Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This proposed amendment clarifies the
actions available to a contractor upon receiving an unacceptable
rating.
(1) Annual Rating of
Contractors. The construction and materials division shall be responsible for
the determination of the annual ratings of contractors. The construction and
materials division will annually determine a contractor's overall and category
performance rating for all contracts on all active projects. The performance
ratings for the categories of "Quality of Work" and "Contract Compliance" will
be based on a weighted average of the dollar value of all work completed during
the rated year on all contracts. The performance ratings for the categories of
"Prosecution and Progress" and "Contract Administration" will be based on a
weighted average of the applicable contract dollar totals.
(2) Contractor Rating Groups. For purposes of
recognizing outstanding contractor performance, contractors shall be divided
into four (4) sample groups based upon whether the contractor is a specialty
contractor and on the dollar value of the work completed during the rated year.
(A) Contractor Groups.
1. Large volume contractors shall be the ten
(10) contractors who have the largest dollar value of work completed during the
rated year.
2. Specialty
contractors shall be those contractors who have performed eighty-five percent
(85%) or more of their work in one specification area as set forth in Division
200-900 in the Missouri Standard Specifications for Highway
Construction.
3. The remaining
contractors not included in the large volume or specialty contractor groups
shall be sorted by dollar value of work completed during the rated year, and
divided in half. Medium volume contractors shall be the half who have the
higher dollar value of work, and light volume contractors shall be the half who
have the lower dollar value of work.
(3) Determination of Contractor Ratings. The
construction and materials division shall determine contractor ratings and make
action recommendations to the chief engineer.
(A) Upon the chief engineer's review and
approval, all contractors shall be notified in writing of their annual ratings
via a letter of performance notification. The construction and materials
division will act on each contractor or not, based on the overall and category
ratings the contractor receives. These actions may range from recognizing very
outstanding performance, to recommending that a contractor be declared
nonresponsible. Probation or disqualification shall become effective upon the
date stated in the written notification.
(B) A letter of performance notification
along with the individual contractor performance project evaluations and a
performance summary shall be mailed via the United States Postal Service to the
contractor at the contractor's address contained in its most recent contractor
questionnaire required by the Missouri Standard Specifications for Highway
Construction. The department will keep a written record of the persons to whom
such notices of ratings were sent and of the address and date they were sent
for a period of at least ten (10) years, which record shall prove the
notification of rating results. Further, it shall be presumed that the
contractor received the notice on the second day, which is not a Sunday or
holiday, after the day the written record states it was sent, unless a
different date is shown by a delivery receipt of the United States Postal
Service.
(4) Review
Process. If the contractor disagrees with any performance measure finding on
the contractor performance project evaluation and cannot resolve the dispute
with the resident engineer, it may request in writing that the district
engineer review the matter. Such request must be made to the district engineer
within twenty-eight (28) days from the date of the mailing of the project
evaluation to the contractor. However, the contractor's representative shall
first have discussed the project evaluation response with the resident engineer
in order to resolve the dispute. Upon receiving the contractor's written
request to review the disputed performance measure finding on the project
evaluation, the district engineer shall review the matter and provide the
contractor with a written response regarding the particular area of dispute
between the contractor and the resident engineer. All reports shall be
submitted to the construction and materials division before, but no later than,
February 15.
(A) "Unacceptable" Rating. No
request for review to the contractor performance review committee for an
informal hearing or to the department regarding the contractors' performance
ratings is provided under this chapter, with the exception of contractors who
receive an unacceptable performance rating.
1.
The contractor must have received either an unacceptable category or overall
performance rating and timely discussed the dispute with the resident engineer
and made a timely written request for review by the district engineer of the
particular unacceptable rating on the project evaluation that the contractor
disagrees with as provided in this chapter.
2. If the contractor has complied with the
requirements of paragraph (4)(A)1. above, the contractor shall have ten (10)
working days to request an informal hearing to review an unacceptable category
or overall performance rating.
3.
The contractor shall submit its request for an informal hearing to the
following address: Missouri Department of Transportation, Construction and
Materials Division, PO Box 270, Jefferson City, MO 65102.
(B) Procedure. If the contractor timely
requests an informal hearing, the contractor performance review committee shall
advise the contractor of the time, date and place. This is not a contested case
under Chapter 536, RSMo. The rules of evidence shall not apply at the
hearing.
(C) Review by the
Contractor Performance Review Committee. The contractor performance review
committee will review the contractor's request and make a recommendation to the
chief engineer. The chief engineer's decision regarding the contractor's
rating, review of which is held as provided by this section, shall be final and
no further commission action is necessary.
(5) No Further Commission Action. As to
contractor performance ratings of which no review is requested or permitted
under this rule, upon the determination by the construction and materials
division regarding the annual ratings of all contractors and the approval of
the chief engineer of the annual ratings, the ratings of the contractors shall
become final for purposes of this chapter and the effect of this chapter on a
level of performance on the contractor's status to bid or perform work as a
subcontractor or vendor on commission contracts. No commission action is
necessary regarding the annual ratings of the contractors.
