TITLE transportation

Part 1. TEXAS DEPARTMENT OF TRANSPORTATION

Chapter 1. MANAGEMENT

Subchapter A. ORGANIZATION AND RESPONSIBILITIES

43 TAC §1.2

The Texas Department of Transportation proposes an amendment to §1.2, concerning the organization and responsibilities of the department.

Transportation Code, §201.102 requires the Texas Transportation Commission to implement policies that separate the policy-making responsibilities of the commission and the management responsibilities of the executive director and staff. House Bill 3092, 76th Legislature, 1999, amended the Texas Motor Vehicle Commission Code, Texas Civil Statutes, Article 4413(36). The amendments remove the executive director of the Texas Department of Transportation as an ex officio member of the Motor Vehicle Board and clarify the department's responsibility in providing equipment, facilities, property, and service to the board.

The amendment to §1.2(c) updates the rule to reflect that the term "special office" is no longer used by the department.

The amendment to §1.2(e)(1) removes the language indicating that the executive director of the department is a member of the Motor Vehicle Board. This is necessary to conform the rule to the statute as revised by House Bill 3092.

The amendments to §1.2(e)(3) remove language requiring the board to advise the department on motor vehicle dealer licensing issues and to devise policies separating the board's and the department's responsibilities. The amendments also clarify that the department's responsibility is to provide equipment, facilities, property, and services to the board. These changes are necessary to conform the rule to the statute as revised by House Bill 3092.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the new sections. There are no anticipated costs for persons required to comply with the amendments as proposed.

Richard Monroe, General Counsel, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendment.

PUBLIC BENEFIT

Mr. Monroe has also determined that for each year of the first five years that the amendments are in effect, the public benefit anticipated as a result of enforcing the section will be an increased public awareness of the Motor Vehicle Board's statutory role within the department. There will be no effect on small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed addition may be submitted to Richard D. Monroe, General Counsel, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on January 3, 2000.

STATUTORY AUTHORITY

The amendment is proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation.

No statutes, articles, or codes are affected by the proposed amendments.

§1.2.Texas Department of Transportation.

(a)-(b)

(No change.)

(c)

Divisions. Consistent with commission direction provided under §1.1(b)(1)(T) and (U) of this title (relating to Texas Transportation Commission), the executive director shall organize the department into headquarters operating divisions and [ special ] offices reflecting the various functions and duties assigned to the department, and shall designate a division or [ special ] office director who shall administer each division or [ special ] office.

(d)

(No change.)

(e)

Motor Vehicle Board.

(1)

Membership. The Motor Vehicle Board of the Texas Department of Transportation (board) consists of nine persons appointed by the governor with the advice and consent of the senate. The [ executive director of the Texas Department of Transportation is a member of the board ex officio. The executive director may attend a meeting of the board and may confer with and advise the board, the chairman, or the director. The executive director may not vote on a matter coming before the board. Except as provided by this subsection, the provisions of the Texas Motor Vehicle Commission Code relating to ] members of the board include:

(A)-(B)

(No change.)

(2)

(No change.)

(3)

Board responsibilities.

(A)

In accordance with the Texas Motor Vehicle Commission Code, the board shall:

(i)

exercise the authority and perform the duties placed on the board by law; and

(ii)

advise the department on budgetary, equipment, data processing, and facility and property needs of the board and the Motor Vehicle Division of the department. [ : ]

[(I)

matters arising under the Texas Motor Vehicle Commission Code and other matters relating to the licensing and regulation of motor vehicle manufacturers, distributors, converters, and dealers; and]

[(II)

the personnel, budgetary, equipment, data processing, and facility and property needs of the board and the Motor Vehicle Division of the department; and]

[(iii)

in coordination with the department, develop and implement policies that clearly delineate the policy-making responsibilities of the board and the management responsibilities of the department.]

(B)

The department, by agreement with the board, shall [ may ] provide equipment, facilities, property, [ personnel ] and services to the board as needed to carry out purposes, powers, and duties of the board. The board may delegate authority to personnel as needed.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on November 22, 1999.

TRD-9907935

Richard Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 2, 2000

For further information, please call: (512) 463-8630


Chapter 9. CONTRACT MANAGEMENT

Subchapter F. CONTRACTS FOR SCIENTIFIC, RIGHT OF WAY ACQUISITION, AND LANDSCAPE ARCHITECTURAL SERVICES

43 TAC §§9.80-9.88

The Texas Department of Transportation proposes amendments to §§9.80-9.88, concerning contracts for scientific, right of way acquisition, and landscape architectural services.

