(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:
  (1) Appeal determination letter--The DFA's written decision on an appeal of a director's protest determination.
  (2) Appeal file--The protest file, the appellant's written appeal, any comments filed by other interested parties, any information or recommendation prepared by the General Counsel, and the DFA's appeal determination letter.
  (3) Appellant--A protestant or interested party who is aggrieved by a director's protest determination.
  (4) Certified mail--A mailing made using United States Postal Service certified mail service, including return receipt requested.
  (5) Commission--The Railroad Commission of Texas.
  (6) Day--A day that is not a Saturday, Sunday, or Commission holiday.
  (7) DFA--The Director of Finance and Administration or the DFA's delegate.
  (8) Director--The Director of Finance or the director's delegate.
  (9) General Counsel--The General Counsel of the Commission or the General Counsel's delegate.
  (10) Interested party--A vendor, other than the protestant, who has submitted a bid or proposal for the contract that is the subject of a protest and who submits information, comments, or otherwise participates in a protest inquiry.
  (11) Other vendor--A vendor, other than the protestant, who has submitted a bid or proposal for the contract that is the subject of a protest.
  (12) Protest determination letter--The director's written decision on a protest.
  (13) Protest file--All documents pertaining to a protest including the protestant's written protest; the director's notice to other vendors; vendors' comments filed with the director; notes, memoranda, and information compiled by the director in connection with a protest; and the director's protest determination letter.
  (14) Protestant--Any actual or prospective bidder, offeror, or contractor aggrieved in connection with the Commission's solicitation, evaluation, or award of a contract.
(b) General provisions.
  (1) Protests.
    (A) Any protestant may file a protest with the director. A protestant shall conform the protest to the requirements of subsections (c) and (d) of this section.
    (B) Except as provided in subparagraph (D) of this paragraph, the director shall have authority, prior to the filing of an appeal under subsection (f) of this section, to resolve a protest filed under this section.
    (C) In the event that the director receives a timely, proper protest as defined in subsection (c) of this section, the director shall not proceed further with the solicitation or with the award of the contract in question unless the director makes a written determination that the award of the contract, without delay, is necessary to protect substantial interests of the state.
    (D) Any protest determination that a contract should be declared void or rescinded and that is not appealed shall be forwarded to the DFA as if it were an appeal filed pursuant to subsection (f) of this section.
    (E) A protest determination that does not declare a contract void or rescinded and that is not timely appealed shall be the final administrative action of the Commission.
  (2) Appeals.
    (A) Any appellant may file an appeal with the DFA. An appellant shall conform the appeal to the requirements of subsections (c) and (f) of this section.
    (B) Except as provided in subparagraph (C) of this paragraph, the DFA shall have authority, prior to the filing of an appeal to the Commission under subsection (h) of this section, to resolve an appeal filed under this section.
    (C) Any appeal determination that a contract should be declared void or rescinded and that is not appealed shall be forwarded to the Commission for final action pursuant to subsection (h) of this section.
    (D) An appeal determination that does not result in a contract being declared void or rescinded and that is not timely appealed shall be the final administrative action of the Commission.
  (3) Appeals to the Commission. Any appellant or interested party to an appeal may file an appeal to the Commission. An appellant or interested party appealing to the Commission shall conform the appeal to the requirements of subsections (c) and (h) of this section.
(c) Ground for filing protest, appeal, or appeal to the Commission; basis for non-consideration; dismissal.
  (1) The absence of an award of a contract to a protestant, an appellant, or a person who appeals to the Commission shall not be a proper ground for protest or appeal, unless that protestant, appellant, or person makes a specific factual allegation that the failure to award a contract to that protestant, appellant, or person was the result of a violation of statutes or rules.
  (2) Unless a protestant, appellant, or person who appeals to the Commission demonstrates good cause for delay, or the director, the DFA, or the Commission determines that a protest or appeal raises issues significant to procurement practices or procedures, the director, the DFA, and the Commission shall not consider a protest, an appeal, or an appeal to the Commission that is not timely filed pursuant to subsections (d), (f), or (h) of this section.
  (3) The director, the DFA, or the Commission may dismiss a protest or an appeal that fails to state a proper ground; that is untimely; or that is incomplete when filed.
(d) Contents of protest; deadline for filing protest.
  (1) A protestant shall file a protest in writing with the director no later than the tenth day after the protestant knows or should have known of the occurrence of the action that is protested.
  (2) A protest shall be sworn and notarized and shall contain:
    (A) the name and address of the protestant;
    (B) identification of the procurement to which the protest is directed;
    (C) a specific citation to or identification of every statute or rule that the protestant alleges has been violated;
    (D) a precise statement of the relevant facts;
    (E) identification of the issue or issues to be resolved; and
    (F) argument and authorities, if any, in support of the protest.
(e) Director's obligation in protest inquiry.
  (1) No later than the tenth day following receipt of a timely, complete protest that sets forth proper grounds for relief, the director shall notify by certified mail all other vendors for the procurement that is the subject of the protest. The notice shall consist of a copy of the written protest, an invitation to the other vendors to submit comments and/or a request to participate in the protest inquiry, and a deadline by which the other vendors must respond to the director. The deadline shall be not less than ten days from the date the other vendors receives the director's notice.
  (2) In reviewing the protest, the director shall consider all comments that may be filed by other vendors. The director may request additional information from the protestant, the other vendors, or another source, and may consider this information in reviewing the protest.
  (3) If a protest is not withdrawn by the protestant, the director shall issue a written determination on the protest by letter. The director shall provide a copy of the protest determination letter to the protestant and the interested parties by certified mail. The director's protest determination letter shall include the following information, as appropriate:
    (A) If the director determines that no violation of rules or statutes has occurred, regardless of whether a contract has been awarded, the director shall so state and shall set forth the reasons for the determination. If no contract has been awarded, the director may proceed with the award of a contract.
    (B) If the director determines that a violation of the rules or statutes has occurred in a case in which no contract has been awarded, the director shall so state and shall set forth the reasons for the determination and the appropriate remedial action. At the director's discretion, the director may proceed with the award of a contract.
    (C) If the director determines that a violation of the rules or statutes has occurred in a case in which a contract has been awarded, the director shall so state and shall set forth the reasons for the determination and the appropriate remedial action, which may include declaring the contract void or rescinded.
  (4) Any protest determination that declares a contract void or rescinded that is not appealed by an appellant shall be forwarded to the DFA to be reviewed pursuant to the procedure in subsection (g) of this section.
(f) Procedure on appeal.
Cont'd...