Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 11.
CONTRACTS
Subchapter D. RESOLUTION OF CONTRACT CLAIMS
30 TAC §§11.101 - 11.108
The Texas Natural Resource Conservation Commission (TNRCC
or commission) proposes new §11.101, Definitions; §11.102, Applicability, §11.103,
Other rules and statutes; §11.104, Filing Notice of Claim for Breach
of Contract; Counterclaim; §11.105, Negotiation; §11.106, Settlement
of Claim; §11.107, Mediation; and §11.108, Request for Hearing.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of proposed Chapter 11, Subchapter D, Resolution of Certain
Contract Claims Against the Texas Natural Resource Conservation Commission,
is to implement Texas Government Code, Chapter 2260, Resolution of Certain
Contract Claims Against the State, which was created by House Bill (HB) 826,
76th Legislature, 1999. The statute requires that each unit of state government
must adopt rules to govern the negotiation and mediation of contractor claims
for breach of contract. Chapter 2260 provides that this administrative claim
procedure is a prerequisite to filing suit by the contractor. Chapter 2260
also requires the commission to define by rule the process for mediating and
settling claims against the state arising under contracts for goods and services.
The proposed rules have been drafted to be consistent with the intent and
language of HB 826, and to specifically satisfy the rulemaking requirements
required of the commission.
The proposed rules establish a procedure for the administrative processing
of contractor claims for breach of written contracts with the commission.
SECTION BY SECTION DISCUSSION
New proposed §11.101 defines terms used in this subchapter including
"claim," contract," "contractor," and "counterclaim."
New proposed §11.102 provides that these rules apply to the types
of claims authorized or required under Texas Government Code, Chapter 2260,
but do not apply to certain specified types of contracts. The list of exemptions
is derived from the Texas Attorney General's HB 826, Model Rules. Section
11.102(b)(6) and (7) exclude contracts which are within the exclusive jurisdiction
of local, state, and federal regulatory bodies and federal courts. An example
would be a claim by a contractor who has filed for federal bankruptcy court
protection.
New proposed §11.103 provides that the requirements of Texas Government
Code, Chapter 2260 and those of commission rules 30 TAC §1.10 and §1.11
(except §1.11(a)) apply to claims under this subchapter. The rule informs
the public that additional statutory requirements apply to contract claims
but does not repeat or incorporate the wording of the statute.
New proposed §11.104 sets out the procedure for a contractor to file
a claim with the commission. The statutory period of limitation for filing
the claim (within 180 days of the event asserted as the basis of the claim)
is repeated here to clarify that the statutory period is the same as the period
for filing the claim with the chief clerk.
New proposed §11.105 sets out the procedure for negotiating a claim.
New proposed §11.106 provides that an agreement to settle a claim
must be in writing, signed by both the executive director and the contractor
and be filed with the chief clerk.
New proposed §11.107 provides that the parties may agree to mediate
a claim. The mediation procedure is in 30 TAC Chapter 40.
New proposed §11.108 describes the process by which a contractor may
request a contested case hearing on the claim if it has not been resolved.
The rule clarifies that a hearing request may not be filed within 270 days
after the original notice of claim in order to allow time for negotiation
and possible resolution of the claim. The rule also recognizes that the period
(when hearing requests are prohibited) may be extended or reduced by agreement.
Such an agreement might occur when negotiations are either approaching a successful
settlement or have clearly reached an impasse.
FISCAL NOTE
Jeff Grymkoski, Director, Strategic Planning and Appropriations Division,
has determined for the first five-year period the rules as proposed are in
effect, there will be no fiscal implications for state or local governments
as a result of administration or enforcement of the proposed new rules. Enforcement
of the rules will not result in an increase in workload for commission staff.
PUBLIC BENEFIT
Mr. Grymkoski has also determined for each year of the first five years
the proposed new rules are in effect, the public benefit anticipated from
enforcement of and compliance with the rules will be an easier, more straightforward,
less time-consuming, and less costly way to resolve contract disputes.
