EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management Subchapter B. Highway Improvement Contracts 43 TAC sec.sec.9.11, 9.13, 9.16, 9.18 The Texas Department of Transportation adopts on an emergency basis amendments to sec.9.11, sec.9.13, sec.9.16 and s9.18, concerning highway improvement contracts. Section 9.11 is amended to include the definitions of a Historically Underutilized Business (HUB), and a routine maintenance contract. Section 9.13 is amended to provide uniformity in the non-issuance of proposal procedures, regardless of funding source. This amendment will allow the commission to prevent a contract from being awarded to a bidder when the commission has previously suspended or debarred the bidder from bidding. It is necessary to amend sec.9.13 on an emergency basis to provide that the department will not issue a requested proposal form for a construction or maintenance contract, regardless of funding source, if at the time of the request the bidder is suspended or debarred by order of the commission, or is prohibited from rebidding a specific project because of default of the first awarded project. Section 9.16 is amended to clearly establish the procedure for the tabulation of a proposal having a unit bid price entered for both the regular item and the alternate item. This procedure will provide for the tabulation of bids resulting in lower cost to the state. It is necessary to amend sec.9.16 on an emergency basis to clarify such tabulation procedures, thereby preventing significant disruption of the department's highway contract letting program and potential loss of state funds. Section 9.18 is amended to allow for compliance with state law and federal regulations by requiring a successful bidder on a construction contract who is not a Disadvantaged Business Enterprise (DBE) or HUB to submit within 15 days after award of the contract all the information required by the department relating to DBE or HUB participation to be used to achieve the contract's DBE or HUB goal; and requiring such bidder to execute and furnish a performance bond, payment bond, and certificate of insurance within 15 days after written notification of acceptance by the department of the bidder's documentation to achieve the DBE or HUB goal. It is necessary to amend sec.9.18 on an emergency basis to comply with Texas Civil Statutes, Article 6669c, which require the department to establish a DBE program and to set annual goals for the awarding of all state and federally funded contracts to disadvantaged businesses; and Title 49, United States Code of Federal Regulations, Part 23 which require that on contracts containing goals for DBE participation, the successful low bidder must submit information relating to the participation to be used to achieve the goal as a condition of contract execution. Section 9.18 is also amended to allow a successful bidder on a routine maintenance contract to provide the required certificate of insurance at the time work is to begin. It is further necessary to amend sec.9.18 on an emergency basis to prevent a potential loss of state funds by avoiding unnecessary insurance expenses by a successful bidder on a routine maintenance contract. The amendments are adopted on an emergency basis under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and Texas Civil Statutes; Articles 6674a, et seq, which authorize the department to construct and maintain the state highway system; and Article 6674i which require the commission to prescribe rules on all bidders on bids received for contracts awarded for the improvement of the state highway system. sec.9.11. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Historically underutilized business (HUB)-A corporation, sole proprietorship, partnership, or joint venture formed for the purpose of making a profit, certified by the General Services Commission, in which 51% of the company is owned by one or more persons who are socially disadvantaged because of their identification as a member of certain groups including Black Americans, Hispanic Americans, Women, Asian Pacific Americans, Native Americans, and have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; and have a proportionate interest and demonstrate active participation in the control, operation, and management of the business affairs. Routine maintenance contract-A contract for work performed to preserve and repair the roadways and rights of way, with all its components, to its designed or accepted configuration. Components include travelway surfaces, shoulders, roadside, drainage facilities, bridges, tunnels, signs, markings, lighting fixtures, and other appurtenant facilities. sec.9.13. Notice of Letting and Issuance of Proposals. (a)-(b) (No change.) (c) Issuance of proposal form. (1) Construction and maintenance contracts. (A) (No change.) (B) Non-issuance. Except as provided in subparagraph (C) of this paragraph, the department will not issue a proposal form requested by a bidder for a construction or maintenance contract if at the time of the request the bidder: (i) [for a federal-aid project, if at the time of the request the bidder] is disqualified by an agency of the federal government as a participant in programs and activities involving federal assistance and benefits, and the contract is for a federal-aid project; (ii) [for either a state funded or a federal-aid project, if at the time of the request the bidder] is suspended or debarred by order of the commission, or is prohibited from rebidding a specific project because of default of the first awarded bid; or (iii) [for either a state funded or a federal-aid project, if at the time of the request the bidder] has not fulfilled the requirements for qualification under sec.9.3 of this title (relating to Qualification of Bidders and Registration of Subcontractors). (C) (No change.) (2)-(4) (No change.) sec.9.16. Tabulation of Bids. (a) (No change.) (b) Department interpretations. (1)-(4) (No change.) (5) If a unit bid price has been entered for both the regular bid and a corresponding alternate
    [alternative] bid, [programmatically,] the department will determine the option that results in the lowest total cost to the state
      [the lowest item amount for the regular bid or the alternative bid] and tabulate as such. If both the regular and alternate bids result in the same cost to the state
        [have been bid at the same unit price,] the department will select the regular bid item or items. (6)-(7) (No change.) sec.9.18. After Contract Award. (a) Contract execution. (1) Construction and maintenance contracts. Except as provided in paragraph (3) of this subsection and subparagraph (C) of this paragraph, within
          [Within] 15 days after written notification of award of a construction or maintenance contract, the successful bidder must execute and furnish to the department the contract with: (A)-(B) (No change.) (C) Exception. A successful bidder on a routine maintenance contract will be required to provide the certificate of insurance prior to the date the contractor begins work as specified in the department's order to begin work. (2) (No change.) (3) Construction contracts containing DBE or HUB goals
            . Within 15 days after [written notification of] award of the contract the successful bidder on a construction contract containing a DBE or HUB goal
              who is not a DBE or HUB
                [disadvantaged business enterprise] must submit all the information required by the department relating to the DBE or HUB participation to be used to achieve the contract's DBE or HUB
                  [subcontracting to be used to achieve the contract's disadvantaged business enterprise] goal. The successful bidder must comply with paragraph (1)(A) and (B) of this subsection within 15 days after written notification of acceptance by the department of the successful bidder's documentation to achieve the DBE or HUB goal. (b) (No change.) (c) Proposal guaranty. (1) apparent low bidder. The department will retain the proposal guaranty of the successful bidder until after the contract has been awarded, executed, and bonded. If the successful bidder does not comply with subsection (a) of this section [within 15 days of notification of the award of the contract (27 days for building contracts)], the proposal guaranty will become the property of the state, not as a penalty but as liquidated damages; provided, however, the department may, based on documentation submitted by the contractor, grant a 15- day extension to comply with the requirements under subsection (a) (3) of this section. A bidder who forfeits a proposal guaranty will not be considered in future proposals for the same work unless there has been a substantial change in the design of the project subsequent to the forfeiture of the proposal guaranty. (2) (No change.) Issued in Austin, Texas, on February 23, 1995. TRD-9502342 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: February 23, 1995 Expiration date: June 23, 1995 For further information, please call: (512) 463-8630