(a) Definitions.
  (1) Working days--Monday through Friday, except national and state holidays as defined by Texas Government Code, §662.003. When counting working days, do not count the day of the act or event after which the ten-day period of time begins to run. The last day of the ten-day period is included in the count, unless the last day is a Saturday, Sunday, national holiday or state holiday, in which event the ten-day period runs until the end of the next day which is not a Saturday, Sunday, national holiday or state holiday.
  (2) Interested parties--All contractors who have submitted bids, offers, responses or proposals for the contract at issue.
(b) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract, may formally protest to the chief of the Infrastructure Operations division. Such protests must be in writing, addressed to the chief of the Infrastructure Operations division and filed within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. A protest is considered filed when received by the chief of the Infrastructure Operations division. Formal protests must conform to the requirements herein and shall be resolved in accordance with the procedure set forth herein. Copies of the protest must be mailed or delivered by the protesting party to all other identifiable interested parties.
(c) In the event of a timely protest under this section, the department shall not proceed further with the solicitation or award of the contract unless the director, after consultation with the end user, deputy director, and the chief of the Infrastructure Operations division makes a written determination that the award of contract without delay is necessary to protect the best interests of the state.
(d) A formal protest must be sworn and notarized and must contain:
  (1) the name and address of the protestor;
  (2) appropriate identification of the procurement;
  (3) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;
  (4) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (3) of this subsection;
  (5) a precise statement of the relevant facts regarding the alleged violation of the statutory or regulatory provision(s) identified in paragraph (3) of this subsection;
  (6) an identification of the issue or issues to be resolved regarding the alleged violation of the statutory or regulatory provision(s) identified in paragraph (3) of this subsection;
  (7) supporting exhibits, evidence or documents to substantiate the alleged violation of the statutory or regulatory provision(s) identified in paragraph (3) of this subsection, unless not available at the time of filing, in which case the expected availability date shall be indicated;
  (8) arguments and authorities in support of the protest; and
  (9) an affidavit which affirms that the contents of the protest are true and accurate and that copies of the protest have been mailed or delivered to other identifiable interested parties.
(e) The department will maintain all documentation regarding the purchase in accordance with the department's applicable records retention schedule.
(f) The chief of Infrastructure Operations shall have the authority, prior to appeal to the director, to settle and resolve a protest concerning the solicitation or award of a contract. The chief may solicit written responses to the protest from other interested parties.
(g) If the protest is not resolved by mutual agreement, the chief will issue a written determination on the protest after conferring with the deputy director.
  (1) If the chief determines that no violation of rules or statutes has occurred, the chief shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination.
  (2) If the chief determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, the chief shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.
  (3) If the chief determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, the chief shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.
(h) The chief's determination on a protest may be appealed by the protesting party to the director. The appeal shall be limited to review of the chief's determination. Copies of the appeal must be mailed or delivered by the appealing party to the other interested parties and must contain an affidavit that such copies have been provided. An appeal of the chief's determination must be in writing and must be received in the director's office no later than ten working days after the protestor's receipt of the chief, Infrastructure Operation's determination. The protestor is deemed to have received the chief's determination upon the earliest of the following:
  (1) when delivered in hand and a receipt granted;
  (2) three days after it is deposited in the United States mail by regular mail; or
  (3) at the time it is sent via electronic mail or facsimile.
(i) The director may confer with the general counsel in their review of the matter appealed. The director may, in their discretion, refer the matter to the commission for its consideration at a regularly scheduled open meeting or issue a written decision on the protest. A decision issued either by the commission in open meeting or in writing by the director shall be the final administrative action of the department.
(j) When a protest has been appealed to the director under subsection (h) of this section and has been referred to the commission by the director under subsection (i) of this section, the requirements detailed in this subsection shall apply:
  (1) The director's office shall mail copies of the appeal and responses of interested parties, if any, to the commissioners.
  (2) All interested parties who wish to make an oral presentation at the open meeting shall notify the director at least 48 hours in advance of the open meeting.
  (3) The commission may consider oral presentations and written documents presented by staff and interested parties. The chairman of the commission shall set the order and amount of time allowed for presentations.
  (4) The commission's determination of the appeal shall be by duly adopted resolution reflected in the minutes of the open meeting and shall be final.
(k) Unless good cause for delay is shown or the department determines that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not timely filed will not be considered.

Source Note: The provisions of this §1.264 adopted to be effective January 10, 2016, 41 TexReg 489; amended to be effective December 29, 2019, 44 TexReg 8023