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RULE §20.104Protecting the State's Interest: Failure to Meet Contract Requirements

(a) When a vendor's goods or services fail to meet contract requirements, TBPC shall consider whether the failure was:

  (1) a complete failure to deliver the goods and services or failure to deliver

    (A) in the time period specified in the contract;

    (B) to the location specified in the contract; and

    (C) in the manner specified in the contract.

  (2) a failure to deliver goods

    (A) in the specified quantity;

    (B) with the specified invoices or other necessary documentation;

    (C) in specified packaging;

    (D) in good and usable condition;

    (E) without unauthorized substitutions; and

    (F) with specified installation including specified repair and replacement parts.

  (3) a failure to deliver services

    (A) within the time period specified in the contract;

    (B) in the manner or at the level specified in the contract considering;

      (i) unsuitability of the final product for the purpose intended;

      (ii) lack of integration into or compatibility with other pre-existing systems or processes;

      (iii) repeated failure of the final product to reliably operate;

      (iv) repeated cost overuns due to circumstances within the control of the vendor;

      (v) failure to adhere to contract schedules or ensure timely completion;

      (vi) failure to provide specified employee training;

      (vii) failure to provide specified reports;

      (viii) misrepresentation of qualifications of assigned personnel; and

      (ix) any other failure to perform that materially affects the quantity or quality of the service.

    (C) in conformance with

      (i) professional standards of care and codes of conduct;

      (ii) generally accepted principles of the business or profession; and

      (iii) laws and regulations governing the service, including any proper and necessary licenses, permits, certifications, or other approvals required for the vendor to lawfully perform the services.

(b) TBPC also may evaluate the vendor's performance by considering whether the vendor:

  (1) provided accurate and timely invoices;

  (2) provided and maintained proof of insurance, bonds, guarantees, letters of credit or other required documents;

  (3) provided timely notice of unanticipated factors that may cause delay;

  (4) responded appropriately to emergencies;

  (5) maintained sufficient financial responsibility; and

  (6) any other factors TBPC determines are relevant to ensure protection of the state's interest; TBPC shall specify such other factors in a finding made pursuant to §113.106 of this subchapter.

Source Note: The provisions of this §20.104 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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