| (a) Purpose. The purpose of this rule is to provide
a protest procedure to be used by an actual or prospective bidder,
offeror, or contractor who is aggrieved in connection with the solicitation,
evaluation, or award of a contract by the Texas Department of Criminal
Justice (TDCJ).
(b) Definitions. The words and terms used in this rule
shall have the following meanings unless the context clearly indicates
otherwise:
(1) "Interested Parties" are all vendors who have submitted
bids, proposals, or other expressions of interest for the provision
of goods or services pursuant to a contract with the TDCJ.
(2) "Protesting Party" is any actual or prospective
bidder, offeror, or contractor who claims to be aggrieved in connection
with the solicitation, evaluation, or award of a contract by the TDCJ.
(c) Formal Protest. Any actual or prospective bidder,
offeror, or contractor who is aggrieved in connection with the solicitation,
evaluation, or award of a contract by the TDCJ may formally protest
to the director of the Contracts and Procurement Department (director).
(1) A formal protest must be made in writing and received
by the director within 10 business days after the protesting party
knows, or should have known, of the occurrence of the action that
is protested. A formal protest shall conform to the requirements of
subsections (c) - (e) of this rule, and the protest and any subsequent
appeal shall be resolved through use of the procedures that are described
in subsections (f) - (h) of this rule.
(2) The protesting party must mail or deliver a copy
of the formal protest to all other interested parties. Upon request,
the TDCJ shall furnish to the protesting party a list of interested
parties, as reflected in the records of the TDCJ's Contracts and Procurement
Department.
(d) Formal Protest Requirements. A formal protest submitted
by a protesting party must be sworn to and contain the following:
(1) A specific identification of the statutory, regulatory,
or other provision(s) the protesting party alleges has been violated;
(2) A specific description of each action by the TDCJ
the protesting party alleges to be a violation of the statutory or
regulatory provision(s) the protesting party has identified pursuant
to paragraph (1) of this subsection;
(3) A precise statement of the relevant facts;
(4) Identification of the issue or issues to be resolved;
(5) The arguments and authorities that support the
protest;
(6) A statement that a copy of the protest has been
mailed or delivered to all other interested parties; and
(7) A copy of the letter the protesting party has sent
to all other interested parties and the names and addresses of the
specific persons to whom the letters were sent.
(e) Timeliness of Formal Protest.
(1) In the event of a timely formal protest under this
rule, the TDCJ shall not proceed further with the solicitation or
award of the contract being protested unless the chief financial officer
(CFO), after consultation with the director, makes a written determination
that to protect the best interests of the TDCJ, the contract must
be awarded without delay.
(2) A protest or an appeal that is filed untimely shall
not be considered unless the CFO determines that good cause for delay
is shown or that a protest or an appeal raises issues that are significant
to TDCJ procurement practices or procedures in general.
(f) Director's Authority to Settle the Protest.
(1) If a conflict of interest exists with the director
or the CFO, the duties of the director or the CFO shall transfer to
the deputy executive director.
(2) The director shall have the authority to settle
and resolve the protest concerning the solicitation, evaluation, or
award of a contract. The director may solicit written responses to
the protest from other interested parties.
(3) If the protest is not resolved through mutual agreement,
the director shall issue a written determination responding to the
protest.
(A) If the director determines no material violation
of statutory or regulatory provisions has occurred, the director shall
notify the protesting party and all other interested parties by sending
a letter explaining the reasons for the determination.
(B) If the director determines a material violation
of statutory or regulatory provisions has occurred in a situation
in which a contract has not yet been awarded, the director shall notify
the protesting party and all other interested parties by sending a
letter explaining the reasons for the determination and the appropriate
remedy.
(C) If the director determines a material violation
of any statutory or regulatory provisions has occurred in a situation
in which a contract has already been awarded, the director shall notify
the protesting party and all other interested parties by sending a
letter that explains the reasons for the determination. This letter
may include an order declaring the existing contract void.
(g) Appeal. A protesting party who is not satisfied
with the director's determination of a protest may appeal the determination
to the CFO.
(1) An appeal of the director's determination must
be in writing and received in the CFO's office no later than 10 business
days after the date on which the director sent written notice of the
determination. The scope of the protesting party's appeal shall be
limited to a review of the director's determination.
(2) The protesting party must mail or deliver a copy
of the appeal to all other interested parties.
(3) The appeal must contain the following:
(A) A statement that a copy of the appeal has been
mailed or delivered to all other interested parties; and
(B) A copy of the letter the protesting party has sent
to all other interested parties and the names and addresses of the
specific persons to whom the letters were sent.
(h) CFO's Determination of the Appeal.
(1) The CFO may consider any documents TDCJ staff or
any interested party has submitted.
(2) The CFO's determination of the appeal shall be
final. The CFO shall issue a written letter of determination to the
protesting party and all other interested parties.
(3) A written determination issued by the CFO shall
be the final administrative action of the TDCJ concerning a formal
protest.
(i) The Contracts and Procurement Department shall
maintain all documentation on the purchasing process that is the subject
of a protest or appeal in accordance with the TDCJ Records Retention Schedule.
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