Section 1.72 - Protests of Agency Purchases(a) The following words and terms, when used in this subchapter, shall have the following meaning unless the context clearly indicates otherwise. (1) Agency--The Office of the Comptroller of Public Accounts.(2) Comptroller--Comptroller of Public Accounts.(3) Deputy Comptroller--Deputy Comptroller of Public Accounts.(4) Director of Agency Administration--Director of Agency Administration Division of the Comptroller of Public Accounts.(5) General Counsel--General Counsel of the Comptroller of Public Accounts.(6) Interested parties--All vendors who have submitted bids or proposals for the provision of goods or services pursuant to a contract with the Comptroller of Public Accounts.(b) Any actual or prospective bidder, offeror, or contractor who considers himself to have been aggrieved in connection with the agency's solicitation, evaluation, or award of a contract may formally protest to the Director of Agency Administration. Such protests must be made in writing and received in the office of the Director of Agency Administration within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested. Formal protests must conform to the requirements of this subsection and subsection (d) of this section, and will be resolved through use of the procedures that are described in subsections (e) through (i) of this section. The protesting party must mail or deliver copies of the protest to the agency and other interested parties.(c) In the event of a timely protest under this section, the agency will not proceed further with the solicitation or award of the contract unless the Deputy Comptroller, after consultation with the using division and the Director of Agency Administration, makes a written determination that the contract must be awarded without delay, to protect the best interests of the agency.(d) A formal protest must be sworn and contain: (1) a specific identification of the statutory or regulatory provision that the protesting party alleges has been violated;(2) a specific description of each action by the agency that the protesting party alleges to be a violation of the statutory or regulatory provision that the protesting party has identified pursuant to paragraph (1) of this subsection;(3) a precise statement of the relevant facts;(4) a statement of any issues of law or fact that the protesting party contends must be resolved;(5) a statement of the argument and authorities that the protesting party offers in support of the protest; and(6) a statement that copies of the protest have been mailed or delivered to the agency and all other identifiable interested parties.(e) The Director of Agency Administration may settle and resolve the dispute over the solicitation or award of a contract at any time before the matter is submitted on appeal to the General Counsel of the agency. The Director of Agency Administration may solicit written responses to the protest from other interested parties.(f) If the protest is not resolved by mutual agreement, the Director of Agency Administration will issue a written determination that resolves the protest. (1) If the Director of Agency Administration determines that no violation of statutory or regulatory provisions has occurred, then the director shall inform the protesting party, the agency, and other interested parties by letter that sets forth the reasons for the determination.(2) If the Director of Agency Administration determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has not been awarded, then the director shall inform the protesting party, the agency, and other interested parties of that determination by letter that details the reasons for the determination and the appropriate remedy.(3) If the Director of Agency Administration determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, then the director shall inform the protesting party, the agency, and other interested parties of that determination by letter that details the reasons for the determination. This letter may include an order that declares the contract void.(g) The protesting party may appeal a determination of a protest by the Director of Agency Administration to the General Counsel of the agency. An appeal of the director's determination must be in writing and received in the office of the agency's General Counsel by not later than 10 working days after the date on which the director has sent written notice of his determination. The scope of the appeal will be limited to review of the director's determination. The protesting party must mail or deliver to the agency and all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.(h) The General Counsel may refer the matter to the Deputy Comptroller for consideration or may issue a written decision that resolves the protest.(i) The following requirements shall apply to a protest that the General Counsel refers to the Deputy Comptroller. (1) The General Counsel will deliver copies of the appeal and any responses by interested parties to the Deputy Comptroller.(2) The Deputy Comptroller may consider any documents that agency staff or interested parties have submitted.(3) The Deputy Comptroller will issue a written letter of determination of the appeal, to the parties which shall be final. (A) A protest or appeal that is not filed timely will not be considered unless good cause for delay is shown or the Deputy Comptroller determines that an appeal raises issues that are significant to agency procurement practices or procedures in general.(B) A written decision that either the Deputy Comptroller or the General Counsel has issued shall be the final administrative action of the agency.(j) The agency will maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the agency's retention schedule.34 Tex. Admin. Code § 1.72
The provisions of this §1.72 adopted to be effective November 29, 2001, 26 TexReg 9630; amended to be effective June 30, 2008, 33 TexReg 5024