By John K. Edwards

Texas is commonly portrayed as business-friendly, offering many tax advantages and other economic benefits to incentivize companies to do business in the Lone Star State. Yet, when it comes to protecting businesses from arbitrary and capricious decisions by state agencies when public contracts are awarded, Texas stumbles.

This article explores a significant procedural trap in agency rules that allows bid protest decisions to be made without disclosure of the underlying record upon which the decision is based, effectively denying protest rights to bidders.^[1] Given the broad range of statewide agency procurements,^[2] the focus here will be on procurement for services by the largest state agency, the Texas Health and Human Services Commission (“HHSC”). While HHSC is used as an exemplar case study, the same procedural trap that ensnares protestants^[3] is often sprung by other agencies governed by the same or similar procedural framework.^[4] Statutory and rule reforms are recommended to ensure that protestants are treated fairly and not handicapped by being deprived of a factual record in challenging contract awards.

I. Procurement and Protest Framework

State agency procurements are generally governed by the Texas Government Code (“Gov’t Code”),^[5] which is premised on fair competitive bidding to ensure “best value” outcomes for the state.^[6] Specific agency rules are set forth in the Texas Administrative Code (“TAC”).^[7] Agency authority and obligations are derived from each of these sources, depending on the subject matter of the procurement and legislative delegation.

The Gov’t Code requires that all agencies make contract awards “to the bidder offering the best value,” consistent with the evaluation criteria set forth in the solicitation.^[8] Rules applicable to HHSC reinforce that procurements are designed to “obtain best value” in order to “better serve Texas residents and businesses.”^[9] More generally, the purpose of HHSC procurement rules is to “provide transparency to the public, the legislature, state agencies, and vendors on the procedures followed by HHSC procurement personnel.”^[10] The use of unannounced criteria, improper weighting of factors deviating from specifications, and inconsistent evaluation and scoring violate the “best value” standard—bids must be evaluated in a fair, impartial, and objective manner.^[11] When solicitations for contracts are issued, whether in the form of a Request for Proposal, Request for Bid, or other authorized procurement, the solicitation documents will typically incorporate provisions of the Gov’t Code and/or TAC to ensure compliance with Texas law.

Contract award notifications by HHSC are governed by TAC § 391.219, which provides that a “contract will be awarded that provides best value to the state and a notice of award will be posted in accordance with Texas Government Code § 2155.083.” The TAC permits HHSC to issue a “Notice of Intent to Award” before notice of an actual contract award, which is important for bid protest deadlines.^[12] As required by the Gov’t Code, the TAC includes mandatory bid protest procedures that allow vendors seeking state agency contracts to challenge contract award decisions.^[13] These procedures exist to promote competition and protect the procurement process from intentional or inadvertent error and bias.^[14]

For HHSC, the protest deadline is set forth in TAC § 391.305(a)(2), which is “no later than 10 business days after the notice of intent to award or, in the event of no notice of intent to award, after the notice of award, if the protest concerns the evaluation or award.” A protest is required to meet the following requirements:

1. a specific identification of the statutory or regulatory provision that the protestant alleges has been violated;
2. a specific description of each act alleged to have violated the statutory or regulatory provision identified in the protest;
3. a precise statement of the relevant facts, including sufficient documentation that the protest has been timely filed and a description of the resulting adverse impact to the protestant;
4. a statement of any issues of law or fact that the protestant contends must be resolved; and
5. a statement of the argument and authorities that the protestant offers in support of the protest.^[15]

Protests are reviewed and decided by the HHSC Deputy Executive Commissioner of Procurement and Contracting Services, with no required deadline for decision.^[16] An adverse decision may then be appealed within ten business days to the HHSC Executive Commissioner, with no deadline for the appeals decision.^[17]

II. Interplay of the Texas Public Information Act

It is readily apparent that protestants must have access to the procurement file to ensure that all protest filing requirements of TAC § 391.305 are satisfied. It is, after all, difficult to provide a “precise statement of the relevant facts” when access to the facts is denied. Thus, once notification of a contract decision has been made, the first step for any bidder seeking to protest the decision is to submit a Texas Public Information Act (“PIA”) request to the agency to obtain a copy of the procurement file. The submission of the PIA request triggers certain deadlines—if the agency decides to request an Attorney General (“AG”) opinion to determine whether some or all of the requested information must be disclosed, it must submit the request within ten business days of the request (absent seeking a clarification from the requestor).^[18] The AG has forty-five business days from receipt of the request to issue an opinion.^[19] As discussed below in identifying the trap set for protestants, this AG decision timetable far exceeds the ten-business-day deadline for filing a protest after agency notification of an award decision.

