Presenter: Judith Doran

Commission Agenda Item No. 9
Action
Vendor's Protest Rules
November 1998

I. DISCUSSION: Section 2155.076 of the Government Code requires Texas Parks and Wildlife Department to develop and adopt protest procedures for resolving vendor disputes relating to purchasing issues.

That Section further directs the agency to publish those procedures in rules consistent with the General Services Commission rules. In keeping with the statutory language, staff has developed a protest procedure and put them in the form of rules, attached as Exhibit A. The proposed rules are consistent with current General Services Commission rules. A summary of public comment on the proposed regulations will be presented at the time of the hearing.

II. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts new 31 TAC §53.70 concerning protest procedures for vendors, with changes to the proposed text as published in the October 2, 1998, issue of the Texas Register (23 TexReg 9946)."

Attachments - 2

1. Exhibit A - Rule
2. Exhibit B - Fiscal Note (Available upon request.)

Commission Agenda Item No. 9
Exhibit A

Vendor Protest Procedure

§53.70. Vendor Protest Procedure.

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Director of Acquisition and Logistical Services. Such protests must be in writing and received in the director’s office within 10 working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Copies of the protest must be mailed or delivered by the protesting party to the department and other interested parties. For the purpose of this section "other interested persons" means at least all vendors who have submitted bids or proposals for the contract involved.
(b) If the vendor wants the solicitation or the award process to be terminated, he must make that request in his protest and state the reasons for such termination of the process. The director will review such request and, after consultation with the using division and the appropriate manager, make a written determination within three business days of receipt of the request to terminate from the vendor.
(c) A formal protest must be sworn and contain:
(1) a specific identification of the statutory or regulatory provision(s) the action complained of is alleged to have violated;
(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified above;
(3) a precise statement of the relevant facts;
(4) an identification of the issue or issues to be resolved;
(5) argument and authorities in support of the protest; and
(6) a statement that copies of the protest have been mailed or delivered to the identifiable interested parties.
(d) The director shall have the authority, absent a proper appeal to the executive director of the department, to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest from other interested parties.
(e) If the protest is not resolved by mutual agreement, the director will issue a written determination on the protest:
(1) if the director determines that no violation of rules or statutes he shall so inform the protesting party, and other interested parties by letter which set forth the reasons for the determination; or
(2) if the director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he will so inform the protesting party and the other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.
(f) The director’s determination on a protest may be appealed by an interested party to the executive director of the department. An appeal of the director’s determination must be in writing and must be received in the executive director’s office no later than 10 working days after the date of the director’s determination. The appeal shall be limited to review of the director’s determination. Copies of the appeal must be mailed or delivered to other interested parties within 10 working days after the date of the director’s decision and must contain a certification that such copies have been provided as directed in this section.
(g) The appropriate lawyer for the agency must review the protest, the director’s determination and the appeal and prepare a written opinion with recommendations to the executive director.
(h) A decision issued by the commission in open meeting, or in writing by the executive director, shall be the final administrative action of the department.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt. Issued in Austin, Texas on

William D. Harvey, Ph.D.
Regulatory Coordinator
Texas Parks and Wildlife Department
1-800-792-1112, extension 4642 or 512-389-4642