(a) A potential contractor may protest a purchase award under the following circumstances:

(1) the purchase award was made under a competitive procurement method and the protestant submitted a bid or proposal that was not selected for the award; or

(2) the purchase or award was a sole source or emergency procurement and the protestant was not awarded the sole source or emergency procurement.

(b) This rule does not apply to:

(1) goods or services purchased pursuant to the Interagency Cooperation Act, Government Code, Chapter 771 or the Interlocal Cooperation Act, Government Code, Chapter 791;

(2) the lease, purchase, or lease-purchase of real property;

(3) provider enrollment agreements;

(4) interstate or international agreement executed in accordance with applicable law;

(5) a service of a public utility; or

(6) goods or services purchased under contracts or processes administered by other state agencies.

(c) The protest must meet the following requirements:

(1) be in writing and received by the Department of State Health Services (DSHS) Contract Oversight and Support Section (COS) within seven calendar days of posting of the award on the Electronic State Business Daily (ESBD);

(2) be limited to matters relating to the protestant's qualifications, the suitability of the goods or services offered by the protestant, or alleged irregularities in the procurement process; and

(3) be signed by the protestant or the protestant's authorized representative and delivered by hand, certified mail return receipt requested, facsimile or other verifiable delivery service.

(d) The protest must contain:

(1) the potential contractor's name and the specific award, including the Request for Proposal number from the ESBD, that is being protested;

(2) the legal and factual basis for the protest with specific supporting information;

(3) when applicable, how the potential contractor alleges the award violated state or federal laws or regulations regarding procurement;

(4) an explanation of the facts in disagreement; and

(5) the subsequent action the protestant is requesting.

(e) DSHS will conduct a protest review as follows:

(1) The protest must be received by the COS within the requisite time frame as stated in subsection (c)(1) of this section. If the protest is not timely received or if it does not contain the required elements, it will not be considered and the protestant will be notified in writing.

(2) The COS will forward the protest to the DSHS Protest Review Committee (PRC) with a copy to the DSHS division that conducted the procurement.

(3) The PRC may, at its sole discretion, request supplemental oral or written information from the protestant or the DSHS division if such information is necessary to evaluate the protest.

(4) The PRC will issue a written determination within 15 working days of receipt of the protest. The determination of the PRC is final.

(f) DSHS will not execute a contract for a purchase that is subject to a protest filed in accordance with this rule until DSHS provides a final written disposition of the protest. The Commissioner of DSHS or his designee may waive this requirement in the case of an award that is required by state or federal law to be completed by a particular date or in the case of a bona fide emergency as determined by the Commissioner or his designee.

(g) This section supersedes §417.60 of this title (relating to Protest and Appeal Procedures).

Source Note: The provisions of this §4.1 adopted to be effective September 10, 2008, 33 TexReg 7519