Texas Administrative Code

(a) Contract execution. (1) Except as provided in paragraphs (2) and (3) of this subsection, within 15 days after the bidder receives written notification of the award of a contract, the bidder must execute and furnish to the department the contract with: (A) a performance bond a…

(a) Purpose. In accordance with Transportation Code, Chapter 223, Subchapter C, in a highway emergency, the department in accordance with rules adopted by the commission is authorized to award certain contracts. This section provides for an alternate procedure for the expedited a…

(a) Authority. A contract under this subchapter may provide for partial payments. (b) Trust agreement. At the request of a contractor and with the approval of the department and the comptroller of public accounts, any amount retained may be deposited under the terms of a trust ag…

(a) This subchapter establishes policies and procedures related to the department's Disadvantaged Business Enterprise (DBE) program in compliance with Transportation Code, § 201.702 , and Title 49, Code of Federal Regulations, Part 26, and consistent, to the extent possible, with…

(a) It is the policy of the department to: (1) ensure nondiscrimination in the award and administration of contracts in the department's highway, transit, and airport financial assistance programs; (2) create a level playing field on which DBEs can compete fairly for contracts; (…

The following words and terms, when used in this subchapter, shall have the following meanings, unless specified otherwise. (1) Contract--A legally binding relationship obligating a seller to furnish supplies or services, including construction and professional services, and the …

(a) The department's DBE program is administered by the DBE liaison officer who is appointed by and has direct access to the executive director. (b) The DBE liaison officer is responsible for developing, implementing, and monitoring the DBE program and ensuring that the departmen…

(a) An individual or entity may not exclude any person from participating in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of a contract covered by this subchapter on the basis of race, color, religion, sex…

In addition to any other DBE information, the department will maintain: (1) data associated with the DBE program as directed by OAs; (2) a bidders list that provides accurate data about the DBE and non-DBE contractors and subcontractors who seek to work on federally-assisted depa…

(a) Each agreement with the department or other recipient that involves DOT funding must include: "The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its D…

(a) The department will, to the extent feasible, use services offered by financial institutions that are owned and controlled by socially and economically disadvantaged individuals. (b) The department encourages contractors to use services offered by financial institutions that a…

(a) For the purposes of this section: (1) "subcontractor" includes a supplier; (2) "work" includes materials that are provided by a supplier at a location approved by the department; (3) "satisfactory completion" occurs when: (A) the subcontractor has fulfilled the contract requi…

(a) The department will maintain and make available to interested persons a directory identifying all firms eligible to participate as DBEs on department contracts. (b) The DBE directory lists, at a minimum for each firm: (1) the firm's address; (2) the firm's phone number; and (…

The department may award a maintenance contract under this section as a purchase of service under the State Purchasing and General Services Act, Government Code, Title 10, Subtitle D, if the department: (1) estimates the contract will involve an amount for which formal bids for t…

(a) The department from time to time may evaluate whether there is an overconcentration of DBE firms in a certain type of work. (b) If the department determines that there is an overconcentration of DBE firms that unduly burdens the opportunity of non-DBE firms to participate in …

The department has implemented a DBE technical assistance and supportive services program to assist firms with the ability to compete successfully in the highway construction industry. Notes 43 Tex. Admin. Code § 9.211 The provisions of this §9.211 adopted to be effective Septemb…

(a) The department will monitor and enforce contract requirements and verify that work committed to DBEs at contract award is actually performed by the DBEs. (b) The department will keep a current total of payments to DBE firms for work committed to the firms at the time of contr…

(a) Every third year the department will set overall annual goals for DBE participation in DOT-assisted contracts for the following three federal fiscal years. The department may adjust an overall annual goal during the three-year period if circumstances warrant such an adjustmen…

(a) The department will consult with contractors; contract consultants; DBEs', minority, women's, and general contractor groups; community organizations; and other officials or organizations that have information concerning: (1) the availability of disadvantaged and non-disadvant…

(a) After setting proposed overall goals under § 9.214 of this subchapter (relating to Proposed Overall Goal), the department will publish in general circulation media, available minority-focused media, and trade association publications a notice that announces the department's p…

After considering public comments on the proposed goals, the department will set the overall annual DBE goals for the following three federal fiscal years. Notes 43 Tex. Admin. Code § 9.216 The provisions of this §9.216 adopted to be effective September 1, 2012, 37 TexReg 5320

(a) The department will submit the overall goals for the following three federal fiscal years and the information described by subsection (b) of this section to the appropriate OA for review by August 1 of the year in which the three-year period begins, unless a different submiss…

(a) Prior approval of the department's overall DBE goal by the OA is not required. (b) The OA may adjust the overall goal or require that the department adjust the overall goal if the OA determines that: (1) the overall goal has not been calculated correctly; or (2) the departmen…

(a) The department will request the approval of the appropriate OA for an interim goal or goal-setting mechanism if the department needs additional time to collect data or take other steps to develop an approach to setting overall goals. (b) A goal-setting mechanism must: (1) ref…

