PART 1. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 9. CONTRACT MANAGEMENT
SUBCHAPTER G. HIGHWAY IMPROVEMENT CONTRACT SANCTIONS
The Texas Department of Transportation (department) proposes amendments to §9.114, concerning Opportunity for Formal Hearing.
EXPLANATION OF PROPOSED 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.
FISCAL NOTE
James Bass, Chief Financial Officer, has determined that for each of the first five years the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.
Thomas Bohuslav, Director, Construction Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.
PUBLIC BENEFIT AND COST
Mr. Bohuslav has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be to further the department's mission to provide an efficient and fair process of administering contractor sanctions, and provide clarification regarding the appeals process available to contractors sanctioned under 43 TAC Chapter 9, Subchapter G. There are no anticipated economic costs for persons required to comply with the section as proposed. There will be no adverse economic effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments to §9.114 may be submitted to Thomas Bohuslav, Director, Construction Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m. on June 15, 2009.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
None.
§9.114.Opportunity for Formal Hearing.
(a) A contractor that is sanctioned at a Level
1, or that [If the contractor] is dissatisfied with
the decision following an informal hearing under §9.112 of this
subchapter (relating to Opportunity for Informal Hearing) or §9.113
of this subchapter (relating to Informal Hearing on Indirect Sanction),
[the contractor] may request an administrative hearing
under §1.21 et seq. of this title (relating to Procedures in
Contested Cases).
(b) The request must be received by the executive director within 10 days after the date that the contractor receives notice of the Level 1 sanction under §9.109 of this subchapter (relating to Notice of Sanctions), or notice of the determination under §9.112(d) of this subchapter or §9.113(d) of this subchapter.
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 1, 2009.
TRD-200901627
Bob Jackson
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: June 14, 2009
For further information, please call: (512) 463-8683