1. (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 or agency).

2. (b) Definitions. The words and terms used in this rule shall have the following meanings unless the context clearly indicates otherwise:

   1. (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. (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.

3. (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 agency may formally protest to the director of the Contracts and Procurement Department (director).

   1. (1) A formal protest must be made in writing and received by the director within 10 working 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. (2) The protesting party must mail or deliver a copy of the formal protest to all other interested parties. Upon request, the agency shall furnish to the protesting party a list of interested parties, as reflected in the records of the agency's Contracts and Procurement Department.

4. (d) Formal Protest Requirements. A formal protest submitted by a protesting party must be sworn to and contain the following:

   1. (1) A specific identification of the statutory, regulatory or other provision(s) the protesting party alleges has been violated;
   2. (2) A specific description of each action by the agency 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. (3) A precise statement of the relevant facts;
   4. (4) Identification of the issue or issues to be resolved;
   5. (5) The arguments and authorities that support the protest;
   6. (6) A statement that a copy of the protest has been mailed or delivered to all other interested parties; and
   7. (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.

5. (e) Timeliness of Formal Protest.

   1. (1) In the event of a timely formal protest under this rule, the agency 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 agency, the contract must be awarded without delay.
   2. (2) A protest or an appeal that is untimely filed 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 agency procurement practices or procedures in general.

6. (f) Director's Authority to Settle the Protest.

   1. (1) If a conflict of interest exists with the director or CFO, the duties of the director or the CFO shall transfer to the Deputy Executive Director.
   2. (2) The director shall have the authority to settle and resolve the protest concerning the solicitation, evaluation or award of a contract at any time before the matter is appealed to the CFO. The director may solicit written responses to the protest from other interested parties.

   3. (3) If the protest is not resolved through mutual agreement, the director shall issue a written determination responding to the protest.

      1. (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.
      2. (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.
      3. (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.

7. (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. (1) An appeal of the director's determination must be in writing and received in the CFO's office not 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. (2) The protesting party must mail or deliver a copy of the appeal to all other interested parties.

   3. (3) The appeal must contain the following:

      1. (A) A statement that a copy of the appeal has been mailed or delivered to all other interested parties; and
      2. (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.

8. (h) CFO's Determination of the Appeal.

   1. (1) The CFO may consider any documents agency staff or any interested party has submitted.
   2. (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. (3) A written determination issued by the CFO shall be the final administrative action of the agency concerning a formal protest.
9. (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 agency's Record Retention Schedule.

Source Note:The provisions of this §155.41 adopted to be effective January 3, 2010, 34 TexReg 9474.