1 TAC §§392.50 - 392.59
The Health and Human Services Commission (Commission) proposes
to add new Subchapter C to Chapter 392, Procurements by Health and Human Services
Commission (new §§392.50-392.59). The proposed subchapter establishes
procedures for protesting and resolving certain purchase awards by the Commission.
Background and Summary of Factual Basis for the
Rules
Title 1, Chapter 391, Subchapter J of the Texas Administrative Code establishes
protest procedures for purchases of goods and services by the Health and Human
Services Agencies. Section 391.301(c) authorizes the Health and Human Services
Agencies to develop formal or informal protest processes. The purpose of this
proposed Subchapter C to Chapter 392 is to set forth the formal protest procedures
for certain purchase awards by the Commission.
Section-by-Section Summary
Section 392.50 describes the purpose of the subchapter, to establish formal
protest procedures. Section 392.51 deals with the applicability of the subchapter.
It sets forth the circumstances under which a potential contractor may file
a protest, defines the types of purchase awards that are not covered by the
subchapter, and provides that protests filed under the subchapter are not
governed by the Administrative Procedures Act. Section 392.52 contains the
definitions applicable to the Subchapter. Section 392.53 describes how the
Commission will post notices of awards. Section 392.54 describes the procedures
to follow to access evaluator comments relating to proposals. Section 392.55
sets forth the deadline for filing a protest. Section 392.56 describes the
procedures for submitting a protest. Section 392.57 defines the required content
of the protest. Section 392.58 discusses the Commission's protest review process,
and the deadline for completing the review. Section 392.59 provides that the
Commission will not award a contract until it provides a final written disposition
of the protest, unless the Commission is required by state or federal law
to award the contract sooner or if a bona fide emergency exists.
Public Benefit
Steve Aragon, General Counsel, has determined that during the first five
years that the proposed rules are in effect, the public will benefit from
adoption of the rules in that the rules will establish procedures for filing
and resolving protests of certain purchases by the Commission.
Fiscal Note
Tom Seuhs, Chief Financial Officer, has determined that for the first five
years that the proposed rules are in effect, there will be no foreseeable
economic implications relating to the costs or revenues of the state or local
governments.
Small and Micro-business Impact Analysis
Tom Seuhs, Chief Financial Officer, has determined that the proposed rules
will not result in additional costs to persons required to comply with the
rules and will not negatively affect local employment.
Regulatory Analysis
The Commission has determined that none of the proposed rules is a "major
environmental rule" as defined by §2001.0225, Government Code. "Major
environmental rule" is defined to mean a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. None of the proposed
rules is specifically intended to protect the environment or reduce risks
to human health from environmental exposure.
Takings Impact Assessment
The Commission has evaluated the takings impact of the proposed rules under
Texas Government Code §2007.043. The Commission has determined that this
action does not restrict or limit an owner's right to their property that
would otherwise exist in the absence of governmental action and therefore
does not constitute a taking. The proposed rules are administrative and do
not impose any new regulatory requirements. The proposed rules are reasonably
taken to fulfill requirements of state law.
Public Comment
Comments on the proposed new rules must be submitted no later than 30 days
from the date they are published in the
Texas Register
. Public comment may be submitted to: Steve Aragon, General Counsel,
Health and Human Services Commission, 4900 North Lamar Boulevard, 4th Floor,
Austin, Texas 78751-2316, Steve.Aragon@hhsc.state.tx.us, Phone: 512-424-6578,
Fax: 512-424-6587
Legal Authority
The proposed rules are proposed under authority granted to the Commission
by Government Code §531.033, which authorizes the Commissioner of Health
and Human Services to adopt rules necessary to implement the Commission's
duties; Health and Safety Code §62.051(d), which directs the Commission
to adopt rules as necessary to implement the Children's Health Insurance Program;
and Government Code §2260.052(c), which requires that units of state
government with rulemaking authority adopt such rules.
§392.50.Purpose.
The purpose of this subchapter is to set forth the formal procedures
for protesting certain awards by the Health and Human Services Commission
(HHSC).
§392.51.Applicability.
(a)
A potential contractor may protest a purchase award under
the following circumstances:
(1)
the purchase award was made under a competitive procurement
method and the protestant submitted a bid that was not selected for the award;
or
(2)
the purchase or award was a sole source or emergency procurement.
(b)
This subchapter does not apply to:
(1)
the award of grants or subcontracts;
(2)
goods or services purchased pursuant to the Interagency
Cooperation Act, Chapter 771, Government Code, or Interlocal Cooperation Act,
Chapter 791, Government Code;
(3)
the lease, purchase, or lease-purchase of real property;
(4)
interstate or international agreements executed in accordance
with applicable law;
(5)
a service of a public utility;
(6)
health care provider enrollment agreements; or
(7)
goods or services purchased under contracts or processes
administered by the Texas Building and Procurement Commission, the Department
of Information Resources, or other state agencies.
