Current through Reg. 49, No. 38; September 20, 2024
(a) The purpose of
this rule is to set forth the Department's procedures for resolving vendor
protests relating to purchases as required by Texas Government Code Sections
RSA
2155.076 and
RSA
2260.052(c), and the
adoption of rules of the Texas Comptroller of Public Accounts pursuant to Texas
Government Code Section
RSA
2156.005(d).
(b) The following words, when used in this
section, shall have the following meaning unless the context clearly indicates
otherwise.
(1) Commissioner--The Commissioner
of the Credit Union Department, State of Texas.
(2) Department--The Credit Union Department,
State of Texas.
(3) Deputy
Commissioner--The Deputy Commissioner of the Credit Union Department, State of
Texas.
(4) General Counsel--The
General Counsel of the Credit Union Department, State of Texas.
(5) Interested Parties--All vendors who have
submitted bids or proposals for the provision of goods or services to the
Credit Union Department, State of Texas.
(c) A vendor who submitted a written response
to a solicitation may file a protest with the Department for the following:
(1) the solicitation documents or actions
associated with the publication of solicitation documents;
(2) the evaluation or method of evaluation
for a solicitation; or
(3) the
award of a contract.
(d)
This section does not apply to:
(1) the award
of grants or subcontracts; or
(2)
interagency or interlocal agreements executed in accordance with applicable
law.
(e) The Department
will not consider protests filed pursuant to this section as contested cases
under the Administrative Procedure Act, Texas Government Code, Chapter
2001.
(f) To be considered timely,
the protest must be in writing, sworn to, and received by the Department:
(1) no later than the date that responses to
a solicitation are due, if the protest concerns the solicitation;
(2) no later than the date a contract
resulting from the solicitation is awarded, if the protest concerns the
evaluation or method of evaluation for the solicitation; or
(3) no later than 10 days after the notice of
award of a contract is posted, if the protest concerns the award.
(g) The protesting vendor must
file a protest with the Department by electronic mail submission to
CUDDeputyCommissionerProtests@cud.texas.gov for review by the Deputy
Commissioner.
(h) In addition to
being in writing, sworn to, and timely, to be considered by the Department, a
protest must contain:
(1) a specific statute
or regulation the protesting vendor alleges the solicitation, contract award,
or tentative award violated;
(2) a
specific description of each action by the Department that the protesting
vendor alleges is a violation of the statutory or regulatory
provision;
(3) a precise statement
of relevant facts including:
(A) sufficient
documentation to establish that the protest has been timely filed;
(B) a description of the adverse impact to
the Department and the state; and
(C) a description of the resulting adverse
impact to the protesting vendor;
(4) a statement of any issues of law or fact
that the protesting vendor contends must be resolved;
(5) a statement of the argument and
authorities that the protesting vendor offers in support of the
protest;
(6) an explanation of the
subsequent action the protesting vendor is requesting; and
(7) sworn statement that copies of the
protest have been provided to the Department and all other identifiable
interested parties by either hard-copy or electronic means.
(i) The Deputy Commissioner may
settle and resolve the dispute over the solicitation or the award of the
contract at any time before the matter is submitted on appeal to the
Commissioner.
(j) Upon receipt of a
protest, the Deputy Commissioner may:
(1)
solicit written responses to the protest from other interested
parties;
(2) attempt to resolve the
protest by mutual agreement; or
(3)
dismiss the protest if:
(A) it is not timely;
or
(B) it does not meet the
requirements of this section.
(k) The Deputy Commissioner may confer with
the General Counsel at any time during the review of the protest.
(l) If the protest is not resolved by mutual
agreement, the Deputy Commissioner will issue a written determination that
resolves the protest.
(1) If the Deputy
Commissioner determines that no violation of statutory or regulatory provisions
has occurred, then the Deputy Commissioner shall inform the protesting vendor,
the Department, and other interested parties by letter that details the reasons
for the determination.
(2) If the
Deputy Commissioner 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 Deputy Commissioner shall inform the protesting vendor, the
Department, and other interested parties of the determination by letter that
details the reasons for the determination and the appropriate remedy.
(3) If the Deputy Commissioner determines
that a violation of any statutory or regulatory provisions has occurred in a
situation in which a contract has been awarded, then the Deputy Commissioner
shall inform the protesting vendor, the Department, and other interested
parties of that determination by letter that details the reasons for the
determination. This letter may describe appropriate remedial action including,
but not limited to, concluding the contract is void; terminating the contract;
and readvertising the solicitation.
(4) The Deputy Commissioner's written
determination is the final administrative action by the Department on a protest
filed under this subchapter unless the protesting vendor files an appeal of
determination under subsection (m) of this section.
(m) The protesting vendor may appeal the
Deputy Commissioner's determination on a protest to the Commissioner. An appeal
of the Deputy Commissioner's determination must be in writing, sent by
electronic mail submission to CUDCommissionerProtests@cud.texas.gov, and
received not later than 10 days after the date on which written notification of
the Deputy Commissioner's determination was sent to the protesting vendor. The
scope of the appeal will be limited to the review of the Deputy Commissioner's
determination. With the appeal, the protesting vendor must submit a sworn
statement that copies of the appeal have been provided to the Department and
all other identifiable interested parties by either hard-copy or electronic
means.
(1) An appeal that is not timely filed
shall not be considered unless good cause for delay is shown or the
Commissioner determines that an appeal raises issues that are significant to
the Department's procurement practices or procedures in general.
(2) The Commissioner may confer with the
General Counsel at any time during the review of the appeal.
(3) The Commissioner may consider any
documents that Department personnel or interested parties have
submitted.
(4) The Commissioner
will review the appeal of the Deputy Commissioner's determination and render a
final decision on the appeal.
(5) A
written decision issued by the Commissioner shall be the final administrative
action of the Department.
(n) In the event of a properly filed protest
under this section, and a contract award has not been made, the Department will
not proceed further with the solicitation or award of the contract unless the
Commissioner, after consultation with the Deputy Commissioner and General
Counsel, makes a written determination that the contract must be awarded
without delay, to protect the best interests of the Department.
(o) The Department shall maintain all
documentation on the purchasing process that is the subject of a protest or
appeal in accordance with the Department's document retention
schedule.
(p) Pursuant to Texas
Government Code Section
RSA
2156.005(d), the Department
adopts by reference the rules of the Texas Comptroller of Public Accounts,
Statewide Procurement and Support Services in 34 TAC §
RSA
20.207 and §
RSA
20.208(relating to Competitive Sealed Bidding
and Competitive Sealed Proposals).
(q) Pursuant to Texas Government Code Section
RSA
2260.052(c), the Department
adopts by reference the rules of the Office of the Attorney General of Texas in
1 TAC Part 3, Chapter 68 (relating to Negotiation and Mediation of Certain
Contract Disputes).