(a) In accordance with Transportation Code, § 223.012 , the department will develop a schedule for liquidated damages that accurately reflects the costs, including administrative costs to the department and road user costs, that result from delays in the completion of a project r…

(a) The department will meet as much of its overall goal as feasible by using race-neutral means of facilitating DBE participation. (b) Race-neutral means include: (1) arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules …

(a) The department will establish contract goals for DOT-assisted contracts that have subcontracting possibilities to meet any part of the department's overall goal that the department does not project being met using race-neutral means. The department will determine which of tho…

(a) If the department determines that the overall goal will be exceeded, the department will reduce or eliminate the use of contract goals for the remainder of the fiscal year to the extent necessary to ensure that the use of contract goals does not result in exceeding the overal…

The department will not set contract goals in a year: (1) in which the department projects that it will meet its overall goal using race-neutral means; or (2) if for the two years preceding that year the department has met or exceeded its overall goal using only race-neutral mean…

If the department obtains, through the use of contract goals, DBE participation that exceeds the overall goal in two consecutive years, the department in the following year will reduce the use of contract goals by the percentage that the overall goals were exceeded during that tw…

In a year in which the department projects the use of contract goals, the department will maintain data separately on DBE achievements in the contracts with contract goals and contracts without contract goals. The data will be reported to the appropriate OA under § 9.236 of this …

If a DBE contract goal has been established, the department will award the contract only to a bidder that makes good faith efforts to meet the goal as described in 49 C.F.R. Part 26 , Appendix A. Notes 43 Tex. Admin. Code § 9.226 The provisions of this §9.226 adopted to be effect…

(a) Each bidder must submit to the department within the period provided by § 9.17 (i) of this chapter (relating to Award of Contract): (1) the names and addresses of each subcontractor, identifying DBEs that will participate in the contract; (2) a description of the work that ea…

(a) If the department determines that a bidder failed to satisfy the good faith efforts requirements before the execution of the contract, the department will notify the bidder of the failure and will give the bidder an opportunity for administrative reconsideration. (b) The bidd…

(a) A contractor may not substitute for or terminate a DBE subcontractor listed in the information provided under § 9.227 of this subchapter (relating to Information from Bidders), without the written consent of the department. (b) Before requesting the department's approval to t…

(a) The department will develop standards used to evaluate a contractor's performance under a highway improvement contract, including standards for conformance with the project plans and specifications and recordkeeping requirements; compliance with the contract and industry stan…

(a) The department may allow labor-only DBE subcontract arrangements for appropriate work categories. (b) A contractor must clearly outline the labor-only status in the subcontract with the DBE subcontractor. Notes 43 Tex. Admin. Code § 9.230 The provisions of this §9.230 adopted…

(a) To be counted toward a DBE goal: (1) the work must actually be performed by a DBE; and (2) the DBE must perform a commercially useful function. (b) The entire amount of the fee or commission charged by a DBE for providing a bona fide service, such as professional, technical, …

(a) A DBE is considered to perform a commercially useful function (CUF) if the DBE is responsible for: (1) the performance of the work subject to the contract and for the execution of its responsibilities by actually performing, managing, and supervising the work involved; and (2…

(a) A DBE trucking firm is considered to perform a CUF if the DBE: (1) is responsible for the management and supervision of the entire trucking operation for its part of the contract and is not part of a contrived arrangement for the purpose of meeting DBE goals; and (2) owns and…

(a) For the purposes of this section: (1) a DBE manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials or supplies that are required under the contract and are of the general character described by the specificat…

(a) Only DBE firms certified at the time of execution of the contract, subcontract, or purchase order, as appropriate, are eligible for DBE goal participation. (b) Work performed on a contract by a firm after it has ceased to be certified as a DBE will not be counted toward the o…

(a) The department annually will report DBE participation to each OA. (b) The report will provide the payments made to DBEs and contract goal shortfalls on DOT-assisted contracts. (c) During any year in which the department's DBE goals are satisfied through race-neutral and contr…

(a) The department may determine that the contractor failed to satisfy the good faith efforts requirements in the performance of the contract, or violated any provision of this subchapter, the DBE provisions of the contract, or 49 C.F.R. Part 26 . (b) The department may impose an…

(a) A contractor may request an administrative reconsideration of the determination made under § 9.237 of this subchapter (relating to Determination of Noncompliance; Sanctions), including any sanctions imposed, within 30 days after the date that the notice of the determination i…

If the department proposes significant changes to a DBE program that has been approved by an OA, the department will submit those changes to the OA for approval. Notes 43 Tex. Admin. Code § 9.239 The provisions of this §9.239 adopted to be effective September 1, 2012, 37 TexReg 5…

(a) If information is required to be forwarded to a Performance Review Committee under § 9.23 of this subchapter (relating to Evaluation and Monitoring of Contract Performance) or if a contractor, including a contractor on a materials contract, has defaulted, the deputy executive…