1 TAC §113.9
The Texas Building and Procurement Commission proposes amendments
to 1 TAC §113.9, Contract Administration. The amendments are proposed
to delete subsection (d)(3) that conflicts with proposed debarment rules §§113.101
- 113.108. Section 113.9 is also amended to substitute "TBPC" for "Commission".
Ms. Joanna B. Peavy, Deputy Executive Director for Procurement, has determined
that, for each year of the first five-year period the amendments are in effect,
there will be no fiscal implications for state and local governments as a
result of enforcing or administering the section.
Ms. Peavy has further determined that, for the first five-year period the
amendments are in effect, the public benefit anticipated will be a clearer
understanding of the vendor debarment process and the length of time a vendor
may be debarred. There will be no cost to small business and/or individuals.
There will be no adverse effect on local employment.
Comments on the amendments may be submitted in writing to Elizabeth J.
Boyt, TBPC, P.O. Box 13047, Austin, Texas 78711-3047. Comments may also be
sent via email to elizabeth.boyt@tbpc.state.tx.us or by fax to (512) 236-6171.
All comments must be received no later than thirty (30) calendar days after
notice of the proposed amendments has been published in the
Texas Register
.
The amendments are proposed under the authority of the Gov't
Code, §§2152.001, 2152.003, and 2156.077.
The following code is affected by these rules: Gov't Code, §2155.077.
§113.9.Contract Administration.
(a)
Inspection of merchandise.
(1)
Qualified ordering entities must inspect all shipments
received against orders and report any discrepancies to the
TBPC
[
commission
] immediately.
(2)
If unlisted shortages are discovered, the vendor and the
TBPC
[
commission
] must be notified immediately. Unless shipments
are checked immediately upon arrival and such shortage reports are made within
15 days, the contractor cannot be held responsible for shortages.
(3)
A contractor may be required to pick up any merchandise
not conforming to specifications and replace the merchandise immediately.
(b)
Substitutions. Substitution of items called for in a contract
is not permitted without the
TBPC's
[
commission's
] prior
approval. No such approval will be granted unless substituted items are of
equal quality and are offered at the same or lower price.
(c)
Cancellations.
(1)
Cancellations on orders issued by the
TBPC
[
commission
], either on the part of the vendor or a qualified ordering
entity, are not permitted without the
TBPC's
[
commission's
] prior written approval.
(2)
Orders may be canceled without the contractor's consent
due to unsatisfactory performance or nonperformance by the contractor.
(3)
Orders may not be canceled without first obtaining the
consent of the contractor if the reason for cancellation is not the fault
of the contractor.
(4)
A contract or a portion of a contract may be canceled on
request of the contractor if the contractor is unable to perform due to circumstances
beyond its control. In these instances, the
TBPC
[
commission
] will consider such requests when presented in writing with proper
documentation.
(d)
Damages for failure to perform.
(1)
A vendor who fails to perform as required under a contract
shall be liable for actual damages and costs incurred by the state.
(2)
If any merchandise delivered under a contract has been
used or consumed by an agency and on testing is found not to comply with specifications,
no payment may be approved by the
TBPC
[
commission
]
for such merchandise until the amount of actual damages incurred has been
determined.
[
(3)
A vendor who fails to pay
damages assessed by the state may be removed from the Centralized Master Bidders
List (CMBL) for not longer than one year. If complaints resume after the vendor
is reinstated on the bidders list, the commission may bar the vendor from
participating in state contracts pursuant to §113.102 of this title (relating
to Vendor Performance and Debarment.) A vendor may not be awarded additional
contracts until such damages have been paid or the matter has been otherwise
resolved.]
(3)
[
(4)
] The
TBPC
[
commission
] shall seek to collect damages by following the procedures
established by the Office of the Attorney General for the collection of delinquent
obligations.
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 May 20, 2005.
TRD-200502034
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Earliest possible date of adoption: July 3, 2005
For further information, please call: (512) 463-4257