AUSTIN (KXAN) – A KXAN investigation found the Texas Department of Transportation failed multiple times to submit performance reports for companies doing critical work on its tollway system and other projects.
Performance reports are graded evaluations – posted for the public to see – of state contractors’ work. The reports are supposed to create transparency in state procurement, promote good vendors, weed out bad performers and, ultimately, lead to better spending of tax dollars – when the rules are followed.
But TxDOT isn’t always following the rules.
TxDOT neglected for three years to submit annual evaluations for TTEC Government Solutions, a vendor with a five-year contract originally worth $145 million to handle toll system customer service, according to the Texas Comptroller’s Office. TTEC’s work includes customer service for TxTag, which is TxDOT’s toll tag.
And within the years TxDOT forgot to submit its evaluations of TTEC, the company was penalized by TxDOT for over $3.3 million for failing to meet contractual obligations, according to records KXAN obtained.
Separate from TxTag, a state audit by the Texas Comptroller’s Office uncovered nearly a dozen other TxDOT purchases and contracts that were missing required performance reports.
KXAN discovered the performance reporting errors following a months-long investigation earlier this year into TxDOT’s oversight of its toll system. Statewide, TxDOT’s toll system impacts millions of drivers and generates hundreds of millions of dollars each year.
The lapses at TxDOT underscore shortcomings in the state’s performance reporting rules that concerned lawmakers from the outset – there is no enforcement mechanism compelling state agencies to follow the law. The total number of missing reports at TxDOT remains unknown, and the agency has faced no consequences for the failures, according to TxDOT, the Comptroller’s Office and state records.
TxDOT declined a request for an interview and chalked up problems found by KXAN to “administrative oversight.” The agency said it is making changes to improve its reporting process. Despite the missing performance reports, TxDOT says it has held TTEC responsible for contractual issues, and the company has improved. TTEC told KXAN it appreciates its collaboration with TxDOT, and it strives to deliver “outstanding” results for its customers.
After KXAN began asking questions, TxDOT submitted a performance report for TTEC in June and gave the company a “C.”
TxDOT’s responses to KXAN didn’t completely reassure a state government watchdog and a longtime lawmaker who both expressed concern about the overlooked reports.
“It feels like it goes beyond negligence or just forgetfulness,” said Anthony Gutierrez, executive director of Common Cause Texas. “Somebody, somewhere, needs to have a calendar alert to file these reports. The idea that’s not happening for a contract worth over $100 million — it’s just absolutely mind blowing.”
‘Increases transparency and ensures fair competitive bids’
The origin of the current vendor performance reporting rules traces back to former state Sen. Jane Nelson, R-Flower Mound, and legislation she authored in 2015.
That year, Nelson told lawmakers her wide-ranging, 29-page bill “strengthens accountability, increases transparency, and ensures fair, competitive bids” in state contracts.
Nelson’s push to create new rules came on the heels of a procurement debacle over a $20 million no-bid software contract at the Texas Health and Human Services Commission that revealed “gaping holes in our laws on contracting,” she said at a 2015 Senate Committee on Finance hearing on her bill, SB 20.
Her bill included a provision requiring state agencies to report vendor performance to a tracking system established by the Comptroller’s Office. The Comptroller now serves as a clearinghouse for the reports and displays them online.
From the beginning, lawmakers and experts acknowledged the law contained no force to compel agencies to do the reports, according to testimony from the 2015 Senate Finance Committee hearing.
“There is no enforcement mechanism,” Robert Woods, a former associate deputy comptroller, bluntly told committee members at the hearing.
State Sen. Royce West, D-Dallas, also sat on the Finance Committee and expressed similar concerns.
“I have been here long enough to know also that we pass these laws, but then we turn around and leave,” West said in 2015. “The question then becomes whether our intent is carried out.”
In 2019, Nelson passed legislation with more rules for vendor performance reports, including a requirement to evaluate and grade contracts annually if they have a value over $5 million. Contracts between $25,000 and $5 million are graded upon completion, or termination, according to Comptroller rules.
Many types of contracts are excluded from the rules, and certain departments – like the Comptroller, the Department of Information Resources, higher education institutions, and the Department of Family and Protective Services for child-specific contracts for children without placement – generally don’t have to report, according to the government code.
By displaying the performance reports, and “A” through “F” grades, all state agencies can see how vendors fared in past work. Receiving multiple poor grades can lead to a company being barred from state contracting.
Eight years after the reporting requirements were passed into law, KXAN showed its investigative findings to West, and his concerns remain.
“Citizen taxpayers have a right to know how their money is spent,” West told KXAN in a July interview. “When you have an agency that is supposed to have processes in place that it is not following, it’s very concerning.”
KXAN specifically investigated TxDOT’s vendor performance reporting for this story as part of its ongoing effort to hold the agency accountable for its oversight of TxTag. The investigation did not include other agencies.
