| (e) Reviewing the HUB subcontracting plan. The HUB
subcontracting plan shall be reviewed and evaluated prior to contract
award and, if accepted, shall become a provision of the state agency's
contract. Revisions necessary to clarify and enhance information submitted
in the original HUB subcontracting plan may be made in an effort to
determine good faith effort. State agencies shall review the documentation
submitted by the respondent to determine if a good faith effort has
been made in accordance with this section. If the state agency determines
that a submitted HUB subcontracting plan was not developed in good
faith, the state agency shall treat that determination as a material
failure to comply with advertised specifications, and the subject
response (bid, proposal, offer, or other applicable expression of
interest) shall be rejected. The reasons for rejection shall be recorded
in the procurement file.
(f) Maintaining records.
(1) Prime contractors shall maintain business records
documenting compliance with the HUB subcontracting plan and shall
submit a compliance report to the contracting state agency monthly,
in the format required by the comptroller. The compliance report submission
shall be required as a condition for payment.
(2) During the term of the contract, the state agency
shall monitor the HUB subcontracting plan monthly to determine if
the value of the subcontracts to HUBs meets or exceeds the HUB subcontracting
provisions specified in the contract. Accordingly, state agencies
shall audit and require a prime contractor to report to the state
agency the identity and the amount paid to its subcontractors in accordance
with §20.287(b) of this title (relating to State Agency Reporting
Requirements). If the prime contractor is meeting or exceeding the
provisions, the state agency shall maintain documentation of the prime
contractor's efforts in the contract file. If the prime contractor
fails to meet the HUB subcontracting provisions specified in the contract,
the state agency shall notify the prime contractor of any deficiencies.
The state agency shall give the prime contractor an opportunity to
submit documentation and explain to the state agency why the failure
to fulfill the HUB subcontracting plan should not be attributed to
a lack of good faith effort by the prime contractor.
(g) Monitoring HUB subcontracting plan during the contract.
(1) If the selected respondent decides to subcontract
any part of the contract in a manner that is not consistent with its
HUB subcontracting plan, the selected respondent must comply with
provisions of this section and submit a revised HUB subcontracting
plan before subcontracting any of the work under the contract. If
the selected respondent subcontracts any of the work without prior
authorization and without complying with this section, the selected
respondent is deemed to have breached the contract and is subject
to any remedial actions provided by Government Code, Chapter 2161,
other applicable state law and this section. Agencies shall report
nonperformance relative to its contracts to the comptroller in accordance §20.509
of this title (relating to Performance Reporting).
(2) If at any time during the term of the contract,
the selected respondent desires to make changes to the approved HUB
subcontracting plan, proposed changes must be received for prior review
and approval by the state agency before changes will be effective
under the contract. The selected respondent must comply with provisions
of this section, relating to developing and submitting a subcontracting
plan for substitution of work or of a subcontractor, prior to any
alternatives being approved under the HUB subcontracting plan. The
state agency shall approve changes by amending the contract or by
another form of written state agency approval. The reasons for amendments
or other written approval shall be recorded in the procurement file.
(3) If a state agency expands the original scope of
work through a change order or contract amendment, including a contract
renewal that expands the scope of work, the state agency shall determine
if the additional scope of work contains additional probable subcontracting
opportunities not identified in the initial solicitation. If the state
agency determines probable subcontracting opportunities exist, the
state agency will require the selected respondent to submit a HUB
subcontracting plan/revised HUB subcontracting plan for the additional
probable subcontracting opportunities.
(4) To determine if the prime contractor is complying
with the HUB subcontracting plan, the state agency may consider the
following:
(A) whether the prime contractor gave timely notice
to the subcontractor regarding the time and place of the subcontracted
work;
(B) whether the prime contractor facilitated access
to the resources needed to complete the work; and
(C) whether the prime contractor complied with the
approved HUB subcontracting plan.
(5) If a determination is made that the prime contractor
failed to implement the HUB subcontracting plan in good faith, the
state agency, in addition to any other remedies, may report nonperformance
to the comptroller in accordance with §20.585 of this title (relating
to Debarment) and §20.586 of this title (relating to Procedures
for Investigations and Debarment). In addition, if the prime contractor
failed to implement the HUB subcontracting plan in good faith, the
state agency may revoke the contract for breach of contract and make
a claim against the prime contractor.
(6) State agencies shall review their procurement procedures
to ensure compliance with this section.
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