EXPLANATION OF PROPOSED AMENDMENTS

Transportation Code, Chapter 223, Subchapter D, provides that the department may follow a procedure using competitive sealed proposals to procure the services of technical experts including archeologists, biologists, geologists, historians, or other technical experts to conduct environmental and cultural assessments for transportation projects within the authority or jurisdiction of the department.

House Bill 1782, 75th Legislature, 1997, amended Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, to include land appraisers as a professional service. Senate Bill 1133, 76th Legislature, 1999, also amended Chapter 2254, Subchapter A to include landscape architects.

The amendments set forth procedures for the selection of landscape architects and make minor revisions to the selection procedures for technical experts. The amendments also set forth procedures for right of way acquisition providers (ROW providers) when the acquisition requires the services of an appraiser. The procedures for ROW providers do not apply if the acquisition requires the services of an engineer, architect, or surveyor.

The amendments to §9.81 add ROW providers and landscape architects to the types of services that can be procured by the department with the use of competitive sealed proposals.

The amendments to §9.82 provide terms for landscape architect, and right of way acquisition provider. The term "mandatory" has been expanded to include "minimum" in order to accommodate the terminology used in the additional fields of work. The term "provider" has been clarified to include an individual or entity that provides these types of services. This eliminates the use of the term "offeror." The context makes clear whether the provider is offering services or whether the provider has been awarded a contract. The definition of "scientific services" has been added to this section and removed from the explanation in §9.83 since §9.83 has been expanded to include other services.

The amendments to §9.83 allow the providers to obtain the Request for Proposal (RFP) packets by sending in a letter of interest, downloading it from the department's website, or obtaining it at the proposal meeting, if there is one. Since a provider is no longer required to send in a letter of interest, the letter of interest deadline has been removed. The notice will be issued at least 21 days before the proposal is due in accordance with Government Code, §2155.074, which requires procurements exceeding $25,000 to be posted in the State Business Daily. The criteria for breaking ties will be included in the RFP packet if the criteria are different from that outlined in §9.85(e).

Because information relating to the proposal is now available in the State Business Daily and the department's website, the requirement to publish notice in newspapers has been reduced to one newspaper. Since the provider may now wait to obtain the RFP packet at the proposal meeting, the date and location of the meeting will be included in the notice.

The amendments to §9.84 require the providers to submit a price.

The amendments to §9.85 add ROW providers to the evaluation criteria currently being used for technical experts. The criteria have been changed to be used when the criteria is applicable to that particular proposal since some proposals do not need to contain all of the listed criteria. A landscape architect will be evaluated on the experience of the project manager and project team, demonstrated understanding of the scope of services to be provided, references, ability to meet department scheduling requirements, and reasonableness of fee.

The amendments to §9.86 provide for discussions for best and final offers. The department may elect to include discussions with the top three responsive providers in order to get the best offer. If multiple providers are to be selected, then a discussion will be held for the number of contracts to be awarded plus three. These providers will be given the opportunity to revise their proposals.

The amendments to §9.87 eliminate the requirements that multiple contracts may not exceed $500,000. With the addition of other services to this section, the department needs to be able to enter into specific project agreements in amounts greater than $500,000. The limit for indefinite delivery contracts has been raised from $500,000 per contract to $1,000,000 in order to accommodate the expanded scope of these sections. The notice for multiple contract selection will indicate the number and type of contracts to result from the advertisement, and specify a range of scores for providers that will be considered qualified to perform the work in order to give notice as the qualifications necessary.

The amendments to §9.88 provide that the department may make an award to a ROW provider or landscape architect.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for the first five-year period the amendments are in effect, there will be fiscal implications for state government as a result of enforcing or administering the sections. The state will experience a savings due to a decrease in the use of state resources. The number of RFP packets that need to be physically produced and distributed has been reduced, thereby saving paper, postage, and labor. In addition, because advertising is only required in one newspaper instead of multiple newspapers, there will be a reduction in advertising costs.

The anticipated economic cost to persons who are required to comply with the proposed sections will be minimal. These amendments will decrease providers' costs because they are no longer required to submit a letter of interest. Right of way providers and landscape architects costs will increase because they will now submit proposals. The exact fiscal implications to the providers and the department cannot be determined because it will depend upon the number of RFPs and proposals generated. There will be no fiscal implications for local governments.

