28 TAC §261.1
The Research and Oversight Council on Workers' Compensation
(ROC) proposes new rule §261.1 concerning vendor protest procedures.
The Texas Government Code, Section 2155.076, requires each state agency to
develop and adopt protest procedure rules for resolving vendor protests relating
to purchasing issues. Section 2155.076 requires an agency's rules to be consistent
with the Texas Building and Procurement Commission (TBP) rules, which are
located in Title 1, Texas Administrative Code, Chapter 111.
Proposed ROC rule §261.1 fulfills the requirement of Section 2155.076
of the Texas Government Code and is patterned after the vendor protest procedure
adopted by the Texas Workers' Compensation Commission (TWCC).
This rule proposal provides a procedure for an actual or proposed bidder,
offeror or contractor to protest the solicitation, evaluation, or award of
a contract. The proposed rule specifies the requirements regarding the contents
of a protest, the time period for filing a protest notice, and records retention
requirements for state agencies. Under the proposed rule, the ROC's Procurement
Director/Business Manager is given the authority to settle the protest, or
if it is not resolved, to issue a written determination on the protest. The
proposed new rule provides for the appeal of the Procurement Director/Business
Manager's decision to the executive director whose decision is the final administrative
action of the Council. The proposed rule requires that the Council must maintain
all documents collected in association with the solicitation, evaluation,
and/or award of a contract for four years in the event of a protest.
Anthony Haynes, ROC Business Manager, has determined that for each of the
first five years the rule is in effect, there will be no significant fiscal
impact on state or local governments as a result of administering this rule,
and the costs can reasonably be absorbed within existing resources of the
agency.
Mr. Haynes has determined that for each of the first five years the rule
is in effect, the public benefit anticipated as a result of administering
the rule will be to inform bidders, offerors, and contractors of the procedure
to protest the solicitation, evaluation, or award of a contract. There are
no economic costs to persons who are required to comply with the rule as proposed.
There will be no effect on small businesses. There will be no effect on local
employment.
Comments on the proposed rule may be submitted to Anthony Haynes, Business
Manager, Research and Oversight Council on Workers' Compensation, 9800 N.
Lamar Blvd., Suite 260, Austin, Texas 78753, or anthony.haynes@roc.state.tx.us.
Comments will be accepted for 30 days following publication of the proposed
rule in the
Texas Register.
This rule is being proposed under the authority granted to the
ROC by Section 404.007, Texas Labor Code, which authorizes the ROC Board to
adopt rules as necessary for the operations of the Board and the ROC. The
rule affects Texas Government Code, Section 2155.076.
§261.1.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 Council. All such protests must
be in writing and received in the Council's office within 10 calendar days
after the protesting party 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 all other interested parties. For purposes
of this section, "interested parties" means all vendors who have submitted
bids, offers, or proposals for the contract involved and any protesting party.
(b)
In the event of a timely protest or appeal under this section,
the Council shall not proceed further with the solicitation or award the contract
unless the executive director of the Council or the executive director's designee
makes a written determination that the award of contract without delay is
necessary to protect substantial interests of the state.
(c)
All protests must be sworn to, notarized, and contain:
(1)
a specific identification of the statutory or regulatory
provision(s) that 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 in paragraph (1) of this
subsection;
(3)
a detailed 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;
(6)
the subsequent action the protesting party is requesting;
and
(7)
a statement that copies of the protest have been mailed
or delivered to the council and all other identifiable interested parties.
(d)
The Procurement Director/Business Manager has the authority
to settle and resolve the protest. After receiving the protest, the Procurement
Director/Business Manager shall immediately seek the advice of the Office
of the Attorney General or other legal services by contract. The Procurement
Director/Business Manager may solicit written responses to the protest from
other interested parties. If the protest is not resolved by mutual agreement,
the Procurement Director/Business Manager will issue a written determination
on the protest.
(1)
If the Procurement Director/Business Manager determines
that no violation of any rule or statute has occurred, the Procurement Director/Business
Manager shall so inform the protesting party and all other interested parties
by letter, which sets forth the reasons for the determination.
(2)
If the Procurement Director/Business Manager determines
that a violation of a rule or statute has occurred in a case where a contract
has not been awarded, the Procurement Director/Business Manager shall so inform
the protesting party and all other interested parties by letter which sets
forth the reasons for the determination and the appropriate remedial action.
