| (a) Eligibility. To be eligible to bid on department
contracts, potential bidders must satisfy the requirements listed
in this section. All potential bidders must complete a Confidential
Questionnaire or a Bidders Questionnaire.
(1) If the department has accepted from a contractor
a properly completed Confidential Questionnaire, as described in subsection
(c) of this section, and audited financial information, as described
in subsection (b)(1) of this section, the contractor is eligible to
bid on any project for which the contractor meets any necessary special
technical qualification requirements, has sufficient available bidding
capacity, and has submitted a properly completed a Certification of
Eligibility Status form if it is a federal-aid project.
(2) A contractor that has submitted only a Bidders
Questionnaire, as described in subsection (d) of this section, may
bid only on a specified project for which the department has waived
the requirements of paragraph (1) of this subsection. Such a project
is referred to as a waived project and generally has one of the following
characteristics:
(A) the engineer's estimate for the project is $300,000
or less;
(B) the project is a routine maintenance project;
(C) the project is an emergency project; or
(D) the project contains specialty items not normal
to the department's roadway projects program.
(b) Financial Information. This section refers to three
types of financial information.
(1) Audited financial information is information resulting
from an examination of the accounting system, records, and financial
statements by an independent certified public accountant in accordance
with generally accepted auditing standards. Based on the examination,
the auditor expresses an opinion concerning the fairness of the financial
information in conformity with generally accepted accounting principles.
A bidder that submits audited financial information, as required for
a Confidential Questionnaire in accordance with subsection (c) of
this section, is eligible to bid on all projects for which the bidder
has available bidding capacity, as determined under subsection (e)
of this section.
(2) Reviewed financial information may be used in a
Bidders Questionnaire under subsection (d) of this section. The scope
of reviewed financial information is substantially less than audited
financial information, and the information is the result primarily
of inquiries of company personnel and analytical procedures applied
to financial data by an independent certified public accountant. Only
negative assurance is expressed by the independent accountant, which
means that the independent accountant is not aware of any material
modifications that should be made in order for the financial information
to conform to generally accepted accounting principles. A bidder that
submits reviewed financial information is subject to the limitations
described in subsections (d) and (e) of this section for a waived
project.
(3) Compiled financial information also may be used
in a Bidders Questionnaire under subsection (d) of this section. Compiled
financial information only presents information that is the representation
of management. No opinion or other assurance is expressed by the independent
accountant. A bidder that submits compiled financial information is
subject to the limitations described in subsections (d) and (e) of
this section for a waived project.
(c) Confidential Questionnaire. A potential bidder
must satisfy the requirements of this subsection to be eligible to
bid on a construction or maintenance contract, except as provided
by subsection (d) of this section.
(1) A potential bidder must:
(A) submit a Confidential Questionnaire to the department's
Construction Division in Austin 10 days prior to the last day of bid
opening, in a form prescribed by the department, which shall include
certain information concerning the bidder's equipment and experience
as well as financial condition;
(B) have a certified public accountant firm that is
licensed to practice public accountancy in this state prepare the
audited and any other financial information required by the department;
(C) satisfactorily comply with any technical qualification
requirements determined by the department to be necessary for a specific
project; and
(D) properly complete the Certification of Eligibility
Status form contained in the Confidential Questionnaire for the purpose
of bidding on federal-aid projects.
(2) Information adverse to the potential bidder contained
in the Certification of Eligibility Status form will be reviewed by
the department and the Federal Highway Administration, and may result
in the bidder being declared ineligible to submit bids.
(3) Satisfactory audited financial information will
grant a 12-month period of qualification from the date of the financial
statement.
(4) A three month grace period of qualification, for
the purpose of preparing and submitting current audited information,
will be granted prior to the expiration date of the financial statement.
(5) The department may require current audited information
at any time if circumstances develop which are factors that could
alter the firm's financial condition, ownership structure, affiliation
status, or ability to operate as an on-going concern.
(d) Bidders Questionnaire. To be eligible to bid on
a contract under this subsection or on a contract to be awarded under
§9.19 of this subchapter, a bidder must:
(1) submit a Bidders Questionnaire to the department's
headquarters office in Austin 10 days prior to the date the bid opens,
in a form prescribed by the department, which includes certain information
concerning a bidder's equipment and experience;
(2) submit unaudited and other data as required in
the instructions to the Bidders Questionnaire ;
(3) satisfactorily comply with any technical qualification
requirements determined by the department to be necessary on a specific
project; and
(4) for a federal-aid project, properly complete the
Certification of Eligibility Status form contained in the Bidders
Questionnaire. Information adverse to the potential bidder contained
in the certification will be reviewed by the department and by the
Federal Highway Administration, and may result in the bidder being
declared ineligible to submit bids on a federal-aid project.
(e) Bidding capacity. The department will make its
examination and determination based on the information submitted under
subsection (c) or (d) of this section, as appropriate, and advise
the bidder of its approved bidding capacity.
(1) For a bidder submitting a Confidential Questionnaire
and audited financial information, the amount of the bidding capacity
will be determined by multiplying the net working capital by a factor
determined by the department based on the expected dollar volume of
projects to be awarded and the number of bidders prequalified by the
department. If this calculation results in a positive amount that
is not greater than $1,000,000, the bidder will receive a bidding
capacity of $1,000,000 if the bidder has positive net working capital
and the bidder provides documentation of at least two years' experience
and four completed projects in the field in which the bidder wishes
to bid. Bidding capacity determined under this paragraph applies for
any project and is not limited to waived projects.
(2) For a bidder submitting a Bidder's Questionnaire
with no prior experience in construction or maintenance, or a negative
working capital position (i.e., financial statements indicate that
current liabilities exceed current assets), will receive a bidding
capacity of $300,000 for waived projects only.
(3) For a bidder submitting a Bidders Questionnaire
and compiled financial information if the principals of the bidder
have at least one year experience in construction or maintenance and
have satisfactorily completed at least two projects in these fields,
the bidding capacity is $500,000 for waived projects only.
(4) For a bidder submitting a Bidders 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 contractors
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 Bidders 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.
(f) Effect of contract performance. A firm'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. In making examinations and
determinations under this section, the department will make a determination
of bidder affiliations. Bidders 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.
(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.
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