Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 27.
RULES FOR ADMINISTRATIVE SERVICES
Subchapter D. VENDOR PROTESTS
16 TAC §27.161
The Public Utility Commission of Texas (commission) proposes
new §27.161 relating to Procedures for Resolving Vendor Protests. Proposed §27.161
will provide procedures for resolving vendor protests relating to agency purchasing
issues as required by the Texas Government Code Annotated 2155.076. The proposed
new section closely follows the rule on such protests promulgated by the Texas
Building and Procurement Commission in the Texas Administrative Code, Title
1, Part 5, Chapter 111, Subchapter A, §111.3. Project Number 24803 is
assigned to this proceeding.
Susan K. Durso, General Counsel, has determined that for each year of the
first five-year period the proposed section is in effect there will be no
fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Durso has determined that for each year of the first five years the
proposed section is in effect the public benefit anticipated as a result of
enforcing the section will be to provide readily available written protest
procedures for vendors who wish to dispute issues related to agency purchases.
There will be no effect on small businesses or micro-businesses as a result
of enforcing this section. There is no anticipated economic cost to persons
who are required to comply with the section as proposed.
Ms. Durso has also determined that for each year of the first five years
the proposed section is in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under the Administrative
Procedure Act §2001.022.
Comments on the proposed new rule (16 copies) may be submitted to the Filing
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O.
Box 13326, Austin, Texas 78711-3326, within 30 days after publication. Comments
should be organized in a manner consistent with the organization of the proposed
rule. All comments should refer to Project Number 24803.
This new rule is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998, Supplement 2002) (PURA), which provides the Public Utility Commission
with the authority to make and enforce rules reasonably required in the exercise
of its powers and jurisdiction, including rules of practice and procedure;
and specifically, Texas Government Code Annotated §2155.076 which requires
the commission to develop and adopt protest procedures for vendors' protests
concerning commission purchases that are consistent with the Texas Building
and Procurement Commission rules on the same subject.
Cross Reference to Statutes: Texas Government Code Annotated §2155.076
and Public Utility Regulatory Act §14.002 and §14.052.
§27.161.Procedures for Resolving Vendor Protests.
(a)
Definitions. The following words and terms, when used in
this subchapter, shall have the following meaning unless the context clearly
indicates otherwise.
(1)
Commission--The Public Utility Commission of Texas.
(2)
Purchasing officer--A commission employee who has received
certification as a Texas Public Purchaser and who is responsible for assisting
with commission purchases, and who has been designated the purchasing officer
for the purchase in question.
(3)
Interested parties--All vendors who have submitted bids
or proposals for the provision of goods or services pursuant to a solicitation
for a contract with the commission.
(b)
Protest procedures. Any actual or prospective bidder, offerer,
proposer or contractor who considers himself to have been aggrieved in connection
with the commission's solicitation, evaluation, or award of a contract may
formally protest to the purchasing officer. Such protests must be made in
writing and received by the purchasing officer within ten working days after
the protesting party knows, or should have known, of the occurrence of the
action that is protested. Protests must conform to the requirements of this
subsection and subsection (d) of this section, and shall be resolved through
use of the procedures that are described in subsections (e) - (j) of this
section. The protesting party shall mail or deliver copies of the protest
to the purchasing officer and other interested parties.
(c)
Stay of contract award. In the event of a timely protest
under this section, the commission shall not proceed further with the solicitation
or award of the contract unless the executive director, after consultation
with the purchasing officer and the general counsel, makes a written determination
that the contract must be awarded without delay, to protect the best interests
of the commission.
(d)
Protest requirements. A 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 commission
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 commission and all other identifiable interested parties.
(e)
Purchasing officer's role and responsibilities. The purchasing
officer shall conduct a review of issues raised by the protesting parties
and shall have the following role and responsibilities in resolving the protest
issues among the parties:
(1)
The purchasing officer 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 executive director.
(2)
The purchasing officer may solicit written responses to
the protest from other interested parties.
(3)
If the protest is not resolved by mutual agreement, the
purchasing officer will issue a written determination on the protest. The
purchasing officer will consult with the general counsel in preparing a written
determination.
(4)
If the purchasing officer determines that no violation
of statutory or regulatory provisions has occurred, then the purchasing officer
shall inform the protesting party, the executive director, and other interested
parties by letter that states the reasons for the determination.
(5)
If the purchasing officer determines that a violation of
any statutory or regulatory provisions may have occurred in a situation in
which a contract has not been awarded, then the purchasing officer shall inform
the protesting party, the executive director, and other interested parties
of that determination by letter that states the reasons for the determination
and the appropriate remedy.
(6)
If the purchasing officer determines that a violation of
any statutory or regulatory provisions may have occurred in a situation in
which a contract has been awarded, then the purchasing officer shall inform
the protesting party, the executive director, and other interested parties
of that determination by letter that states the reasons for the determination.
