SECTION 9.237. Determination of Noncompliance; Sanctions

(a) The department may determine that the contractor failed to satisfy the good faith efforts requirements in the performance of the contract, or violated any provision of this subchapter, the DBE provisions of the contract, or 49 C.F.R. Part 26.

(b) The department may impose any of the following sanctions:

(1) a letter of reprimand;

(2) contract termination;

(3) required participation in DBE outreach programs;

(4) required participation in DBE mentor program;

(5) liquidated damages; and

(6) any other remedy available by law.

(c) Factors to be considered in imposing sanctions include:

(1) the magnitude and the type of noncompliance described by subsection (a) of this section;

(2) the degree of the contractor's culpability;

(3) any steps taken to rectify the situation;

(4) the contractor's record of performance on other projects including:

(A) the contractor's annual DBE participation above the DBE goals;

(B) the contractor's annual DBE participation on projects without goals;

(C) the number of complaints the department has received from DBEs about the contractor; and

(D) the number of times the contractor has been previously sanctioned by the department under this section; and

(5) whether a contractor falsified, misrepresented, or withheld information.

(d) The department will notify the contractor in writing of the determination under this section. The notice will include the reasons for that determination and specify the resulting sanctions, if any.

Source Note: The provisions of this §9.237 adopted to be effective September 1, 2012, 37 TexReg 5320