Section 401.103 - Protests of Contract Award(a) Any bidder or proposer aggrieved by a contract award may protest the agency's action to the director of administration. If the director of administration cannot resolve the protest, the aggrieved party may appeal the director of administration's decision to the executive director. If the executive director cannot resolve the protest, the aggrieved party may appeal the executive director's decision to the Texas Lottery Commission. At any time, the executive director may refer the protest directly to the Texas Lottery Commission for determination. The procedures applicable to an appeal to the commission will then apply.(b) A protest of any contract award must be filed electronically with the commission's general counsel, by email to legal.input@lottery.state.tx.us, within 72 hours after receipt of notice of contract award. A copy of the protest must be delivered to the successful bidder or proposer at the same time that the protest or supplement is delivered to the agency. The protestant must include its email address with the protest. A protest is considered timely filed if it is electronically filed before the filing deadline. An electronically filed protest is deemed filed when transmitted to the protestant's electronic filing service provider. Unless otherwise requested by the commission, the protestant is not required to file a paper copy of its protest. For good cause shown by the protestant, the commission may allow an alternate form of filing. The electronically filed protest must be in a text-searchable PDF format. The protestant is solely responsible for ensuring its protest is complete and filed timely with the office of the general counsel and a copy is sent to the successful bidder or proposer. A protest not filed timely will not be considered, and the protestant will be so notified in writing by the commission's general counsel by electronic notice sent to the protestant's designated email address. A protestant may supplement its timely filed protest. The deadline to supplement is 5 p.m. central time, 10 calendar days after notice of contract award.(c) In the event of a protest of a contract award, the successful bidder(s) or proposer(s) may file a written response electronically to the protest within 72 hours after the office of the general counsel's receipt of the protest or any supplemental filing. The successful bidder(s) or proposer(s) must include its email address with the response. A response is considered timely filed if it is electronically filed before the filing deadline. An electronically filed response is deemed filed when transmitted to the successful bidder(s) or proposer(s)'s electronic filing service provider. The electronically filed response must be in a text-searchable PDF format. The successful bidder(s) or proposer(s) is solely responsible for ensuring the response is complete and filed timely with the office of the general counsel. Responses not filed timely will not be considered, and the successful bidder(s) or proposer(s) will be so notified in writing by the commission's general counsel by electronic notice sent to the successful bidder(s) or proposer(s)'s designated email address.(d) To be considered, a protest must contain: (1) a specific identification of the statutory provision, rule provision, or procurement procedure allegedly violated;(2) a brief statement of the relevant facts;(3) an identification of the issue or issues to be resolved;(4) arguments and authorities in support of the protest;(5) an affidavit that the contents of the protest are true and correct; and(6) a certification that a copy of the protest has been served on the successful proposer(s).(e) In the event of a timely filed protest of a contract award, the executive director will be notified and may abate the award of the contract until the protest is finally resolved.(f) The director of administration will review the protest, the contract award file, any responses, and will make a written determination of the protest, which may include canceling the award of the contract. The director of administration's written determination will be served, by facsimile or by email, on the protestant and the successful bidder(s) or proposer(s). Confirmation that the notice was sent to an email address designated for the receipt of correspondence, will be conclusive proof that delivery was made. The decision of the director of administration may be appealed to the Executive Director. The appeal must be filed electronically with the commission's general counsel by 5 p.m. of the next business day after issuance of the written determination. An appeal is considered timely filed if it is electronically filed before the filing deadline. An electronically filed appeal is deemed filed when transmitted to the protestant's electronic filing service provider.(g) The successful bidder(s) or proposer(s) may file a response electronically to the appeal of a determination made by the director of administration or the Executive Director within 24 hours after notice of the commission's receipt of the appeal. The successful bidder(s) or proposer(s) must include its email address with the response. A response is considered timely filed if it is electronically filed before the filing deadline. An electronically filed response is deemed filed when transmitted to the successful bidder(s) or proposer(s)'s electronic filing service provider. Unless otherwise requested by the commission, the successful bidder(s) or proposer(s) is not required to file a paper copy of its response. The electronically filed response must be in text-searchable PDF format. The successful bidder(s) or proposer(s) is solely responsible for ensuring the response is complete and filed timely with the office of the general counsel. Responses not filed timely will not be considered, and the respondent will be so notified in writing by the commission's general counsel by electronic notice sent to the successful bidder(s) or proposer(s)'s designated email address.(h) On appeal of the director of administration's determination, the executive director will review the protest, the contract award file and responses, and the director of administration's determination, including any reasoning that supports the determination. The Executive Director will then make a written determination of the protest, which may include abating the award of the contract. The executive director's written determination will be served by email on the protestant. Confirmation that the notice was sent to an email address designated for the receipt of correspondence, will be conclusive proof that delivery was made. An appeal to the Texas Lottery Commission of the determination of the executive director must be filed electronically with the commission's general counsel by 5 p.m. of the next business day after issuance of the written determination. An appeal is considered timely filed if it is electronically filed before the filing deadline. An electronically filed appeal is deemed filed when transmitted to the protestant's electronic filing service provider.(i) On timely receipt of the protest and any response, the general counsel will appoint a staff attorney who did not participate in the decision to award the contract to evaluate the protest and any response. The staff attorney will make a written recommendation to the Texas Lottery Commission, including proposed findings of fact and conclusions of law.(j) The Texas Lottery Commission, at its discretion, may allow oral argument by the protestant, the successful bidder or proposer, and any necessary agency staff. The Texas Lottery Commission may limit the time for oral argument. The executive director may be present to respond to questions and will have the opportunity to make a presentation to the Texas Lottery Commission regarding the protest of the contract award. The staff attorney who made the written recommendation to the Texas Lottery Commission may also be present to respond to any questions.(k) The Texas Lottery Commission will make a written determination of the protest. To make its determination, the commission will review: (2) The contract award file;(4) The oral argument, and Executive Director's presentation, if any;(5) The executive director's determination, including any reasoning that supports the determination; and(6) The staff attorney's recommendation. The written determination of the protest will include findings of fact and conclusions of law, and may include a determination voiding or sustaining the contract. The Texas Lottery Commission's written determination will be served by email on the protestant and all parties to the protest proceedings. Confirmation that the notice was sent to an email address designated for the receipt of correspondence, will be conclusive proof that delivery was made. The Texas Lottery Commission's determination shall be administratively final when issued.16 Tex. Admin. Code § 401.103
The provisions of this §401.103 adopted to be effective March 16, 2009, 34 TexReg 1846; amended to be effective April 25, 2013, 38 TexReg 2507; Amended by Texas Register, Volume 40, Number 52, December 25, 2015, TexReg 9632, eff. 12/31/2015