SECTION 134.1. Protests

(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.

Source Note: The provisions of this §134.1 adopted to be effective July 3, 2018, 43 TexReg 4471