34 Tex. Admin. Code § 20.285 - Subcontracts
(a) Analyzing
potential contracts of $100,000 or more. In accordance with Government Code,
Chapter 2161, Subchapter F, each state agency that considers entering into a
contract with an expected value of $100,000 or more shall, before it solicits
responses, determine whether subcontracting opportunities are probable under
the contract.
(1) State agencies shall use
the following steps to determine if subcontracting opportunities are probable
under the contract:
(A) examine the scope of
work to be performed under the proposed contract and determine if it is likely
that some of the work may be performed by a subcontractor;
(B) check the HUB directory for HUBs that may
be available to perform the contract work; and
(C) consider whether subcontracting is
probable for only a subset of the work expected to be performed or the funds to
be expended under the contract.
(2) State agencies may consider additional
sources of information regarding the probability of subcontracting, including:
(A) information from other state agencies and
local governments; and
(B)
information about past state contracts with similar scopes of work.
(b) Requiring HUB
subcontracting plans.
(1) If a state agency
determines that subcontracting opportunities are probable, the solicitation
shall state that probability and explicitly require that any response include a
completed HUB subcontracting plan to be considered responsive. The solicitation
shall state the applicable HUB utilization goal, and provide information on
where to find and how to complete the comptroller's HUB subcontracting plan
form.
(2) A state agency shall
require HUB subcontracting plans to be submitted with each response. If a state
agency permits responses to be submitted in parts, with deadlines for each
part, the solicitation shall specify which deadline applies to the HUB
subcontracting plan and shall not open responses until after the HUB
subcontracting plan is due.
(3) A
state agency shall reject any response that does not include a completed and
timely HUB subcontracting plan due to material failure to comply with
Government Code, §
2161.252(b).
(4) If a properly submitted HUB
subcontracting plan contains minor deficiencies, such as failure to sign or
date the plan or failure to submit already-existing evidence that a good faith
effort was completed, the state agency may allow the respondent to cure the
minor deficiency. A state agency may not allow a respondent to cure material
deficiencies, including completion of a good faith effort after the response
deadline (such as contacting minority trade organizations or producing the
statement of how the respondent intends to self-perform the work that is
required by subsection (d)(4) of this section).
(c) Completing a HUB subcontracting plan. The
HUB subcontracting plan shall consist of a completed form prescribed by the
comptroller, with attachments as appropriate.
(d) Demonstrating good faith in the
development of a HUB subcontracting plan. The HUB subcontracting plan must
demonstrate that the respondent developed it in good faith. For each part of
the work that the solicitation identified as a probable subcontracting
opportunity and each part of the work that the respondent actually intends to
subcontract, the respondent must demonstrate its good faith development of a
HUB subcontracting plan by a method described in paragraphs (1)-(4) of this
subsection.
(1) Solicitation Method. To
complete the solicitation method, the respondent shall comply with all
requirements of this clause.
(A) The
respondent shall divide the work into reasonable lots or portions consistent
with prudent industry practices.
(B) The respondent shall notify, in writing,
at least two trade organizations or development centers that serve economically
disadvantaged persons, of the subcontracting opportunities that the respondent
intends to subcontract.
(C) The
respondent shall notify, in writing, at least three HUBs of the subcontracting
opportunities that the respondent intends to subcontract. The respondent shall
provide the notice described in this subclause to three or more HUBs per
subcontracting opportunity that provide the type of work required.
(D) The notices required by subparagraphs (B)
and (C) of this paragraph shall include the scope of work, information
regarding location to review plans and specifications, information about
bonding and insurance requirements, required qualifications, and other contract
requirements and identify a contact person.
(E) The respondent shall provide the notices
required by subparagraphs (B) and (C) of this paragraph at least seven working
days prior to submission of the response. Neither the day on which the notice
is sent nor the day on which the respondent submits its response count as one
of the required seven working days. A state agency may determine that
circumstances require a different time period than seven working days but must
notify potential vendors of the requirement and document the justification in
the contract file.
(F) The
respondent shall submit documentation of having provided the notices required
by subparagraphs (B) and (C) of this paragraph, including copies of relevant
correspondence with the recipients, with its HUB subcontracting plan.
(G) If the respondent selects a non-HUB
business to perform a subcontract instead of a HUB that bid for the same
subcontract work, the respondent shall include a written justification for the
selection in its HUB subcontracting plan.
(H) The respondent shall retain documentation
of its compliance with each aspect of the solicitation method and submit it to
the state agency upon request.
(2) All-HUB-Subcontractors Method. The
respondent may use the all-HUB-subcontractors method to demonstrate a good
faith effort for any subcontracting opportunity by submitting documentation
that 100% of subcontracting opportunities will be performed by HUBs.
(3) Meeting-or-Exceeding-HUB-Goal Method. The
respondent may use the meeting-or-exceeding-HUB-goal method to demonstrate a
good faith effort for any subcontracting opportunity by submitting
documentation that it will utilize one or more HUBs to perform subcontracts
with a total value that will meet or exceed the HUB utilization goal identified
by the procuring state agency in the solicitation.
