Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
Chapter 300.
ADMINISTRATION
10 TAC §300.1
The Texas Residential Construction Commission of Texas (commission)
proposes new §300.1, concerning Procedures for Resolving Vendor Protests.
Proposed new §300.1 will provide procedures for resolving vendor protests
relating to agency purchasing activities as required BY TEX. GOV'T CODE ANN. §2155.076.
The proposed new section closely follows the rule on such protests promulgated
by the Texas Building and Procurement Commission in Texas Administrative Code,
Title 1, Part 5, Chapter 111, Subchapter A, §111.3. Project Number 2-04-021
is assigned to this proceeding.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the proposed new rule is in effect there will
be no fiscal implications for state or local governments as a result of enforcing
or administering the new rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed new rule 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.
Mr. Thomas has also determined that there will be no effect on large or
small businesses or micro-businesses as a result of enforcing this section.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed section is in effect there should be no effect on a local
economy, and therefore no local employment impact statement is required pursuant
to Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas, 78711. The deadline for submission of comments
with the commission is 30 days from the date of publication of the proposed
rule in the
Texas Register
. Comments should
be organized in a manner consistent with the organization of the proposed
rule. All comments should refer to Project Number 2-04-021.
The new rule is proposed under the Texas Residential Construction
Commission Act, TEX. PROPERTY CODE ANN. §408.001 (Vernon 1995, Supplement
2004) (the Act), which provides the Texas Residential Construction Commission
with the authority to adopt rules as necessary for the implementation of the
Act and specifically, TEX. GOV'T CODE ANN. §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: TEX. GOV'T CODE ANN. §2155.076 and TEX.
PROPERTY CODE §408.001.
§300.1.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 Texas Residential Construction Commission.
(2)
Purchasing Officer--The commission employee who has received
certification as a Texas Public Purchaser and who is responsible for commission
purchases.
(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, respondent,
offeror, proposer or contractor who considers himself to have been aggrieved
in connection with the commission's solicitation, evaluation, or award of
a contract may protest to the Purchasing Officer. Such protests must be made
in writing and received by the Purchasing Officer within ten (10) 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 must mail or deliver copies of the protest
to the commission and other interested parties.
(c)
Stay of Contract Award. In the event of a timely protest
under this section, the commission will 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 taken 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;
(6)
a statement that copies of the protest have been mailed
or delivered to the commission and all other identifiable interested parties;
and
(7)
the name, address and telephone number of a contact for
the protesting party and for all other identified 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 that resolves the protest.
The Purchasing Officer may 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, the Purchasing Officer
shall inform the protesting party, the Executive Director, and other interested
parties by letter that sets forth the reasons for the determination.
(5)
If the Purchasing Officer 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 Purchasing Officer shall inform
the protesting party, the Executive Director, and other interested parties
of that determination by letter that details the reasons for the determination
and the appropriate remedy.
(6)
If the Purchasing Officer determines that a violation of
any statutory or regulatory provisions has 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 details the reasons for the determination.
This letter may include a declaration that the contract is void.
(f)
Appeal of Purchasing Officer Decision. The party against
whom a determination is made 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 office of the commission's Executive Director by not later than ten
(10) 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 review of the Purchasing Officer's determination. The party appealing the
determination must 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 may confer with General Counsel in his review of the matter appealed.
The Executive Director may, in his discretion, refer the matter to the commissioners
for their review in a regularly scheduled open meeting or he may issue a written
decision that resolves 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 original
protest, the Purchasing Officer's determination letter, the notice of appeal
and any responses by interested parties to the commissioners.
(2)
The commissioners will issue a final order on any appeal
referred to the commission.
(i)
Written determination of Appeal. A written decision that
either the commissioners or the Executive Director has issued shall be the
final administrative action of the commission.
(j)
Document Retention. The commission will maintain all documentation
on the purchasing process that is the subject of a protest or appeal in accordance
with the commission's retention schedule.
(k)
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.
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 February 23, 2004.
TRD-200401273
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: April 4, 2004
For further information, please call: (512) 475-0595
10 TAC §300.2
The Texas Residential Construction Commission of Texas (commission)
proposes new §300.2, concerning Historically Underutilized Business Program.
Proposed new §300.2 adopts by reference the Texas Building and Procurement
Commission's rules related to the use of historically underutilized businesses
in agency procurement procedures as required by TEX. GOV'T CODE ANN. §2161.003.
The proposed new section adopts by reference the Texas Building and Procurement
Commission's rules on Historically Underutilized Businesses as reported in
the Texas Administrative Code, Title 1, Part 5, Chapter 111, Subchapter B, §§111.11
- 111.28. Project Number 2-04-022 is assigned to this proceeding.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the proposed new rule is in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the new rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed new rule is in effect, the public benefit anticipated
as a result of enforcing the section will be to increase opportunities for
historically underutilized businesses to participate in agency purchases.
Mr. Thomas has also determined that there will be no effect on large or
small businesses or micro-businesses as a result of enforcing this section.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed section is in effect there should be no effect on a local
economy, and therefore no local employment impact statement is required pursuant
to Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas, 78711. The deadline for submission of comments
with the commission is 30 days from the date of publication of the proposed
rule in the
Texas Register
. Comments should
be organized in a manner consistent with the organization of the proposed
rule. All comments should refer to Project Number 2-04-022.
The new rule is proposed under the Texas Residential Construction
Commission Act, TEX. PROPERTY CODE ANN. §408.001 (Vernon 1995, Supplement
2004) (the Act), which provides the Texas Residential Construction Commission
with the authority to adopt rules as necessary for the implementation of the
Act and specifically, TEX. GOV'T CODE ANN. §2161.003, which requires
the commission to adopt the Texas Building and Procurement Commission's rules
on historically underutilized businesses.
Cross Reference to Statutes: TEX. GOV'T CODE ANN. §2161.003 and TEX.
PROPERTY CODE §408.001.
§300.2.Historically Underutilized Business Program.
The commission adopts by reference the rules of the Texas Building
and Procurement Commission in 1 Texas Administrative Code (TAC) Chapter 111,
Subchapter B, relating to the Historically Underutilized Business Program.
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 February 23, 2004.
TRD-200401274
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: April 4, 2004
For further information, please call: (512) 475-0595
Subchapter A. ARBITRATIONS BETWEEN HOMEOWNERS AND BUILDERS
Chapter 318.
RESIDENTIAL CONSTRUCTION ARBITRATION