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RULE §20.106Procedures for Investigations and Debarment

(a) Method and Content of Notice. TBPC shall notify the vendor by the most expeditious method available, including but not limited to telephone, e-mail, and fax, of an action under this subchapter. In addition to the most expeditious method, TBPC shall also notify the vendor in writing, via certified mail, return receipt requested. The notice shall be in terms sufficient to apprise the vendor of the conduct or transactions upon which it is based. TBPC shall notify a vendor when:

  (1) a vendor is being investigated for potential debarment;

  (2) a vendor's contracts have been cancelled; or

  (3) a vendor will be disbarred.

(b) Investigation. TBPC shall investigate a complaint that a vendor has failed to perform under the contract for any of the reasons in this subchapter.

  (1) TBPC shall complete its investigation within 120 days of the receipt of the complaint. TBPC may, upon receipt of a complaint, cancel the vendor's contracts or cease payments under the vendor's contracts during the period the vendor is under investigation.

  (2) Participation of Receiving State Agency. TBPC, in conjunction with the receiving agency, shall decide whether to cancel the vendor's contracts by considering:

    (A) the effects of a work stoppage on the state agency;

    (B) the seriousness of the breach of contract;

    (C) any hazard to health, safety, welfare or property; and

    (D) any other reason TBPC and the state agency determine is relevant to the particular circumstances.

(c) Vendor Response. A vendor shall submit a written response to TBPC within ten (10) days of receipt of the notice received under subsection (a) of this section. The vendor is presumed to have received the notice upon TBPC's receipt of fax confirmation or receipt returned by U.S. mail, whichever period is shorter. TBPC may, for good cause shown, allow the vendor one ten (10) day extension of time to provide the vendor's response.

(d) Contents of Vendor Response. The vendor shall respond to each reason TBPC cites in the notice and shall include all facts the vendor believes are relevant, including any applicable mitigating circumstances and remedial measures.

(e) TBPC Finding. Upon completion of its investigation or upon receipt of the vendor's response, TBPC shall determine whether the vendor should be debarred. TBPC shall consider the seriousness of the vendor's acts or omissions and any mitigating factors or remedial measures. TBPC shall inform the vendor of its finding within ninety (90) days of the original notice provided in subsection (a) of this section. If TBPC is conducting an investigation under subsection (b) of this section, then the time periods in this subsection are extended by the length of the investigation.

(f) Mitigating Circumstances. TBPC shall consider whether the vendor's failure to perform was caused, in whole or in part, by:

  (1) an act of God or force majeure; TBPC shall review whether the vendor provided TBPC with timely notification of the event and the reasonableness of the duration of the vendor's failure to perform after the event;

  (2) mutual mistake;

  (3) legal impossibility; or

  (4) significant economic disruption affecting a particular industry.

(g) Remedial Measures. TBPC may consider whether the vendor:

  (1) immediately identified and remedied the cause of the failure to perform;

  (2) brought the offending conduct to the attention of TBPC and fully investigated the circumstances surrounding that conduct;

  (3) cooperated fully in TBPC's investigation;

  (4) recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment; and

  (5) any other remedial measures, including implementation of control procedures, ethics training, or other disciplinary actions against responsible individuals, that the vendor has instituted.

Source Note: The provisions of this §20.106 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

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