Jennifer Soldano, Director, Contract Services Office, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

Ms. Soldano has also determined that for each year of the first five years the amendments are in effect, the public benefit anticipated as a result of the amendments will be to further the department's mission to provide an efficient, effective process to select ROW providers and landscape architects, and to simplify the process for selecting technical experts. There will be no effect on small or micro businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Jennifer Soldano, Director, Contract Services Office, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on January 3, 2000.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically, Texas Transportation Code, Chapter 223, Subchapter D, which provides for the selection of technical experts, and Government Code, Chapter 2254, Subchapter A, which provides for the selection of appraisers and landscape architects.

No statutes, articles, or codes are affected by these proposed amendments.

§9.80.Purpose.

(a)

Transportation Code, Chapter 223, Subchapter D, provides that the department may follow a procedure using competitive sealed proposals to procure the services of technical experts including archeologists, biologists, geologists, historians, or other technical experts to conduct environmental and cultural assessments for transportation projects within the authority or jurisdiction of the department. This subchapter, which implements Chapter 223, Subchapter D of the Transportation Code, establishes standard procedures for selection of technical experts to provide scientific services including environmental and cultural studies, analyses, and document preparation.

(b)

This subchapter also establishes standard procedures for selection of right of way acquisition providers and landscape architects in accordance with Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act.

§9.81.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)-(3)

(No change.)

(4)

Landscape architect - An individual licensed to practice landscape architecture in the state or states that he or she performs professional services.

(5)

Mandatory/minimum [ (4)Mandatory provider ] qualifications - Those qualifications listed in the request for proposals that the provider [ technical expert ] must demonstrate it meets in order for the proposal to be considered responsive.

(6)

Provider - An individual or entity that provides scientific, right of way acquisition, or landscape architectural services.

[(5)

Provider - The technical expert awarded a department provider contract.]

(7)

[ (6) ] Request for proposals (RFP) - A request for submittal of a [ technical ] proposal that demonstrates competence and qualifications of the provider [ technical expert ] to perform the requested services and shows an understanding of the specific project.

(8)

Right of way acquisition provider (ROW provider) - A firm performing right of way acquisition, including appraisal services, but excluding surveying, engineering, or architectural services.

(9)

[ (7) ] Subprovider - A provider proposing to perform work through a contractual agreement with the provider.

(10)

Scientific services - Environmental or cultural studies, analyses, and document preparation services required by state or federal law, for a transportation project within the authority or jurisdiction of the department, and performed by an archeologist, biologist, geologist, historian, architectural historian, or other technical expert.

(11)

[ (8) ] Technical expert - An archeologist, biologist, geologist, historian, architectural historian, or other non-engineering expert in a natural, social, historical, or environmental science qualified to conduct an environmental or cultural study required by state or federal law for a transportation project. This definition includes a firm or institution employing one or more technical experts.

§9.82.Use of Providers [ Technical Expert ].

The department may use competitive sealed proposals to procure scientific , right of way acquisition, and landscape architectural services [ including those of an archeologist, biologist, geologist, historian, architectural historian, or other technical expert to conduct environmental or cultural studies, analyses, and document preparation required by state or federal law for a transportation project within the authority or jurisdiction of the department ].

§9.83.Notice and Letter of Interest.

(a)

Notice. When the department elects to use competitive sealed proposals to procure right of way acquisition, landscape architectural, and scientific services, notice will be given as follows.

(1)

Electronic and newspaper notice. Not less than 21 [ 10 ] days before the proposal [ letter of interest ] due date, the department will post a notice on an electronic bulletin board and publish a notice in a selected newspaper [ newspapers ]. The notice will contain the:

(A)

proposed contract or RFP number;

(B)

type of selection in accordance with §9.87 [ §9.87(a) ] of this title (relating to Selection Types);

(C)

general description of the project and work to be done;

(D)

due date for providers to send letters of interest to the department;

(E)

contact person; [ and ]

(F)

date and location of the proposal meeting, if applicable; and

(G)

[ (F) ] location of the electronic bulletin board that contains more information.

(2)

Organizations. The department will publish a quarterly statewide list of projected contracts to be issued under this subchapter [ for scientific services ] and will provide upon request, or make available on the department's Web site, a copy of the list to community, business, and professional organizations for dissemination to their membership.