(4) Self-performing Method. The respondent
may use the self-performing method to demonstrate a good faith effort for any
subcontracting opportunity by providing a statement of how it intends to
fulfill the entire contract, including each subcontracting opportunity, with
its own equipment, supplies, materials, and employees. The respondent shall
provide the following if requested by the procuring state agency:
(A) evidence of existing staffing to meet
contract objectives;
(B) monthly
payroll records showing employees engaged in the contract;
(C) on-site reviews of company headquarters
or work site where services are to be performed; and
(D) documentation proving employment of
qualified personnel holding the necessary licenses and certificates required to
perform the work.
(5)
Subcontracting to a HUB Protégé. If the respondent is a mentor in
a mentor-protégé agreement that is registered with the
comptroller under §
20.298 of this title (relating to
Mentor-Protégé Program), the respondent may demonstrate a good
faith effort for any subcontracting opportunity by subcontracting the work to
its protégé.
(6) The
respondent shall use the HUB directory to identify HUBs. If the respondent uses
any alternate source, it accepts the risk that its HUB subcontracting plan may
be noncompliant due to inaccurate HUB certification information.
(e) Accepting or rejecting the HUB
subcontracting plan. The state agency shall review the respondent's HUB
subcontracting plan prior to award. The HUB subcontracting plan shall become a
provision of the state agency's contract. The agency and contractor may agree
to revise the submitted HUB subcontracting plan in accordance with subsection
(b)(4) of this section. State agencies shall review the documentation submitted
by the respondent to determine if the respondent made a good faith effort. If
the state agency determines that a HUB subcontracting plan was not developed in
good faith or the good faith effort was incomplete, the state agency shall
reject the response. The state agency shall document the reasons for rejection
in the contract file.
(f)
Contractor records. The contractor shall maintain records documenting its
compliance with the HUB subcontracting plan.
(g) Progress assessment reports. The
contractor shall submit a progress assessment report to the state agency with
each invoice, in the format required by the comptroller. A state agency may, at
its option, allow electronic submissions of the compliance report required by
this subsection so long as the electronically-submitted compliance reports are
in the format and contain all information required by the comptroller. The
progress assessment report shall be a condition for payment.
(h) Monitoring HUB subcontracting plan
compliance.
(1) During the term of the
contract, the state agency shall monitor the contractor's subcontracting by
reviewing each HUB progress assessment report to determine whether it complies
with the HUB subcontracting plan. The state agency shall perform monitoring at
intervals corresponding to invoice submissions. The state agency shall
determine if the value of the payments to HUBs meets or exceeds the HUB
subcontracting plan, and whether the contractor is utilizing only
subcontractors named in the HUB subcontracting plan. The state agency shall
document the contractor's performance in the contract file.
(2) To determine if the contractor is
complying with the HUB subcontracting plan, the state agency may consider the
following:
(A) whether the contractor gave
timely notice to the subcontractor regarding the time and place of the
subcontracted work;
(B) whether the
contractor facilitated access to the resources needed to complete the work;
and
(C) any other information the
state agency considers relevant.
(3) If the contractor fails to comply with
the HUB subcontracting plan, the state agency shall notify the contractor of
the deficiencies and give the contractor an opportunity to submit documentation
and explain why its failure to fulfill the HUB subcontracting plan should not
be attributed to a lack of good faith effort by the contractor. Any
deficiencies identified by the state agency must be rectified by the contractor
prior to the next reporting period.
(4) The state agency shall report failure to
comply with the HUB subcontracting plan to the comptroller in accordance with
§
20.509 of this title (relating to
Vendor Performance Reporting). If the state agency determines that the
contractor failed to implement the HUB subcontracting plan in good faith, the
state agency may, in addition to any other remedies, bar the contractor from
further contracting opportunities with the agency. The state agency may also
report nonperformance to the comptroller for consideration for possible
debarment pursuant to Government Code, §
2155.077. A debarment
for failure to implement the HUB subcontracting plan may be for a period of no
more than five years.
(i)
Amending the HUB subcontracting plan.
(1)
Before the contractor performs or subcontracts any part of the contract in a
manner that is not consistent with its HUB subcontracting plan, it shall submit
an amended HUB subcontracting plan to the state agency for its review and
approval. The contractor shall demonstrate good faith by complying with the
requirements of subsection (d) of this section in the development of the
amended HUB subcontracting plan. Failure to comply with this section may be
deemed a breach of the contract subject to any remedies provided by Government
Code, Chapter 2161 and other applicable law.
(2) The state agency may approve requested
changes to the HUB subcontracting plan by amending the contract. The reasons
for amending the HUB subcontracting plan shall be recorded in the contract
file.
(3) If a state agency expands
the scope of work through a change order or contract amendment, including a
renewal that expands the scope of work, it shall determine if the additional
scope of work contains additional probable subcontracting opportunities. If the
state agency determines probable subcontracting opportunities exist, the state
agency shall require the contractor to submit for its review and approval an
amended HUB subcontracting plan for the additional probable subcontracting
opportunities. The contractor shall demonstrate good faith by complying with
the requirements of subsection (d) of this section in the development of the
amended HUB subcontracting plan.
Notes
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