(a) If information is required to be forwarded to a Performance Review Committee under §9.23 of this subchapter (relating to Evaluation and Monitoring of Contract Performance) or if a contractor, including a contractor on a materials contract, has defaulted, the deputy executive director will appoint the members and chairman of the Performance Review Committee. The members and chairman serve at the discretion of the deputy executive director. The Performance Review Committee will review the information submitted to the committee under §9.23(f) of this subchapter, any documentation developed by the department during the evaluation process under §9.23 of this subchapter, and any documentation submitted by the contractor. For a materials contract, the Performance Review Committee will review any documentation developed by the department related to the contract and any documentation submitted by the contractor. The committee will determine whether grounds exist for action under this section. After reviewing the submitted information, the Performance Review Committee may recommend one or more of the following:
  (1) take no action;
  (2) reduce the contractor's bidding capacity;
  (3) prohibit the contractor from bidding on one or more projects;
  (4) immediately suspend the contractor from bidding for a specified period of time; or
  (5) prohibit the contractor from being awarded a contract on which they are the apparent low bidder.
(b) The Performance Review Committee may recommend that one or more actions listed in subsection (a) of this section be taken immediately to ensure project quality, safety, or timeliness if:
  (1) the contractor failed to execute a highway improvement contract or a materials contract after a bid is awarded, unless the contractor honored the bid guaranty submitted under §9.14(d) of this chapter (relating to Submittal of Bid);
  (2) the commission, during the preceding 36-month period, rejected two or more bids by the contractor because of contractor error;
  (3) the department declared the contractor in default on a highway improvement contract or a materials contract; or
  (4) a district notifies the committee through the referring division that a contractor has failed to comply with a project recovery plan established under §9.23(c).
(c) If the Performance Review Committee determines that one or more actions listed in subsection (a) of this section is appropriate, the committee may recommend that the action or actions also be taken against an entity that the committee determines, in accordance with §9.27 (relating to Affiliated Entities), is affiliated with the contractor.
(d) If the Performance Review Committee determines that action under subsection (a), (b), or (c) of this section is appropriate, the committee, except as provided by subsection (g) of this section, will confer with the Chief Engineer, or the Chief Administrative Officer for a building contract, on the appropriate action to be taken and applied to the contractor. The committee will send its recommendation to the Deputy Executive Director within 10 business days after the date that it determines the action to be applied.
(e) The Deputy Executive Director will consider the Performance Review Committee's recommendation and make a determination of any action to be taken. Within 10 business days after the date of the Deputy Executive Director's determination, the department will send notice to the contractor and to appropriate department employees affected by the determination. The notice will:
  (1) state the nature and extent of the remedial action;
  (2) summarize the facts and circumstances underlying the action;
  (3) explain how the remedial action was determined;
  (4) if applicable, inform the entity of the imposition of a suspension; and
  (5) state that the provider may appeal the reduction in accordance with §9.25 of this subchapter (relating to Appeal of Remedial Action).
(f) A decision of the Deputy Executive Director under subsection (e) of this section may be appealed in accordance with §9.25 of this title.
(g) If the Performance Review Committee, in the performance of its duties under this section finds information that indicates that grounds for the imposition of sanctions under Chapter 10 of this title (relating to Ethical Conduct by Entities Doing Business with the Department) may exist, the committee immediately shall provide that information to the department's Compliance Division.

Source Note: The provisions of this §9.24 adopted to be effective September 19, 2018, 43 TexReg 5996; amended to be effective April 20, 2023, 48 TexReg 1968; amended to be effective May 15, 2024, 49 TexReg 3373