(b)

Letter of interest.

(1)

The provider may obtain an RFP packet by:

(A)

sending a letter of interest to the department notifying the department of the provider's interest in the contract;

(B)

downloading it from the department's Web site; or

(C)

obtaining it at the proposal meeting, if applicable.

[(1)

The technical expert shall send a letter of interest to the department notifying the department of the provider's interest in the contract. This letter of interest must be received by the department no later than the deadline published in the notice.]

(2)

The department will accept a letter of interest by electronic facsimile.

(c)

Requests for proposals. [ The department will send each technical expert submitting a letter of interest a copy of the RFP packet. ] The RFP packet will include:

(1)

the requirements for a responsive proposal including:

(A)

date, time, and location for submittal of the proposal;

(B)

an outline of the required proposal format and content; and

(C)

mandatory/minimum [ mandatory ] provider qualifications;

(2)

scope of services to be provided by the department;

(3)

scope of services to be provided by the provider [ technical expert ];

(4)

proposed contract duration;

(5)

proposed method of payment;

(6)

any constraints directly relating to the performance of the contract, if applicable;

(7)

description of the evaluation criteria including numerical weighting values [ of evaluation criteria and minimum and preferred qualifications ];

(8)

a copy of the evaluation matrices;

(9)

type of contract selection;

(10)

a copy of the proposed contract, with all attachments; [ and ]

(11)

criteria for breaking ties, if criteria are different from that outlined in §9.85(e) of this title (relating to Evaluation;

(12)

[ (11) ] any special contract requirements.

(d)

Proposal meeting. The meeting may be either mandatory or optional at the discretion of the department. If the meeting is mandatory, the department will only accept proposals from providers [ technical experts ] represented at the meeting. [ Every technical expert submitting a letter of interest will be notified of the date and time of the proposal meeting, if one is to be held. ] The proposal meeting provides an opportunity for the provider [ technical expert ] to seek clarification or ask [ of ] questions concerning the contract.

§9.84.Proposals.

(a)

Proposal format. The proposal shall be limited to the contents specified in the RFP packet plus the provider's [ offeror's ] price for the required [ technical ] services.

(b)

Receiving proposals. All proposals must be received by the date, time, and location specified in the RFP packet. Proposals will not be accepted by electronic facsimile.

(c)

Opening proposals. The department will open proposals and conduct evaluations in confidence, and there will be no disclosure of contents to competing providers [ offerors ] during the negotiation process. After the contract is awarded, all proposals shall be open for public inspection except as provided in Government Code, Chapter 552.

(d)

Non-responsive proposals. A proposal which does not include all the requirements set forth in the RFP will be rejected as non-responsive and will not be considered further.

§9.85.Evaluation.

(a)

Technical expert and ROW provider evaluation [ Evaluation ] criteria. The department will evaluate a technical expert's or ROW provider's responsive proposals based on the following criteria , if applicable :

(1)

professional qualifications [ of technical experts ];

(2)

experience of the firm and the team or individuals [ technical experts ];

(3)

[ technical or scientific ] merits of the proposal, including unique or innovative methods for performing the work, [ if applicable ];

(4)

ability to commit personnel, time, and other resources to the project (technical experts cannot be removed from association with the contract without prior consent by the department);

(5)

demonstrated understanding of the scope of services to be provided, including identifying which type of work will be performed by a subprovider, if any;

(6)

demonstrated understanding of applicable rules, regulations, policies, and other requirements associated with the environmental or cultural studies, analyses, or document preparation to be performed;

(7)

ability to meet department scheduling requirements; [ and ]

(8)

past performance of the provider, specific provider staff, or subproviders on similar contracts; and

(9)

[ (8) ] reasonableness of fee.

(b)

Landscape architect evaluation. The department will evaluate a landscape architect's responsive proposals based on the following criteria:

(1)

experience of the project manager and project team;

(2)

demonstrated understanding of the scope of services to be provided, including identifying which type of work will be performed by a subprovider, if any;

(3)

references including the ability of the landscape architect to meet deadlines over the past three years;

(4)

ability to meet department scheduling requirements; and

(5)

reasonableness of fee.

(c)

[ (b) ] Evaluation scale. The department will assign a numerical weighting value to each evaluation criterion and then score each criterion based upon a numerical scale [ of 0 to 10 points per criterion with 10 points being the best qualified ].