The Texas Supreme Court has recognized that access to government information promotes accountability.^[20] To advance the interests of accountability, the Texas Legislature has declared the PIA’s governing principle in unmistakable terms: “It is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials.”^[21] Information held by a governmental body is presumed public unless an agency can clearly demonstrate that a specific statutory exception applies.^[22] The PIA “is liberally construed in favor of granting a request for information, and the exceptions to disclosure are narrowly construed.”^[23] Thus, when the procurement file is sought by a bidder, an agency bears the burden to establish an exception under the PIA to withhold documents within the scope of the PIA request—each PIA exception asserted must be proven by “specific factual evidence.”^[24]

Notably, the PIA expressly requires disclosure of “contracting information,” which includes “offer terms or their functional equivalent,” such as price and description of items or services to be delivered.^[25] There is no explicit exception under the PIA to bar disclosure of an agency’s procurement file during a bid protest. Accordingly, agencies often attempt to shoehorn the procurement file into an exception for information related to competition or bidding where disclosure may harm the interests of the agency by giving a competitive advantage to a bidder in an ongoing competitive situation (or one “set to reoccur”).^[26] However, any alleged harm to the agency by release of the procurement file during a contract award challenge is manufactured and illusory.^[27] Even if some limited bidder-submitted information may be subject to this exception, it clearly does not broadly apply indiscriminately to agency-generated evaluative material that does not include competitively advantageous bidder information.

III. The Trap: Protest Decisions Without a Disclosed Record

Neither the Gov’t Code nor the TAC require that HHSC make any part of the procurement file available to a protestant, much less before the protest deadline. It should come as no surprise that an increasingly common practice is for agencies, including HHSC, to decide contract award challenges before releasing the underlying bid evaluation records. Agency rules implicitly permit withholding of the entire procurement record, ostensibly to protect “confidential” information, allowing the agency to seek an AG opinion. But even if some sensitive bidder information might be protected, recognized exceptions clearly do not allow all evaluation and scoring materials created by the agency to be withheld.^[28] These materials are essential to preparing and evaluating any challenge to a contract award.

Meanwhile, the agency may assert that, because the procurement remains “open” until contract execution, all evaluation notes, scoring records, and deliberative materials must be withheld until an AG opinion is rendered. In many cases, agencies submit sweeping requests for opinion to the AG that cover virtually the entire procurement file without distinguishing among categories of records. For example, agencies will claim evaluative materials and scoring details may be “confidential,” with no explanation of how that is so and no factual showing to support the claim. While bidders may assert an exemption to disclosure for certain of their own confidential materials, agencies can require submission of redacted versions of bids so they can be promptly released. Meanwhile, the AG opinion process often stretches for several months; during that time, protest deadlines expire and decisions are issued based on materials the protestant has never seen.

The consequence is a procedural trap: protestants must blindly make their case and are then faulted for failing to establish “how” procurement rules were violated, a failure solely caused by the agency withholding documents that are essential to reveal procedural or substantive errors. This presents a significant, and ultimately outcome-determinative, issue of procedural fairness—protestants are at the mercy of agencies when denied access to the factual record, which in turn denies them the right to be heard and eviscerates the values of transparency and competition that undergird public contracting.^[29]

This is not a purely hypothetical dilemma. I recently experienced this problem firsthand while representing a client in a bid protest challenge where the agency issued a notice of intent to award a contract to the client’s competitor. Promptly upon receipt of the notice, the client submitted a PIA request for the procurement file. The agency responded that the request was premature because the competition was still “open” since an award of the contract (including negotiation and execution) had not occurred. Yet, the agency declined to extend the protest deadline or allow the protest to be amended before a decision was made on the protest. Without a record to support the protest, the agency predictably determined that an insufficient factual basis was presented to sustain the protest. The decision was sustained on administrative appeal, concluding an illusory remedial process that wasted agency and client time, money, and resources.

This outcome is untenable. Timely access to the evaluation record is essential because the odds of a successful protest rise or fall based on what the record reveals, including whether evaluators correctly applied published evaluation and scoring criteria; evaluations were internally consistent; bids were evaluated in a similar manner; scores were equitably and fairly awarded; internal and external discussions were fairly conducted; and decisions were untainted by disparate evaluations or bias of any kind. Depriving a protestant of timely access to the evaluation record makes it virtually impossible to allege, much less substantiate, specific violations of Texas law as required. In short, when agencies routinely deny protests for lack of evidence (shield), the absence of disclosure is used against the protestant (sword). As a result, the current right to protest in Texas exists only in form but not in substance.

