Section 3: Contract Monitoring
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.
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:
- great grandparent, grandparent, parent, aunt or uncle, sibling, niece or nephew, spouse, child, grandchild, or great grandchild, or
- grandparent, parent, sibling, child, or grandchild of the person's spouse.
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.
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.
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.
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.
Selection File
The OPR 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.
Documentation File
The OPR 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.
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 may 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.
Payment of Work
TxDOT's negotiated contracts do not permit TxDOT to pay the
performing entity for:
- tasks performed that are outside the contract period,
- tasks performed that are not authorized in the contract's scope of work, nor
- tasks completed that do not meet the specifications set forth in the contract's scope of work.
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:
- 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.
- 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
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.
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.
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.