| (a) Analyzing potential contracts of $100,000 or more.
In accordance with Government Code, Chapter 2161, Subchapter F, each
state agency that considers entering into a contract with an expected
value of $100,000 or more over the life of the contract (including
any renewals) shall, before the state agency solicits bids, proposals,
offers, or other applicable expressions of interest, determine whether
subcontracting opportunities are probable under the contract.
(1) State agencies shall use the following steps to
determine if subcontracting opportunities are probable under the contract:
(A) examining the scope of work to be performed under
the proposed contract and determining if it is likely that some of
the work may be performed by a subcontractor;
(B) research the Centralized Master Bidders List, the
HUB Directory, the Internet, and other directories, identified by
the comptroller, for HUBs that may be available to perform the contract
work; and
(C) a state agency may determine that subcontracting
is probable for only a subset of the work expected to be performed
or the funds to be expended under the contract. If a state agency
determines that subcontracting is probable on only a portion of a
contract, it shall document its reasons in writing for the procurement
file.
(2) In addition, determination of subcontracting opportunities
may include, but is not limited to, the following:
(A) contacting other state and local agencies and institutions
of higher education to obtain information regarding similar contracting
and subcontracting opportunities; and
(B) reviewing the history of similar state agency purchasing
transactions.
(b) Receipt of HUB subcontracting plans.
(1) If, through the analysis in subsection (a) of this
section, a state agency determines that subcontracting opportunities
are probable, then its invitation for bids, request for proposals
or other purchase solicitation documents shall state that probability
and require a HUB subcontracting plan. A bid, proposal, offer, or
other expression of interest to such a solicitation must include a
completed HUB subcontracting plan to be considered responsive.
(2) The HUB subcontracting plan shall be submitted
with the respondent's response on or before the due date for responses,
except for construction contracts involving alternative delivery methods.
For construction contracts involving alternative delivery methods,
the HUB subcontracting plan may be submitted up to 24 hours following
the date/time that responses are due provided that responses are not
opened until the HUB subcontracting plan is received.
(3) Responses that do not include a completed HUB subcontracting
plan in accordance with this subsection shall be rejected due to material
failure to comply with Government Code, §2161.252(b).
(4) If a properly submitted HUB subcontracting plan
contains minor deficiencies (e.g., failure to sign or date the plan,
failure to submit already-existing evidence that three HUBs were contacted),
the state agency may contact the respondent for clarification to the
plan if it contains sufficient evidence that the respondent developed
and submitted the plan in good faith.
(c) Requirements of a HUB subcontracting plan.
(1) A state agency shall require a respondent to state
whether it is a certified HUB. A state agency shall also require a
respondent to state overall subcontracting and overall certified HUB
subcontracting to be provided in the contract. Respondents shall follow
procedures in paragraph (2)(A) - (D) of this subsection when developing
the HUB subcontracting plan.
(2) The HUB subcontracting plan shall include the state
agency's HUB goals for its HUB business plan, and shall consist of
completed forms prescribed by the comptroller and shall include the
following:
(A) certification that respondent has made a good faith
effort to meet the requirements of this section;
(B) identification of the subcontractors that will
be used during the course of the contract;
(C) the expected percentage of work to be subcontracted;
and
(D) the approximate dollar value of that percentage
of work.
(3) The successful respondent shall provide all additional
documentation required by the state agency to demonstrate compliance
with good faith effort requirements prior to contract award. If the
successful respondent fails to provide supporting documentation (phone
logs, fax transmittals, electronic mail, etc.) within the timeframe
specified by the state agency to demonstrate compliance with this
subsection prior to contract award, that respondent's bid/proposal
shall be rejected for material failure to comply with advertised specifications
and state law.
(d) Establishing good faith effort by respondent.
(1) Any person submitting a bid, proposal, offer or
other applicable expression of interest in obtaining a contract with
the state shall submit a completed HUB subcontracting plan demonstrating
evidence of good faith effort in developing that plan. Good faith
effort shall be shown through utilization of the methods specified
below, and in full conformance with all directions for demonstration
and submission specified in the HUB subcontracting plan forms prescribed
by the comptroller.
(A) Divide the contract work into reasonable lots or
portions to the extent consistent with prudent industry practices.
(B) Provide written justification of the selection
process if the selected subcontractor is not a HUB.
(C) Provide documentation of meeting one or more of
the following requirements:
(i) notify trade organizations or development centers
that serve members of groups identified in §20.282(19)(C) of
this title (relating to Definitions) according to methods established
by the comptroller to assist in identifying HUBs by disseminating
subcontracting opportunities to their membership/participants. The
notice shall, in all instances, include the scope of work, information
regarding location to review plans and specifications, information
about bonding and insurance requirements, and identify a contact person.
