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RULE §9.19Emergency Contract Procedures

(a) Purpose. In accordance with Transportation Code, Chapter 223, Subchapter C, the department is authorized under certain conditions to award highway improvement contracts in cases of emergency. This section provides for an alternate procedure for the expedited award of highway improvement 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 1 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.

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

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