IV. The Trap Erodes Public Confidence and Diminishes Competition

Texas has long recognized that competitive bidding statutes and rules aim to place vendors “upon the same plane of equality” and to stimulate competition, prevent favoritism, and secure the best product at the lowest price.^[30] Those goals are inseparable from transparency and basic procedural fairness. In formal administrative settings, due process requires a full and fair opportunity to be heard, which includes the right to know the evidence on which the agency relies and to respond to it.^[31] An agency that decides a protest based on undisclosed materials deprives the protestant of a fair opportunity to be heard, frustrating the very purpose of the protest mechanism as a check on public contracting decisions and procurement irregularities. This ultimately diminishes fair and open competition, leaving businesses wondering whether bidding for public contracts is worth it.

The legislative framework, agency rules, and resulting practice also impose significant costs on the state. Vendors who perceive that protests are futile will be less likely to invest in competing for state contracts, particularly in complex procurements where evaluation criteria are multifaceted and scoring is highly determinative. The absence of a fair protest process reduces accountability and invites error, bias, or inadvertent rule violations to go uncorrected. Over time, diminished transparency and ineffective remedies erode confidence in state procurements, discouraging high-quality vendors from seeking agency contracts and undermining best value outcomes.

V. A Path Forward: Restoring Fairness and Transparency

The Texas Legislature and/or individual agencies should enact the following six targeted reforms to restore fairness and transparency in procurement protests, thus remedying current structural defects while upholding legitimate confidentiality interests.

1. Require bidders to submit redacted versions of bids so they can be promptly released pursuant to a PIA request. While such redactions are often solicited, doing so is not uniform nor required by law. Only information expressly deemed confidential under the PIA should be the subject of redactions. If a bidder claims confidentiality for information not properly within the scope of a statutory PIA exemption, the claim should be deemed waived.
2. Require agencies to timely release both evaluation records and redacted bids prior to the protest deadline and certainly before any decision. Evaluation records would include individual evaluator comments, notes, and scoring sheets; consolidated score reports; narrative or summary reports; records of oral presentations and discussions; and all communications materially affecting evaluation and scoring. Agencies should be permitted to redact personal identifiers or proprietary information consistent with PIA exemptions, but documents reflecting the substance of the evaluation and scoring must be sufficiently disclosed to enable a bidder to submit a meaningful protest compliant with TAC requirements.
3. Require tolling protest deadlines until evaluation records and redacted bids are produced. Any protest period triggered by a notification of intent to award or actual contract award should be automatically tolled from the date a timely PIA request is submitted until the date the agency produces responsive evaluation records and redacted bids. This preserves the protestant’s ability to amend and supplement protest grounds based on the disclosed materials.
4. Prohibit protest decisions before the full record is produced. Agencies must be barred from issuing protest determinations until the record is produced and a reasonable amendment window has elapsed. A short, defined period—e.g., ten business days—after production of the record to allow for amendments, followed by a reasonable decision timeline, would suffice.
5. Clarify that agency evaluation materials are not categorically exempt as “confidential” or “deliberative” under the PIA. Agencies should be required to make document-specific determinations and then seek an AG opinion only for identified documents with articulated exemption claims, supported by factual evidence. The blanket withholding of entire categories of agency records must be prohibited.
6. Standardize remedies for noncompliance. For example, if an agency fails to timely produce its evaluation records and redacted bids, or decides a protest prematurely, any protest denial or dismissal should be deemed void with a reopening of the protest window.

VI. Conclusion

A meaningful ability to protest procurement decisions acts as an important safeguard to ensure transparent and fair competitive bidding. However, the ability to effectively protest many state agency contract awards is effectively denied by the current legislative and procedural framework in Texas that allows agencies to issue protest decisions before disclosure of relevant agency records. A protest should never be decided based on withheld records while protestants wait for public information that never arrives in time to be considered.

The Texas Legislature and/or agencies themselves should modernize the procurement framework to ensure that protest rights can be exercised in a meaningful way. This can be accomplished by requiring prompt disclosure of evaluation records and redacted bids, tolling deadlines until disclosure occurs, preventing premature decisions, and calibrating confidentiality protections to preserve transparency of the evaluative basis of agency decisions. These reforms will restore fairness, ensure transparency, enhance public confidence, and improve best value outcomes across state procurements.

[1] Agency compliance with protest procedures is mandated by state law. Constitutional due process principles have historically found little, if any, application to contract award and protest decisions.

