(a) If information is required to be forwarded to a
Performance Review Committee under §9.23 of this subchapter (relating
to Evaluation and Monitoring of Contract Performance) or if a contractor,
including a contractor on a materials contract, has defaulted, the
deputy executive director will appoint the members and chairman of
the Performance Review Committee. The members and chairman serve at
the discretion of the deputy executive director. The Performance Review
Committee will review the information submitted to the committee under §9.23(f)
of this subchapter, any documentation developed by the department
during the evaluation process under §9.23 of this subchapter,
and any documentation submitted by the contractor. For a materials
contract, the Performance Review Committee will review any documentation
developed by the department related to the contract and any documentation
submitted by the contractor. The committee will determine whether
grounds exist for action under this section. After reviewing the submitted
information, the Performance Review Committee may recommend one or
more of the following:
(1) take no action;
(2) reduce the contractor's bidding capacity;
(3) prohibit the contractor from bidding on one or
more projects;
(4) immediately suspend the contractor from bidding
for a specified period of time; or
(5) prohibit the contractor from being awarded a contract
on which they are the apparent low bidder.
(b) The Performance Review Committee may recommend
that one or more actions listed in subsection (a) of this section
be taken immediately to ensure project quality, safety, or timeliness
if:
(1) the contractor failed to execute a highway improvement
contract or a materials contract after a bid is awarded, unless the
contractor honored the bid guaranty submitted under §9.14(d)
of this chapter (relating to Submittal of Bid);
(2) the commission, during the preceding 36-month period,
rejected two or more bids by the contractor because of contractor
error;
(3) the department declared the contractor in default
on a highway improvement contract or a materials contract; or
(4) a district notifies the committee through the referring
division that a contractor has failed to comply with a project recovery
plan established under §9.23(c).
(c) If the Performance Review Committee determines
that one or more actions listed in subsection (a) of this section
is appropriate, the committee may recommend that the action or actions
also be taken against an entity that the committee determines, in
accordance with §9.27 (relating to Affiliated Entities), is affiliated
with the contractor.
(d) If the Performance Review Committee determines
that action under subsection (a), (b), or (c) of this section is appropriate,
the committee, except as provided by subsection (g) of this section,
will confer with the Chief Engineer, or the Chief Administrative Officer
for a building contract, on the appropriate action to be taken and
applied to the contractor. The committee will send its recommendation
to the Deputy Executive Director within 10 business days after the
date that it determines the action to be applied.
(e) The Deputy Executive Director will consider the
Performance Review Committee's recommendation and make a determination
of any action to be taken. Within 10 business days after the date
of the Deputy Executive Director's determination, the department will
send notice to the contractor and to appropriate department employees
affected by the determination. The notice will:
(1) state the nature and extent of the remedial action;
(2) summarize the facts and circumstances underlying
the action;
(3) explain how the remedial action was determined;
(4) if applicable, inform the entity of the imposition
of a suspension; and
(5) state that the provider may appeal the reduction
in accordance with §9.25 of this subchapter (relating to Appeal
of Remedial Action).
(f) A decision of the Deputy Executive Director under
subsection (e) of this section may be appealed in accordance with §9.25
of this title.
(g) If the Performance Review Committee, in the performance
of its duties under this section finds information that indicates
that grounds for the imposition of sanctions under Chapter 10 of this
title (relating to Ethical Conduct by Entities Doing Business with
the Department) may exist, the committee immediately shall provide
that information to the department's Compliance Division.
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Source Note: The provisions of this §9.24 adopted 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 |