1. (a) Subcontracts. A prime provider shall perform at least 30% of the contracted work with its own work force unless approved by the director of the Design Division when the work is so specialized that the prime provider cannot perform at least 30% of the work.

2. (b) Operations.

   1. (1) Management responsibility.

      1. (A) The department's project manager is the department's official contact for management of the contract between the department and the provider.
      2. (B) The prime provider's project manager is the provider's official contact for management of the contract between the department and the provider. The provider's project manager may not be changed without prior written consent of the department.
   2. (2) Interim audit. The department may perform interim audits.

3. (c) Supplemental agreements.

   1. (1) An amendment to the contract will be made through a supplemental agreement.

   2. (2) The supplemental agreement will be executed:

      1. (A) prior to the expiration date of the contract;
      2. (B) prior to exceeding the contract amount; and
      3. (C) prior to performance of unauthorized work.
4. (d) Indefinite deliverable contract work authorization. If the department and the provider are unable to execute a satisfactory work authorization containing a fair and reasonable price, the department project manager shall end negotiations with that provider. Only after negotiations have been ended will the department contact another provider with an indefinite deliverable contract to initiate negotiations for the work.

5. (e) Contract close out.

   1. (1) Final audit. The department's Audit Office may perform an audit.

   2. (2) Time. A contract is ready for close out when:

      1. (A) services have been provided;
      2. (B) products, including data and deliverables, have been received and accepted;
      3. (C) approval has been received from the U.S. Department of Transportation, when federally funded;
      4. (D) payments have been made;
      5. (E) audit findings have been resolved;
      6. (F) the contract expires unless extended by supplemental agreement;
      7. (G) the final DBE/HUB report has been submitted; and
      8. (H) the final provider performance evaluation is completed and finalized.

6. (f) Provider performance evaluations.

   1. (1) The department will document demonstrated competence and qualifications by evaluating the prime provider and project manager's performance.

      1. (A) The evaluation shall be conducted annually at twelve month intervals during ongoing contract activity, upon completion of a contract, or when the managing office determines that the work is behind schedule or not being performed according to the contract.
      2. (B) Optional evaluations may be conducted upon completion of a contract phase.
   2. (2) The department may evaluate project constructability not less than every 12 months during project construction and upon completion of the construction contract.
   3. (3) The department will give a copy of the performance evaluation to the prime provider for review and comment. If the prime provider responds with comments on its evaluation, the department will include the comments in the CCIS database identified in §9.41 of this subchapter (relating to Precertification).
   4. (4) Performance evaluation scores will be entered into the CCIS database and may be used in determining the qualifications of the prime provider or subprovider in accordance with §9.35 or §9.36 of this subchapter (relating to Short List Proposals and Evaluation and Short List Interviews and Evaluation, respectively).

Source Note:The provisions of this §9.38 adopted to be effective November 25, 1994, 19 TexReg 8768; amended to be effective September 22, 1995, 20 TexReg 7086; amended to be effective April 23, 1996, 21 TexReg 3221; amended to be effective January 13, 1997, 22 TexReg 64; amended to be effective June 21, 1998, 23 TexReg 6258; amended to be effective March 21, 1999, 24 TexReg 1821; amended to be effective December 12, 1999, 24 TexReg 10905; amended to be effective March 15, 2001, 26 TexReg 2053; amended to be effective January 9, 2003, 28 TexReg 363; amended to be effective February 17, 2005, 30 TexReg 725; amended tobe effectiveJuly 19, 2007, 32 TexReg 4448; amended to be effective June 19, 2008, 33 TexReg 4685; amended to be effective November 18, 2010, 35 TexReg 10056.