37 Tex. Admin. Code § 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.
Notes
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