|(a) TBPC Actions. Under this subchapter, TBPC may, in order to protect the interests of the State: (1) conduct an investigation upon a complaint regarding a vendor's acts and omissions in procurement or performance of that contract where the complaint may constitute cause for debarment; (2) cancel one or more of the vendor's active or pending contracts upon a complaint regarding the vendor's acts and omissions in procurement or performance of that contract where the complaint may constitute cause for debarment; (3) assess actual damages and costs incurred due to vendor's failure to perform as specified in the contract; (4) debar a vendor for a specified period of time; and (5) take any other action authorized by law. (b) Any action under subsection (a) of this section shall occur upon notice as required under §113.106 of this subchapter. TBPC may, in its sole discretion, find that more than one of the actions in subsection (a) of this section is appropriate and necessary to protect the state's interests. (c) Damages for Failure to Perform. TBPC may assess actual damages and costs incurred by the state when a vendor fails to perform as specified under a contract. The damages and costs may be assessed whether or not the vendor received notice of investigation or debarment under this subchapter. TBPC shall consider a failure to pay assessed damages in determining whether to debar a vendor under this subchapter. (d) TBPC may debar a vendor for a period of no more than five years upon a finding that: (1) continued acceptance of goods or services or vendor performance under the contract may constitute a hazard to health, safety, welfare or property; (2) the vendor committed fraud in the procurement or performance of the contract, including submission of falsified documents by the vendor or any person under the direction or control of the vendor; (3) there was financial participation by a person who received compensation from the governmental entity to participate in preparing the specifications or request for proposals on which the contract is based or there was any other violation of state ethics laws; (4) the vendor has been debarred by another state or by the federal government; (5) the vendor has been convicted of a crime related to fraud in the procurement or performance of any governmental contract including, but not limited to, a conviction for violation of antitrust, collusion, conspiracy, larceny, theft of services, bribery, coercion laws or any other criminal act based on an intent to defraud any governmental entity in the provision of goods or services; and (6) the vendor has publicly indicated an unwillingness to honor a bid award. (e) TBPC may debar a vendor for a period of no more than five years upon a finding that the vendor's performance was substandard. TBPC shall consider: (1) the accumulated scoring measured by the Vendor Performance Tracking System and: (A) the number and severity of the vendor's performance failures in relation to the volume of goods and services provided; (B) the effectiveness of remedial measures taken by the vendor; and (C) the age and relevance of past performance information. (2) the vendor's breach of contract where the breach results in: (A) significant economic loss to the state; significant economic loss includes, but is not limited to, costs of delay, procurement from a different vendor, costs of initial procurement, contract administration and any other cost, direct or indirect, arising from or attributable to the breach; (B) a hazard to health, safety, welfare or property; or (C) damage to the state's reputation for integrity in procurement or honest, efficient administration. (f) Failure to Meet Specifications: General. TBPC shall remove a vendor's name from all bidders lists and prohibit the vendor from bidding on and receiving any contracts from the state when the vendor's goods or services fail to meet specifications. The period of removal shall be less than one year. The period of time for removal shall be determined by evaluating the factors listed in §113.103 of this subchapter, relating to failure to meet specifications. (g) Failure to Meet Specifications: Repeated Complaints. If after the period of removal determined under subsection (f) of this section, TBPC determines that the same vendor or a successor in interest to the vendor has again responded to a contract with goods or services that do not meet specifications, TBPC shall remove the vendor's name and the vendor's goods and services from all bidders lists for a period of one year. (h) Failure to Meet Specifications: Debarment. If after the expiration of the one year removal under subsection (g) of this section, TBPC determines that the same vendor or a successor in interest to the vendor has again responded to a contract with goods or services that do not meet specifications, TBPC shall debar the vendor for a period of no more than five years.
|Source Note: The provisions of this §20.105 adopted to be effective August 11, 2005, 30 TexReg 4465; transferred effective September 1, 2007, as published in the Texas Register July 6, 2007, 32 TexReg 4237