KXAN has investigated TxDOT tollway system issues for years. For nearly a decade, the agency has cycled through multiple vendors – and contracts worth hundreds of millions of dollars – in its effort to improve customer service and back-office software used for TxTag and toll road data.
In January, KXAN began investigating again after receiving more than 100 complaints about TxTag billing and customer service issues over the course of the pandemic. Through the public information act, KXAN obtained over 800 more toll-related complaints. Common complaints included TxTag automatic billing problems and drivers struggling to get help from customer service.
The information that goes onto the toll bills and the customer database used by TTEC for billing are managed by separate companies under other contracts.
TxDOT’s customer service center is operated by TTEC under a contract that started in 2019. That contract was originally valued at about $144 million for five years, but it has been repeatedly amended. TTEC’s total compensation has increased by more than 25%, to over $184 million. The company’s work also encompasses mailing bills, the unpaid toll enforcement program and the habitual violators program, according to purchase orders associated with the contract.
Tough to uncover
Without TTEC’s public vendor performance report, few outside TxDOT may have known the company’s customer service contract faced problems.
KXAN had to submit a series of public information requests and questions to TxDOT to uncover details of the company’s performance. TxDOT blocked one request for TTEC’s monthly “balanced scorecards” that show a variety of performance metrics. TxDOT argued the release of that information could affect the awarding of future contracts.
TxDOT has penalized TTEC with more than $3.3 million in liquidated damages since the contract began. Exactly what caused the damages isn’t clear because TxDOT has not provided that information.
In TTEC’s performance reports submitted in June, TxDOT noted the company had not performed some services within specifications. TxDOT told KXAN, “the most frequently missed performance criteria have been Service Level, Average Call Handle Time, and Walk-in Centers Customer Wait Time,” according to a TxDOT spokesperson.
In a statement to KXAN, TTEC said it is “proud” to partner with TxDOT and it appreciates the agency’s “close collaboration.”
“Despite the complex nature of our work together, outcomes continue to improve thanks to our strong working relationship, and we appreciate the transparency TxDOT provides,” TTEC said in a statement.
TxDOT’s reporting oversights don’t stop with TTEC. In response to KXAN’s questions, TxDOT acknowledged it also failed to submit an annual vendor performance report for its $85 million contract with IBM in 2020 to build and manage a new “back-office” toll information data system. TxDOT said IBM’s missing 2020 performance report was also “an administrative oversight.”
TxDOT terminated IBM’s contract in 2021, fined the company more than $6 million for not meeting contractual obligations and gave IBM a “D” grade in a final performance report submitted to the Comptroller’s office.
IBM strongly rebutted TxDOT’s termination of its contract and blamed TxDOT for the new system’s problems.
“A grade of ‘D’ for IBM’s performance under this Purchase Order is completely unwarranted,” IBM said in a 2021 written response in the performance report. “This rating is also inconsistent with other Agencies’ view of IBM’s performance.”
Beyond the missing performance reports KXAN found, an audit by the Comptroller’s Office uncovered several more. KXAN obtained the audit through the Texas Public Information Act.
Sample of a problem
In addition to housing the vendor performance reporting system, the Comptroller’s Office audits state agency contracting, procurement and payment practices.
A 2022 Comptroller audit of TxDOT used a sample of 60 purchases and contracts over $25,000 from 2018 and 2019 and found TxDOT had 11 failures to submit vendor performance reports.
Auditors said TxDOT’s operations and functions were “highly decentralized,” and the agency “could not identify a cause” for the reporting lapses.
Since the audit only used a sample of purchases and contracts, KXAN asked TxDOT if it had followed up by investigating itself further. TxDOT acknowledged it has done no additional auditing of its own work.
Gutierrez, speaking generally about missing reports, said that neglecting vendor performance reports could create suspicion or the perception that a state agency is covering up problems for a vendor it favors.
The lack of enforcement and missing reports KXAN found make the issue ripe for the Legislature to revisit, he said.
“These performance reviews are entirely about accountability,” Gutierrez said. “We’re talking about millions of dollars – millions of taxpayer dollars – and there needs to be somebody keeping an eye on this money to make sure that’s being spent properly.”
TxDOT told KXAN it is working to improve its vendor performance reporting with an automated system for keeping track of the reports, and it has contracted with a vendor to “configure an existing software solution.”
One year after the Comptroller’s audit, TxDOT said that automated solution still wasn’t finished, and it did not provide a timeline for completion.
This story is part of KXAN’s “TxTag Troubles” investigative project launched May 7, 2023. Following related reports in recent years, our team rededicated its resources to this major consumer issue, after hundreds of viewers complained to us about resurfaced billing and customer service problems with the state’s tollway operator and its contracted vendors. During our reporting, the Texas Department of Transportation began reaching out to viewers who had contacted KXAN to resolve their issues, and state lawmakers renewed their approach to fixing future TxTag problems.