(3)
If the Procurement Director/Business Manager determines
that a violation of a rule or statute has occurred in a case where a contract
has been awarded, the Procurement Director/Business Manager shall so inform
the protesting party and all other interested parties by letter which sets
forth the reasons for the determination. The determination may include termination
of the contract.
(e)
Any interested party may appeal the Procurement Director/Business
Manager's determination on a protest to the executive director. An appeal
of the Procurement Director/Business Manager'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 Procurement Director/Business Manager's determination.
The appeal shall be limited to review of the Procurement Director/Business
Manager's determination. Copies of the appeal must be mailed or delivered
by the appealing party to the Procurement Director/Business Manager and all
other interested parties.
(f)
The executive director may confer with counsel in his or
her review of the matter appealed. The executive director may, in his or her
discretion, refer the matter to the Board of Directors for their consideration
at a regularly scheduled open meeting or issue a written decision on the protest.
(g)
When a protest has been appealed to the executive director
under subsection (f) of this section, the following requirements shall apply:
(1)
Unless good cause for delay is shown or the executive director
determines that a protest or appeal raises issues significant to procurement
practices or procedures, a protest or appeal that is not filed timely will
not be considered .
(2)
A decision issued either by the Board of Directors in open
meeting, or in writing by the executive director, shall be the final administrative
action of the Council.
(h)
In the event of a protest, all documents collected by the
Council as part of a solicitation, evaluation, and/or award of a contract
shall be retained by the Council for a period of four years.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 7, 2003.
TRD-200300047
Amy Lee
Research and Oversight Coordinator
Research and Oversight Council on Workers' Compensation
Earliest possible date of adoption: February 23, 2003
For further information, please call: (512) 469-7811
28 TAC §261.2
The Research and Oversight Council on Workers' Compensation
(ROC) proposes new rule §261.2 concerning Historically Underutilized
Businesses (HUBs). The Texas Government Code, Section 2161.003 requires state
agencies to adopt the rules of the Texas Building and Procurement Commission
(TBP) relating to the Historically Underutilized Business (HUB) Program. The
proposed new rule would adopt by reference the TBP rules located in Title
1, Texas Administrative Code, Part 5, Chapter 111, Subchapter B, which the
ROC has already been using. This program promotes full and equal opportunities
for all businesses that seek state contracts. Certification of a business
as a HUB will continue to be done by the TBP. Although an agency with a biennial
budget of less than $10 million is not required to appoint a HUB Coordinator,
the ROC still must comply with Government Code expectations for making a good
faith effort to support HUBs.
Anthony Haynes, ROC Business Manager, has determined that for each of the
first five years the rule is in effect, there will be no significant fiscal
impact on state or local governments as a result of administering this rule,
and the costs can reasonably be absorbed within existing resources of the
agency.
Mr. Haynes has determined that for each of the first five years the rule
is in effect, the public benefit anticipated as a result of administering
the rule will be to inform the public that the agency promotes full and equal
opportunities for all businesses that seek state contracts. There are no economic
costs to persons who are required to comply with the rule as proposed. There
will be no effect on small businesses. There will be no effect on local employment.
Comments on the proposed rule may be submitted to Anthony Haynes, Business
Manager, Research and Oversight Council on Workers' Compensation, 9800 N.
Lamar Blvd., Suite 260, Austin, Texas 78753, or anthony.haynes@roc.state.tx.us.
Comments will be accepted for 30 days following publication of the proposed
rule in the
Texas Register.
This rule is being proposed under the authority granted to the
ROC by Section 404.007, Texas Labor Code, which authorizes the ROC Board to
adopt rules as necessary for the operations of the Board and the ROC. This
rule affects Texas Government Code, Section 2161.003.
§261.2.Historically Underutilized Businesses.
(a)
The Council adopts by reference the rules of the Texas
Building and Procurement Commission in Title 1, Texas Administrative Code,
Part 5, Chapter 111, Subchapter B (relating to Historically Underutilized
Business Program). Certification of a business as a historically underutilized
business remains the responsibility of the Texas Building and Procurement
Commission.
(b)
The adoption of this rule is required by Texas Government
Code, §2161.003 (as added by the 76th Legislature, effective September
1, 1999).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 7, 2003.
TRD-200300046
Amy Lee
Research and Oversight Coordinator
Research and Oversight Council on Workers' Compensation
Earliest possible date of adoption: February 23, 2003
For further information, please call: (512) 469-7811