PROTESTS
AVOIDING THEM WHERE POSSIBLE, DEALING
WITH THEM WHEN THEY ARRIVE
PROTEST BASICS
• Texas Gov’t Code §2155.076 says that CPA-TPASS
and “each state agency” shall develop and adopt
protest procedures.
• Other state agencies’ rules must be “consistent
with” the Comptroller’s protest rules.
• Rules must include standards for preserving
documents and files in anticipation of a protest.
TPASS PROTEST RULE
• 34 TAC §20.384 – Protest must be filed in writing
within 10 working days after the protesting party
“knows or should have known” of the occurrence
of the action protested.
• File with the Director of TPASS, with copies to the
using agency and “other interested parties.”
• NOTE: “interested parties” is defined in the rule as
“all vendors who submitted bids, proposals”, etc. in
response to an RFP.
WHAT CAN BE PROTESTED?
• TPASS rule allows for protests of the:
• Solicitation
• Evaluation, or
• Award
• If a vendor submits a protest and says it is protesting
the award, but is actually protesting something from
the solicitation, is it a valid protest? If the solicitation
was legally flawed, does it flow logically that the
award was by definition flawed?
REQUIRED ELEMENTS OF A PROTEST
The protest must be “sworn” and contain:
1. Specific identification of the statute or rule allegedly
violated.
2. A specific description of each TPASS action protested or
alleged rule or law violated.
3. Precise statement of any relevant facts.
4. Statement of any questioned facts or law which must be
resolved.
5. Statement of arguments and authorities supporting the
protest or offers to support the protest.
6. Statement that copies of the protest have been
mailed/delivered to the using agency and all other
interested parties.
WHAT HAPPENS IF YOU RECEIVE A
VALID PROTEST?
• TPASS rules specify that if a valid, timely protest is
received, “the state shall not proceed further with
the solicitation or award of the contract . . . .”
• HOWEVER, the “chief clerk” of the CPA (the Deputy
Comptroller) may consult with TPASS and the using
agency and decide to continue with the contract
in order to “protect the best interests of the state.”
• Question – what is the outcome if the contract has
been long-implemented and the protest makes a
decent showing that the vendor only just “learned”
of the existence of a reason for protest?
RESPONDING TO PROTESTS – ROUND 1
• The TPASS rule states that all protests may be
“settled or resolved” by the director.
• If possible it’s always a good idea to try to
negotiate with the protestor to address the
concerns successfully so the protest may be
withdrawn.
• The rule specifies that there shall be a response to
the protest by TPASS director, but gives no
specific timeframe.
• If the finding is that the protest is valid, and the
contract has already been awarded, the finding
may include an “order” declaring the contract
void.
APPEAL OF INITIAL FINDING
• If the director finds that the protest is not valid, the
protesting party may appeal to the general counsel
of CPA
• The CPA GC may refer the appeal to the “chief
clerk” of CPA (the Deputy Comptroller).
• The appeal must be filed within 10 working days
after TPASS director “sent” the original
determination.
• If forwarded to the Chief Clerk, the determination is
still sent in writing, BUT the decision must also be
announced in an open meeting at the next
meeting of the SPAC.
COMMONE MISTEAKS IN PROSTESTS
• What is “sworn”? Black’s Law Dictionary says it equates
to “verified.” In layman’s terms, it means that the
claimant must swear to the truth of the matters asserted
in its claim. Many filers erroneously conclude that it
means notarized, which is not the same thing.
• NOT COPYING ALL THE PARTIES! Almost no one does this
correctly.
• Not filing the protest on time, OR (more commonly) not
making an argument that explains WHY the protest isn’t
actually late.
• Not making any attempt to cite a rule or law violated.
HOW TO AVOID PROTESTS
• The most obvious is . . . always follow the law and rules
applicable to your procurement. A corollary to that is . . .
always listen to your lawyer’s sage advice.
• Write specifications that are understandable, based on
what you need (and not what you want or what you’re
already buying), and technically defensible.
• Make sure to communicate openly and equally with all
vendors.
• Provide the option of a vendor debrief after the award.
• Work closely with your agency’s Open Records/PIA staff
to make sure vendors receive prompt and through
disclosure of all available materials after the award.
RESPONDING TO “COMPLAINTS”
• Often vendors will “complain” about some aspect
of the procurement process – through email, phone
calls or even letters.
• Much like PIA requests, you need to work with
clients/counsel to determine if the “complaint” is a
protest.
• If a vendor is complaining about the process and
wants to “appeal” or “file a formal complaint” or
similar words, my typical practice is to simply send
them an email link to the protest rules and let them
figure it out for themselves.
QUESTIONS??
David D. Duncan
Deputy General Counsel
Tx. Comptroller of Public Accounts
(512) 463-9482
david.duncan@cpa.state.tx.us