SMALL AND MICRO-BUSINESS IMPACT ANALYSES
The proposed rules are not anticipated to impose costs on persons, small
businesses, or micro-businesses because they create a cost-effective dispute
resolution method, mediation, as an alternative to lawsuits in court, for
resolving breach of contract claims. They will save money for those affected
persons.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in that statute.
These are procedural rules governing the resolution of breach of contract
claims. These rules do not set any environmental standards or affect the enforcement
of environmental standards. There are no federal standards for these contracting
issues. These rules are specifically required by state law, Texas Government
Code, §2260.052(c). These rules are proposed under this specific state
statute rather than the general powers of the commission. These rules do not
exceed the requirements of state law. There are no delegation agreements or
contracts between the state and federal government concerning state contracting
procedures.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for these rules
under Texas Government Code, §2007.043. The following is a summary of
that assessment. The specific purpose of the proposed rules is to implement
legislation on procedures for handling contract disputes between the commission,
and persons who enter into contracts with it. These are procedural rules governing
the resolution of breach of contract claims. These rules do not set any environmental
standards or affect the enforcement of environmental standards. These proposed
rules do not regulate the use of private real property. Therefore, these rules
will not constitute a takings under Texas Government Code, Chapter 2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has determined that the proposed rulemaking does not relate
to an action or actions subject to the Texas Coastal Management Program (CMP)
in accordance with the Coastal Coordination Act of 1991, as amended (Texas
Natural Resources Code, §§33.201 et seq.), and the commission's
rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the
CMP. These are procedural rules that do not set environmental standards or
affect their enforcement.
Interested persons may submit comments on the consistency of the proposed
rules with the CMP during the public comment period.
PUBLIC HEARING
A public hearing on this proposal will be held in Austin on June 1, 2000
at 2:00 p.m. in Building F, Room 3202A at the Texas Natural Resource Conservation
Commission Complex, located at 12100 Park 35 Circle. Individuals may present
oral statements when called upon in order of registration. Open discussion
will not occur during the hearing; however, an agency staff member will be
available to discuss the proposal 30 minutes before the hearing and will answer
questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs, who are planning to attend the hearing, should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Angela Slupe, Office of Environmental
Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log Number
1999-081-011-AD. Comments must be received by 5:00 p.m., June 5, 2000. For
further information, please contact Doug McArthur at (512) 239-6857.
STATUTORY AUTHORITY
The new sections are proposed under HB 826, 76th Legislature, 1999, codified
as Texas Government Code, Chapter 2260, which requires the commission to develop
rules governing the negotiation and mediation of claims for breach of contract
between the commission and a contractor.
The proposed new sections implement Texas Government Code, Chapter 2260.
§11.101. Definitions.
The following words and terms, when used in this chapter, shall have
the following meaning, unless the context clearly indicates otherwise:
(1)
Claim - A demand for damages by the contractor based upon
the agency's alleged breach of the contract.
(2)
Contract - A written contract between the agency
and a contractor (including contract documents, work orders, purchase order
change notices, and other documents amending, modifying, or supplementing
the contract by the terms of which the contractor agrees either:
(A)
to provide goods or services, by sale or lease, to or
for the agency; or
(B)
to perform a project as defined by Texas Government Code, §2166.001.
(3)
Contractor - Independent contractor who has
entered into a contract directly with a unit of state government. The term
does not include:
(A)
the contractor's subcontractor, officer, employee, agent,
or other person furnishing goods or services to a contractor;
(B)
an employee of a unit of state government; or
(C)
a student at an institution of higher education.
(4)
Counterclaim - A demand by the agency relating
to the contractor's claim.
(5)
Deputy director of OLS - the deputy director for
the Office of Legal Services (OLS) or the director of a similar successor
unit within the agency serving as legal counsel for the executive director
and includes individuals designated to act for the deputy director of OLS
or a similar unit.
§11.102. Applicability.
(a)
This chapter does not apply to an action of the agency
for which a contractor is entitled to a specific remedy pursuant to state
or federal constitution or statute.
