PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 9. CONTRACT MANAGEMENT
SUBCHAPTER G. HIGHWAY IMPROVEMENT CONTRACT SANCTIONS
The Texas Department of Transportation (department) adopts amendments to §9.114, concerning Opportunity for Formal Hearing. The amendments are adopted without changes to the proposed text as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2942) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The department's contractor sanction rules set forth the circumstances under which contractors may be sanctioned and the procedures that must be followed. The Texas Transportation Commission (commission) previously adopted §§9.100 - 9.115 to specify the process by which the department will administer and manage contractor sanctions associated with highway improvement contracts.
Amendments to §9.114, Opportunity for Formal Hearing, are necessary to clarify the appeals process available to those contractors sanctioned at a Level 1 as prescribed in existing §9.107(a)(1). Previous revisions to §9.114 and to 43 TAC §9.112, Opportunity for Informal Hearing, specified the appeals process for those contractors sanctioned at a Level 2 or greater, specifically providing for an opportunity for an informal hearing with the department and, if dissatisfied with the results of the informal hearing, subsequent opportunity for a formal hearing with the State Office of Administrative Hearings in accordance with 43 TAC §1.21 et seq. The appeals process for those contractors sanctioned at a Level 1 was inadvertently omitted from the formal appeal process. While contractors sanctioned at a Level 1 currently have the opportunity to request a formal hearing under 43 TAC §1.21 et seq, these amendments serve to further clarify within 43 TAC Chapter 9 the appeals process available to these contractors.
The opportunity for an informal hearing with the department prescribed under 43 TAC §9.112 is limited to those contractors sanctioned at a Level 2 or greater as imposition of these sanctions will prohibit a contractor from bidding on any department highway improvement contracts for the specified duration of the sanction. Any contractor who is suspended from bidding, regardless of the sanction level imposed, may request an informal hearing under §9.112. This additional department hearing process provides a more expeditious means of considering appeals associated with department suspensions and sanctions of a Level 2 or greater, while ensuring the maximum number of qualified bidders are eligible to bid on department highway improvement contracts. Since Level 1 sanctions involve only a reduction in bidding capacity, contractors sanctioned at this level who are not simultaneously suspended may continue to submit bids on department highway improvement contracts while awaiting the results of any formal appeals filed under 43 TAC §9.114.
The 43 TAC Chapter 9, Subchapter G title is changed from Contractor Sanctions to Highway Improvement Contract Sanctions to clarify the application of the subchapter specifically to highway improvement contracts.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
None.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 31, 2009.
TRD-200903237
Joanne Wright
Deputy General Counsel
Texas Department of Transportation
Effective date: August 20, 2009
Proposal publication date: May 15, 2009
For further information, please call: (512) 463-8683