(a) Eligibility. To be eligible to bid on a highway
improvement contract, other than a building contract, or on a materials
contract, potential bidders must satisfy the applicable requirements
listed in this section.
(1) If the department has accepted from a person 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 person is eligible to bid
on any project for which the person meets any necessary special technical
qualification requirements, has sufficient available bidding capacity,
as determined under subsection (e) of this section, and has submitted
a properly completed Certification of Eligibility Status form if it
is a federal-aid project.
(2) A person that has submitted only a Bidder's 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 less
than $1 million;
(B) the project is a maintenance project;
(C) the project is an emergency project;
(D) the project contains specialty items not normal
to the department's roadway projects program; or
(E) the project is for the purchase of goods that may
be purchased under a materials contract.
(3) A bidder that submits only a Materials Supplier's
Questionnaire is eligible to bid only on a materials contract, including
a materials contract awarded under §9.19 of this subchapter (relating
to Emergency Contract Procedures).
(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
Bidder's 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 Bidder's 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 highway improvement contract, except as provided by subsection
(d) of this section.
(1) A potential bidder must:
(A) submit to the department's Construction Division
in Austin 10 days prior to the last day of bid opening a Confidential
Questionnaire that includes information, as required by the department,
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 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 potential bidder's financial condition, ownership structure,
affiliation status, or ability to operate as an on-going concern.
(d) Bidder's Questionnaire; Materials Supplier's 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 (relating
to Emergency Contract Procedures), a bidder must:
(1) submit to the department's headquarters office
in Austin 10 days prior to the date the bid opens, a Bidder's Questionnaire
that includes information, as required by the department, concerning
a bidder's equipment and experience or for a materials contract, a
bidder may submit a Materials Supplier's Questionnaire instead of
a Bidder's Questionnaire;
(2) submit unaudited and other data as required in
the instructions to the questionnaire submitted under paragraph (1)
of this subsection;
(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 questionnaire
submitted under paragraph (1) of this subsection. 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; available 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 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 $2 million, the bidder will receive a bidding
capacity of $2 million 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 $1 million for waived projects only.
(3) For a bidder submitting a Bidder's 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 $1.5 million for waived projects only.
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