| (4) For a bidder submitting a Bidder's Questionnaire
and compiled financial information and the principals of which have
at least two years' experience in construction or maintenance and
have satisfactorily completed at least four projects in these fields,
the bidding capacity is $1,000,000 for waived projects only. Those
bidders possessing more than two years' experience will be granted
an additional $250,000 in bidding capacity for each additional year
of experience in construction or maintenance, with a maximum bidding
capacity of $3,000,000 for waived projects only.
(5) For a bidder submitting a Bidder's Questionnaire
and reviewed financial information and the principals of which have
at least three years of experience in construction or maintenance
and have satisfactorily completed at least six projects in these fields,
the amount of the bidding capacity will be determined by multiplying
the net working capital by a factor determined by the department based
upon the expected dollar volume of projects to be awarded and the
number of bidders prequalified by the department. In the event that
this calculation does not result in an amount greater than $1,000,000,
the bidder will receive a bidding capacity of $1,000,000. Bidding
capacity determined under this paragraph is limited to waived projects
only.
(6) A bidder's available bidding capacity is determined
by the department by subtracting from the bidder's bidding capacity
the amount of the estimated cost of the bidder's uncompleted work
on department contracts. Bidding capacity does not apply to a materials
contract or building contract and an uncompleted materials or building
contract does not affect the bidding capacity or available bidding
capacity of a bidder.
(f) Effect of contract performance. A person's bidding
capacity or eligibility to bid on a highway improvement contract may
be affected by a decision of the deputy executive director under §9.24
of this chapter (relating to Performance Review Committee and Actions).
(g) Affiliated entities. Bidders that the department
determines are affiliated are not eligible to submit bids for the
same project. A bidder that is determined to be affiliated but that
can establish independence from the other affiliated bidders may request,
in accordance with this subsection, an exception to its ineligibility.
Such a request may be made only once during any 12-month period.
(1) For purposes of this subchapter:
(A) two or more bidders are affiliated if:
(i) the bidders share common officers, directors, or
controlling stockholders;
(ii) a family member of an officer, director, or controlling
stockholder of one bidder serves in a similar capacity in another
of the bidder;
(iii) an individual who has an interest in, or controls
a part of, one bidder either directly or indirectly also has an interest
in, or controls a part of, another of the bidders;
(iv) the bidders are so closely connected or associated
that one of the bidders, either directly or indirectly, controls or
has the power to control another bidder;
(v) one bidder controls or has the power to control
another of the bidders; or
(vi) the bidders are closely allied through an established
course of dealings, including but not limited to the lending of financial
assistance; and
(B) a family member of an individual is the individual's
parent, parent's spouse, step-parent, step-parent's spouse, sibling,
sibling's spouse, spouse, child, child's spouse, spouse's child, spouse's
child's spouse, grandchild, grandparent, uncle, uncle's spouse, aunt,
aunt's spouse, first cousin, or first cousin's spouse.
(2) To request the exception to the department's finding
of affiliation, a bidder must submit to the executive director a written
request explaining the basis for the exception accompanied by supporting
evidence, including an affidavit affirming that the bidder is independent
from and not coordinating with the affiliates or any other bidder.
The written request must be received not later than the 30th day before
the date of the bid opening for which the exception is requested.
(3) The department will review the request and supporting
evidence provided to determine the affiliation or independence of
the potential bidders. The department will consider, in addition to
other affiliation criteria:
(A) transactions between the potential bidders; and
(B) the extent to which the potential bidders share:
(i) equipment;
(ii) personnel;
(iii) office space; and
(iv) finances.
(4) If the department finds that the bidders are independent,
the director of the division reviewing the request will recommend
to the executive director that the requesting bidder be granted an
exception.
(5) The executive director will review the request,
supporting evidence, and department's recommendation and will make
the final determination on the request. The executive director will
send to the bidder the final written determination. An exception granted
to the bidder remains in effect for future bid openings unless the
exception is revoked under paragraph (6) of this subsection.
(6) The granting of an exception under this subsection
does not remove the classification of the bidders as affiliated. The
department reserves the right to conduct follow-up reviews and revoke
the exception if the follow-up reviews indicate that the bidders are
no longer independent. A bidder's failure to act independently of
its affiliates or other bidder during the period it was granted an
exception under this subsection may result in the imposition of sanctions.
(7) If bidders classified as affiliates submit bids
on the same project, the department reserves the right to reject all
bids on that project and relet the contract.
(8) Affiliated bidders that are granted an exception
under this subsection and that have been sanctioned in accordance
with Chapter 10 of this title must meet the exception criteria in
that chapter to be eligible to bid.
(h) Building contracts. To be eligible to bid on a
building contract, a potential bidder must satisfactorily comply with
any financial, experience, technical, or other requirements contained
in the governing specifications applicable to the project.
|
| Source Note: The provisions of this §9.12 adopted to be effective November 23, 1994, 19 TexReg 8867; amended to be effective September 22, 1995, 20 TexReg 7086; amended to be effective December 12, 1999, 24 TexReg 10901; amended to be effective January 4, 2001, 25 TexReg 13007; amended to be effective June 17, 2004, 29 TexReg 5795; amended to be effective December 11, 2008, 33 TexReg 10054; amended to be effective September 19, 2018, 43 TexReg 5996; amended to be effective April 20, 2023, 48 TexReg 1968 |
