1. (a) Purpose. The purpose of this section is to provide a procedure for vendors to protest purchases made by the department. Purchases made by the Texas Procurement and Support Services division of the Comptroller of Public Accounts office on behalf of the department are addressed in 34 TAC Chapter 20.

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

   1. (1) Act--Government Code, Chapters 2151-2177, the State Purchasing and General Services Act.
   2. (2) Commission--The Texas Transportation Commission.
   3. (3) Department--The Texas Department of Transportation.
   4. (4) Director of general services--The director of the general services division of the department.
   5. (5) Director of purchasing--The director of purchasing in the general services division of the department.
   6. (6) District engineer--The chief administrative officer in charge of a district of the department.
   7. (7) Division--An organizational unit in the department's Austin headquarters.
   8. (8) Executive director--The executive director of the department.
   9. (9) Interested party--A vendor that has submitted a bid, proposal, or other expression of interest for the purchase involved.
   10. (10) Purchase--A procurement action for commodities or non-professional services under the Act.

3. (c) Filing of protest.

   1. (1) An actual or prospective bidder or offeror who is aggrieved in connection with the solicitation, evaluation, or award of a purchase may file a written protest. The protest must be addressed to the attention of the district engineer in whose district the action is being or was processed, or to the director of purchasing for purchases made on behalf of a division, but sent to the office of the director of general services. The protest must be received in the office of the director of general services within 10 working days after such aggrieved person knows, or should have known, of the action.

   2. (2) The protest must be sworn and contain:

      1. (A) the provision of or rule adopted under the Act that the action is alleged to have violated;
      2. (B) a specific description of the alleged violation;
      3. (C) a precise statement of the relevant facts;
      4. (D) the issue to be resolved;
      5. (E) argument and authorities in support of the protest; and
      6. (F) a statement that copies of the protest have been mailed or delivered to other identifiable interested parties.
4. (d) Suspension of award. If a protest or appeal of a protest has been filed, then the department will not proceed with the solicitation or the award of the purchase until the executive director or his or her designee, not below the level of division director, consults with the director of general services and the appropriate district engineer or the director of purchasing, and makes a written determination that the award of the purchase should be made without delay to protect substantial interests of the department.

5. (e) Informal resolution. The district engineer or the director of purchasing may informally resolve the dispute, including:

   1. (1) soliciting written responses to the protest from other interested parties; and
   2. (2) resolving the dispute by mutual agreement.

6. (f) Written determination. If the protest is not resolved by agreement, the district engineer or the director of purchasing will issue a written determination to the protesting party and interested parties which sets forth the reason of the determination. The district engineer or the director of purchasing may determine that:

   1. (1) no violation has occurred; or

   2. (2) a violation has occurred and it is necessary to take remedial action which may include:

      1. (A) declaring the purchase void;
      2. (B) reversing the award; and
      3. (C) re-advertising the purchase using revised specifications.

7. (g) Appeal.

   1. (1) An interested party may appeal the determination to the executive director. The written appeal must be received in the executive director's office no later than 10 working days after the date of the determination. The appeal is limited to a review of the determination.
   2. (2) The appealing party must mail or deliver copies of the appeal to the determining district engineer or the director of purchasing and other interested parties with an affidavit that such copies have been provided.
   3. (3) The general counsel shall review the protest, the determination, the appeal, and prepare a written opinion with recommendation to the executive director.

   4. (4) The executive director may:

      1. (A) issue a final written determination; or
      2. (B) refer the matter to the commission for its consideration at a regularly scheduled open meeting.
   5. (5) The commission may consider oral presentations and written documents presented by the department and interested parties. The chair shall set the order and the amount of time allowed for presentation. The commission's determination of the appeal shall be adopted by minute order and reflected in the minutes of the meeting.
   6. (6) The decision of the commission or executive director shall be final.
8. (h) Filing deadline. Unless the commission determines that the appealing party has demonstrated good cause for delay or that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not filed timely will not be considered.
9. (i) Document retention. The department shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the retention schedule of the department.

Source Note:The provisions of this §9.3 adopted to be effective June 21, 1998, 23 TexReg 6257; amended to be effective June 19, 2008, 33 TexReg 4683.