(d)

[ (c) ] Evaluation matrix. The department will evaluate each responsive proposal using an individual proposal evaluation matrix.

(e)

Tie scores. In the event of a tie, the managing officer will break the tie using the following method unless different criteria have been listed in the RFP.

(1)

The first tie breaker, if needed, will be references/past performances.

(2)

The second tie breaker, if needed, will be ability to meet department scheduling requirements.

(3)

If there is still a tie, the provider will be chosen by random selection.

§9.86.Discussions For Best and Final Offer for Scientific, Right of Way Acquisition, and Landscape Architectural Services .

(a)

When it is determined to be in the best interests of the state for scientific, right of way acquisition, and landscape architectural service contracts , the department may elect to include discussions with the top three [ for ] responsive providers' to clarify their [ offerors' ] best and final offer prior to selection. In the case of selecting multiple providers, discussions will be held with a number of providers equal to the number of contracts to be awarded plus three. Discussions for best and final offer will occur following completion of the steps in §9.82 through §9.85 of this subchapter, relating to contracts for scientific , right of way acquisition, and landscape architectural services.

(b)

If the department elects to conduct discussions as provided for in subsection (a) of this section, the top providers, as determined by subsection (a) of this section, [ each responsive offeror ] shall be given an equal opportunity to discuss and revise their proposals [ his or her proposal ]. The department will not disclose any information derived from proposals submitted by competing providers [ offerors ] during these discussions. Discussions will include [ identification of ] any portion of the responsive proposal [ not meeting minimum qualifications or meeting only minimum qualifications ] in order to assess a provider's [ an offeror's ] ability to meet the RFP requirements, and an opportunity for the provider [ offeror ] to demonstrate an understanding of the project and remedy the proposal's deficiencies. Discussions may include reasonableness of fee.

(c)

After completing discussions with providers [ offerors ], the department will send written notification to each provider [ offeror ] to submit a best and final offer. The proposals will be reevaluated using the criteria in §9.85 [ §9.85(a) ] of this title (relating to Evaluation). The evaluation shall be made in writing and shall include the individual proposal evaluation matrix as specified in §9.85(d) [ §9.85(c) ] of this title.

§9.87.Selection.

The department will perform three types of contract selections.

(1)

Individual contract selection. One contract will result from the contract notice.

(2)

Multiple contract selection. More than one contract, of similar work types and estimated amounts [ not to exceed $500,000 per contract, ] will result from the contract notice. The notice will indicate the number and type of contracts to result from the advertisement , and specify a range of scores for providers that will be considered qualified to perform the work .

(3)

Indefinite delivery contract selection. This contract selection may be for award of contracts to single or multiple providers to perform work under a general scope of services. The typical type of work will be described in the contract notice. Specific services shall be authorized by individual work authorizations [ orders ] on an as-needed basis. The maximum contract amount shall be specified and shall not exceed $1,000,000 [ $500,000 ] per contract. The contract period shall be specified. All work authorizations [ orders ] under an indefinite delivery contract shall be issued within two years of the effective date of the contract.

§9.88.Award.

(a)

The department will make the award to the provider [ technical expert ] submitting the highest-ranked proposal and will notify the other providers [ offerors ] of the selection. For multiple awardees under a single RFP, the department will make awards to the highest ranked providers [ offerors ].

(b)

If the department finds that none of the proposals are acceptable, the department will reject all proposals.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on November 22, 1999.

TRD-9907936

Richard Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 2, 2000

For further information, please call: (512) 463-8630


Chapter 29. MAINTENANCE

Subchapter B. SANCTION OF MAINTENANCE CONTRACTORS

43 TAC §§29.21-29.26

The Texas Department of Transportation proposes amendments to §§29.21-29.26, concerning sanction of maintenance contractors.

EXPLANATION OF PROPOSED AMENDMENTS

Chapter 29, Subchapter B, provides guidelines by which maintenance contractors may be debarred. The proposed amendments are necessary to allow the department to clarify the sanctions that may be imposed on contractors that are declared in default on maintenance contracts. In addition, the amendments provide a broader range of sanctions to be imposed than are currently allowed. The new range of sanctions will range from less severe to more severe than is currently allowed. The title of Subchapter B is being changed from "Debarment of Maintenance Contractors" to "Sanction of Maintenance Contractors."

