|Revision Date||September 1, 2019|
State agencies are required to submit vendor performance to the Texas Comptroller of Public Accounts Vendor Performance Tracking System (VPTS) to report positive and negative vendor performance.
Exemptions to VPTS Reporting
The following types of agreements are exempt from VPTS reporting:
- Open Enrollment contracts
- Interagency and Interlocal contracts
- Memorandums of Agreement (MOAs) and Memorandums of Understanding (MOUs)
- Subrecipient/Recipient contracts (identified in applicable DFPS Form 438, the Multi-use Determination Form .)
Even when an agreement is exempt from VPTS reporting, contract staff should report when critical performance incidents arise or for unsatisfactory performance.
Unless exempt, contract staff must submit VPTS information through DFPS Form 0147, Vendor Performance Reporting , to COS for contracts and Transactional Purchase Orders (TPO) with a value of $25,000 or more within 15 days of:
- A critical performance incident; or
- Contract closeout (after either termination or expiration).
For contracts exceeding $5 million, additional VPTS reports are required:
- At least once each year during the term of the contract, and
- At each key milestone identified for the contract.
Critical and unsatisfactory performance
Contractors who do not fulfill the requirements of the contract or that are on corrective action plans when the contract is terminated must not be given a score higher than a “C”, per the State of Texas Procurement and Contract Management Guide.
The Comptroller’s Office requires when DFPS reports a grade of “F” for a vendor, DFPS must identify potential factors for debarment: material misrepresentation; material breach of contract, or fraud.
DFPS contract staff must make reasonable efforts to work with the vendor to resolve performance issues before reporting to VPTS.
Once DFPS submits reports to VPTS, where the vendor received a grade of “C” or lower; vendors may submit a protest within 10 days of report submission using the Vendor Protest Form to email@example.com.
Vendors may respond to a Vendor Performance Report with a grade of “C” or lower within 30 calendar days of report submission to VPTS by responding to firstname.lastname@example.org. The Comptroller may work with the agency and vendor to achieve resolution.
When DFPS purchases goods or services through the use of a HHS master contract, reporting a vendor’s performance must be coordinated with HHS-PCS.
Best value criteria considerations used in the original procurement are required information for reporting vendor performance. The contract manager must consult all agency personnel who have significant involvement with the contract, including the contract developer and the end user.
DFPS staff must report the following:
- Satisfactory and exceptional performance - at contract closeout or termination. For example:
- Delivery in advance of due dates
- Exceeds performance requirements
- Provides customer service above and beyond what is contractually required
- Critical performance issues - upon occurrence. For example:
- Assessment of damages or sanctions
- Conducting business in an unethical manner or otherwise violating procurement or contracting laws, rules, or policies
- Terminations for cause
- State or Federal Debarments
- Substantiated fraud, in coordination with Internal Audit and the State Auditor’s Office (SAO), including incidents where the Office of the Inspector General (OIG) or Office of the Attorney General (OAG) has provided a final report to DFPS.
- Unsatisfactory performance at contract closeout or termination, for example:
- Unresolved deficiencies in performance
- Consistent failure to meet service levels or delivery standards
- Violating contractual terms and conditions
The following definitions provide guidance when determining vendor performance, as referenced in Texas Government Code §2155.077:
- Material Misrepresentation: If known to the other party, a contract, deal, or transaction could have been aborted, or significantly altered by this deliberate hiding or falsification of a material fact.
- Material Breach of Contract: Failure to live up to the terms of a contract. The failure may provoke a lawsuit, in which an aggrieved party asks a court to award financial compensation for the loss brought about by the breach. A legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. If the party does not fulfill their contractual promise, or has given information to the other party that they will not perform their duty as mentioned in the contract or if by their action and conduct they seem to be unable to perform the contract, then they have breached the contract.
- Fraud: Act or course of deception, an intentional concealment, omission, or perversion of truth, to
- gain unlawful or unfair advantage,
- induce another to part with some valuable item or surrender a legal right, or
- inflict injury in some manner. Willful fraud is a criminal offense which calls for severe penalties, and its prosecution and punishment is not bound by the statute of limitations. However, incompetence or negligence in managing a business or even a reckless waste of a firm's assets does not normally constitute fraud.
As part of the VPTS reporting process, contract staff must rate the vendor's performance by selecting a grade of A, B, C, D, or F as defined below.
Grading Criteria for Reporting Vendor Performance to VPTS
Grade to be assigned
Source: Title 34: Texas Administrative Code, Section 20.509