Proposed Rules Title 34

TITLE 34. PUBLIC FINANCE

Part 1. COMPTROLLER OF PUBLIC ACCOUNTS

Chapter 1. CENTRAL ADMINISTRATION

Subchapter A. PRACTICE AND PROCEDURES

Division 3. SUPPORT SERVICES

34 TAC §1.71

(Editor's note: The text of the following section proposed for repeal will not be published.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

The Comptroller of Public Accounts (comptroller) proposes the repeal of §1.71, concerning purchasing. The repeal is necessary because The Board of Control was dissolved, and the duties became part of the Texas Building and Procurement Commission (Commission). House Bill 3560, 80th Legislature, 2007, transferred the purchasing duties of Texas Building and Procurement Commission to the Comptroller of Public Accounts on September 1, 2007.

John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the repeal will be in effect, there will be no significant revenue impact on the state or units of local government.

Mr. Heleman also has determined that for each year of the first five years the repeal would benefit the public by streamlining the Texas Administrative Code. There would be no economic cost to the public. There is no significant anticipated economic cost to individuals who are required to comply with the repeal.

Comments on the proposal may be submitted to Cathy Navarro, Manager, Support Services Division, P.O. Box 12050, Austin, Texas 78711.

This repeal is proposed under Government Code, Title 4, §2155.0012, which allows the comptroller to administer this chapter relating to general purchasing rules.

The repeal implements Government Code, Title 4, §2155.011, which transfers the duties of the commission to the comptroller.

§1.71.Purchasing.

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 April 18, 2008.

TRD-200802023

Martin Cherry

General Counsel

Comptroller of Public Accounts

Earliest possible date of adoption: June 1, 2008

For further information, please call: (512) 475-0387

34 TAC §1.72

The Comptroller of Public Accounts (comptroller) proposes an amendment to §1.72, concerning protest of agency purchases. The amendment is to correct the title of "Director of Administration Services" which is now "Director of Agency Administration" throughout the section.

John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government.

Mr. Heleman also has determined that for each year of the first five years the proposed amendment would benefit the public by specifying, for vendors of goods and services, the appropriate comptroller's office official to whom they would direct protests regarding the agency's solicitation, evaluation or award of contract. There would be no anticipated cost to the public. There is no significant anticipated economic cost to individuals who are required to comply with the rule amendment.

Comments on the proposal may be submitted to Cathy Navarro, Manager, Support Services Division, P.O. Box 12050, Austin, Texas 78711.

This amendment is proposed under Government Code, Title 4, §2155.067, which allows each state agency to adopt purchasing protest procedures.

The amendment implements Government Code, Title 4, §2155.0012, which allows the comptroller to adopt rules to administer this chapter.

§1.72.Protest of Agency Purchases.

(a) The following words and terms, when used in this subchapter, shall have the following meaning unless the context clearly indicates otherwise.

(1) Agency--The Office of the Comptroller of Public Accounts[ ~~, the elected official~~].

(2) Comptroller--Comptroller of Public Accounts.

(3) Deputy Comptroller--Deputy Comptroller of Public Accounts.

(4) Director of Agency Administration--Director of Agency Administration [ ~~Director of Administrative Services--Director of the Administrative Services~~ ] Division of the Comptroller of Public Accounts.

(5) General Counsel--General Counsel of the Comptroller of Public Accounts.

(6) Interested parties--All vendors who have submitted bids or proposals for the provision of goods or services pursuant to a contract with the Comptroller of Public Accounts.

(b) Any actual or prospective bidder, offeror, or contractor who considers himself to have been aggrieved in connection with the agency's solicitation, evaluation, or award of a contract may formally protest to the Director of Agency Administration [ ~~Administrative Services~~ ]. Such protests must be made in writing and received in the office of the Director of Agency Administration [ ~~Administrative Services~~ ] within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested. Formal protests must conform to the requirements of this subsection and subsection (d) of this section, and will be resolved through use of the procedures that are described in subsections (e) through (i) of this section. The protesting party must mail or deliver copies of the protest to the agency and other interested parties.

(c) In the event of a timely protest under this section, the agency will not proceed further with the solicitation or award of the contract unless the Deputy Comptroller, after consultation with the using division and the Director of Agency Administration [~~Administrative Services~~ ], makes a written determination that the contract must be awarded without delay, to protect the best interests of the agency.

(d) A formal 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 agency 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 agency and all other identifiable interested parties.

(e) The Director of Agency Administration [ ~~Administrative Services~~] 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 General Counsel of the agency. The Director of Agency Administration [~~Administrative Services~~ ] may solicit written responses to the protest from other interested parties.

(f) If the protest is not resolved by mutual agreement, the Director of Agency Administration [~~Administrative Services~~ ] will issue a written determination that resolves the protest.

(1) If the Director of Agency Administration [ ~~Administrative Services~~ ] determines that no violation of statutory or regulatory provisions has occurred, then the director [ ~~Director~~] shall inform the protesting party, the agency, and other interested parties by letter that sets forth the reasons for the determination.

(2) If the Director of Agency Administration [ ~~Administrative Services~~ ] 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 director [ ~~Director~~ ] shall inform the protesting party, the agency, and other interested parties of that determination by letter that details the reasons for the determination and the appropriate remedy.

(3) If the Director of Agency Administration [ ~~Administrative Services~~ ] determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, then the director [ ~~Director~~ ] shall inform the protesting party, the agency, and other interested parties of that determination by letter that details the reasons for the determination. This letter may include an order that declares the contract void.

(g) The protesting party may appeal a determination of a protest by the Director of Agency Administration [ ~~Administrative Services~~ ] to the General Counsel of the agency. An appeal of the director's [~~Director's~~] determination must be in writing and received in the office of the agency's General Counsel by not later than 10 working days after the date on which the director [~~Director~~ ] has sent written notice of his determination. The scope of the appeal will be limited to review of the director's [~~Director's~~ ] determination. The protesting party must mail or deliver to the agency and all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.

(h) The General Counsel may refer the matter to the Deputy Comptroller for consideration or may issue a written decision that resolves the protest.

(i) The following requirements shall apply to a protest that the General Counsel refers to the Deputy Comptroller.

(1) The General Counsel will deliver copies of the appeal and any responses by interested parties to the Deputy Comptroller.

(2) The Deputy Comptroller may consider any documents that agency staff or interested parties have submitted.

(3) The Deputy Comptroller will issue a written letter of determination of the appeal, to the parties which shall be final.

(A) A protest or appeal that is not filed timely will not be considered unless good cause for delay is shown or the Deputy Comptroller determines that an appeal raises issues that are significant to agency procurement practices or procedures in general.

(B) A written decision that either the Deputy Comptroller or the General Counsel has issued shall be the final administrative action of the agency.

(j) The agency will maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the agency's retention schedule.