| (a) Purpose. The purpose of this rule is to establish
the process for which actual or prospective bidders, offerors, or
contractors may formally protest an action taken by the Texas Juvenile
Justice Department (TJJD) during the contract process.
(b) Definitions. The following words and terms, when
used in this rule, shall have the following meanings unless the context
clearly indicates otherwise.
(1) Agency--TJJD.
(2) Interested Parties--All vendors who have submitted
bids or proposals for the provision of goods or services pursuant
to a solicitation with TJJD.
(c) General Provisions.
(1) Any actual or prospective bidder, offeror, or contractor
who considers himself/herself to have been aggrieved in connection
with the agency's solicitation, evaluation, or award of a contract
may formally protest to the chief financial officer (CFO) or his/her
designee. Such protests must be made in writing and received in the
office of the CFO within 10 workdays after the protesting party knows,
or should have known, of the occurrence of the action that is protested.
Formal protests must conform to the requirements of this subsection
and subsection (d) of this section and will be resolved through use
of the procedures that are described in subsections (e) - (g) of this
section. The protesting party must mail or deliver copies of the protest
to the agency and other interested parties.
(2) In the event of a timely protest under this rule,
the agency will not proceed further with the solicitation or award
of the contract unless the CFO, after consultation with appropriate
staff, makes a written determination that the contract must be awarded
without delay to protect the best interests of the agency.
(d) Protests. A formal protest must be sworn and contain:
(1) a specific identification of the statutory or regulatory
provision that the protesting party alleges has been violated;
(2) a specific description of each action by the 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) a precise statement of the relevant facts;
(4) a statement of any issues of law or fact that the
protesting party contends must be resolved;
(5) a statement of the argument and authorities that
the protesting party offers in support of the protest; and
(6) a statement that copies of the protest have been
mailed or delivered to the agency and all other identifiable interested
parties.
(e) Resolving Protests.
(1) The CFO or his/her designee may settle and resolve
the dispute over the solicitation or award of a contract at any time
before the matter is submitted on appeal to the agency's general counsel
or his/her designee. The CFO or his/her designee may solicit written
responses to the protest from other interested parties.
(2) If the protest is not resolved by mutual agreement,
the CFO issues a written determination that resolves the protest.
(3) If the CFO or his/her designee determines that
no violation of statutory or regulatory provisions has occurred, then
he/she must inform the protesting party and any other interested parties
by a letter that sets forth the reasons for the determination.
(4) If the CFO or his/her designee determines that
a violation of any statutory or regulatory provisions has occurred
in a situation in which a contract has not been awarded, then he/she
must inform the protesting party and any other interested parties
of that determination by letter that details the reasons for the determination
and the appropriate remedy.
(5) If the CFO or his/her designee determines that
a violation of any statutory or regulatory provisions has occurred
in a situation in which a contract has been awarded, then he/she must
inform the protesting party and any other interested parties of that
determination by a letter that details the reasons for the determination.
This letter may include an order that declares the contract void.
(f) Appealing a Protest.
(1) The protesting party may appeal a determination
of a protest by the CFO or his/her designee to the general counsel
or his/her designee. An appeal of the CFO's determination must be
in writing and be received by the general counsel not later than 10
workdays after the date on which the CFO or his/her designee has sent
written notice of his/her determination. The scope of the appeal will
be limited to reviewing the determination of the CFO or his/her designee.
The protesting party must mail or deliver to the agency and all other
interested parties a copy of the appeal, which must contain a certified
statement that such copies have been provided.
(2) The general counsel or his/her designee may refer
the matter to the executive director for consideration or may issue
a written decision that resolves the protest.
(g) Referral of a Protest to the Executive Director.
The following requirements apply to a protest that the general counsel
or his/her designee refers to the executive director.
(1) The general counsel or his/her designee delivers
copies of the appeal and any responses by interested parties to the
executive director.
(2) The executive director may consider any documents
that agency staff or interested parties have submitted.
(3) A protest or appeal that is not filed timely will
not be considered unless good cause for delay is shown or the executive
director determines that an appeal raises issues that are significant
to agency procurement practices or procedures in general.
(4) A written decision that either the executive director
or the general counsel or his/her designee has issued is the final
administrative action of the agency.
(h) Documentation Requirements. The agency maintains
all documentation on the purchasing process that is the subject of
a protest or appeal in accordance with the agency's retention schedule.
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| Source Note: The provisions of this §385.1109 adopted to be effective July 15, 2011, 36 TexReg 4416; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639; amended to be effective July 15, 2014, 39 TexReg 5440 |
