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?

All state agencies in Texas must have procedures for bid protests and for maintaining documents in the event of a protest. Tex. Gov’t Code § 2155.076(a) (“The comptroller 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.

If a protest is filed before the contract is awarded, the agency will not proceed with the solicitation or contract award unless the agency makes a written determination that the award of contract without delay is necessary to protect the “best interests” of the agency or “substantial interests of the state.” E.g. 34 Tex. Admin. Code § 1.72 (Comptroller of Public Accounts uses “best interests” of the agency); 16 Tex. Admin. Code § 20.1 (RRC uses “substantial interests of the state”). There is no mechanism to stay contract performance pending a protest once a contract has been awarded.

The real issue in a protest is time—the deadline for filing a protest is generally very quick. Most agencies, such as the Office of the Attorney General, TCEQ, and DPS, require protests to be filed “no later than ten working days after the aggrieved person knows, or should have known, of the occurrence of the action which is protested” unless “good cause for delay is shown” or the protest raises issues significant to the agency’s procurement practices or procedures.

The following agencies follow the “10 working days” deadline:

Texas State Agency“10 working days” deadline for vendor to file protest
Comptroller of Public Accounts  34 Tex. Admin. Code § 1.72  
Office of the Attorney General  1 Tex. Admin. Code §§ 69.2 and 69.5  
Public Utility Commission of Texas  27 Tex. Admin. Code § 27.161  
Railroad Commission of Texas  16 Tex. Admin. Code § 20.1
State Board for Educator Certification19 Tex. Admin. Code § 250.3  
Texas Commission on Environmental Quality  30 Tex. Admin. Code § 11.2  
Texas Commission on State Emergency Communications  1 Tex. Admin. Code § 253.3
Texas Department of Criminal Justice  37 Tex. Admin. Code § 155.41
Texas Department of Information Resources  1 Tex. Admin. Code § 201.1  
Texas Department of Insurance  28 Tex. Admin. Code §§ 1.1102 and 1.1105  
Texas Department of Licensing and Regulation16 Tex. Admin. Code § 55.40  
Texas Department of Motor Vehicles43 Tex. Admin. Code § 210.2  
Texas Department of Public Safety  37 Tex. Admin. Code § 1.264  
Texas Education Agency  19 Tex. Admin. Code § 30.22
Texas Facilities Commission  1 Tex. Admin. Code § 111.32  
Texas Higher Education Coordinating Board19 Tex. Admin. Code § 1.11  
Texas Juvenile Justice Department37 Tex. Admin. Code § 385.1109  
Texas Military Department37 Tex. Admin. Code § 134.1  
Texas Retirement System of Texas  34 Tex. Admin. Code § 51.2
Texas Veterans Commission40 Tex. Admin. Code § 457.1  
Texas Workforce Commission40 Tex. Admin. Code § 800.301   40 Tex. Admin. Code § 806.62 (for purchases of products and services from people with disabilities)  

Some state agencies follow a slight variation of the “10 working days” rule. For example, the ERS counts calendar days instead of working days. And other state agencies have even shorter deadlines. For example, the Lottery Commission requires a protest to be filed within just 72 hours after notice of the contract award.

Texas State Agency and RuleUnique deadline for vendor to file a protest
Employees Retirement System of Texas 34 Tex. Admin. Code § 67.201  If the protest concerns a solicitation, by the end of the posted solicitation period   If the protest concerns an award, no later than 10 calendar days after the notice of award  
Texas Department of State Health Services 25 Tex. Admin. Code § 4.1  7 calendar days of when the award is posted on the Electronic State Business Daily
Texas Department of Transportation 43 Tex. Admin. Code § 9.7  No later than 6 days after the first day that the protesting party knows, or should have known, of the action that is protested  
Texas Health and Human Services Commission 1 Tex. Admin. Code § 391.405If the protest concerns a solicitation, no later than the date that responses to a solicitation are due   If the protest concerns an evaluation or award, no later than 10 business days after the notice of award  
Texas Historical Commission 13 Tex. Admin. Code § 11.13  5 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 being protested  
Texas Lottery Commission 16 Tex. Admin. Code §§ 401.102 and 401.103  Within 72 hours after (i) issuance of the formal competitive solicitation or (ii) receipt of notice of execution of contract
Texas State Board of Pharmacy 22 Tex. Admin. Code § 281.14If the protest concerns the solicitation documents or actions associated with the publication of solicitation documents, by the end of the posted solicitation period If the protest concerns the evaluation or method of evaluation for a solicitation, by the day of the award of a contract resulting from the solicitation   If the protest concerns the award, no later than 10 calendar days after the notice of award  

The Texas State Library and Archives Commission likely has the most generous deadline for bid protests—it requires protests to be submitted within 21 days after the protesting party knows or should have known of the matter that is protested and allows protests to be filed after the 21 days for good cause shown or if the protest raises an issue significant to the general policies and procedures of the commission. 13 Tex. Admin. Code § 2.55.

Cobb & Counsel has significant experience in protesting contract awards by Texas state agencies. If you are responding to a Request for Proposal from a state agency, and you believe you may be denied the contract award, contact Cobb & Counsel to discuss your options.