[2] While there are many common practices, procurement processes vary across state agencies based on applicable statutes and administrative rules. Generally, statutes control over administrative rules, and agency-specific statutes prevail over general statutes when addressing the same subject matter. Construction and professional services procurements are governed by specialized statutory schemes. Comptroller procurement rules apply only where purchasing authority has been delegated.

[3] The term “protestant” is used here, consistent with Texas statutes and rules, to describe the filer of a bid protest, although “protestor” or “protester” are alternatively used in some instances (particularly in federal procurements).

[4] These include, among others: Texas Comptroller of Public Accounts (34 Tex. Admin. Code § 20.535(b)(3)); Texas Department of Transportation (43 Tex. Admin. Code § 9.3(c)(1)); Texas Department of Information Resources (1 Tex. Admin. Code § 201.1); Texas Education Agency (19 Tex. Admin. Code § 30.2002); Teacher Retirement System of Texas (34 Tex. Admin. Code § 41.2(e)(2)(B)). The Texas Comptroller of Public Accounts’ Statewide Procurement Division (“SPD”) is the central authority for procurement guidance, and its Director serves as the Chief Procurement Officer for the state. For agency guidance, the SPD publishes the State of Texas Procurement and Contract Management Guide, v. 4.0 (2025).

[5] See Tex. Gov’t Code § 2151.001 et seq. (State Purchasing and General Services Act). This Act sets forth requirements for each state agency to develop and adopt bid protest procedures. See id. § 2155.076.

[6] See id. § 2155.074; see also State of Texas Procurement and Contract Management Guide, v. 4.0 (2025), at 13 (Vendor Selection).

[7] The TAC, created by the Texas Legislature in 1977, is a compilation of all state agency rules. The core procurement rules for HHSC are set forth at Chapter 391 of the TAC.

[8] See Tex. Gov’t Code § 2155.074.

[9] See Tex. Admin. Code § 391.101.

[10] See id.

[11] State of Texas Procurement and Contract Management Guide, v. 4.0 (2025), at 13, 74.

[12] See Tex. Admin. Code § 391.305.

[13] Most solicitations are in the form of a Request for Proposal, used for procuring services, or an Invitation for Bid, used for procuring goods. See id. § 391.207 & § 391.209.

[14] See State of Texas Procurement and Contract Management Guide, v. 4.0 (2025), at 372 (requiring that agencies conduct bid evaluations in a fair and impartial manner consistent with Texas law).

[15] See Tex. Admin. Code § 391.305.

[16] Id. § 391.308.

[17] Id.

[18] Tex. Gov’t Code § 552.301(a), (d).

[19] Id. § 552.306(a).

[20] Tex. Comptroller of Pub. Accts. v. Att’y Gen., 354 S.W.3d 336, 347 (Tex. 2010).

[21] Tex. Gov’t Code § 552.001(a).

[22] See id. §§ 552.301–.302.

[23] City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); see also Tex. Comptroller of Pub. Accts. v. Att’y Gen., 354 S.W.3d 336, 342 (Tex. 2010) (noting the Act’s strong presumption in favor of transparency). 

[24] Tex. Gov’t Code § 552.1101(a).

[25] Id. § 552.0222(a)(3).

[26] Id. § 552.104(a).

[27] See Boeing Co. v. Paxton, 466 S.W.3d 831 (Tex. 2015) (once competition has effectively concluded with an award, the rationale for competitive harm diminishes); Tex. Att’y Gen. ORD No. 541 (1990) (exception for competition or bidding no longer applies once a contract is awarded or a selection decision is made).

[28] See Tex. Gov’t Code § 552.101 et seq.

[29] HHSC, like other agencies, does not consider a bid protest to be a contested case under the Texas Administrative Procedure Act. See Tex. Admin. Code § 391.303(d).

[30] See Texas Highway Comm’n v. Texas Ass’n of Steel Importers, Inc., 372 S.W.2d 525, 529–30 (Tex. 1963); Sterrett v. Bell, 240 S.W.2d 516, 520 (Tex. App.—Dallas 1951, no writ).

[31] Texas Health Facilities Comm’n v. Charter Medical–Dallas, Inc., 665 S.W.2d 446, 454 (Tex. 1984); see also Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 803 (Tex. App.—Austin 2008, no pet.) (agency action invalid where party was denied required procedural protections).

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance, please contact John K. Edwards.

Meet John

John K. Edwards is a Houston-based trial lawyer focused on free speech rights under the First Amendment, media and entertainment, complex commercial and employment disputes, and government procurement. He regularly counsels and represents companies seeking contracts with Texas state agencies, including filing or responding to bid protest challenges to contract awards.