(a) An actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract by the Board may file a formal protest with the Board's procurement director. A formal protest must be in writing and received by the procurement director within ten (10) business days after the aggrieved person knows or should have known of the occurrence of the action which is protested. The aggrieved person may mail or deliver copies of the protest to all vendors who have submitted bids or proposals for the contract at issue.
(b) In the event of a timely protest or appeal filed pursuant to this section, the Board may not proceed further with the solicitation or with the award of the contract unless the executive director, after consultation with the procurement director, makes a written determination that the award of contract without delay is necessary to protect the best interests of the state.
(c) A formal protest must be sworn and include:
  (1) an identification of the specific 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 relevant facts;
  (4) an identification of the issues to be resolved;
  (5) argument and authorities in support of the protest; and
  (6) a notation stating whether copies of the protest have been mailed or delivered to all other vendors who have submitted bids or proposals for the contract at issue.
(d) The procurement director is authorized, prior to appeal to the executive director, to settle and resolve the dispute concerning the solicitation or the award of a contract. The procurement director may solicit responses to the protest from other interested parties.
(e) If the protest is not resolved by mutual agreement, the procurement director shall issue a written determination of the protest.
(f) The procurement director shall send written notice of the determination of the protest to the aggrieved party and to other vendors who submitted bids or proposals for the contract. The procurement director's determination shall set out the reasons for the determination and appropriate remedial action, if any, which may include ordering the contract at issue in the protest void. The procurement director shall confer with the Board's general counsel prior to issuing a written determination of a protest.
(g) The protesting party may appeal the procurement director's determination of the protest to the executive director of the Board. The appeal must be written and received in the executive director's office no later than ten (10) business days after the date of the procurement director's determination. The appeal shall be limited to a review of the determination. The protesting party may mail or deliver copies of the appeal to each other vendor who submitted bids or proposals on the contract at issue. If applicable, the appeal must include a certified statement that copies have been sent to the other vendors.
(h) The executive director may confer with general counsel in reviewing the appeal of the protest. The executive director may:
  (1) issue a written decision on the protest, or
  (2) refer the appeal to the Board for resolution.
(i) If the executive director refers the appeal to the Board, a copy of the appeal, the procurement director's determination of the appeal, and copies of statements or correspondence, if any, from other vendors must be submitted to the Board. The Board may issue a final order on any appeal referred to the Board.
(j) A written decision issued by either the Board or the executive director shall be the final administrative action of the Board.
(k) Protests and appeals that are not timely filed will not be considered, unless good cause is established or the procurement director determines that the protest or appeal raises issues significant to the agency's procurement practices or procedures.

Source Note: The provisions of this §7.9 adopted to be effective November 21, 2004, 29 TexReg 10509