The Texas Higher Education Coordinating Board proposes new §1.10 and §1.11 concerning Agency Administration (General Provisions). The new sections of the rules are being made as a result of a rule review in accordance with Section 167 of the General Appropriations Act. New §1.10 is being proposed to provide policies and procedures for administering the Open Records Act. New §1.11 is being proposed to provide protest procedures for resolving vendor protests relating to purchasing as required by §2155.076 of the Texas Government Code.

Mr. McWhorter also has determined that for the first five years the rule is in effect the public benefit will be clarification regarding the Open Records Act and procedures will be established regarding vendor protests relating to purchasing. There will be no effect on state or local government or small businesses. There is no anticipated economic costs to persons who are required to comply with the rule as proposed.

Comments on the proposed new rules may be submitted to Dr. Don W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating Board, P.O. Box 12788, Capitol Station, Austin, Texas 78711.

The new rules are proposed under Texas Education Code, Section 61.027, and Texas Government Code, Section 2001 which provides the Texas Higher Education Coordinating Board with the authority to adopt rules concerning Agency Administration (General Provisions).

There were no other sections or articles affected by the proposed new rules.

§1.10.Administration of the Open Records Act.

(a)

The agency requires that all public information requests be in writing unless there are special circumstances. The Commissioner or his designee may determine whether a verbal request may be accepted.

(b)

The person handling the request for public information shall review the request and determine what records are requested; who is requesting the records; whether inspection or actual copies of the records are requested; and whether the requested records are open, confidential, or partially open and partially confidential. The Office of General Counsel shall provide assistance in making these determinations.

(c)

To the extent possible, the agency shall attempt to accommodate a requestor by providing information in the format requested. For example, if a requestor asks that information be provided on a diskette and the requested information is electronically stored, the agency will provide the information on diskette. The agency is not required to acquire software, hardware, or programming capabilities that it does not already possess to accommodate a particular kind of request except in accordance with the Open Records Act, (Texas Government Code, Section 552.231).

(d)

Provision of a copy of public information in the requested medium must not violate the terms of any copyright agreement between the agency and a third party.

(e)

Charges for public records shall be made in accordance with the rates established in the rules of the General Services Commission with the following exceptions:

(1)

The agency, at its discretion, may provide public information without charge or at a reduced charge if the waiver or reduction of the charge is in the public interest, because providing the copies primarily benefits the general public, or if the cost for the collection of a charge will exceed the amount of the charge.

(2)

The agency may set the price for publications it publishes for public dissemination or it may disseminate them free of charge. This rule does not limit the costs of agency publications.

(f)

The person handling the request for public information must have the records ready for inspection or copies duplicated within 10 business days after the date the agency received the request. If the records cannot be produced for inspection or duplication within 10 business days after the date the agency received the request, the agency shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.

(1)

Prior to the end of the 10 business days or the set date and hour, if applicable, the agency shall notify the requestor of the estimated costs if the costs will be over $100.

(2)

The agency may require a cash deposit on requests for copies of public information which are estimated to exceed $100.

(3)

All efforts shall be made to process requests as efficiently as possible so that requested information will be provided at the lowest possible charge.

(4)

Full disclosure shall be made to the requesting party as to how the charges were calculated.

(5)

All charges for public information must be paid to the agency before the public information is actually provided to the requestor by inspection or duplication. Failure of the requestor to pay the costs of the copies within 30 days of notification of the estimated costs, or a longer period of time, if granted by the agency, shall be considered a withdrawal of the request for information.

(6)

If a request for information requires programming or manipulation of data pursuant to Texas Government Code, Section 552.231, the time frame in this subsection shall not apply until the requestor files the written statement described in the Texas Government Code, Section 552.231(d)(1) or (2). Once the written statement is filed, the agency shall comply with this subsection.

§1.11. Protest Procedures for Resolving Vendor Protests Relating to Purchasing Issues.

(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 Business Services (the director). 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. Formal protests must conform to the requirements of this subsection and subsection (c) of this section, and shall be resolved in accordance with the procedure set forth in subsections (d) and (e) of this section. Copies of the protest must be mailed or delivered by the protesting party to the other interested parties. For the purposes of this section, "interested parties" means all vendors who have submitted bids or proposals for the contract involved.

(b)

In the event of a timely protest or appeal under this section, the Texas Higher Education Coordinating Board shall not proceed further with the solicitation or with the award of the contract unless the director makes a written determination that the award of contract is necessary to protect substantial interests of the state.

(c)

A formal protest must 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 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 other identifiable interested parties.

(d)

The director shall have the authority 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. The director may consult with the General Services Commission and the office of the General Counsel of the Texas Higher Education Coordinating Board concerning the dispute.

(e)

If the protest is not resolved by mutual agreement, the director shall issue a written determination on the protest.

(1)

If the director determines that no violation of rules or statutes has occurred, he shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination.

(2)

If the director determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3)

If the director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he shall so inform the protesting party and 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 Assistant Commissioner for Administration. An appeal of the director's determination must be in writing and must be received in the Assistant Commissioner for Administration'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 by the appealing party to the other interested parties and must contain an affidavit that such copies have been provided.

(g)

The Assistant Commissioner for Administration shall review the protest, director's determination, and the appeal, and issue a written decision on the protest.

(h)

Unless good cause for delay is shown or the Assistant Commissioner for Administration 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.

(i)

A decision issued in writing by the Assistant Commissioner for Administration shall be the final administrative action of the Texas Higher Education Coordinating Board.

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 May 17, 1999.

TRD-9902851

James McWhorter

Assistant Commissioner for Administration

Texas Higher Education Coordinating Board

Proposed date of adoption: July 23, 1999

For further information, please call: (512) 483-6162

Subchapter B. Hearings and Appeals

19 TAC §§1.21-1.41

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Higher Education Coordinating Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Higher Education Coordinating Board proposes the repeal of §§1.21 - 1.41 concerning Agency Administration (Hearings and Appeals). The rules are being repealed and rewritten as a result of a rule review in accordance with Section 167 of the General Appropriations Act. The repealed rules will reflect the Board's current procedures, including the use of the State Office of Hearings and Appeals.