(b)
This chapter does not apply to contracts:
(1)
between the agency and the federal government or its agencies,
another state, or another nation;
(2)
between the agency and another unit of state government;
(3)
between the agency and a local governmental body,
or a political subdivision of another state;
(4)
between a subcontractor and a contractor;
(5)
subject to the Transportation Code, §201.112;
(6)
within the exclusive jurisdiction of state or local
regulatory bodies;
(7)
within the exclusive jurisdiction of federal courts
or regulatory bodies; or
(8)
for grants of funds from the agency to grantees or
subgrantees.
(c)
This subchapter applies to claims for breach of contract
against the agency asserted by a contractor under Texas Government Code, Chapter
2260 and to counterclaims of the agency. No employee or agent of the commission
is authorized to waive the requirements of this subchapter nor the sovereign
immunity of the agency, whether by means of acceptance of goods and services
or otherwise.
§11.103. Other Rules and Statutes.
The requirements of the following statutes and rules also apply to
claims filed under this subchapter:
(1)
Texas Government Code, Chapter 2260, regarding contract
claims, including without limitation the time limits for filing the notice
of claim, counterclaim, and request for hearing; and
(2)
Section 1.10 and §1.11 of this title (regarding
Document Filing) except §1.11(a).
§11.104. Filing Notice of Claim for Breach of Contract; Counterclaim.
A contractor asserting a claim that the agency has breached a contract
must file a notice of claim as follows.
(1)
The notice of claim must fully describe the claim in writing
on a form to be determined by the agency and must be signed by the contractor
or an authorized representative.
(2)
The notice of claim must be filed with the agency's
chief clerk no later than 180 days after the event that the contractor asserts
as the basis of the claim. The contractor must reference the docket number
assigned by the chief clerk in any documents subsequently filed which pertain
to the notice of claim.
(3)
Copies of the written notice of claim and all other
documents filed with the chief clerk must be served on the executive director
and the deputy director of OLS no later than the day of filing.
(4)
The executive director shall file any appropriate
counterclaim with the chief clerk within 90 days after the filing of the notice
of claim and provide a copy to the contractor.
§11.105. Negotiation.
(a)
The executive director is authorized to negotiate, mediate,
and settle the claim, as appropriate, and may designate one or more employees
of the agency to act.
(b)
Upon receiving a notice of claim, the executive director
shall provide the contractor a reasonable opportunity to meet and negotiate
the claim.
(c)
The executive director may also negotiate, mediate, or
settle with a contractor concerning any assertion by a contractor which does
not constitute either a notice or a claim under Texas Government Code, Chapter
2260. Such actions by the executive director do not constitute a waiver of
statutory or regulatory requirements for a notice or a claim.
§11.106. Settlement of Claim.
Any agreement to settle all or a portion of the contractor's claim
filed under this subchapter must be:
(1)
in writing;
(2)
signed by the executive director and the contractor
or authorized representative; and
(3)
filed with the chief clerk.
§11.107. Mediation.
The contractor and the executive director may agree to mediate a claim
made under this subchapter. Mediation must be conducted under Chapter 40 of
this title (relating to Alternative Dispute Resolution Procedure).
§11.108. Request for Hearing.
(a)
A contractor may request a contested case hearing before
the state SOAH of any unsettled portion of the claim.
(b)
A contractor must file the request for hearing with the
chief clerk in writing on a form to be determined by the commission.
(c)
A contractor may not file the request for hearing until
the expiration of 270 days after the contractor files the notice of claim.
This period may be extended or reduced by written agreement of the contractor,
and the executive director. The agreement must be filed with the chief clerk.
(d)
A contractor must serve copies of the request for hearing
on the executive director and the deputy director of OLS no later than the
day of filing.
(e)
After a contractor files the request for hearing, the
chief clerk shall refer the entire file on the claim and counterclaim to the
SOAH for a contested case hearing under Texas Government Code, Chapter 2001,
as to the issues raised in the request for hearing. Referral of a request
for hearing to SOAH does not constitute waiver by the commission of statutory
or regulatory requirements for the notice of claim, the claim or the request
for hearing.
