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 Certification||19 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 Regulation||16 Tex. Admin. Code § 55.40|
|Texas Department of Motor Vehicles||43 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 Board||19 Tex. Admin. Code § 1.11|
|Texas Juvenile Justice Department||37 Tex. Admin. Code § 385.1109|
|Texas Military Department||37 Tex. Admin. Code § 134.1|
|Texas Retirement System of Texas||34 Tex. Admin. Code § 51.2|
|Texas Veterans Commission||40 Tex. Admin. Code § 457.1|
|Texas Workforce Commission||40 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 Rule||Unique 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 § 391.405||If 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 § 281.14||If 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.