(a) Definitions.
(1) Working days--Monday through Friday, except national
and state holidays as defined by Texas Government Code, §662.003.
When counting working days, do not count the day of the act or event
after which the ten-day period of time begins to run. The last day
of the ten-day period is included in the count, unless the last day
is a Saturday, Sunday, national holiday or state holiday, in which
event the ten-day period runs until the end of the next day which
is not a Saturday, Sunday, national holiday or state holiday.
(2) Interested parties--All contractors who have submitted
bids, offers, responses or proposals for the contract at issue.
(b) Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation, evaluation,
or award of a contract, may formally protest to the chief of the Infrastructure
Operations division. Such protests must be in writing, addressed to
the chief of the Infrastructure Operations division and filed within
ten working days after such aggrieved person knows, or should have
known, of the occurrence of the action which is protested. A protest
is considered filed when received by the chief of the Infrastructure
Operations division. Formal protests must conform to the requirements
herein and shall be resolved in accordance with the procedure set
forth herein. Copies of the protest must be mailed or delivered by
the protesting party to all other identifiable interested parties.
(c) In the event of a timely protest under this section,
the department shall not proceed further with the solicitation or
award of the contract unless the director, after consultation with
the end user, deputy director, and the chief of the Infrastructure
Operations division makes a written determination that the award of
contract without delay is necessary to protect the best interests
of the state.
(d) A formal protest must be sworn and notarized and
must contain:
(1) the name and address of the protestor;
(2) appropriate identification of the procurement;
(3) a specific identification of the statutory or regulatory
provision(s) that the action complained of is alleged to have violated;
(4) a specific description of each act alleged to have
violated the statutory or regulatory provision(s) identified in paragraph
(3) of this subsection;
(5) a precise statement of the relevant facts regarding
the alleged violation of the statutory or regulatory provision(s)
identified in paragraph (3) of this subsection;
(6) an identification of the issue or issues to be
resolved regarding the alleged violation of the statutory or regulatory
provision(s) identified in paragraph (3) of this subsection;
(7) supporting exhibits, evidence or documents to substantiate
the alleged violation of the statutory or regulatory provision(s)
identified in paragraph (3) of this subsection, unless not available
at the time of filing, in which case the expected availability date
shall be indicated;
(8) arguments and authorities in support of the protest;
and
(9) an affidavit which affirms that the contents of
the protest are true and accurate and that copies of the protest have
been mailed or delivered to other identifiable interested parties.
(e) The department will maintain all documentation
regarding the purchase in accordance with the department's applicable
records retention schedule.
(f) The chief of Infrastructure Operations shall have
the authority, prior to appeal to the director, to settle and resolve
a protest concerning the solicitation or award of a contract. The
chief may solicit written responses to the protest from other interested
parties.
(g) If the protest is not resolved by mutual agreement,
the chief will issue a written determination on the protest after
conferring with the deputy director.
(1) If the chief determines that no violation of rules
or statutes has occurred, the chief shall so inform the protesting
party and other interested parties by letter which sets forth the
reasons for the determination.
(2) If the chief determines that a violation of the
rules or statutes has occurred in a case where a contract has not
been awarded, the chief shall so inform the protesting party and other
interested parties by letter which sets forth the reasons for the
determination and the appropriate remedial action.
(3) If the chief determines that a violation of the
rules or statutes has occurred in a case where a contract has been
awarded, the chief shall so inform the protesting party and other
interested parties by letter which sets forth the reasons for the
determination, which may include ordering the contract void.
(h) The chief's determination on a protest may be appealed
by the protesting party to the director. The appeal shall be limited
to review of the chief's determination. Copies of the appeal must
be mailed or delivered by the appealing party to the other interested
parties and must contain an affidavit that such copies have been provided.
An appeal of the chief's determination must be in writing and must
be received in the director's office no later than ten working days
after the protestor's receipt of the chief, Infrastructure Operation's
determination. The protestor is deemed to have received the chief's
determination upon the earliest of the following:
(1) when delivered in hand and a receipt granted;
(2) three days after it is deposited in the United
States mail by regular mail; or
(3) at the time it is sent via electronic mail or facsimile.
(i) The director may confer with the general counsel
in their review of the matter appealed. The director may, in their
discretion, refer the matter to the commission for its consideration
at a regularly scheduled open meeting or issue a written decision
on the protest. A decision issued either by the commission in open
meeting or in writing by the director shall be the final administrative
action of the department.
(j) When a protest has been appealed to the director
under subsection (h) of this section and has been referred to the
commission by the director under subsection (i) of this section, the
requirements detailed in this subsection shall apply:
(1) The director's office shall mail copies of the
appeal and responses of interested parties, if any, to the commissioners.
(2) All interested parties who wish to make an oral
presentation at the open meeting shall notify the director at least
48 hours in advance of the open meeting.
(3) The commission may consider oral presentations
and written documents presented by staff and interested parties. The
chairman of the commission shall set the order and amount of time
allowed for presentations.
(4) The commission's determination of the appeal shall
be by duly adopted resolution reflected in the minutes of the open
meeting and shall be final.
(k) Unless good cause for delay is shown or the department
determines that a protest or appeal raises issues significant to procurement
practices or procedures, a protest or appeal that is not timely filed
will not be considered.
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