(f)
Other chapters of this title regarding requests for, and
conduct of, contested case hearings of applications do not apply to hearings
of contract claims brought under this subchapter.
(g)
Contested case hearings brought under this subchapter
must be conducted in compliance with the rules of SOAH applicable to hearings
on contract claims and where those rules are silent, under the Texas Rules
of Civil Procedure and the Texas Rules of Evidence.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 20, 2000.
TRD-200002832
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: June 5, 2000
For further information, please call: (512) 239-4712
30 TAC §§14.1-14.16
The Texas Natural Resource Conservation Commission (commission)
proposes a new §14.1, Definitions; §14.2, Commission Authority; §14.3,
Applicability; §14.4, Funding; §14.5, Recipient Eligibility; §14.6,
Recipient Selection Criteria; §14.7, Solicitations; §14.8, Direct
Award; §14.9, Notices; §14.10, Payment Procedures; §14.11,
Other Requirements; §14.12, Eligible Activities; §14.13, Uniform
Grant Management Standards; §14.14, Grant Awards Affecting Mexico; §14.15,
Delegation of Authority; and §14.16, Affect on Prior Grants. The purpose
of the new sections is to implement Senate Bill (SB) 1421 and House Bill (HB)
3561, 76th Legislature, 1999. Senate Bill 1421, 76th Legislature, 1999, adds
Texas Water Code, §5.124 and House Bill 3561 adds Texas Water Code, §5.125
(Session Laws, 76th Legislature, 1999, Chapter 187 (HB 3561) pages 660-662),
Authority to Award Grants. Both sections contain identical language and require
the commission to establish, by rule, procedures for awarding a grant, for
making any determination related to awarding a grant, and for making grant
payments. The proposed rules, in a new Chapter 14, respond to this requirement.
SECTION BY SECTION DISCUSSION
Section 14.1 provides definitions of various terms used in the chapter.
Section 14.2 cites agency's authority to award grants.
Section 14.3 establishes the types of grants that may be awarded and requires
the executive director to determine and document that a proposed grant satisfies
an authorized purpose.
Section 14.4 lists funding sources the agency is authorized to use for
grants.
Section 14.5 requires that, prior to proposing any grant or series of grants,
the executive director establish recipient eligibility requirements appropriate
to the purposes and activities under such grant or grants.
Section 14.6 requires that, prior to proposing any grant or series of grants
for which there will be competitive selection of the recipient or recipients,
the executive director establish appropriate recipient selection criteria
and, then, award grants only to persons or entities that have been selected
in accordance with those criteria.
Section 14.7 lists specific kinds of information that must be include in
any formal request for proposals (RFP) issued by the agency for the purpose
of soliciting competitive proposals for grants other than those that are to
be directly awarded.
Section 14.8 describes the circumstances under which a grant may be directly
awarded without using a formal competitive selection process. The section
requires the executive director to determine and document, prior to the award,
that such procedure is appropriate.
Section 14.9 contains requirements relating to the placing of formal notices
in the state's electronic business daily, the Texas Marketplace, concerning
both the solicitation of proposals from potential recipients and, then, to
announce any grant awards made. The section also describes the notices required
to be placed in the Texas Marketplace when a direct award grant is anticipated
by the executive director.
Section 14.10 establishes payment procedures for grant recipients and identifies
the various regulations and standards, including various federal standards,
that affect different types of grant recipients.
Section 14.11 alerts potential grant recipients and others to certain contract-related
requirements under the Texas Government Code.
Section 14.12 stipulates that all activities paid for under a grant must
directly relate to a purpose specified in the grant.
Section 14.13 confirms that all applicable provisions of the Texas Government
Code, Chapter 783, Uniform Grant and Contract Management, and the
Uniform Grant Management Standards
manual apply to grants awarded by
the agency.
