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RULE §9.332Determination of Noncompliance; Sanctions

(a) The department may determine that the contractor or respondent failed to satisfy the requirements of this subchapter or comply with the contract's SBE special provision requirements.

(b) If a responder does not furnish the required SBE information within the period specified in the contract's SBE special provision, the department may declare the responder to be in default and retain the bid guaranty as liquidated damages in accordance with §9.18 of this chapter (relating to After Contract Award).

(c) The department will impose sanctions if the contractor:

  (1) is found to have discriminated against an SBE firm;

  (2) has failed to meet the contract SBE goal and has failed to demonstrate a good faith effort to meet the goal; or

  (3) has not kept SBE commitments for the contracts assigned a goal and the department has not approved good faith efforts or a substitution of the SBE firm.

(d) The department may impose any of the following sanctions:

  (1) written reprimand;

  (2) liquidated damages;

  (3) contract termination; or

  (4) other remedies available by law.

(e) Factors to be considered in imposing sanctions include:

  (1) the magnitude and the type of noncompliance described by subsection (a) of this section;

  (2) the degree of the contractor's culpability;

  (3) any steps taken to rectify the situation;

  (4) the contractor's record of performance on other projects including:

    (A) the contractor's annual SBE participation above SBE goals;

    (B) the contractor's annual SBE participation on projects without goals;

    (C) number of complaints the department has received from SBEs about the contractor; and

    (D) the number of times the contractor has been previously sanctioned by the department under this section; and

  (5) whether a contractor falsified, misrepresented, or withheld information.

(f) The department will notify the contractor or respondent of its determination under this section. The notice will include the reasons for that determination and specify the resulting sanctions, if any.

Source Note: The provisions of this §9.332 adopted to be effective September 1, 2012, 37 TexReg 5320

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