the reasons for the determination.
   2. (2) If the ERS Chief Financial Officer determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he/she shall so inform the Protesting Party and Interested Parties by letter which sets forth the reasons for the determination and the appropriate remedial action.
8. (h) The ERS Chief Financial Officer's determination on a protest may be appealed by the Protesting Party to the ERS Deputy Executive Director. An appeal of the ERS Chief Financial Officer's determination must be in writing and must be received in the ERS Deputy Executive Director's office no later than 10 calendar days after the date of the ERS Chief Financial Officer's determination. The appeal shall be limited to review of the ERS Chief Financial Officer's determination. Copies of the appeal must be mailed or delivered by the Protesting Party to ERS and Interested Parties contemporaneously with filing the appeal to the ERS Deputy Executive Director.
9. (i) The ERS Deputy Executive Director may confer with the ERS General Counsel and/or Director of Procurement in his/her review of the matter appealed.
10. (j) A decision issued in writing by the ERS Deputy Executive Director shall be the final administrative action of ERS, and no further appeal shall be permitted.

Source Note:The provisions of this §67.201 adopted to be effective December 24, 2015, 40 TexReg 9302.