TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 1. GENERAL PROCEDURES

SUBCHAPTER Q. PURCHASING PROTEST [OF CONTRACT AWARDS OR AGENCY PROCUREMENT] PROCEDURES

4 TAC §§1.1100 - 1.1105

The Texas Department of Agriculture (Department) proposes amendments to 4 TAC §1.1100, concerning Definitions; §1.1101, concerning Filing a Protest; Effect; §1.1102, concerning Disposition of Protests by the Responsible Individual; §1.1103, concerning Appeal; §1.1104, concerning Recordkeeping; and §1.1105, concerning Applicability of Subchapter. The Department identified the need for the proposed amendments during its rule review conducted pursuant to Texas Government Code §2001.039, the adoption for which can be found in the Review of Agency Rules section of this issue.

The proposed amendments to §1.1100 update and clarify the definition of Responsible Individual based on current Department functional job title and organizational structure and remove definitions that duplicate those already found in 4 TAC §1.1, which apply to all of Title 4, Part 1.

The proposed amendments to §1.1101 provide additional information concerning Department procedures related to the submission and processing of protests to the Department and make editorial changes for clarity.

The proposed amendments to §1.1102 further clarify language addressing how protests are handled through use of a defined term and correcting grammatical errors and make editorial changes.

The proposed amendment to §1.1103 reflects nonsubstantive edits by removing a redundant word and referencing a defined term accurately.

The proposed amendments to §1.1104 further reflects nonsubstantive edits by correctly referencing a defined term.

The proposed amendments to §1.1105 make an editorial change to utilize a defined term.

Ms. Kelly Parker, Procurement and Contract Director, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or local governments as a result of enforcing or administering the rules.

Ms. Parker has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit will be improved readability and clarity of the rules.

Ms. Parker has determined there are no anticipated economic costs to persons required to comply with the proposed amendments.

Ms. Parker has provided the following government growth impact statement, as required pursuant to Texas Government Code, §2001.0221. During the first five years the proposed amendments are in effect:

(1) no government programs will be created or eliminated;

(2) no employee positions will be created or eliminated;

(3) there will be no increase or decrease in future legislative appropriations to the Department;

(4) there will be no increase or decrease in fees paid to the Department;

(5) no new regulations will be created by the proposal;

(6) there will be no expansion, limitation, or repeal of existing regulation;

(7) there will be no increase or decrease in the number of individuals subject to the rules; and

(8) there will be no positive or adverse effect on the Texas economy.

The Department has determined the proposed rules will not affect a local economy within the meaning of Government Code §2001.022 and will not have an adverse economic effect on small businesses, micro-businesses, or rural communities.

Written comments on the proposal may be submitted to Mr. Skyler Shafer, Assistant General Counsel, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to: Skyler.Shafer@TexasAgriculture.gov. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.

The amendments are proposed pursuant to Section 2155.076 of the Texas Government Code, which provides that all state agencies, including the Department, must adopt procedures for vendor protests of purchasing issues; and Section 12.016 of the Texas Agriculture Code, which authorizes the Department to adopt rules as necessary for the administration of its powers and duties.

The code affected by the proposal is Texas Government Code, Chapter 2155 and Texas Agriculture Code, Chapter 12.

§1.1100.Definitions.

The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise.

[(1) Agency--The Texas Department of Agriculture.]

[(2) Commissioner--The Commissioner of the Texas Department of Agriculture.]

(1) [(3)] Deputy Commissioner--The Deputy Commissioner of the Texas Department of Agriculture.

(2) [(4)] Interested Parties--All vendors who have submitted bids or proposals for the provision of goods or services to the Texas Department of Agriculture.

(3) [(5)] Office of General Counsel--The Office of the General Counsel for the Texas Department of Agriculture.

(4) [(6)] Responsible Individual--The Procurement and Contract Director (Director) [Chief Administrator ] or equivalent person who is [for the agency division] responsible for the supervision of procurement and purchasing staff, or, only in the event of an absence of the Director [Chief Administrator] or equivalent person from work as a result of death, disability, incapacity or illness, the person designated by the [Chief Administrator or the] Deputy Commissioner, in consultation with the Chief Financial Officer, to review and make a determination on the protest, as applicable.

§1.1101.Filing a Protest; Effect.

(a) Any actual or prospective bidder, offeror, or contractor who asserts or complains of improper process or a procedural defect in connection with the Department's [agency's] solicitation, evaluation, or award of a contract may file a formal protest with the Responsible Individual [for the division, subdivision or office that is responsible for the procurement].

(b) A formal protest must be made in writing and received by the Responsible Individual within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested.

(c) Formal protests must conform to the requirements of this subchapter, and will be resolved through use of the procedures that are described in this subchapter. The protesting party must mail or deliver copies of the protest to the Department [agency ] and other interested parties. Protests may be mailed to Texas Department of Agriculture, Attn: Procurement & Contract Director, P.O. Box 12847, Austin, TX 78711, or delivered to the Department's headquarters at 1700 N. Congress Ave, 11th Floor, Austin, TX 78701.

