1. (a) Purpose. The purpose of this section is to provide a procedure for respondents to protest purchases made by the department. Purchases made by the Texas Procurement and Support Services division of the Texas Comptroller of Public Accounts' office on behalf of the department are addressed in 34 TAC, Part 1, Chapter 20.

2. (b) Filing of protest.

   1. (1) A respondent who has submitted a written response to a department solicitation may file a written protest.

   2. (2) The protest must contain:

      1. (A) the specific statutory or regulatory provision the protestant alleges the solicitation, contract award or tentative award violated;
      2. (B) a specific description of each action by the department that the protestant alleges violated the identified statutory or regulatory provision;

      3. (C) a precise statement of the relevant facts, including:

         1. (i) sufficient documentation to establish that the protest has been timely filed; and
         2. (ii) a description of the resulting adverse impact to the protestant, department and the state;
      4. (D) a statement of any issues of law or fact that the protestant contends must be resolved;
      5. (E) a statement of the protestant's argument and authorities that the protestant offers in support of the protest;
      6. (F) an explanation of the subsequent action the protestant is requesting; and
      7. (G) a statement that copies of the protest have been mailed or delivered to other identifiable respondents.
   3. (3) The protest must be signed by an authorized representative of the protestant and the signature to the protest must be notarized.
   4. (4) The protest must be filed in the time period specified in this section.
   5. (5) The protest must be mailed or delivered to the department, to the attention of the procurement director.

3. (c) Timeliness. To be considered timely, the protest must be filed:

   1. (1) by the end of the posted solicitation period, if the protest concerns the solicitation documents or actions associated with the publication of solicitation documents;
   2. (2) by the day of the award of a contract resulting from the solicitation, if the protest concerns the evaluation or method of evaluation for a response to the solicitation; or
   3. (3) no later than 10 days after the notice of award, if the protest concerns the award.
4. (d) Suspension of contract award or performance. If a protest or appeal of a protest has been filed, then the department will not proceed with the contract award or performance under the contract resulting from the solicitation unless the executive director or procurement director makes a written determination that the contract award should be made or performance under the contract should proceed without delay to protect the best interests of the state and department.

5. (e) Action by department. Upon receipt of a protest, the department may:

   1. (1) dismiss the protest if:

      1. (A) it is not timely; or
      2. (B) it does not meet the requirements of subsection (b) of this section; or
   2. (2) consider the protest under the procedures in this section.
6. (f) Informal resolution. The procurement director may solicit written responses to the protest from other affected vendors and attempt to settle and resolve the protest by mutual agreement.

7. (g) Written determination. If the protest is not resolved by agreement, the procurement director will issue a written determination to the protesting party and other respondents, setting forth the reason for the determination. The procurement director may determine that:

   1. (1) no violation has occurred; or

   2. (2) a violation has occurred and it is necessary to take remedial action as appropriate to the circumstances, which may include:

      1. (A) declare the purchase void;
      2. (B) reverse the contract award; or
      3. (C) re-advertise the purchase using revised specifications.

8. (h) Appeal.

   1. (1) A protestant may appeal the determination of a protest, to the general counsel. An appeal must be in writing and received in the office of general counsel not later than 10 days after the date the procurement director sent written notice of their determination. The scope of the appeal shall be limited to review of the procurement director's determination.

   2. (2) The general counsel may:

      1. (A) refer the matter to the executive director for consideration and a final written decision that resolves the protest; or
      2. (B) may issue a written decision that resolves the protest.
   3. (3) An appeal that is not filed in a timely manner may not be considered unless good cause for delay is shown or the executive director determines that an appeal raises issues that are significant to agency procurement practices or procedures in general.
   4. (4) A written decision of the executive director or general counsel shall be the final administrative action of the department.

Source Note:The provisions of this §210.42 adopted to be effective March 6, 2025, 50 TexReg 1696.