(a) The purpose of this section is to provide an internal protest procedure to be used by any actual or prospective bidder, offeror, proposer, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract by the commission from a delegated procurement. The following procedures are available for persons or firms not awarded the contract pursuant to authority delegated to the Commission by the Comptroller of Public Accounts or by Texas Government Code, Chapters 2155 - 2158. These procedures are consistent with the rules of the Comptroller of Public Accounts insofar as such rules are applicable to an internal agency review.
(b) Any actual bidder or offeror who is aggrieved in connection with the award of a contract may formally protest the award of the contract by submitting a protest to the executive director in accordance with the procedures in this section.
  (1) Any bid protest must be in writing and received in the care of the executive director within five working days after the bidder is notified that the award of a contract is forthcoming or otherwise knows, or should have known, of the occurrence of the action which is protested.
  (2) Formal protests must conform to the requirements of and shall be resolved in accordance with the procedures set forth in this section.
  (3) In the event of a timely protest, the commission shall consider the protest and reply in writing before proceeding with the solicitation or with the award of the contract unless the executive director makes a determination that the award of contract without delay is necessary to protect substantial interests of the state.
  (4) If the executive director determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, the executive director shall inform the protesting party and other interested parties of that determination by letter. The letter shall set forth the reasons for the determination and may set forth any appropriate remedial action, which may include canceling or voiding the contract to the extent allowed by law.
  (5) A bid or a bid protest that is not submitted in a timely manner is not eligible for consideration under this section.
(c) A formal protest shall be addressed to the executive director and must be sworn and contain the following:
  (1) a specific identification of a statutory or regulatory provision(s) that the action complained of is alleged to have violated;
  (2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection;
  (3) a precise statement of the relevant facts;
  (4) an identification of the issue or issues 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 all other identifiable interested parties. Upon request, the commission will furnish to the requestor a list of interested parties, as reflected in the records of the commission.
(d) The executive director may request additional information from the party submitting the protest, any other interested party, or commission staff.
(e) If the protest is not resolved by mutual agreement, the executive director will issue a written determination of the protest.
  (1) If the executive director determines that no violation of rules or statutes has occurred, he shall so inform the protesting party by letter which sets forth the reasons for the determination.
  (2) If the executive director determines that a violation of the rules or statutes has occurred, he shall so inform the protesting party by letter which sets forth the reasons for the determination and the appropriate remedial action.
(f) A decision by the executive director shall be the final administrative action.
(g) The commission will maintain all documentation about the purchasing process to be used in the event of a protest or appeal in accordance with the commission's record retention schedule.

Source Note: The provisions of this §11.13 adopted to be effective May 18, 2009, 34 TexReg 2947