Mo. Code Regs. tit. 7 § 10-10.070

Current through Register Vol. 49, No. 23, December 2, 2024

Section 7 CSR 10-10.070 - Procedure for Annual Rating of Contractors

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.

7 CSR 10-10.070

AUTHORITY: sections 226.020, 226.130, 227.030 and 227.105, RSMo 2000.* Original rule filed Dec. 31, 1990, effective July 8, 1991. Emergency rescission and rule filed Nov. 20, 1997, effective Jan. 1, 1998, expired June 29, 1998. Rescinded and readopted: Filed Nov. 20, 1997, effective May 30, 1998. Emergency amendment filed Nov. 9, 1999, effective Nov. 19, 1999, expired May 16, 2000. Amended: Filed Nov. 9, 1999, effective May 30, 2000. Emergency amendment filed Dec. 1, 2000, effective Jan. 1, 2001, expired June 29, 2001. Amended: Filed Dec. 1, 2000, effective May 30, 2001. Amended: Filed Nov. 20, 2002, effective June 30, 2003. Amended: Filed Dec. 5, 2006, effective July 30, 2007. Original authority: 226.020, RSMo 1939; 226.130, RSMo 1939, amended 1993, 1995; 227.030, RSMo 1939; and 227.105, RSMo 1996.

Amended by Missouri Register June 15, 2017/Volume 42, Number 12, effective 7/31/2017