Section 14.14 stipulates that the requirements of Texas Government Code,
Chapter 792, International Cooperation Agreements, apply to any grant awarded
by the agency that involves either the United Mexican States, a political
subdivision of the United Mexican States, or an agency or entity created under
a treaty or executive agreement between the United States and the United Mexican
States.
Section 14.15 simply allows the executive director to delegate authority
under the chapter, but, specifies that delegation must be done in writing.
Section 14.16 defines the extent to which the requirements of the proposed
chapter apply to grants either awarded or under consideration by the agency
prior to September 1, 1999.
FISCAL NOTE
Jeff Grymkoski, Director, Strategic Planning and Appropriations, has determined
that there will be no fiscal implications for units of state and local government
as a result of administration and enforcement of the proposed new rules for
the first five years that the proposed rules are in effect. The rules would
implement certain provisions of SB 1421 and HB 3561. The rules would establish
requirements for grant applications, selection of grantees, funding, and program
activities eligible for grants.
PUBLIC BENEFIT
Mr. Grymkoski also has determined that for each year of the first five
years the proposed rules are in effect, the public benefit anticipated from
the enforcement of and compliance with the rules will be a greater assurance
that: (1) grants are awarded only for purposes consistent with the agency's
jurisdiction; (2) grants will be awarded to persons that meet the eligibility
requirements; (3) selection of grant recipients will be by solicitation of
a proposal or application (except under certain documented circumstances);
and (4) certain grants will be awarded directly to recipients when the executive
director determines that selection by solicitation or application is not feasible
and is in the best interest of the state. The implementation of these rules
is not anticipated to prevent any qualified business, unit of state government,
university, or individual from being awarded a grant from the agency.
SMALL AND MICRO-BUSINESS IMPACT ANALYSES
The implementation of these rules is not anticipated to affect adversely
any qualified small business or micro-business awarded a grant from the agency
and is not anticipated to impose additional costs on persons, small businesses,
or micro-businesses.
DRAFT REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule," as defined therein. In
addition, the proposed rulemaking is not a major environmental rule because
it does not meet any of the four applicability requirements of a "major environmental
rule" defined in §2001.0225(a). There is no federal law or federal delegation
agreement specifically applicable to these proposed rules.
TAKINGS IMPACT ASSESSMENT
The commission has prepared a takings impact assessment for the proposed
rules pursuant to Texas Government Code, §2007.043. The specific purpose
of the rules is to implement legislation concerning the commission's authority
to award grants for resource conservation and environmental protection purposes.
The proposed rules establish the agency's procedures for awarding grants,
for making any determination relating to awarding a grant, and for making
grant payments. The rules do not affect private real property. Therefore,
these proposed rules under new Chapter 14 will not constitute a takings under
Texas Government Code, Chapter 2007.
COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW
The commission has reviewed the proposed rulemaking and found that the
rules are not identified in the Coastal Coordination Act Implementation Rules,
31 TAC §505.11, Actions and Rules Subject to the Texas Coastal Management
Program (CMP), and will not affect any action/authorization identified in
Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the proposed rules are not subject to the CMP.
SUBMITTAL OF COMMENTS
Comments may be submitted to Angela Slupe, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. All comments should reference Rule Log No. 1999-040-014-AD.
Comments must be received by 5:00 p.m., June 5, 2000. For further information,
please contact Doug McArthur, Office of Administrative Services, Purchasing,
MC 181, P.O. Box 13087, Austin, Texas 78711-3087, telephone (512) 239-6857,
fax (512) 239-0371.
STATUTORY AUTHORITY
The new sections are proposed under SB 1421 and HB 3561, 76th Legislature,
1999, and require the commission to establish, by rule, procedures for awarding
a grant, for making any determination relating to awarding a grant, and for
making grant payments. Also, the new chapter is proposed under Texas Water
Code, §5.103, which authorizes the commission to adopt any rules needed
to carry out its powers and duties. This rulemaking responds to a new requirement
of state law.
The proposed rules implement SB 1421 and HB 3561, 76th Legislature, 1999,
and are authorized by Texas Water Code, §5.103.
