(a) Purpose. In accordance with Transportation Code,
Chapter 223, Subchapter C, in a highway emergency, the department
in accordance with rules adopted by the commission is authorized to
award certain contracts. This section provides for an alternate procedure
for the expedited award of those contracts to meet emergency conditions
in which essential corrective or preventive action would be unreasonably
hampered or delayed by compliance with other laws, this subchapter,
or other sections of Part I of this title.
(b) Certification of emergency.
(1) A district engineer who identifies an emergency
situation in the geographic area under his or her jurisdiction and
determines that expedited action is required shall immediately notify
the executive director or the director's designee not below the level
of deputy executive director to describe the fact and nature of the
emergency. Upon receiving authorization to proceed, the district engineer
may initiate procedures for the award of an emergency contract. All
such notification will be documented in writing.
(2) Examples of types of work which may qualify for
emergency contracts include but are not limited to emergency repair
or reconstruction of streets, roads, highways, and bridges; clearing
debris or deposits from the roadway or in drainage courses within
the right of way; removal of hazardous materials; restoration of stream
channels outside the right of way in certain conditions; temporary
traffic operations; and mowing to eliminate safety hazards; provided,
however, that in each instance, the proposed work must satisfy the
requisites of emergency as defined in this subchapter.
(3) Before the contract is awarded, the executive director
or the director's designee not below the level of deputy executive
director must certify in writing the fact and nature of the emergency
giving rise to the award.
(c) Contractor eligibility. To be eligible to bid on
an emergency contract, a contractor must be included in the department's
list of prequalified bidders pursuant to §9.12 of this subchapter
(relating to Qualification of Bidders) or must complete a bidder's
questionnaire in a form prescribed by the department.
(d) Notification of prospective bidders.
(1) After an emergency is certified, the district engineer
will review the department's file of eligible bidders and, if there
are a sufficient number of firms, notify at least three of those firms.
(2) Consistent with and contingent upon the nature
of the emergency, the district engineer may contact prospective bidders
by telephone, letter, facsimile, or other appropriate form of communication.
(3) The district engineer will inform each prospective
bidder of the nature of the emergency and furnish specifications for
the remedy, including time constraints, bonding and insurance requirements,
and any additional information needed for the prospective bidder to
prepare a work plan and calculate the cost.
(4) If no eligible contractor is able to provide the
required type of service, the district engineer may take any measure
necessary to identify and locate an available contractor who is able
to provide the required service. If selected, the prospective contractor
thus identified must complete the bidder's questionnaire prior to
final approval of the award.
(e) Bidding requirements.
(1) A prospective bidder's bid must be in writing and
must include:
(A) a price for performing the work; and
(B) a response to each item in the district engineer's
specifications if the price is based on other than unit price.
(2) If the district engineer so authorizes, the prospective
bidder may submit an oral bid which must be confirmed in writing within
24 hours.
(f) Letting procedures.
(1) The district engineer will review the bids and,
if awarded, shall award the contract to the best bidder and document
the basis for the award. As used in this subsection, the best bidder
is that firm best able to respond to the emergency in a timely manner
and fulfill the state's priority needs as determined by the district
engineer.
(2) Each bidder will be notified as soon as possible
after the award is made, with written confirmation to follow.
(g) Contract.
(1) The department shall prescribe the form of the
emergency contract and may include therein such matters and specifications
as it deems advantageous to the state, including but not limited to
provisions which address the specifications for completion of work,
cost to perform the work, the basis for payment, time period needed
to complete the work, control of work, insurance and bonding requirements,
and any general or special conditions mutually agreed upon by the
department and the contractor.
(2) Each such contract shall be made in the name of
the State of Texas, signed by the executive director or the director's
designee not below the level of district engineer on behalf of the
department, and signed by the contracting party.
(3) The contractor must furnish satisfactory proof
of insurance and bonds before any work is performed.
(4) The contract must be fully executed before any
work is begun.
(5) The certification required in subsection (b) of
this section must be attached to the contract.
(h) Exceptions. If the district engineer determines
that the magnitude and extremity of the emergency require instantaneous
action by the contractor in order to alleviate an immediate detrimental
impact on public health and safety, and the executive director or
the director's designee not below the level of deputy executive director
has so noted in the certification of the emergency, the following
exceptions are permitted.
(1) The district engineer may authorize the contractor
to begin work:
(A) without a signed contract, provided the contract
is signed within 24 hours after work begins; and
(B) without bonds and proof of insurance, provided
they are furnished not more than three days after work begins.
(2) The executive director or deputy executive director
may authorize the waiving of bonds or insurance requirements if it
is determined that such requirements cannot be met prior to completion
of the work or would prevent the timely performance of work to the
detriment of public health, safety, or welfare.
(i) Reports to the commission. Not later than 24 hours
after the contract is awarded, the district engineer shall notify
the executive director or the director's designee not below the level
of deputy executive director of the award of the emergency contract.
Not later than the fifth working day following the date on which the
contract is awarded, the executive director shall furnish each member
of the commission written notification of the details of the emergency
conditions and the award.
(j) Section 9.23 of this subchapter (relating to Evaluation
and Monitoring of Contract Performance) does not apply to a contract
awarded under this section.
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Source Note: The provisions of this §9.19 adopted to be effective November 23, 1994, 19 TexReg 8867; amended to be effective December 11, 1997, 22 TexReg 12081; amended to be effective December 12, 1999, 24 TexReg 10901; amended to be effective December 11, 2008, 33 TexReg 10054; amended to be effective April 20, 2023, 48 TexReg 1968 |