| (a) The following words and terms, when used in this
section, shall have the following meaning unless the context clearly
indicates otherwise.
(1) Texas Military Department (TMD), an agency of the
state.
(2) Procurement Director - procurement director of
TMD.
(3) Executive Director - executive director and administrative
head of the TMD.
(4) Interested Parties - All vendors who have submitted
bids, proposals or other expressions of interest for the provision
of goods or services pursuant to a contract with Statewide Procurement
Division of the comptroller's office.
(b) Any actual or prospective bidder, offeror, or contractor
who considers himself to have been aggrieved in connection with the
solicitation, evaluation, or award of a contract by TMD may formally
protest to the procurement director of TMD. Such protests must be
made in writing and received by the procurement director within 10
working days 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 subsections (b) and (d) of this
section, and shall be resolved through use of the procedures that
are described in subsections (c) - (i) of this section. The protesting
party must mail or deliver copies of the protest to the using agency
and other interested parties.
(c) In the event of a timely protest under this section,
TMD shall not proceed further with the solicitation or award of the
contract unless procurement director of TMD makes a written determination
that the contract must be awarded without delay, to protect the best
interests of the state.
(d) 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 TMD 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; and
(5) a statement of the argument and authorities that
the protesting party offers in support of the protest;
(e) The procurement director of TMD 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 Executive
Director of TMD. The procurement director of TMD may solicit written
responses to the protest from other interested parties.
(f) If the protest is not resolved by mutual agreement,
the procurement director of TMD shall issue a written determination
that resolves the protest.
(1) If the procurement director TMD determines that
no violation of statutory or regulatory provisions has occurred, then
the procurement director of TMD shall inform the protesting party
by letter that sets forth the reasons for the determination.
(2) If the procurement director of TMD determines that
a violation of any statutory or regulatory provisions has occurred
in a situation in which a contract has not been awarded, then the
procurement director of TMD shall inform the protesting party of that
determination by letter that details the reasons for the determination
and the appropriate remedy.
(3) If the procurement director of TMD determines that
a violation of any statutory or regulatory provisions has occurred
in a situation in which a contract has been awarded, the procurement
director of TMD shall inform the protesting party of that determination
by letter that details the reasons for the determination. This letter
may include an order that declares the previously awarded contract
void.
(g) The protesting party may appeal a determination
of a protest by the procurement director of TMD to the executive director
of TMD. An appeal of the procurement director's determination must
be in writing and received by TMD not later than 10 working days after
the date on which the procurement director has sent written notice
of their determination. The scope of the appeal shall be limited to
review of the procurement director's determination.
(1) The executive director shall issue a written letter
of determination of the appeal to the parties which shall be final.
(2) A protest or appeal that is not filed timely shall
not be considered unless good cause for delay is shown or the appeal
raises issues that are significant to agency procurement practices
or procedures in general.
(3) A written decision by the procurement director
shall be the final administrative action of TMD unless appealed to
the executive director. In the case of appeal, the executive director's
decision will serve as the final administrative action of TMD.
(h) TMD shall maintain all documentation on the purchasing
process that is the subject of a protest or appeal in accordance with
the retention schedule of TMD.
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