Texas Register, Volume 7, Number 8, Pages 469-554, February 5, 1982 Page: 477
469-554 p. ; 28 cm.View a full description of this periodical.
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when used in this section, shall have the following mean-
ings unless the context clearly indicates otherwise:
(1) Affiliates--Two business entities are affiliates
If they are so closely connected or associated that one of
them, either directly or indirectly, controls or has the
power to control the other, if a third party controls or
has the power to control both of them, or if they have
been so closely allied through an established course of
dealings, including but not limited to the lending of finan-
cial assistance, engaging in joint ventures, etc., as to create
a public perception that the two firms are a single entity.
(2) Bidding crime--Any act prohibited by state
or federal law, committed in any jurisdiction, and involv-
ing fraud, conspiracy, collusion, perjury or material
misrepresentation with respect to bidding on any public
contract.
(3) Commission--The three-member body ap-
pointed by the governor of Texas to compose the State
Highway and Public Transportation Commission.
(4) Contractor-An individual, partnership, cor-
poration, or other business entity which is eligible through
prequalification to bid on any contract let by the
department.
(5) Debar, debarment-To disqualify (the dis-
qualification of) a contractor from contracting with the
state for contracts that are the responsibility of the
department.
(6) Department-The State Department of
Highways and Public Transportation.
(7) Reinstate, reinstatement--To lift, modify, or
suspend (the lifting, modification, or suspension of)
debarment.
(c) Debarment.
(1) The commission, at its sole discretion, may
debar a contractor and/or its affiliates from bidding on
contracts let by the department for any of the following
reasons:
(A) the contractor's conviction of a bidding
crime, any plea of guilty or nolo contendere by the con-
tractor to a charge of a bidding crime, or any public ad-
mission to a bidding crime by a contractor, whether made
individually or through one or more of its officers or part-
ners, where any actions or activities in furtherance of such
bidding crime occurred within the State of Texas or where
the relevant public contract was or was to be performed
within the State of Texas;
(B) conviction of the contractor within the
boundaries of the State of Texas of any offense, including
but not limited to the bribery of or the payment of
kickbacks or secret rebates to officials, employees or
agents of the State of Texas, which indicates a lack of
moral or ethical integrity and which reasonably relates
to or reflects upon the business practices of the contractor;
(C) debarment of the contractor by the Federal
Highway Administration for substantially any of the
reasons listed in this paragraph. In such a case, the period
of debarment shall be that established by the Federal
Highway Administration.
(2) The period of a single debarment shall be no
longer than 36 months; however, in the case of multiple
offenses by the same contractor arising out of separate
occurrences, the commission, under the same process as
set forth herein, may order additional periods of debar-Emergency
Rules
ment, even though the total debarment period exceeds
36 months.
(d) Hearing prior to debarment.
(1) It is the policy of the commission that a con-
tractor be afforded the opportunity for a hearing prior
to his debarment.
(2) Subject to an agreement between the com-
mission and a contractor subject to debarment concern-
ing some alternative procedure, the commission shall
follow 1.21-1.63 of this title (relating to Contested Case
Procedure), in making its decision whether to debar a
contractor.
(e) Reinstatement as a qualified bidder.
(1) At the discretion of the commission, a debar-
ment may be lifted, modified, or suspended at any time,
if it is in the public interest to do so.
(2) Subject to an agreement between the com-
mission and a contractor seeking reinstatement concern-
ing some alternative procedure, the commission shall
follow J.21-1.63 of this title (relating to Contested Case
Procedure), in making its decision whether to reinstate
a contractor.
(f) Factors considered in debarment and reinstate-
ment decisions.
(I) Any mitigating circumstances may be con-
sidered by the commission in making i;s decision whether
to debar or reinstate a contractor. Such circumstances
may include, but are not limited to:
(A) the degree of the contractor's culpability;
(B) whether under the facts and circumstances
of the contractor's case a lengthy debarment is necessary
to protect the interest of the state;
(C) any restitution paid by the debarred con-
tractor for any perceived overcharges or other damages
suffered by any unit of government as a result of the con-
tractor's bidding crime;
(D) cooperation by the debarred contractor
with the state, the United States, or any other sovereign
body in the investigation of bidding crimes, including the
contractor's providing a full and complete account of his
or its particular involvement therein;
(E) the contractor's disassociation from in-
dividuals and firms that have been involved in a bidding
crime.
(2) If the commission determines that a contrac-
tor falsified, misrepresented, or withheld information in
order to secure reinstatment or the modification of an
original debarment period, the commission may declare
the reinstatement or modification null and void. The com-
mission may seek the assistance and advice of the attorney
general to determine whether information submitted by
the contractor has in fact been falsified, misrepresented,
or does not constitute a complete disclosure.
(g) Rules applicable to debarment and
reinstatement.
(1) For the purposes of debarment, the illegal or
improper conduct of an individual may be imputed to
a firm with which he is or was associated or by which
he is or was employed when the individual engaged in
such conduct within the course of his employment or with
the knowledge or approval of the firm.
(2) Debarment of a contractor in no way affectsFebruary 5, 1982 7 TexRegi 477
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Texas. Secretary of State. Texas Register, Volume 7, Number 8, Pages 469-554, February 5, 1982, periodical, February 5, 1982; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth244455/m1/8/: accessed May 4, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.