Authority/Reference(s) State of Texas Procurement and Contract Management GuideTexas Government Code §226234 Texas Administrative Code §20.509Texas Administrative Code §20.115
Revision Date January 15, 2019

Policy

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. 

Unless exempt, contract staff must submit VPTS information through DFPS Form 0147, Vendor Performance Reporting, to COS for contracts with a value of $25,000 or more within 15 days of:

  • A critical performance incident; or
  • Contract closeout (after either termination or expiration).

DFPS contract staff must make reasonable efforts to work with the vendor to correct unresolved issues of performance before reporting to VPTS.

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.  

Critical and unsatisfactory performance issues that are rated C, D, or F must be approved by the DFPS Commissioner, or designee before submission of VPTS report. COS is responsible for entering all VPTS reports to the Comptroller’s VPTS portal.

Once notified by the Comptroller of vendor performance reporting, vendors may submit a protest within 10 days for a grade of “C” or lower using the Vendor Protest Form. Vendors may respond to a Vendor Performance Report with a grade of “C” or lower within 30 calendar days. 

When DFPS purchases goods or services through the use of a HHS master contract, reporting a vendor’s negative 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, to determine the best value criteria evaluation.

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 (1) gain unlawful or unfair advantage, (2) induce another to part with some valuable item or surrender a legal right, or (3) 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 firm's assets does not normally constitute a 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.

  • A - Excellent Performance

Select if the vendor met the best value criteria and fully complied with all contract material terms and complete or substantial customer satisfaction.

  • B - Good Performance

Select if the vendor met best value criteria and fully complied with all material terms- or promptly remedied any minor instance of non-compliance with those terms- with substantial or adequate customer satisfaction.

  • C - Satisfactory Performance

Select if the vendor met best value criteria and substantially remedied a majority of the instances of non-compliance with the material terms of the contract with adequate customer satisfaction.

  • D - Unsatisfactory Performance

Select if the vendor did not meet best value criteria or were in substantial non-compliance with material contract terms with the requirements of the contract and failed to remedy a majority of those instances of that non-compliance.

  • F - Extremely unsatisfactory performance

Select if the vendor did not meet best value criteria were in substantial non-compliance with the material contract terms and failed to remedy a majority if those instances if non-compliance or displayed conduct that would be cause for debarment such as fraud, material misrepresentation, or contact breach.

Consult COS regarding necessary documentation needed for positive or negative 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
  • Subcontracts

Even when vendors are exempt from VPTS, contract staff should report when critical performance incidents arise or for unsatisfactory performance.