Respondent must provide notice to organizations or development centers
no less than seven (7) working days prior to submission of the response
unless circumstances require a different time period, which is determined
by the state agency and documented in the contract file. The respondent
must document compliance with this subsection on the forms prescribed
by the comptroller in the manner directed on such forms;
(ii) submit documentation that 100% of all available
subcontracting opportunities will be performed by one or more HUBs;
or
(iii) submit documentation that one or more HUB subcontractors
will be utilized and that the total value of those subcontracts will
meet or exceed the statewide goal for the appropriate contract category
found in §20.284(b) of this title (relating to Statewide Annual
HUB Utilization Goals), or the state agency-specific goal for the
contracting category established by the procuring state agency, whichever
is higher. When utilizing this demonstration method, HUB subcontractors
with which the respondent has existing contracts that have been in
place for more than five years can not be claimed for purposes of
demonstrating that the applicable goal has been met or exceeded.
(D) Provide documentation of meeting one or more of
the following requirements:
(i) notify at least three (3) HUB businesses of the
subcontracting opportunities that the respondent intends to subcontract.
The respondent shall provide the notice described in this section
to three or more HUBs per each subcontracting opportunity that provide
the type of work required for each subcontracting opportunity identified
in the contract specifications or any other subcontracting opportunity
the respondent cannot complete with its own equipment, supplies, materials,
and/or employees. The notification shall be in writing, and the respondent
must document the HUBs contacted on the forms prescribed by the comptroller.
The notice shall, in all instances, include the scope of the work,
information regarding the location to review plans and specifications,
information about bonding and insurance requirements, and identify
a contact person. The notice shall be provided to potential HUB subcontractors
at least seven (7) working days prior to submission of the respondent's
response, unless circumstances require a different time period, which
is determined by the state agency and documented in the contract file;
(ii) submit documentation that 100% of all available
subcontracting opportunities will be performed by one or more HUBs;
or
(iii) submit documentation that one or more HUB subcontractors
will be utilized and that the total value of those subcontracts will
meet or exceed the statewide goal for the appropriate contract category
found in §20.284(b) of this title, or the state agency-specific
goal for the contracting category established by the procuring state
agency, whichever is higher. When utilizing this demonstration method,
HUB subcontractors with which the respondent has existing contracts
that have been in place for more than five years can not be claimed
for purposes of demonstrating that the applicable goal has been met
or exceeded.
(2) The respondent shall use the comptroller's Centralized
Master Bidders List, the HUB Directory, Internet resources, and/or
other directories as identified by the comptroller or the state agency
when searching for HUB subcontractors. Respondents may utilize the
services of minority, women, and community organizations contractor
groups, local, state, and federal business assistance offices, and
other organizations that provide assistance in identifying qualified
applicants for the HUB program who are able to provide all or select
elements of the HUB subcontracting plan.
(3) In making a determination if a good faith effort
has been made in the development of the required HUB subcontracting
plan, a state agency may require the respondent to submit supporting
documentation explaining how the respondent has made a good faith
effort according to each criterion listed in subsection (c)(2)(A)
- (D) of this section. The documentation shall include at least the
following:
(A) how the respondent divided the contract work into
reasonable lots or portions consistent with prudent industry practices;
(B) how the respondent's notices contain adequate information
about bonding, insurance, the availability of plans, the specifications,
scope of work, required qualifications and other requirements of the
contract allowing reasonable time for HUBs to participate effectively;
(C) how the respondent negotiated in good faith with
qualified HUBs, not rejecting qualified HUBs who were also the best
value responsive bidder;
(D) how the respondent provided notice to trade organizations
or development centers to assist in identifying HUBs by disseminating
subcontracting opportunities to their membership/participants;
(E) for contracts subject to paragraph (1)(D)(ii) of
this subsection, which HUBs were contracted to perform the subcontracting
services for each subcontracting opportunity; and
(F) for contracts subject to paragraph (1)(D)(iii)
of this subsection, which contractor(s) were utilized to perform the
subcontracting opportunities, and the relevant dates for the respondent's
contractual agreements with the contractor(s).
(4) A respondent's participation in a Mentor-Protégé
Program under Government Code, §2161.065, and the submission
of a protégé as a subcontractor in the HUB subcontracting
plan constitutes a good faith effort for the particular area to be
subcontracted with the protégé. When submitted, state
agencies may accept a Mentor-Protégé Agreement that
has been entered into by the respondent (mentor) and a certified HUB
(protégé). The state agency shall consider the following
in determining the respondent's good faith effort:
(A) if the respondent has entered into a fully executed
Mentor-Protégé Agreement that has been registered with
the comptroller prior to submitting the plan, and
(B) if the respondent's HUB subcontracting plan identifies
the areas of subcontracting that will be performed by the protégé.
(5) If the respondent is able to fulfill all of the
potential subcontracting opportunities identified with its own equipment,
supplies, materials and/or employees, respondent must sign an affidavit
and provide a statement explaining how the respondent intends to fulfill
each subcontracting opportunity. The respondent must agree to provide
the following if requested by the state agency:
(A) evidence of existing staffing to meet contract
objectives;
(B) monthly payroll records showing company staff fully
engaged in the contract;
(C) on site reviews of company headquarters or work
site where services are to be performed; and
(D) documentation proving employment of qualified personnel
holding the necessary licenses and certificates required to perform
the work.
Cont'd... |
