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Government Contracts and Bid Protests: Hope for the best, prepare for the worst.

“Plan for what it is difficult while it is easy, do what is great while it is small.”

― Sun Tzu, The Art of War

You and your team have just put in long hours preparing a response to a Request for Proposal from a Texas state agency.  After all that work to prepare your proposal, you end up losing the bid.  And to make matters worse, you believe the state agency violated a statutory or regulatory provision when awarding the contract to a competitor.  What can you do?

Pursuant to Texas Government Code 2155.076, all state agencies must have procedures for protesting contract awards.  Tex. Gov’t Code § 2155.076 (“The commission and each state agency by rule shall develop and adopt protest procedures for resolving vendor protests relating to purchasing issues.”).  Thus, if your company has wrongfully lost a bid, you have a right to protest the award of that contract to your competitor.  Generally, once a protest is filed, the award of the contract is stayed until the protest is resolved.

The real issue in a protest, however, is time.  The deadline for filing a protest is generally very quick.  For example, the Lottery Commission requires a protest to be filed within 72 hours after receipt of notice of the contract award.  Other agencies—such as the Office of the Attorney General, TCEQ, and HHSC—require protests to be filed within ten working days after the protestant knows, or should have known, of the occurrence of the act or omission by the agency that is the basis for the protest.  To see an overview of state agency protest deadlines, see the chart below.  Therefore, even before you have officially lost a bid, you will need to begin preparing your protest to meet these quick deadlines.  That means you likely need to send a public information act request to the applicable state agency for all responses to the particular Request for Proposal at issue in advance of the contract award decision, to give the agency time to provide you with that information.

The requirements of filing a protest are specific to each agency, so you will want to check the specific agency requirements before filing.  But generally speaking, a protest must be sworn (and in some cases, notarized) and contain the following information:  (1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated; (2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in the protest; (3) a precise statement of the relevant facts; (4) an identification of the issues or issues to be resolved; (5) argument and authorities in support of the protest; and (6) a statement that copies of the protest have been mailed or delivered to all other identifiable interested parties.  To meet these requirements, planning and preparation is key.  In fact, it is best to have the information collected and the protest written even before the contract decision is made.

If you are responding to a Request for Proposal from a state agency, and you believe you may be denied the contract award, contact counsel while preparing your response to the Request for Proposal.  That way, when the contract is denied as anticipated, you have your protest ready to be filed in accordance with the quick deadlines.

Agency
Deadline
Texas Department of Agriculture
4 Tex. Admin. Code §§ 1.1100-.1105
“Within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested.”
Office of the Attorney General
1 Tex. Admin. Code §§ 69.1-69.6
“No later than ten working days after the aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Comptroller of Public Accounts
34 Tex. Admin. Code § 1.72
“Within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested.”
Texas Education Agency
19 Tex. Admin. Code § 30.22
“Within ten working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested.”
Texas Commission on Environmental Quality
30 Tex. Admin. Code § 11.2
“Within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Texas Facilities Commission
1 Tex. Admin. Code § 111.32
“Within 10 working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Department of Family and Protective Services
15 Tex. Admin. Code §§ 391.401-.409
“No later than ten working days after the protestant knows, or should have known, of the occurrence of the act or omission by HHSC that is the basis for the protest.”
Finance Commission of Texas
7 Tex. Admin. Code § 10.30
“Within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested.”
Texas Health and Human Services Commission
15 Tex. Admin. Code §§ 391.401-.409
“No later than ten working days after the protestant knows, or should have known, of the occurrence of the act or omission by HHSC that is the basis for the protest.”
Department of State Health Services
25 Tex. Admin. Code § 4.1
“Within seven calendar days of posting of the award on the Electronic State Business Daily (ESBD).”
Texas Higher Education Coordinating Board
19 Tex. Admin. Code § 1.11
“Within 10 working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested.”
Texas Historical Commission
13 Tex. Admin. Code § 11.3
“Within five working days after the bidder is notified that the award of a contract is forthcoming or otherwise knows, or should have known, of the occurrence of the action which is protested.”
Texas Department of Housing and Community Affairs
10 Tex. Admin. Code § 1.4
“Within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Department of Information Resources
1 Tex. Admin. Code § 201.1
“Within 10 working days after the protesting party knows, or should have known, of the occurrence of the action which is protested.”
Texas State Library and Archives Commission
13 Tex. Admin. Code § 2.55
“Within 21 days after the person knows or should have known of the matter that is protested.”
Texas Lottery Commission
16 Tex. Admin. Code § 401.103
“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.”
Texas Parks and Wildlife Department
31 Tex. Admin. Code § 51.350
“Within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Texas Department of Public Safety
37 Tex. Admin. Code § 1.264
“Within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested.”
Railroad Commission of Texas
16 Tex. Admin. Code § 20.1
“No later than the tenth day after the protestant knows or should have known of the occurrence of the action that is protested.”
Texas Department of Transportation
43 Tex. Admin. Code § 9.3
“Within 10 working days after such aggrieved person knows, or should have known, of the action.”

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