This letter may include a declaration that the contract is void.
(f)
Appeal from purchasing officer determination. The protesting
party may appeal a determination of a protest by the purchasing officer to
the executive director of the commission. An appeal of the purchasing officer's
determination must be in writing and received in the executive director's
office no later than ten working days after the date on which the purchasing
officer has sent written notice of his determination. The scope of the appeal
shall be limited to a review of the purchasing officer's determination. The
protesting party shall mail or deliver to the purchasing officer and all other
interested parties a copy of the appeal, which must contain a certified statement
that such copies have been provided.
(g)
Executive director review or reference of appeal. The executive
director shall confer with general counsel in the review of the matter appealed.
The executive director may consider any documents that the commission staff
or interested parties may have submitted. At the discretion of the executive
director, the matter may be referred to the commissioners for their consideration
in a regularly scheduled open meeting or the executive director may issue
a written decision on the protest.
(h)
Appeals referred to commission. The following requirements
shall apply to a protest that the executive director has referred to the commissioners:
(1)
The executive director shall deliver copies of the appeal
and any responses by interested parties to the commissioners.
(2)
The commissioners may consider any documents that commission
staff or interested parties have submitted.
(3)
The commissioners may confer with general counsel in their
review of the matter appealed.
(4)
The commissioners' determination of the appeal shall be
made on the record and reflected in the minutes of the open meeting, and shall
be final.
(i)
Written determination of appeal. A determination issued
either by the commissioners in open meeting, or in writing by the executive
director, shall be the final administrative action of the commission.
(j)
Protest/appeal not timely filed. A protest or appeal that
is not filed timely shall not be considered unless good cause for delay is
shown or the executive director determines that an appeal raises issues that
are significant to commission procurement practices or procedures in general.
(k)
Document retention. The commission shall maintain all documentation
on the purchasing process that is the subject of a protest or appeal in accordance
with the commission's retention schedule.
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 June 10, 2002.
TRD-200203636
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: July 28, 2002
For further information, please call: (512) 936-7306
Chapter 69.
REGULATION OF CERTAIN TRANSPORTATION SERVICE PROVIDERS
16 TAC §69.80
The Texas Department of Licensing and Regulation ("Department")
proposes an amendment to §69.80, concerning the fees for the Regulation
of Certain Transportation Service Providers program.
The amendment to §69.80 proposes to decrease the application processing
and renewal fee for a Certificate of Registration as a Transportation Service
Provider or Freight Forwarder from $320 to $200 for each application.
The Department is required by the Texas Occupations Code, Chapter 51, §51.202
to set fees in amounts reasonable and necessary to cover the costs of administering
programs, which include the Regulation of Certain Transportation Service Providers
program. The fees currently in place are above the amounts needed to cover
program costs in current and future periods. The decrease would not adversely
affect the administration or enforcement of the Regulation of Certain Transportation
Service Providers program.
William H. Kuntz, Jr., Executive Director of the Texas Department of Licensing
and Regulation, has determined that for the first five-year period the proposed
amendment is in effect, there will be no additional cost to state or local
governments as a result of administering or enforcing the fee change. There
will be no effect on local government.
Mr. Kuntz also has determined that for each year of the first five-year
period the proposed amendment is in effect, the public benefit will be enhanced
public welfare and consumer protection. There will be an economic effect on
small businesses and persons who are required to comply with the section as
proposed. The cost of compliance will be a decrease of $120 for each application
processed or renewed.
Comments on the proposal may be submitted to William H. Kuntz, Jr., Executive
Director, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin,
Texas 78711, or facsimile (512) 475-2874, or electronically: whkuntz@license.state.tx.us.
The deadline for comments is 30 days after publication in the
Texas Register
.
The amendment is proposed under Texas Occupations Code, Chapter
51, §51.202 which authorizes the Texas Commission of Licensing and Regulation
to set fees in amounts reasonable and necessary to cover the costs of administering
the programs and activities under its jurisdiction which includes the Regulation
of Certain Transportation Service Providers program.
The statutory provisions affected by the proposal are those set forth in
Texas Civil Statutes, Article 6675(e) and Texas Occupations Code, Chapter
51. No other statutes, articles, or codes are affected by the proposal.
§69.80.Fees.
(a)
The application processing and renewal fee for a Certificate
of Registration as a Transportation Service Provider or Freight Forwarder
is
$200
[
(b) - (d)
(No change.)
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 June 17, 2002.
TRD-200203772
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: July 28, 2002
For further information, please call: (512) 463-7348
Part 4.
TEXAS DEPARTMENT OF LICENSING AND REGULATION
$320
] for each application.
Chapter 72.
STAFF LEASING SERVICES