Amendments to §29.21 are nonsubstantive. The reference to the Texas Transportation Commission has been removed because the commission no longer awards all maintenance contracts.

Amendments to §29.22 revise the definition of "maintenance contract" to remove unnecessary language and add a definition of "sanction." These amendments are nonsubstantive.

Amendments to §29.23 clarify the reasons for which a contractor may be sanctioned by deleting actions that may only result in a contract default. Since these actions result in a default, listing them is redundant.

Amendments to §29.24 substitute the word "sanction" for "debar" to reflect amendments to §29.26 which add a reduction in bidding capacity as a sanction. The amendments also update a citation to the department's contested case procedure rules.

Amendments to §29.25 substitute the word "sanction" for "debarment" to reflect amendments to §29.26.

Amendments to §29.26 describe the various sanctions that are possible and the periods that the sanctions will imposed. The current rules authorize the department to debar a contractor for up to one year.

The proposed amendments will allow a lesser and more appropriate sanction of a one year reduction in bidding capacity in cases of one default. The reduction in bidding capacity will allow a contractor to demonstrate for one year its ability to complete work before being able to again bid at full capacity.

The amendments will clarify that a sanction of a one year debarment and an additional one year reduction in bidding capacity may result from two defaults within a five year period.

The proposed amendments will also allow a more severe and appropriate sanction of three years debarment and an additional one year reduction in bidding capacity to be imposed if a contractor defaults on a third contract within five years of their second default. The three years debarment is needed to deny state contracts to contractors who repeatedly fail to complete contracts.

FISCAL NOTE

James Bass, Director, Finance Division, has determined that for the first five-year period the amendments are in effect, there will no fiscal implications for state or local governments as a result of enforcing or administering the amendments. There are no anticipated economic costs for persons required to comply with the sections as proposed.

Zane L. Webb, Director, Maintenance Division has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT

Mr. Webb has also determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing or administering the amendments will be to provide for the expeditious completion of state maintenance projects, thereby maximizing the use of scarce state highway funds and the safety of the traveling public. The proposed amendments place no new demands, requirements, or practices on any business, including small businesses.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments may be submitted to Zane L. Webb, P.E., Maintenance Division, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on January 3, 2000.

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation.

No statutes, articles, or codes are affected by the proposed amendments.

§29.21.Purpose.

It is the policy of the Texas Transportation Commission to protect the health, welfare, and safety of the traveling public and the state's substantial investment in its system of state highways, by ensuring that only responsible contractors are eligible to bid on, enter, or subcontract under highway maintenance contracts awarded under Transportation Code, Chapter 223 [ by the commission ], and further to ensure that those contracts are fully performed in an efficient and timely manner.

§29.22.Definitions.

The following words and terms, when used in the sections under this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)

Affiliate - A contractor is said to be an affiliate of another contractor if they are so closely connected or associated that one of them, either directly or indirectly, controls or has power to control the other; if a third party controls or has the power to control both of them; if the owner of one is a spouse or a member of the immediate family of the owner of the other; or if they are or have been so closely allied through an established course of dealings, including but not limited to the lending of financial assistance, engaging in joint ventures, etc., as to create a public perception that the two contractors are a single entity.

(2)

Commission - The Texas Transportation Commission.

(3)

Contract - A maintenance contract.

(4)

Contractor - A maintenance contractor.

(5)

Debar, debarment - To disqualify (the disqualification of) a contractor from bidding on, entering, and/or participating as a subcontractor under a maintenance contract.

(6)

Department - The Texas Department of Transportation.

(7)

Executive director - The executive director of the Texas Department of Transportation or his designee not below the level of deputy or assistant executive director.

(8)

Maintenance contract - A contract let by the Texas Department of Transportation[ , through either its Maintenance Division or one of its district offices, ] for maintenance work on a segment of the state highway system.

(9)

Maintenance contractor - An individual, partnership, corporation, or other business entity which bids on a maintenance contract, or which functions, or seeks to function, as a subcontractor under any such contract.

(10)

Sanction - Debarment or reduction in bidding capacity.

(11)

[ (10) ] Subcontractor - An individual, partnership, corporation, or other business entity to which the prime contractor sublets, or proposes to sublet, any portion of a highway maintenance contract.

Reasons for Sanctions [ Debarment ].

