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Section 3: Contract Standards

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Negotiations

Contracts must be negotiated in accordance with 43 TAC §9.40.

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Administrative Qualification

An administrative qualification is performed by Professional Engineering Procurement Services Division (PEPS) prior to contract execution.

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Issuing Work and Monitoring Time

Issuing Work Authorizations for Indefinite Deliverable Contracts:

The contract period in which initial work authorizations may be issued may not be longer than two years after the date of contract execution. 43 TAC §9.32.

The execution date is the date of the last signature or initials necessary to make the contract legally binding. Usually, the execution date is the date that TxDOT signed the contract. For modified and initialed changes, the execution date is the last date on which those initials were placed on the document. The contract termination date identified in the Contract Period article of the contract will not always match the end of the two-year period, and is therefore relevant to the period in which work authorizations may be issued.

If a prime contract expires, each of its ongoing work authorizations also terminates.

Specific Deliverable Contracts: A specific deliverable contract may be extended to the extent necessary to complete all tasks specified in the project schedule.

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Required Insurance

The prime provider is required to maintain three policies during the life of the contract:

The provider must have a certificate of insurance on file with Contract Services before the contract is executed. Subcontractors are not required to maintain separate insurance.

A new certificate must be submitted each time a provider's insurance policies are changed or renewed during the contract period.

The insurance policies must remain current during the entire contract period.

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Contract Administration

In accordance with 43 TAC §9.41:

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  • a prime provider shall perform at least 30 percent of the contract work with its own work force, unless otherwise approved by TxDOT,
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  • the prime provider project manager may not be replaced without the prior written consent of TxDOT,
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  • TxDOT may perform interim and final audits, and
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  • TxDOT will document the prime provider’s performance.
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Supplemental Agreements

Supplemental agreements may be used to change the scope, schedule, or amounts payable under an indefinite or specific deliverable agreement.

The contract period of an indefinite deliverable contract may be extended with a supplemental agreement. Extending time to complete an indefinite deliverable contract only allows for the completion of work authorizations that were issued within two years of the prime contract execution date and does not authorize issuance of new work authorizations past the two-year period. A supplemental work authorization may extend the work authorization beyond the two-year period.

TxDOT may extend a contract until completion of construction to enable the managing office to keep a provider engaged to perform design revisions (not necessarily the fault of the provider) during the project’s construction phase. This action:

Additional work required because of a provider’s error or omission must be performed by the provider without any cost to TxDOT, whether or not the contract has expired.

With indefinite deliverable contracts, the managing office may not supplement a work authorization with an unrelated task, even if the contract is still open because of an unperformed deliverable on one of the original work authorizations.

Increased labor rates are not sufficient justification for an increase in the maximum amount payable. For Specific Deliverable contracts, the maximum amount payable may be increased only if the scope of work is increased or the time schedule is extended.

The managing office can amend the contract’s method of payment under compelling circumstances.

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Name Changes

A name change occurs when a provider changes its name, but not its legal identity. An individual may change their name through marriage or a court order, for example. If a provider changes its name, it must submit documentation showing that the name change has been legally implemented. For most business entities, this will involve changing the name legally through the Secretary of State.

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Assignments

An assignment occurs when a new provider replaces the original provider. This may result from a sale of underlying assets of the original provider or from a change in the original provider's legal identity because of a change of business form, as from a corporation to a partnership. Only TxDOT, by written consent, may authorize assignment. Therefore, the Assignment form must have the signature of an authorized representative of the original provider, of an authorized representative of the new provider (who may in some cases be the same person), and of the authorized TxDOT representative.

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Contract Services’ Role

Contract Services is the office of record for Engineering, Surveying, Commercial Laboratory, and Architectural Services contracts. Before the appropriate signature authority executes these agreements, Contract Services must review agreements with a value of $1 million or greater, all supplemental agreements, name changes, and assignments.

Contract Services is the point of contact concerning legal issues pertinent to procurement and management of services secured through all negotiated contracts.

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