§14.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Direct award--The award of a grant without first soliciting
competitive proposals or applications.
(2)
Grant--The award of financial assistance, including
cooperative agreements, in the form of money, property in lieu of money, or
other financial assistance paid or furnished by the state or federal government
to carry out a program in accordance with rules, regulations, and guidance
provided by the grantor agency. The term does not include technical assistance
which provides services instead of money, or other assistance in the form
of revenue sharing, loans, loan guarantees, interest subsidies, insurance,
or direct appropriations. Also, the term does not include assistance, such
as a fellowship or other lump sum award, for which the grantee is not required
to account.
(3)
Local government--A county, municipality, city, town,
township, local public authority (including any public and Indian housing
agency under the United States Housing Act of 1937), school district, special
district, intrastate district, council of governments (whether or not incorporated
as a nonprofit corporation under state law), any other regional or interstate
government entity, or any agency or instrumentality of a local government.
(4)
Pass-through grant--An award of financial assistance
made by the agency to an eligible entity using federal grant funds. The term
includes financial assistance when provided by contractual legal agreement,
but does not include any form of assistance which is excluded from the definition
of "grant" as defined in this section.
(5)
Political subdivision--A political subdivision as
that term is used in Texas Government Code, Chapter 791, Interlocal Cooperation
Contracts.
(6)
UGMS--The publication titled
Uniform Grant Management Standards,
promulgated by the Governor's Office
of Budget and Planning in accordance with Texas Government Code, Chapter 783,
Uniform Grant and Contract Management, as amended February 12, 1999.
§14.2.Authority.
The Texas Water Code, §§5.124 and 5.125 (Session Laws, 76th
Legislature, 1999, Chapter 187 (HB 3561) pages 660-662) authorizes the agency
to award grants for any resource conservation or environmental protection
purpose.
§14.3.Applicability.
(a)
Grants may be awarded only for a purpose which is consistent
with the agency's jurisdiction and purposes under law, as determined by the
executive director.
(b)
Purposes for which the agency may award a grant include:
(1)
development or implementation of comprehensive conservation
and management plans under the Federal Water Pollution Control Act, §320
(33 United States Code, Chapter 1330), for designated national estuaries located
in Texas;
(2)
demonstration projects which involve new techniques
for pollution prevention, energy or resource conservation, or waste management;
(3)
environmental purposes identified in a federal grant
which is intended as pass-through grant;
(4)
development or improvement of monitoring or modeling
techniques for water or air quality;
(5)
support of local air pollution programs; or
(6)
studies or program-related efforts to prevent an area
which is near-nonattainment with federal air quality standards from reaching
nonattainment status or, if such an area has become a nonattainment area,
to assist that area's efforts to return to attainment status.
(c)
If the agency awards a grant for a purpose other than those
specifically listed in subsection (b) of this section, the executive director
must identify the purpose, determine and document that it is consistent with
the agency jurisdiction and purposes under law, and document how the funding
requirements are met under §14.4 of this title (relating to Funding).
(d)
This chapter does not restrict or limit the ability of
the agency to procure goods or services needed by the agency for the purpose
of carrying out its own responsibilities in accordance with the Texas Government
Code, Title 7, Intergovernmental Relations, or Title 10, General Government.
§14.4.Funding.
Grants awarded by the agency under this chapter may use:
(1)
money appropriated for specific grant-making purposes;
(2)
federal money granted to the agency for making pass-through
grants; or
(3)
state or federal grant money appropriated for a purpose
which the executive director determines is, and documents as being, consistent
with a purpose of the grant.
§14.5.Recipient Eligibility.
The executive director shall, for each proposed grant or series of
grants, establish recipient eligibility requirements appropriate to the purposes
of and activities under the proposed grant or grants.
§14.6.Recipient Selection Criteria.
(a)
Except as provided under §14.8 of this title (relating
to Direct Award), the executive director shall establish, for each proposed
grant or series of grants, recipient selection criteria appropriate to the
purposes of and activities under the proposed grant or grants.
