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RULE §9.7Protest of Contract Practices or Procedures

(a) Application of section. This section provides a general protest process for the award of a contract for which the rules of the commission do not provide a protest process. For the purpose of the application of this section, a rule that merely provides that a protest, appeal, or other type of request for review may be filed, without establishing any other steps that must be satisfied, does not provide a protest process.

(b) Filing of protest.

  (1) A person who is aggrieved in connection with the solicitation, evaluation, or award of a contract to which this section applies may file a written protest. The protest must be received by the executive director not later than the sixth day after the first day that the aggrieved person knows, or should have known, of the action. A protest that is not filed within the six-day period will not be considered.

  (2) A protest must be filed in the manner and at the address for submitting protests specified in the solicitation for the contract. If the solicitation does not provide instructions on how to file a protest, a protest must be sent by United States Mail, overnight delivery, or hand delivery, to: Executive Director, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701. The time and date of filing the protest is determined by the file stamp affixed by the office of the department that received the protest filed in accordance with this paragraph.

(c) Contents of protest. The protest must contain:

  (1) the provision of the statute or rule that the action is alleged to have violated;

  (2) a specific description of the alleged violation;

  (3) a precise statement of the relevant facts;

  (4) the issue to be resolved;

  (5) argument and authorities in support of the protest; and

  (6) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.

(d) Informal resolution. The executive director may refer the protest for alternative dispute resolution under Chapter 1, Subchapter G of this title (relating to Alternative Dispute Resolution). If the protest is resolved by agreement:

  (1) the agreement will be reduced to writing; and

  (2) if the solicitation or the award of the contract has been suspended under subsection (e) of this section, the solicitation or award will resume immediately after the agreement is reached.

(e) Suspension of solicitation or award. If a protest has been filed, the solicitation or the award of the contract will proceed unless the executive director or, if the commission is to decide the protest, the commission, determines that the delay of the solicitation or award of the contract will not substantially harm the interests of the department.

(f) Executive director's recommendation or decision. This subsection applies if the protest is not resolved by agreement. If the commission is to decide the protest, the executive director will deliver to the commission, protesting party, and interested parties identified in the protest a written recommendation for a decision that includes the reasons for the recommendation. If the department, rather than the commission, decides the protest, the executive director will issue a written decision to the protesting party and interested parties identified in the protest that includes reasons for the decision. The executive director may recommend to the commission or may decide, as appropriate, that:

  (1) no violation has occurred;

  (2) a violation has occurred, but remedial action is unnecessary; or

  (3) a violation has occurred and it is necessary to take remedial action that may include:

    (A) declaring the contract void;

    (B) reversing the award; or

    (C) re-advertising the contract using revised specifications.

(g) Commission's decision. If the commission is to decide the protest, in addition to the executive director's recommendation provided under subsection (f) of this section, the commission may consider oral presentations and written documents presented by the department, protesting party, or interested parties. The chair shall set the order and the time allowed for presentations. The commission's decision on the protest will be adopted by order and may be made part of the order awarding the contract that is the subject of the protest.

(h) Authority to make decision on protest. For the purposes of this section, the commission decides a protest if commission rules provide that the commission awards the contract that is the subject of the protest. The executive director decides the protests on other contracts. A decision of the commission or executive director is final and the protest may not be the subject of a contested case.

Source Note: The provisions of this §9.7 adopted to be effective November 15, 2012, 37 TexReg 8977

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