|(a) Prime provider's percentage of work. A prime provider
shall perform at least 30 percent of the contracted work with its
own work force, unless otherwise approved by the department.
(b) Project manager replacement. The prime provider
project manager may not be replaced without the prior written consent
of the department.
(c) Department audits. The department may perform interim
and final audits.
(d) Performance evaluations.
(1) The department project manager will document the
prime provider's performance on the contract by evaluating the prime
provider project manager and the firm and may include evaluation of
the prime provider's employee who is assisting with the management
of a work authorization. Evaluations will be conducted at least once
every 12 months and at the completion of the contract.
(2) Further evaluations pertaining to project constructability
may be conducted during project construction and at the completion
of the construction contract.
(3) The department will give a copy of each completed
performance evaluation to the prime provider for review and comment.
The prime provider's comments will be entered into the department's
(4) Performance evaluation scores will be entered into
the department's evaluation database and may be used for the purpose
of provider selection.
(e) Negotiated resolution of disputes. To every extent
possible, disputes between a prime provider and the department's project
manager should be resolved during the course of the contract.
(f) Prime provider performance evaluation dispute review.
(1) If a resolution is not reached with the department's
project manager and district engineer or division director, the prime
provider may request a review by the PEPS Division Director by submitting
a written request for review to the PEPS Division Director not later
than 10 days after the date of receipt of a final signed performance
evaluation. In the written request, the prime provider must identify
the issue or error and provide supporting information.
(2) The PEPS Division Director will gather information,
study relevant issues, and meet informally with the prime provider
and relevant department staff. The PEPS Division Director may void
the performance evaluation, request a re-evaluation or adjustment,
or affirm the original performance evaluation. The PEPS Division Director
will provide the decision to the prime provider in writing. The PEPS
Division Director's decision is final.
(g) Resolution of contracting or compensation disputes.
If resolution of a contracting or compensation dispute between the
prime provider and department's project manager or district engineer
is not reached, the PEPS Division Director may in the director's discretion
participate in the resolution of the dispute. The prime provider may
file a written claim under §9.2 of this chapter (related to Contract
|Source Note: The provisions of this §9.41 adopted to be effective October 17, 2013, 38 TexReg 7122; amended to be effective July 20, 2016, 41 TexReg 5248; amended to be effective May 16, 2018, 43 TexReg 3122; amended to be effective November 17, 2021, 46 TexReg 7806