(b)
The executive director may specify any selection criterion
he considers relevant to the grant.
(c)
All selection criteria must address the evaluation and
scoring of:
(1)
available fiscal controls;
(2)
project effectiveness;
(3)
project cost; and
(4)
the potential grant recipient's previous experience
with grants and contracts.
(d)
The agency may award a grant only to an entity or person
who meets the established eligibility requirements of the proposed grant and
who has been selected in accordance with the established recipient selection
requirements.
§14.7.Solicitations.
(a)
Except as otherwise provided under §14.8 of this title
(relating to Direct Award), the executive director shall prepare and issue
a formal request for proposal (RFP) for each proposed grant or series of grants.
The RFP must specify the following:
(1)
the purpose and objective of the proposed grant or grants;
(2)
the agency's authority to offer and award the proposed
grant or grants;
(3)
the applicable recipient eligibility requirements;
(4)
the grant recipient activities allowable or required
to be performed;
(5)
the anticipated start date and end date of the proposed
grant or grants;
(6)
the recipient selection criteria to be used;
(7)
an indication as to whether the agency expects to
award more than one grant, and if so how the recipient selection criteria
provide for selection of multiple recipients;
(8)
instructions concerning materials and information
required to be submitted by potential grant recipients, including layout and
format, required signatures, and number of copies;
(9)
the submission deadline and the required address or
delivery location for proposals;
(10)
information as to whether grant recipients will be
required to contribute matching funds, or other labor or material resources,
as a condition of receiving a grant;
(11)
information as to whether, and if so how, the executive
director proposes to adjust or waive any RFP-contained matching funds requirement
as authorized under Texas Government Code, §783.009, Matching Fund Waiver
for Economically Disadvantaged County or Census Track;
(12)
information as to how grant payments will be made;
(13)
information concerning requests for additional, pre-submittal
information;
(14)
the time and location of any pre-submittal meetings,
together with an indication as to whether attendance is mandatory; and
(15)
a requirement that successful recipients must enter
into a signed grant agreement or contract with the agency following award
announcement.
(b)
RFPs may indicate the amount of grant funding available
to be awarded, but are not required to do so.
§14.8.Direct Award.
(a)
A grant may be made by direct award only if:
(1)
the executive director determines and documents:
(A)
selection of recipients by the solicitation of proposals
or applications is not feasible; and
(B)
awarding the grant directly is in the best interest of
the state;
(2)
eligibility for the grant is limited to:
(A)
an agency or political subdivision of this state or of
another state;
(B)
a state institution of higher learning of this state or
of another state, including any part or service of the institution; or
(C)
an agency of the United States; or
(3)
the grant is awarded to an entity or person established
or authorized to develop or implement a comprehensive conservation and management
plan under the Federal Water Pollution Control Act, §320 (33 United States
Code, Chapter 1330), for a national estuary located in Texas.
(b)
If a solicitation for proposals is made for the purpose
of identifying a partner for a joint application for a federal grant which
is subsequently awarded to the agency, the executive director is not required
to make an additional solicitation for entering into a pass-through grant
with an identified partner.
§14.9.Notices.
(a)
The executive director shall publish on the state electronic
business daily, commonly known as the Texas Marketplace, information regarding
any solicitation related to a grant or series of grants to be awarded under
this chapter.
(b)
The notice will indicate either that the executive director
is seeking proposals or applications from potential grant recipients, or that
one or more direct awards is anticipated, in accordance with §14.8 of
this title (relating to Direct Award).
(c)
If one or more direct awards is anticipated, the notice
will identify the recipients selected to receive a direct award and will describe
the objective and amount of each proposed award.
(d)
Following recipient selection and final grant award, except
in the case of a previously noted direct award, the executive director shall
file a second notice in the state's electronic business daily identifying
the successful recipients and indicating the amount of each awarded grant.
(e)
In addition, the executive director may publish or broadcast
information concerning a grant or grants in any publication, web site, or
other forum.
§14.10.Payment Procedures.