(d) In the event of a timely protest under this section, the Responsible Individual will notify the Chief Financial Officer, General Counsel, and Deputy Commissioner of receipt of a protest under this subchapter. The Department [agency] will suspend further processing of [process with] the solicitation or award of the contract that forms the basis of the protest unless the Commissioner or Deputy Commissioner, in consultation with the using division and Office of General Counsel, makes a written determination that the contract must be awarded without delay, to protect the best interests of the Department [agency].

(e) A formal protest must be sworn and contain:

(1) (No change.)

(2) a specific description of each action by the Department [agency] that the protesting party alleges to be a violation of the statutory or regulatory provision that the protesting party has identified pursuant to paragraph (1) of this subsection;

(3) - (5) (No change.)

(6) a statement that copies of the protest have been mailed or delivered to [the agency and] all other identifiable interested parties.

(f) Absent [Unless the Commissioner or Deputy Commissioner makes] a written determination under subsection (d) of this section [that the contract must be awarded without delay as authorized by this section], the Department [Agency] may not proceed with the solicitation or award of the [and] contract until the protest is denied or resolved by mutual written agreement [favorably to the Agency].

§1.1102.Disposition of Protests by the Responsible Individual.

(a) Upon receipt of a timely protest that conforms with this subchapter, the Responsible Individual [of the division or office that is responsible for the procurement] will review the protest. The Responsible Individual may request written responses to the protest from any staff of the Department [agency] and may request from the Department [agency] staff any and all documents related to the protest. The Responsible Individual may solicit written responses to the protest from other interested [interest] parties.

(b) (No change.)

(c) If the protest is not resolved by mutual written agreement, the Responsible Individual shall issue a written determination regarding the protest within thirty (30) calendar days of receipt of a timely protest that conforms with this subchapter[, issue a written determination regarding the protest]. The Responsible Individual shall consult with the Chief [Office of General Counsel and the agency's] Financial Officer and the Office of General Counsel [Services Division] prior to issuing a written determination on the protest.

(d) The Responsible Individual shall inform the protesting party, Deputy Commissioner [the agency], and other interested parties of the written determination, denying or sustaining the protest, in whole or in part, setting forth the reasons for the determination. The written determination may set forth any appropriate remedial action, including a decision that:

(1) requires all or any portion of the solicitation or award of the contract to be rebid or repurchased;

(2) - (3) (No change.)

(e) A protest [or appeal] that is not timely filed with the Responsible Individual will not be considered unless good cause for delay is shown and the Commissioner or Deputy Commissioner, in consultation with the Office of General Counsel, determines that the protest raises issues that are significant to Department [agency] procurement practices or procedures in general.

(f) Unless a protesting party or interested party timely files an appeal pursuant to §1.1103 of this subchapter (relating to Appeal), the [final] written determination of the Responsible Individual is the final administrative action of the Department [agency].

§1.1103.Appeal.

(a) A protesting party who is not satisfied with the determination of the Responsible Individual may appeal the determination to the Commissioner or, upon the Commissioner's delegation, to the Deputy Commissioner. The appeal [request] must be submitted in writing and received by the Commissioner's office no later than ten working days after the date of the Responsible Individual's determination. If an appeal [a request] is not timely submitted as provided under this subsection, the written determination of the Responsible Individual is the final administrative action of the Department [there shall be no further action taken by the Commissioner or Deputy Commissioner on the protest].

(b) Upon receipt of a timely appeal that conforms with the requirements of this subchapter, the Commissioner or Deputy Commissioner may designate an employee of the Department [agency] to review the protest, the determination made by the Responsible Individual, and the appeal of the Responsible Individual's determination. The designee will prepare and submit to the Commissioner or Deputy Commissioner a written recommendation regarding the appeal within five working days of the designation.

(c) In making a final determination, the Commissioner or Deputy Commissioner will consider only the [final] written determination of the Responsible Individual, those materials or pleadings submitted to the Responsible Individual, and, if applicable, the written recommendation made by a designated employee. No further arguments, authorities, documents, or pleadings shall be filed with the Commissioner or Deputy Commissioner.

(d) The Commissioner or Deputy Commissioner will issue a final written determination of the appeal, denying or sustaining the protest, in whole or in part, which shall be the final administrative action of the Department [agency].

§1.1104.Recordkeeping.

The Department [agency] will maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the Department's records [agency's document] retention schedule.

§1.1105.Applicability of Subchapter.

This subchapter does not apply to grant awards made by the Department [agency], or any grant programs administered by the Department [agency].

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 4, 2022.

TRD-202202902

Skyler Shafer

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: September 18, 2022

For further information, please call: (512) 936-9360