(c)
HHSC will not conduct protests filed pursuant to this subchapter
as contested cases under the Administrative Procedures Act, Government Code
Chapter 2001.
§392.52.Definitions.
The following words and terms, when used in this subchapter, have the
following meaning, unless the context clearly indicates otherwise:
(1)
Commissioner - means the Executive Commissioner of the
Health and Human Services Commission (HHSC) or his or her designee;
(2)
Protestant - means a potential contractor authorized to
file a protest under the criteria set forth in §392.51(a) of this subchapter.
§392.53.HHSC's Notice of Award.
(a)
For a procurement identified in §392.51(a)(1) or (2)
of this subchapter, the Health and Human Services Commission (HHSC) will post
a notice of award on its website.
(b)
HHSC's notice of award may indicate that:
(1)
the award is tentative, and conditioned upon the successful
negotiation and execution of a contract with the selected vendor; or
(2)
that the award is complete and a contract has been executed
with the selected vendor.
§392.54.Access to Evaluation Materials.
(a)
After the Health and Human Services Commission (HHSC) posts
a notice of award, a potential contractor may request a debriefing on HHSC's
evaluation of its proposal. HHSC will provide the debriefing within three
business days or as soon as possible thereafter, taking into consideration
the size and scope of the procurement and number of debriefing requests received.
(b)
HHSC will handle requests for access to evaluation materials
and other vendors' proposals in accordance with the Texas Public Information
Act, Chapter 552 of the Texas Government Code.
(c)
Requests for information pursuant to this section must
be sent to the following HHSC representative:
(1)
for an award made pursuant to a competitive procurement
method, to the person designated as HHSC's point-of-contact in the procurement
instrument; or
(2)
for a purchase or award from a sole source or emergency
procurement, to the person identified in HHSC's notice of award.
§392.55.Deadline for Submitting Protest.
The Health and Human Services Commission (HHSC) must receive a protest
no later than seven calendar days after HHSC posts the notice of award on
its website. Failure to comply with the foregoing timeframe will result in
HHSC's dismissal of the protest.
§392.56.Submission of Protest.
(a)
A protestant must submit a protest to the following Health
and Human Services Commission (HHSC) representative:
(1)
for an award made pursuant to a competitive procurement
method, to the person designated as HHSC's point-of-contact in the procurement
instrument; or
(2)
for a purchase or award from a sole source or emergency
procurement, to the person identified in HHSC's notice of award.
(b)
The protest must:
(1)
be in writing and signed by the protestant or the protestant's
authorized representative;
(2)
be delivered by hand, certified mail return receipt requested,
facsimile or other verifiable delivery service; and
(3)
be limited to matters relating to the protestant's qualifications,
the suitability of the goods or services offered by the protestant, or alleged
irregularities in the procurement process.
§392.57.Content of Protest.
In order for the protest to be evaluated on its merits, the protest
must state:
(1)
the potential contractor's name and the specific award
that is being protested;
(2)
the legal and factual basis for the protest with specific
supporting information;
(3)
when applicable, how the potential contractor alleges the
award or tentative award violated the Health and Human Services Commission's
rules or state or federal laws or regulations governing the procurement;
(4)
an explanation of the facts in disagreement; and
(5)
the subsequent action the protestant is requesting.
§392.58.HHSC's Review and Disposition of Protests.
(a)
The Health and Human Services Commission (HHSC) will conduct
a protest review as follows:
(1)
The HHSC division that conducted the procurement will review
the protest and the Division Director will make an initial recommendation
to the Commissioner. The Division Director may at his or her sole discretion
request supplemental oral or written information from the protestant if such
information is necessary to evaluate the protest.
(2)
The Commissioner will review the protest and Division Director's
recommendations. The Commissioner may, at his or her sole discretion, request
supplemental oral or written information from the protestant or HHSC division
if such information is necessary to evaluate the protest. The Commissioner
will then issue a final determination regarding the protest.
(3)
The Commissioner's final determination will be HHSC's final
action on the protest, the protestant will have no further administrative
recourse.
(b)
HHSC will provide the protestant with a written copy of
the final determination within thirty days of receiving the protest, or as
soon thereafter as practicable.
§392.59.Contract Awards during Protest.
The Health and Human Services Commission (HHSC) will not award a contract
for purchase that is subject to a protest filed in accordance with this subchapter
until HHSC provides a final written disposition of the protest in accordance
with §392.58 of this subchapter. The Commissioner may waive this requirement
in the case of an award that is required by state or federal law to be completed
by a particular date, or in the case of a bona fide emergency as determined
by the Commissioner.
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 July 28, 2003.
TRD-200304547
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: September 7, 2003
For further information, please call: (512) 424-6576