(a) Applicability. This section prescribes exclusive procedures for protests regarding:      
        (1) allegations that the terms of a request for qualifications or request for proposals are wholly ambiguous, contrary to legal requirements applicable to the procurement, or exceed the department's authority;       
        (2) a determination as to whether a qualifications submittal or proposal is responsive to the requirements of the request for qualifications or request for proposals, as applicable;       
        (3) short-listing determinations; and       
        (4) award of a design-build contract.       
      (b) Required early communication for certain protests. Protests concerning the issues described in subsection (a)(1) of this section may be filed only after the proposer has informally discussed the nature and basis of the protest with the department, following the procedures for those discussions prescribed in the request for qualifications or request for proposals, as applicable.     
      (c) Deadlines for protests.      
        (1) Protests concerning the issues described in subsection (a)(1) of this section must be filed as soon as the basis for the protest is known, but no later than 20 calendar days prior to the date for submission of the qualifications submittal or proposal, unless the protest relates to an addendum to the request, in which case the protest must be filed no later than 5 business days after the addendum is issued.       
        (2) Protests concerning the issues described in subsection (a)(2) of this section must be filed no later than 5 business days after receipt of the notification of non-responsiveness.       
        (3) Protests concerning the issues described in subsection (a)(3) and (4) of this section must be filed no later than 10 business days after the earliest of the notification of short-listing or intent to award, and the public announcement of the short-listing determination or the apparent best value proposer.       
      (d) Content of protest. Protests shall completely and succinctly state the grounds for protest, its legal authority, and its factual basis, and shall include all factual and legal documentation in sufficient detail to establish the merits of the protest. Statements shall be sworn and submitted under penalty of perjury.     
      (e) Filing of protest. Protests shall be filed in the manner and at the address specified in the request for qualifications or request for proposals, and a copy of the protest shall be submitted to all other proposers for the project.     
      (f) Comments from other proposers. Other proposers may file statements in support of or in opposition to the protest within 7 days of the filing of the protest. The department shall promptly forward copies of all those statements to the protestant. Any statements shall be sworn and submitted under penalty of perjury.     
      (g) Burden of proof. The protestant shall have the burden of proving its protest. No hearing will be held on the protest. The protest shall be decided on the basis of written submissions.     
      (h) Decision on protest. The department employee specified in the request for qualifications or request for proposals, as applicable, shall issue a decision on the protest within 30 days of the filing of the protest. The designated employee shall not be a member of a committee or subcommittee involved in the evaluation of qualifications submittals or proposals for the project.     
      (i) Protestant's payment of costs. If a protest is denied, the proposer filing the protest shall be liable for the department's costs reasonably incurred to defend against or resolve the protest, including legal and consultant fees and costs, and any unavoidable damages sustained by the department as a consequence of the protest.     
      (j) Rights and obligations of proposers. Each proposer, by submitting its proposal, expressly recognizes the limitation on its rights to protest provided in this section, and expressly waives all other rights and remedies and agrees that the decision on the protest is final and conclusive. If a proposer disregards, disputes, or does not follow the exclusive protest remedies provided in this section, it shall indemnify and hold the department and its officers, employees, agents, and consultants harmless from and against all liabilities, fees and costs, including legal and consultant fees and costs, and damages incurred or suffered as a result of that proposer's actions. Each proposer, by submitting a proposal, shall be deemed to have irrevocably and unconditionally agreed to this indemnity obligation.     
     Source Note:        The provisions of this §9.154 adopted to be effective March 15, 2012, 37 TexReg 1780