(a) A protesting party who wishes to submit a grievance regarding the solicitation, evaluation, or award of a contract may formally protest to the Purchasing Officer. Such protests must be in writing and received by the Purchasing Officer within 10 business days after the protesting party knows, or should have known, of the occurrence of the action which is protested. Filed protests must conform to the requirements of this subsection and subsection (c), and shall be resolved in accordance with the procedure set forth in subsections (d) - (j). Copies of the protest must be mailed, hand-delivered or sent by facsimile transmission to the Purchasing Officer and other interested parties.

(b) In the event of a timely protest under this section, the Department shall not proceed further with the solicitation or with the award of the contract unless the Executive Director, after consultation with the Purchasing Officer and the General Counsel, makes a written determination that the award of the contract without delay is necessary to protect the best interests of the Department and the State.

(1) a specific identification of the 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);

(3) a precise statement of the relevant facts;

(4) identification of the issue or issues the protesting party argues must be resolved;

(5) argument and authorities the protesting party offers in support of the protest; and

(6) a statement that copies of the protest have been mailed, hand-delivered or sent by facsimile transmission to the Department and all other identifiable interested parties.

(d) The Purchasing Officer shall have the authority, prior to an appeal to the Executive Director to settle and resolve the dispute concerning the solicitation or award of a contract. The Purchasing Officer may solicit written responses to the protest from interested parties.

(e) If the protest is not resolved by mutual agreement, the Purchasing Officer may proceed, after consultation with the General Counsel, with the issuance of a written determination on the protest as follows:

(1) The Purchasing Officer may determine that no violation of rules or statutes has occurred and shall so inform the protesting party, the Executive Director, and any other interested parties by letter that includes the reasons for the determination.

(2) If the Purchasing Officer determines that a violation of the rules or statutes may have occurred in a case where a contract has not been awarded, the Purchasing Officer shall so inform the protesting party, the Executive Director and other interested parties by letter that includes the reasons for the determination and the appropriate remedial action.

(3) If the Purchasing Officer determines that a violation of the rules or statutes may have occurred in a case where a contract has been awarded, the Purchasing Officer shall so inform the protesting party, the Executive Director and other interested parties by letter that includes the reasons for the determination, which may include a declaration that the contract is void.

(f) The protesting party may appeal a determination of a protest by the Purchasing Officer to the Executive Director. An appeal of the Purchasing Officer's determination must be in writing and must be received in the Department's office no later than 10 business days after the date of the Purchasing Officer's determination. The appeal shall be limited to a review of the Purchasing Officer's determination. Copies of the appeal must be mailed or delivered by the protesting party to the Purchasing Officer and other interested parties and must contain a certified statement that such copies have been provided.

(g) The Executive Director may confer with the General Counsel in a review of the matter appealed. The Executive Director has the discretion to consider documentation timely submitted by Departmental staff and interested parties. The Executive Director also has the discretion to refer the matter to the Commission for consideration at a regularly scheduled open meeting or may go forward with issuing a written decision on the protest.

(h) If a protest is appealed to the Executive Director under subsection (f) and thereafter is referred to the Commission by the Executive Director under subsection (g), specific requirements apply as follows:

(1) The Executive Director shall deliver copies of the appeal and responses of interested parties, if any, to the Commission.

(2) The Commission may consider documents that Departmental staff or interested parties have submitted and may confer with the General Counsel in their review of the appeal.

(3) The Commission's determination of the appeal shall be made on the record and reflected in the minutes of the open meeting, and shall be final.

(i) A protest or appeal that is not filed timely will not be considered unless good cause for the delay is shown or unless the Executive Director determines that a protest or appeal raises issues significant to procurement practices or procedures.

(j) A decision issued either by the Commission in open meeting, or in writing by the Executive Director, shall be the final administrative action of the Department.

Source Note: The provisions of this §55.40 adopted to be effective July 1, 2009, 34 TexReg 4323