| (iii) submit documentation that one or more HUB subcontractors
will be utilized and that the total value of those subcontracts will
meet or exceed the statewide goal for the appropriate contract category
found in §20.284(b) of this title, or the state agency-specific
goal for the contracting category established by the procuring state
agency, whichever is higher. When utilizing this demonstration method,
HUB subcontractors with which the respondent has existing contracts
that have been in place for more than five years can not be claimed
for purposes of demonstrating that the applicable goal has been met
or exceeded.
(2) The respondent shall use the comptroller's Centralized
Master Bidders List, the HUB Directory, Internet resources, and/or
other directories as identified by the comptroller or the state agency
when searching for HUB subcontractors. Respondents may utilize the
services of minority, women, and community organizations contractor
groups, local, state, and federal business assistance offices, and
other organizations that provide assistance in identifying qualified
applicants for the HUB program who are able to provide all or select
elements of the HUB subcontracting plan.
(3) In making a determination if a good faith effort
has been made in the development of the required HUB subcontracting
plan, a state agency may require the respondent to submit supporting
documentation explaining how the respondent has made a good faith
effort according to each criterion listed in subsection (c)(2)(A)
- (D) of this section. The documentation shall include at least the
following:
(A) how the respondent divided the contract work into
reasonable lots or portions consistent with prudent industry practices;
(B) how the respondent's notices contain adequate information
about bonding, insurance, the availability of plans, the specifications,
scope of work, required qualifications and other requirements of the
contract allowing reasonable time for HUBs to participate effectively;
(C) how the respondent negotiated in good faith with
qualified HUBs, not rejecting qualified HUBs who were also the best
value responsive bidder;
(D) how the respondent provided notice to trade organizations
or development centers to assist in identifying HUBs by disseminating
subcontracting opportunities to their membership/participants;
(E) for contracts subject to paragraph (1)(D)(ii) of
this subsection, which HUBs were contracted to perform the subcontracting
services for each subcontracting opportunity; and
(F) for contracts subject to paragraph (1)(D)(iii)
of this subsection, which contractor(s) were utilized to perform the
subcontracting opportunities, and the relevant dates for the respondent's
contractual agreements with the contractor(s).
(4) A respondent's participation in a Mentor-Protégé
Program under Government Code, §2161.065, and the submission
of a protégé as a subcontractor in the HUB subcontracting
plan constitutes a good faith effort for the particular area to be
subcontracted with the protégé. When submitted, state
agencies may accept a Mentor-Protégé Agreement that
has been entered into by the respondent (mentor) and a certified HUB
(protégé). The state agency shall consider the following
in determining the respondent's good faith effort:
(A) if the respondent has entered into a fully executed
Mentor-Protégé Agreement that has been registered with
the comptroller prior to submitting the plan, and
(B) if the respondent's HUB subcontracting plan identifies
the areas of subcontracting that will be performed by the protégé.
(5) If the respondent is able to fulfill all of the
potential subcontracting opportunities identified with its own equipment,
supplies, materials and/or employees, respondent must sign an affidavit
and provide a statement explaining how the respondent intends to fulfill
each subcontracting opportunity. The respondent must agree to provide
the following if requested by the state agency:
(A) evidence of existing staffing to meet contract
objectives;
(B) monthly payroll records showing company staff fully
engaged in the contract;
(C) on site reviews of company headquarters or work
site where services are to be performed; and
(D) documentation proving employment of qualified personnel
holding the necessary licenses and certificates required to perform
the work.
(e) Reviewing the HUB subcontracting plan. The HUB
subcontracting plan shall be reviewed and evaluated prior to contract
award and, if accepted, shall become a provision of the state agency's
contract. Revisions necessary to clarify and enhance information submitted
in the original HUB subcontracting plan may be made in an effort to
determine good faith effort. State agencies shall review the documentation
submitted by the respondent to determine if a good faith effort has
been made in accordance with this section. If the state agency determines
that a submitted HUB subcontracting plan was not developed in good
faith, the state agency shall treat that determination as a material
failure to comply with advertised specifications, and the subject
response (bid, proposal, offer, or other applicable expression of
interest) shall be rejected. The reasons for rejection shall be recorded
in the procurement file.
(f) Maintaining records.
(1) Prime contractors shall maintain business records
documenting compliance with the HUB subcontracting plan and shall
submit a compliance report to the contracting state agency monthly,
in the format required by the comptroller. The compliance report submission
shall be required as a condition for payment.
(2) During the term of the contract, the state agency
shall monitor the HUB subcontracting plan monthly to determine if
the value of the subcontracts to HUBs meets or exceeds the HUB subcontracting
provisions specified in the contract. Accordingly, state agencies
shall audit and require a prime contractor to report to the state
agency the identity and the amount paid to its subcontractors in accordance
with §20.287(b) of this title (relating to State Agency Reporting
Requirements). If the prime contractor is meeting or exceeding the
provisions, the state agency shall maintain documentation of the prime
contractor's efforts in the contract file. If the prime contractor
fails to meet the HUB subcontracting provisions specified in the contract,
the state agency shall notify the prime contractor of any deficiencies.
The state agency shall give the prime contractor an opportunity to
submit documentation and explain to the state agency why the failure
to fulfill the HUB subcontracting plan should not be attributed to
a lack of good faith effort by the prime contractor.
(g) Monitoring HUB subcontracting plan during the contract.
(1) If the selected respondent decides to subcontract
any part of the contract in a manner that is not consistent with its
HUB subcontracting plan, the selected respondent must comply with
provisions of this section and submit a revised HUB subcontracting
plan before subcontracting any of the work under the contract. If
the selected respondent subcontracts any of the work without prior
authorization and without complying with this section, the selected
respondent is deemed to have breached the contract and is subject
to any remedial actions provided by Government Code, Chapter 2161,
other applicable state law and this section. Agencies shall report
nonperformance relative to its contracts to the comptroller in accordance §20.509
of this title (relating to Performance Reporting).
(2) If at any time during the term of the contract,
the selected respondent desires to make changes to the approved HUB
subcontracting plan, proposed changes must be received for prior review
and approval by the state agency before changes will be effective
under the contract. The selected respondent must comply with provisions
of this section, relating to developing and submitting a subcontracting
plan for substitution of work or of a subcontractor, prior to any
alternatives being approved under the HUB subcontracting plan. The
state agency shall approve changes by amending the contract or by
another form of written state agency approval. The reasons for amendments
or other written approval shall be recorded in the procurement file.
(3) If a state agency expands the original scope of
work through a change order or contract amendment, including a contract
renewal that expands the scope of work, the state agency shall determine
if the additional scope of work contains additional probable subcontracting
opportunities not identified in the initial solicitation. If the state
agency determines probable subcontracting opportunities exist, the
state agency will require the selected respondent to submit a HUB
subcontracting plan/revised HUB subcontracting plan for the additional
probable subcontracting opportunities.
(4) To determine if the prime contractor is complying
with the HUB subcontracting plan, the state agency may consider the
following:
Cont'd... |
