Section 51.2 - Vendor Protests and Appeals(a) Definitions. The following words and terms, when used in this rule, shall have the following meanings unless the context clearly indicates otherwise. (1) Appeal: A written appeal of the Determination of the Chief Officer.(2) Appealing Party: A party who files an Appeal to the Determination.(3) Chief Officer: the head of any business unit of TRS.(4) Determination: A determination issued by the Chief Officer in response to a Protest.(5) Director of Procurement & Contracts (P&C Director): The head of the TRS division responsible for overseeing the procurement of goods and services.(6) Executive Director: Appointed by the TRS Board of Trustees pursuant to Government Code §825.202.(7) Final Decision: A decision issued by the Executive Director in response to an Appeal.(8) Interested Parties: Vendors who submitted a bid, offer, or proposal, as applicable, in response to the subject procurement.(9) Protest: A process initiated in accordance with this rule by a Vendor who believes they have been aggrieved in connection with a solicitation, evaluation, or award of a contract.(10) Protesting Party: A party who files a Protest.(11) Solicitation Documents: All documents (including Invitation for Bids, Request for Offers, Request for Proposals, and Request for Qualifications) requesting responses from Vendors to provide specified goods or services, or both. Solicitation Documents also include any addenda posted by TRS to the Electronic State Business Daily (ESBD) or the TRS website, which may be accessed at https://www.trs.texas.gov/, as applicable, for the subject procurement.(12) TRS Legal & Compliance (TRS L&C): The TRS legal and compliance division.(13) TRS Legal Counsel: The TRS General Counsel or any attorney designated by TRS General Counsel.(14) Vendor: An individual, company, partnership, corporation, or other entity that has filed a response to a TRS solicitation.(b) Purpose. The purpose of this rule is to provide a procedure for a Vendor to Protest or Appeal, if applicable, the process by which TRS purchases goods, services, or both.(c) Exceptions. (1) This section does not apply to protests of purchases made by:(A) the Texas Facilities Commission (Facilities Commission) on behalf of TRS, which are addressed in 1 Texas Administrative Code Chapter 111, Subchapter C (relating to Complaints and Dispute Resolution);(B) the Department of Information Resources (DIR) on behalf of TRS, which are addressed in 1 Texas Administrative Code Chapter 201, §201.1 (relating to Procedures for Vendor Protests and the Negotiation and Mediation of Certain Contract Disputes and Bid Submission, Opening and Tabulation Procedures);(C) the Comptroller of Public Accounts (Comptroller's Office) on behalf of TRS, which are addressed in 34 Texas Administrative Code Chapter 20, Subchapter F, Division 3 (relating to Protests and Appeals); or(D) TRS, for transactions in which TRS buys or sells securities (whether publicly traded or privately issued) under the authority of Government Code §825.302, as well as any other transactions not subject to state purchasing rules.(2) The rules of the Facilities Commission, DIR, and the Comptroller's Office may be accessed through the website of the Office of the Secretary of State, Texas Register Division located at: www.sos.state.tx.us/tac/index.shtml.(d) Stay of Protest or Appeal. If a timely Protest or Appeal is filed, the Protesting Party or the Appealing Party may request in writing that TRS not proceed further with the solicitation or with the award of the contract. In support of the request, the Protesting Party or Appealing Party is required to show why a stay is necessary and that harm to TRS will not result from the stay. If the Executive Director determines that it is in the interest of TRS not to proceed with the solicitation or contract award, the Executive Director may make such a decision in writing and partially or fully suspend procurement or contract activity. Any request for a stay must be submitted in accordance with the requirements stated in the Solicitation Document (relating to Vendor Protests and Appeals) or on the TRS website, may be accessed at https://www.trs.texas.gov/., as applicable.(e) Protest Procedures. (1) A Vendor who believes they have been aggrieved in connection with a solicitation, evaluation, or award of a contract may formally Protest to TRS. Such Protest must be in writing and timely received by TRS L&C in accordance with the instructions provided in the Solicitation Document or on the TRS website, which may be accessed at https://www.trs.texas.gov/., as applicable. Copies of the Protest must be concurrently mailed or delivered by the Protesting Party to all other Interested Parties.(2) To be considered timely, the Protest must be filed: (A) by the end of the posted solicitation period, if the Protest concerns the Solicitation Documents or actions associated with the publication of the Solicitation Documents; or(B) no later than 10 calendar days after the notice of contract award is posted to either the ESBD or the TRS website, which may be accessed at https://www.trs.texas.gov/, as applicable, if the Protest concerns the evaluation or award. Notice of Awards posted to the TRS website may be accessed at https://www.trs.texas.gov/.