Texas Administrative Code › Title 10 - COMMUNITY DEVELOPMENT › Part 1 - TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS › Chapter 11 - QUALIFIED ALLOCATION PLAN (QAP) › Subchapter C - APPLICATION SUBMISSION REQUIREMENTS, INELIGIBILITY CRITERIA, BOARD DECISIONS AND WAIVER OF RULES › Section 11.202 - Ineligible Applicants and Applications

Current through Reg. 49, No. 28; July 12, 2024
The purpose of this section is to identify those situations
					 in which an Application or Applicant may be considered ineligible for
					 Department funding and subsequently terminated. Such matters may be brought to
					 the attention of staff by anyone, including members of the general public. The
					 items listed in this section include those requirements in Code, §
										42, Tex. Gov't Code,
					 Chapter 2306, and other criteria considered important by the Department, and
					 does not represent an exhaustive list of ineligibility criteria that may
					 otherwise be identified in applicable rules, federal statutes or regulations,
					 or a specific program NOFA. The Application may include, or Department staff
					 may request, documentation or verification of compliance with any requirements
					 related to the eligibility of an Applicant, Application, Development Site, or
					 Development. One or more of the matters enumerated in paragraph (1) of this
					 section may also serve as a basis for debarment, or the assessment of
					 administrative penalties, and nothing herein shall limit the Department's
					 ability to pursue any such matter. Failure to provide disclosure may be cause
					 for termination.
(1) Applicants. An
				  Applicant may be considered ineligible if any of the criteria in subparagraphs
				  (A) - (N) of this paragraph apply to those identified on the organizational
				  chart for the Applicant, Developer and Guarantor. An Applicant is ineligible if
				  the Applicant, Developer, or Guarantor:
(A)
				  Has been or is barred, suspended, or terminated from participation in a state
				  or Federal program, including those listed in the U.S. government's System for
				  Award Management (SAM); (§2306.0504)
(B) Has been convicted of a state or federal
				  felony crime involving fraud, bribery, theft, misrepresentation of material
				  fact, misappropriation of funds, or other similar criminal offenses within 15
				  years preceding the received date of Application or Pre-Application submission
				  (if applicable);
(C) Is, at the
				  time of Application, subject to an order in connection with an enforcement or
				  disciplinary action under state or federal securities law or by FINRA; subject
				  to a federal tax lien (other than a contested lien for which provision has been
				  made); or the subject of a proceeding in which a Governmental Entity has issued
				  an order to impose penalties, suspend funding, or take adverse action based on
				  an allegation of financial misconduct or uncured violation of material laws,
				  rules, or other legal requirements governing activities considered relevant by
				  the Governmental Entity;
(D) Has
				  materially breached a contract with a public agency, and, if such breach is
				  permitted to be cured under the contract, has been given notice of the breach
				  and a reasonable opportunity to cure, and failed to cure that breach within the
				  time specified in the notice of breach;
(E) Has misrepresented to a subcontractor the
				  extent to which the Developer has benefited from contracts or financial
				  assistance that has been awarded by a public agency, including the scope of the
				  Developer's participation in contracts with the agency, and the amount of
				  financial assistance awarded to the Developer by the agency;
(F) Has been found by the Board to be
				  ineligible based on a previous participation review performed in accordance
				  with Chapter 1 Subchapter C of this title (relating to Previous Participation
				  Review);
(G) Is delinquent in any
				  loan, fee, or escrow payments to the Department in accordance with the terms of
				  the loan, as amended, or is otherwise in default with any provisions of such
				  loans, and for which no repayment plan has been approved by the
				  Department;
(H) Has failed to cure
				  any past due fees owed to the Department within the time frame provided by
				  notice from the Department and at least 10 days prior to the Board meeting at
				  which the decision for an award is to be made;
(I) Would be prohibited by a state or federal
				  revolving door or other standard of conduct or conflict of interest statute,
				  including Tex. Gov't Code §
											2306.6733, or a
				  provision of Tex. Gov't Code, Chapter 572, from participating in the
				  Application in the manner and capacity they are participating;
(J) Has, without prior approval from the
				  Department, had previous Contracts or Commitments that have been partially or
				  fully Deobligated during the 12 months prior to the submission of the
				  Application, and through the date of final allocation due to a failure to meet
				  contractual obligations, and the Person is on notice that such Deobligation
				  results in ineligibility under this chapter;
(K) Has provided false or misleading
				  documentation or made other intentional or negligent material
				  misrepresentations or omissions in or in connection with an Application (and
				  certifications contained therein), Commitment or Determination Notice, or
				  Direct Loan Contract for a Development;
(L) Was the Owner or Affiliate of the Owner
				  of a Department assisted rental Development for which the federal affordability
				  requirements were prematurely terminated and the affordability requirements
				  have not been re-affirmed or Department funds repaid;
(M) Fails to disclose, in the Application,
				  any Principal or any entity or Person in the Development ownership structure
				  who was or is involved as a Principal in any other affordable housing
				  transaction, that has terminated voluntarily or involuntarily within the past
				  10 years, or plans to or is negotiating to terminate, their relationship with
				  any other affordable housing development. The disclosure must identify the
				  person or persons and development involved, the identity of each other
				  development, and contact information for the other Principals of each such
				  development, a narrative description of the facts and circumstances of the
				  termination or proposed termination, and any appropriate supporting documents.
				  An Application may be referred to the Board for a determination of a person's
				  fitness to be involved as a Principal with respect to an Application, which may
				  include a staff recommendation, using the factors described in clauses (i) -
				  (v) of this subparagraph as considerations:
(i) the amount of resources in a Development
				  and the amount of the benefit received from the Development;
(ii) the legal and practical ability to
				  address issues that may have precipitated the termination or proposed
				  termination of the relationship;
(iii) the role of the person in causing or
				  materially contributing to any problems with the success of the
				  development;
(iv) the person's
				  compliance history, including compliance history on other developments;
				  and
(v) any other facts or
				  circumstances that have a material bearing on the question of the person's
				  ability to be a compliant and effective participant in their proposed role as
				  described in the Application; or
(N) Fails to disclose in the Application any
				  voluntary compliance agreement or similar agreement with any governmental
				  agency that is the result of negotiation regarding noncompliance of any
				  affordable housing Development with any requirements. Any such agreement
				  impacting the proposed Development or any other affordable housing Development
				  controlled by the Applicant must be disclosed.