Section 401.102 - Protests of the Terms of a Formal Competitive Solicitation(a) Any person aggrieved by the terms of any formal solicitation may protest the agency's action to the director of administration. If the director of administration cannot resolve the protest, the aggrieved party may appeal the director of administration's decision to the executive director. If the executive director cannot resolve the protest, the aggrieved party may appeal the executive director's decision to the Texas Lottery Commission. At any time, the executive director may refer a protest directly to the Texas Lottery Commission for determination. The procedures applicable to an appeal to the commission will then apply.(b) A protest of the terms of any formal solicitation must be filed electronically with the commission's general counsel, by email to legal.input@lottery.state.tx.us, within 72 hours after issuance of the formal competitive solicitation. The protestant must include its email address with the protest. A protest is considered timely filed if it is electronically filed before the filing deadline. An electronically filed protest is deemed filed when transmitted to the protestant's electronic filing service provider. Unless otherwise requested by the commission, the protestant is not required to file a paper copy of its protest. For good cause shown by the protestant, the commission may allow an alternate form of filing. The electronically filed protest must be in a text-searchable PDF format. The protestant is solely responsible for ensuring its protest is complete and filed timely with the office of the general counsel. A protest not filed timely will not be considered, and the protestant will be so notified in writing by the commission's general counsel by electronic notice sent to the protestant's designated email address. A protestant may supplement its timely filed protest. The deadline to supplement is 5 p.m. central time, 10 calendar days after the formal solicitation is issued.(c) To be considered, a protest must contain: (1) a specific identification of the statutory provision, rule provision, or procurement procedure allegedly violated;(2) a brief statement of the relevant facts;(3) an identification of the issue or issues to be resolved;(4) arguments and authorities in support of the protest; and(5) an affidavit that the contents of the protest are true and correct.(d) In the event of a timely filed protest of a formal competitive solicitation, the agency will suspend the solicitation pending resolution of the protest unless the executive director determines, in writing, that such action is not necessary to protect the interests of the lottery.(e) The director of administration will review the protest, and the solicitation file, and will make a written determination of the protest, which may include canceling the solicitation. The director of administration's written determination will be served by email on the protestant. Confirmation that the notice was sent to an email address designated for the receipt of correspondence will be conclusive proof that delivery was made. The decision of the director of administration may be appealed to the executive director. The appeal must be filed electronically with the commission's general counsel by 5 p.m. the next business day after issuance of the written determination. An appeal is considered timely filed if it is electronically filed before the filing deadline. An electronically filed appeal is deemed filed when transmitted to the protestant's electronic filing service provider.(f) On appeal of the director of administration's determination, the executive director will review the protest, the solicitation file, any responses, and the director of administration's determination, including any reasoning that supports the determination. The executive director will then make a written determination of the appeal, which may include canceling the solicitation. The executive director's written determination will be served, by email on the protestant. Confirmation that the notice was sent to an email address designated for the receipt of correspondence, will be conclusive proof that delivery was made. An appeal to the Texas Lottery Commission of the determination of the executive director must be filed electronically with the commission's general counsel by 5 p.m. the next business day after issuance of the written determination. An appeal is considered timely if it is electronically filed before the filing deadline. An electronically filed appeal is deemed filed when transmitted to the protestant's electronic filing service provider.(g) On timely receipt of the notice of appeal to the Texas Lottery Commission, the general counsel will appoint a staff attorney who did not participate in drafting the solicitation and did not render legal advice with respect to the solicitation to evaluate the protest. The staff attorney will make a written recommendation to the Texas Lottery Commission, including proposed findings of fact and conclusions of law.(h) The Texas Lottery Commission, at its discretion, may allow oral argument by the protestant and any necessary agency staff. The Texas Lottery Commission may limit the time for oral argument. Oral argument must be based solely on the written protest. The executive director may be present to respond to questions and will have the opportunity to make a presentation to the Texas Lottery Commission regarding the protest of the terms of the formal competitive solicitation. The staff attorney who made the written recommendation to the Texas Lottery Commission may also be present to respond to any questions.(i) The Texas Lottery Commission will make a written determination of the protest. To make its determination, the Commission will review: (2) The solicitation file;(3) The oral argument, and executive director's presentation, if any;(4) The executive director's determination, including any reasoning that supports the determination; and(5) The staff attorney's recommendation. The written determination on the protest may include a determination canceling the solicitation. The Texas Lottery Commission's written determination will be served by email on the protestant. Confirmation that the notice was sent to an email address designated for the receipt of correspondence, will be conclusive proof that delivery was made. The Texas Lottery Commission's determination shall be administratively final when issued.16 Tex. Admin. Code § 401.102
The provisions of this §401.102 adopted to be effective March 16, 2009, 34 TexReg 1845; amended to be effective April 25, 2013, 38 TexReg 2507; Amended by Texas Register, Volume 40, Number 52, December 25, 2015, TexReg 9632, eff. 12/31/2015