(a)
Payments to grant recipients shall be in accordance with
the following regulations and standards:
(1)
all allowable cost standards and payment-related requirements
of the
Uniform Grant Management Standards
(UGMS), Subpart C, Post-Award Requirements, as defined in §14.1 of this
title (relating to Definitions) if the recipient is a local government, a
Texas state agency, or an Indian Tribal Government;
(2)
all allowable cost standards and payment-related requirements
of the United States Office of Management and Budget (OMB) Circular A-122,
if the recipient is a private nonprofit organization, other than an institution
of higher education, hospital, or an organization named in OMB Circular A-122
as not subject to that circular;
(3)
all allowable cost standards and payment-related requirements
of OMB Circular A-21, if the recipient is an educational institution; and
(4)
all allowable cost standards and payment-related provisions
of Title 48, Code of Federal Regulations, Part 31 (Contract Cost Principals
and Procedures) if the recipient is a for-profit organization, other than
a hospital or an organization named in OMB Circular A-122 as not subject to
that circular.
(b)
In addition, payments to grant recipients shall be in accordance
with any special payment-related requirements and/or procedures contained
in the signed grant contract.
§14.11.Other Requirements.
For all grants awarded on or after September 1, 1999, the following
sections of the Texas Government Code, Chapter 2259, State Contracting Standards
and Oversight, shall apply:
(1)
§2259.101, Remedies and Sanctions Schedules, which
requires that all contracts include appropriate remedies and sanctions schedules;
(2)
§2259.151, Reevaluation of Payment and Reimbursement
Rates, which requires the executive director to implement procedures to ensure
payment and reimbursement methods and rates are appropriate, especially those
which are based on historical funding levels or on any formulas established
by commission rule;
(3)
§2259.201, Double-Billing, which requires the
executive director to establish procedures to detect and report double-billing
by contractors; and
(4)
§2259.203, Comparable Costs, which requires the
executive director to establish procedures to verify that comparable costs
are being charged for comparable goods and services.
§14.12.Eligible Activities.
All activities funded by a grant awarded by the agency must relate
directly to a purpose specified in the grant.
§14.13.Uniform Grant Management Standards.
All applicable provisions of the Texas Government Code, Chapter 783,
Uniform Grant and Contract Management, and the requirements in the most recently
adopted
Uniform Grant Management Standards
(UGMS),
as defined in §14.1 of this title (relating to Definitions), apply to
grants awarded by the agency.
§14.14.Grant Awards Affecting Mexico.
The requirements of the Texas Government Code, Chapter 792, International
Cooperation Agreements, apply to all grants awarded by the agency on or after
September 1, 1999, which involve either the United Mexican States, a political
subdivision of the United Mexican States, or an agency or entity created under
a treaty or executive agreement between the United States and the United Mexican
States.
§14.15.Delegation of Authority.
The executive director may delegate his authority under this chapter
as authorized under Texas Water Code, §5.221 and §5.238. Delegation
must be in writing.
§14.16.Effect on Prior Grants.
Except to the extent that such grants are subject to pre-existing law
embodying the same or similar requirements, the requirements of this chapter
do not affect the validity of or apply to any grant:
(1)
awarded by the agency prior to September 1, 1999;
(2)
with respect to which the executive director issued
a notice or solicitation prior to September 1, 1999, requesting proposals
or applications from potential recipients;
(3)
for which the executive director accepted either a
proposal or an application for consideration prior to September 1, 1999; or
(4)
directly awarded, for which the executive director
entered into negotiations or award-related discussions with the grant recipient
prior to September 1, 1999.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on April 21, 2000.
TRD-200002878
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Earliest possible date of adoption: June 4, 2000
For further information, please call: (512) 239-6087
Subchapter O. ADDITIONAL CONDITIONS AND PROCEDURES FOR WASTEWATER DISCHARGE PERMITS AND SEWAGE SLUDGE PERMITS
Chapter 14.
GRANTS
Chapter 305.
CONSOLIDATED PERMITS