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Section 3: Contract Monitoring

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Nepotism Policy

Tex. Gov't Code §2262.004 requires personnel of a state agency to disclose information regarding certain relationships with, and direct or indirect pecuniary interests in, any party to a major contract with the state agency prior to the award of a major contract.

TxDOT has implemented its own Nepotism Policy in order to better monitor its contracts for the potential of nepotism. TxDOT personnel involved in making a decision or recommendation regarding the solicitation, evaluation, award, or terms of a contract that amounts to $1 million or more, as well as a work authorization of $100,000 or more under such contracts, must complete and sign the State Agency Uniform Nepotism Disclosure Form before the contract or work authorization is executed.

This requirement applies to all scientific services, commercial lab, engineering, architecture, survey and other professional services that fall into certain categories based on dollar amount. Supplemental agreements and supplemental work authorizations do not require the Disclosure Form. The Executive Director must approve the execution of either the contract or work authorization if a positive response is received.

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Contractor Responsibility

Companies and individuals that contract with TxDOT have a responsibility to report nepotism. When signing contracts with TxDOT, each contractor certifies that it has no knowledge that any of its employees have relatives employed by TxDOT. It also certifies that none of the employees of its subcontractors are related to TxDOT employees. Relatives include any:

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  • great grandparent, grandparent, parent, aunt or uncle, sibling, niece or nephew, spouse, child, grandchild, or great grandchild, or
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  • grandparent, parent, sibling, child, or grandchild of the person's spouse.
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Conflict of Interest

A conflict of interest can be defined as a situation in which an employee's private interest (usually financial or economic in nature) conflicts or raises a reasonable question of conflict with the employee's public duties and responsibilities.

All parties should avoid situations where financial, social, or political relationships impair one's ability to make independent, fair, and impartial judgments.

TxDOT employees, as well as performing entities, have an obligation to disclose situations that may create or give the perception of creating a conflict of interest.

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Travel

Any out-of-state travel by a contractor on a TxDOT project requires D/D approval. Any out-of-country travel requires approval by the Deputy Executive Director.

A contractor may not pay travel expenses for a TxDOT employee unless TxDOT is managing a multistate pooled fund project. In this circumstance, travel paid by the contractor for purposes of information exchange is authorized.

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Contract Filing Requirements

Each contract for professional services or scientific services must have three official files: the File of Record, the Selection File, and the Documentation File. These files must be maintained electronically in TxDOT’s authorized electronic content management system.

While it is acceptable for contract managers or project managers to maintain personal filing systems that contain convenience copies of official documents and other unofficial documents, these personal files must be maintained on a district-or division-shared drive, not in the electronic content management system. The electronic content management system is used to maintain the official contract files and records following contract award.

Each of the three official files must take into account all applicable laws and rules, such as records retention rules and public posting requirements.

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File of Record

The Office of Record is responsible for the File of Record, which is created following execution of the contract. It contains the originals of all legal documents, such as the contract and any associated work authorizations and supplemental agreements, along with documentation of internal approvals and any other documents required by law prior to signature, and the solicitation. The File of Record is subject to review and audit.

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Selection File

The managing district or division is responsible for creating and maintaining the Selection File, which is used to retain selection information, such as vendor responses and evaluation information. It does not contain the solicitation, which is maintained in the File of Record. This information assists in proving that the selection of the performing entity was based upon its qualifications and reasonableness of fee.

Being able to retrieve this information in a timely manner is critical since it is considered public information and may be requested by any member of the public, including an entity that contests not being awarded a contract with TxDOT.

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Documentation File

The managing district or division is responsible for creating and maintaining the Documentation File, which is used to document contract and project management activities and outcomes. The Documentation File includes documentation of the contract manager’s monitoring efforts, evidence of the project’s progress, and correspondence with the performing entity throughout the contract period. Any event or circumstance that may affect the work effort, be it external events (e.g., turnover, funding, unavailability of materials, and other circumstances beyond TxDOT’s control) or ineffectiveness (e.g., occurrences such as an entity’s miscommunication, interpretation, errors, and non-compliance with contractual requirements that TxDOT can take action against) must be thoroughly documented. This file contains thorough documentation of potential problems that may arise during the contract period and instructions for corrective action from the managing office. This information will be critical if the contract is terminated or if a dispute with the performing entity cannot be resolved and a lawsuit is filed against TxDOT.

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Record Retention and Open Records Requests

TxDOT must keep contract files for seven (7) years following closeout. Advance Funding Agreements, however, must be maintained indefinitely since these agreements specify which parties are responsible for maintaining the roadway and/or certain facilities. Like most government information, these files are considered public information and are subject to open record requests. Refer to 43 TAC ch. 3, subch. B, to obtain TxDOT's rules regarding public information.

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Payment of Work

TxDOT's negotiated contracts do not permit the managing office to pay the performing entity for:

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  • tasks performed that are outside the contract period,
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  • tasks performed that are not authorized in the contract's scope of work, nor
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  • tasks completed that do not meet the specifications set forth in the contract's scope of work.
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Payment of Work – Apparent Authority

While a vendor may not be paid for work performed outside the terms of a valid contract, there are instances where a vendor completes work based on apparent authority, rather than actual authority. This occurs when a contract requires the use of a work authorization (WA) or notice to proceed to authorize work, and although a vendor’s work is generally allowed by the contract, it is not explicitly permitted by a WA or notice to proceed.

TxDOT may pay for the work performed without requiring the vendor to submit a contract claim only in the following instances:

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  • A vendor performed work after the termination date of a valid WA, but both parties mistakenly understood that the WA had been extended, provided the WA could have legally been extended under the contract with supplemental work authorization.
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  • The parties failed to include a specific task in the WA scope that was permitted by the contract scope, but both parties mistakenly understood that the task was included in the WA.

In either of these scenarios, TxDOT may consider the vendor’s invoice as “undisputed” and make a payment according to the Undisputed Invoice Process on the Contract Services Crossroads page. Although TxDOT is authorized by this policy to make payment in these limited scenarios, TxDOT may decline to use this process and direct the vendor to file a contract claim. For work performed outside the terms of a valid work authorization that do not meet the above-stated requirements, TxDOT staff must reject the invoice as disallowed, and the vendor must utilize the contract claim process to seek payment.

NOTE: TxDOT employees who authorize work outside the terms of a valid work authorization or notice to proceed are in violation of TxDOT policy, including signature authority, and are subject to disciplinary action and may be personally liable for work they mistakenly authorize.

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Errors and Omissions

If the performing entity has received payment for work that does not comply with contract specifications, it is still accountable for correcting the work. The errors and omissions clause requires the performing entity to correct, at its expense, any work it performs that does not meet specifications during and after the contract period.

Regardless of the actions the performing entity takes, the work must continue unless the entity's performance is of such poor quality that TxDOT has no other recourse but to terminate the contract.

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