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TITLE 43TRANSPORTATION
PART 1TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 9CONTRACT AND GRANT MANAGEMENT
SUBCHAPTER BCONTRACTS FOR HIGHWAY PROJECTS
RULE §9.12Qualification of Bidders

  (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 $2 million for waived projects only. Those bidders possessing more than two years' experience will be granted an additional $500,000 in bidding capacity for each additional year of experience in construction or maintenance, with a maximum bidding capacity of $6 million 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 $2 million, the bidder will receive a bidding capacity of $2 million. 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 bidders; independence exception. Bidders that the department determines in accordance with §9.27 of this subchapter (relating to Affiliated Entities) 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) 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.

  (2) The department will review the request and supporting evidence provided to determine whether the requester is independent from the other affiliated bidder. In determining independence, 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.

  (3) 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.

  (4) 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 (5) of this subsection.

  (5) 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.

  (6) 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.

  (7) 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 comply only with any 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; amended to be effective May 15, 2024, 49 TexReg 3373

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