(a) If a respondent or contractor is not subcontracting any portion of the contract, is unable to obtain HUB participation, or is unable to meet the assigned goal for a contract, the respondent or contractor must describe in writing the actions that it has taken to obtain HUB participation in accordance with applicable contract requirements. The actions that will be considered to establish good faith effort include:
  (1) dividing the contract work into reasonable portions in accordance with standard industry practices;
  (2) providing written justification of the selection process if no HUB subcontractors are selected;
  (3) providing notice to minority or women trade organizations or development centers not later than the seventh working day before submission of the response described by §9.356(b) of this subchapter (relating to HUB Plan) unless the department determines that circumstances require a different period;
  (4) negotiating in good faith with qualified HUBs and not rejecting qualified HUBs that were also the best value responsive bidder; and
  (5) participating in a mentor protégé program under Government Code, §2161.065, and identifying the areas of the subcontracting plan to be performed by the protégé under the HUB plan.
(b) In addition to the description of actions listed under subsection (a) of this section, the respondent or contractor may provide documentation to establish one or more of the following:
  (1) that notice was provided to three or more qualified HUBs not later than the seventh working day before submission of the response described by §9.356(b) of this subchapter for HUBs to participate effectively, unless the department determines that circumstances that are documented in the respondent's or contractor's files require a shorter period;
  (2) that 100 percent of all available subcontracting opportunities will be performed by one or more HUBS; or
  (3) that one or more HUB subcontractors will be used and that the total value of those subcontracts will meet or exceed the higher of the statewide or department goal for the appropriate category.
(c) The department will consider the submitted description of actions taken under subsection (a) of this section and documentation submitted under subsection (b) of this section in determining whether a respondent or contractor has made good faith efforts to obtain HUB participation.
(d) If the respondent or contractor is able to fulfill all of the identified subcontracting opportunities with its own equipment, supplies, materials, or employees, the respondent or contractor must provide a signed affidavit explaining how the contractor intends to fulfill each subcontracting opportunity. To verify the affidavit, the department may require:
  (1) evidence of existing staffing to meet contract obligations;
  (2) monthly payroll records showing that the respondent's or contractor's staff is fully engaged;
  (3) on-site reviews of the respondent's or contractor's headquarters or work site where services will be performed; and
  (4) documentation showing employment of personnel with necessary licenses and certifications to perform the contract work.

Source Note: The provisions of this §9.357 adopted to be effective September 1, 2012, 37 TexReg 5320