(3) A formal Protest must be sworn and contain:(A) a specific identification of the State of Texas statutory provision(s), TRS policy, or TRS Procurement and Contract Management Guide (Guide) requirement that the action complained of is alleged to have violated;(B) a specific description of each act alleged to have violated a State of Texas statutory provision(s), TRS regulatory policy, or Guide requirement;(C) a precise statement of the relevant facts;(D) an identification of the issue or issues to be resolved;(E) argument and authorities in support of the Protest;(F) a precise statement of the remedy requested by the Protesting Party; and(G) a statement that copies of the Protest have been mailed or delivered to all other Interested Parties. Upon request, TRS will provide the Protesting Party with a list of Interested Parties as reflected in TRS records.(f) Review and Disposition of Protests. (1) TRS L&C will be responsible for management of the Protest and will coordinate TRS' disposition of the Protest with the Chief Officer, with support provided by the P&C Director.(2) The Chief Officer may:(A) dismiss the Protest if the Chief Officer determines the Protest was not timely filed or does not meet the requirements of subsection (d) of this section; or(B) settle and resolve a timely Protest by mutual agreement of TRS and the Protesting Party.(3) If the Chief Officer does not dismiss or resolve the Protest, the Chief Officer may, in his or her sole discretion, solicit written responses to the Protest from other Interested Parties.(4) If the Protest is not dismissed or resolved under paragraph (2) of this subsection, the Chief Officer will issue to the Protesting Party and other Interested Parties a written Determination as to whether a violation of State of Texas statutes, TRS regulatory policies, or Guide requirements has occurred.(5) The Determination will set forth the reasons for the Determination, and any appropriate remedial action, if applicable. Such remedial action, if applicable, may include, but is not limited to, declaring the procurement void; reversing the award and awarding the contract to a different Interested Party; or re-advertising the procurement.(g) Appeal of Protest.(1) The Protesting Party or an Interested Party may Appeal the Determination to the Executive Director. The written Appeal must be received in accordance with the requirements stated in the Solicitation Document or on the TRS website, which may be accessed at https://www.trs.texas.gov/, as applicable, no later than ten working days after the date of the Determination. The Appeal is limited to a review of the Determination.(2) The Appealing Party must concurrently mail or deliver copies of the Appeal to all other Interested Parties and must include an affidavit that such copies have been provided.(3) TRS L&C shall review the Protest, the Determination, and the Appeal and prepare a written opinion with a recommendation to the Executive Director. The Executive Director may, in his or her discretion, refer the matter to the Board of Trustees at a regularly scheduled open meeting or issue in writing a Final Decision.(4) When a Protest has been appealed to the Executive Director under paragraph (1) of this subsection and has been referred to the Board of Trustees by the Executive Director under paragraph (3) of this subsection, the following requirements shall apply: (A) Copies of the Appeal, responses of Interested Parties, if any, and the TRS L&C recommendation shall be mailed to the Board members and Interested Parties. Copies of the TRS L&C recommendation and responses of Interested Parties shall be mailed to the Appealing Party.(B) All Interested Parties who wish to make an oral presentation at the open meeting are requested to notify the TRS L&C in accordance with the requirements stated in the Solicitation Document or on the TRS website, which may be accessed at https://www.trs.texas.gov/, as applicable, at least 48 hours in advance of the open meeting.(C) The Board of Trustees may consider oral presentations and written documents presented by staff, the Appealing Party, and Interested Parties. The chairman shall set the order and amount of time allowed for presentations.(D) The Board of Trustees' determination of an Appeal shall be by duly adopted resolution reflected in the minutes of the open meeting and shall be final.(5) A Final Decision issued either by the Board of Trustees in open meeting or in writing by the Executive Director shall be the final administrative action of TRS.34 Tex. Admin. Code § 51.2
The provisions of this §51.2 adopted to be effective January 17, 1999, 24 TexReg 257; amended to be effective March 12, 2003, 28 TexReg 2120; amended to be effective April 1, 2011, 36 TexReg 2005; Amended by Texas Register, Volume 44, Number 33, August 16, 2019, TexReg 4324, eff. 8/22/2019; Adopted by Texas Register, Volume 49, Number 34, August 23, 2024, TexReg 6463, eff. 8/25/2024