(a)

The executive director may sanction [ debar ] a contractor, and/or a contractor's affiliate or successor[ , from bidding on, entering, and/or participating as a subcontractor under a maintenance contract, ] if that contractor:

[ (1)

fails to enter a maintenance contract duly awarded by the commission;]

[ (2)

performs a maintenance contract in an unsatisfactory manner by:]

[ (A)

failing to begin work within the specified time;]

[ (B)

failing to perform the work with sufficient workmen, equipment and/or materials to ensure completion of the work within the specified time;]

[ (C)

neglecting or refusing to remove materials or to perform anew work rejected by the department as being defective or not meeting specifications;]

[ (D)

discontinuing prosecution of the work without the express approval of the department;]

[ (E)

assigning any interest in a maintenance contract for any purpose without express approval by the executive director;]

[ (F)

subletting any work under that contract without express approval by the department; or]

[ (G)

failing for any other reason to perform the work in an acceptable and workmanlike manner;]

(1)

[ (3) ] is declared in default on a contract; or

(2)

[ (4) ] commits an act or offense, or engages in conduct which is a basis for debarment of a contractor pursuant to §9.6 of this title (relating to Procedure for Debarment of a Contractor) or §9.8 of this title (relating to Supplemental Procedures for Suspension or Debarment of a Contractor).

(b)

The existence of a cause for sanction [ debarment ] under this section does not necessarily require that the contractor be sanctioned [ debarred ]; the seriousness of the contractor's acts or omissions and any mitigating circumstances should be considered in making any sanction [ debarment ] decision.

(c)

Default [ Failure to perform, unsatisfactory performance, or default ] caused by acts beyond the control of the contractor shall not be considered as a basis for sanctioning [ debarment ].

§29.24.Notice and Appeal.

(a)

Upon a determination that a contractor should be sanctioned [ debarred ], the department shall mail a notice of the proposed sanction [ debarment ] to the last known address of the contractor by certified mail.

(b)

The notice shall clearly state:

(1)

the facts and circumstances underlying the proposed sanction [ debarment ];

(2)

the effective date and period of the sanction [ debarment ]; and

(3)

the right of the contractor to request an administrative hearing on the question of the proposed sanction [ debarment ].

(c)

A request for administrative hearing under this section must be made in writing to the executive director within 10 days of the receipt of the notice of proposed sanction [ debarment ].

(d)

An administrative hearing requested pursuant to this section shall be conducted in accordance with §§1.21 et seq. [ §§1.21-1.61 ] of this title (relating to Contested Case Procedure), and shall serve to abate the proposed sanction [ debarment ] unless and until that sanction [ debarment ] is affirmed by order of the commission.

§29.25.Effective Date of Sanction [ Debarment ].

Except as provided in §29.24 of this title (relating to Notice and Appeal), sanction [ debarment ] shall be effective on the date specified in the notice of proposed sanction [ debarment ].

Imposition of Sanctions [ Period of Debarment ]. (a)

After one default, the department may impose a 50% reduction in the contractor's bidding capacity (calculated in accordance with §9.12 of this title (relating to Qualification of Bidders)) for a period not to exceed 12 months.

(b)

After a second default within five years of the first default, the department may debar the contractor for a period not to exceed 12 months, and after the debarment period impose a 50% reduction in the contractor's bidding capacity (calculated in accordance with §9.12 of this title) for a period not to exceed 12 months.

(c)

After a third default within five years of the second default, the department may debar the contractor for a period not to exceed 36 months, and after the debarment period impose a 50% reduction in the contractor's bidding capacity (calculated in accordance with §9.12 of this title) for a period not exceed 12 months.

(d)

A contractor who commits an act or offense, or engages in conduct which is a basis for debarment pursuant to §9.6 of this title (relating to Procedure for Debarment of a Contractor) or §9.8 of this title (relating to Supplemental Procedures for Suspension or Debarment of a Contractor) shall be sanctioned as described in those sections.

[ (a)

The period of a single debarment imposed under §29.23 of this title (relating to Debarment), shall be for a period commensurate with the seriousness of the cause, but shall not exceed 12 months duration.]

(e)

[ (b) ] The executive director may consider rescinding or reducing [ terminating ] the sanction [ debarment or reducing the period ], upon the contractor's application, supported by documentation, for reasons deemed appropriate by that official.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 22, 1999.

TRD-9907937

Richard Monroe

General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 2, 2000

For further information, please call: (512) 463-8630