By Eckels H.B. No. 2330
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the transfer of certain functions to the General
1-3 Services Commission and from all the many state agencies of the
1-4 state of Texas and the streamlining, modernization, and
1-5 reengineering of the state procurement process.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 1.02(1) and (2), State Purchasing and
1-8 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
1-9 is amended to read as follows:
1-10 Sec. 1.02 In this Act:
1-11 (1) "Commission" means the General Services
1-12 Commission.
1-13 (2) "State agency" means:
1-14 (A) any department, commission, board, office,
1-15 or other agency in the executive, legislative, and judicial
1-16 branches of state government created by the constitution or a
1-17 statute of this state<, except the Texas High-Speed Rail
1-18 Authority>;
1-19 (B) <the Supreme Court of Texas, the Court of
1-20 Criminal Appeals of Texas, a court of civil appeals, or the Texas
1-21 Civil Judicial Council; or>
1-22 <(C)> a university system or an institution of
1-23 higher education as defined in Section 61.003, Texas Education
2-1 Code, as amended, other than a public junior college.
2-2 SECTION 2. Section 1.03(b) and (c), State Purchasing and
2-3 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
2-4 is amended to read as follows:
2-5 (b) The office shall compile a directory of businesses
2-6 certified as disadvantaged businesses under Subsection (a) of this
2-7 section. The office shall update the directory at least
2-8 semiannually and provide a copy of the directory to the commission
2-9 <and each state agency> semiannually. The commission <and state
2-10 agencies> shall use the directory in determining awards of state
2-11 purchasing and public works contracts.
2-12 (c) The commission <and each state agency> shall report to
2-13 the office the total number and dollar amount of contracts awarded
2-14 to disadvantaged businesses. These reports shall be made each
2-15 January and July and shall report on the previous six-month period.
2-16 The office shall compile and analyze the reports and submit a
2-17 report based on the analysis to the presiding officer of each house
2-18 of the legislature each February.
2-19 SECTION 3. Section 2.06, State Purchasing and General
2-20 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
2-21 amended to read as follows:
2-22 Sec. 2.06. (a) The commission shall employ an executive
2-23 director who shall serve at the pleasure of the commission. <The
2-24 executive director shall execute a bond payable to the state in
2-25 such sum as the commission may deem necessary, to be approved by
3-1 the commission and conditioned upon the faithful performance of the
3-2 duties of the office. Premiums for said bond also shall be payable
3-3 from such appropriations for the commission as are authorized by
3-4 the legislature.> The executive director must have demonstrated
3-5 executive and organizational ability.
3-6 (b) The executive director shall manage the affairs of the
3-7 commission subject to and under the direction of the commission.
3-8 All direction of the commission to the executive director shall be
3-9 made at an open meeting of the commission and made a part of the
3-10 minutes of the commission. A member of the commission may not
3-11 grant any authority to the executive director or any other employee
3-12 by power of attorney.
3-13 (c) <The executive director shall employ two associate
3-14 deputy directors, who shall administer the operation of the
3-15 divisions of the commission as provided by this Act.>
3-16 <(d)> The executive director may employ a staff necessary to
3-17 administer the functions of the commission.
3-18 (d) <(e)> The commission shall provide to its members and
3-19 employees, as often as necessary, information regarding their
3-20 qualifications for office or employment under this Act and their
3-21 responsibilities under applicable laws relating to standards of
3-22 conduct for state officers or employees.
3-23 (e) <(f)> The commission shall develop and implement
3-24 policies that clearly define the respective responsibilities of the
3-25 commission and the staff of the commission.
4-1 (f) <(g)> The executive director or the executive director's
4-2 designee shall develop an intraagency career ladder program. The
4-3 program shall require intraagency postings of all nonentry level
4-4 positions concurrently with any public posting.
4-5 (g) <(h)> The executive director or the executive director's
4-6 designee shall develop a system of annual performance evaluations.
4-7 All merit pay for commission employees must be based on the system
4-8 established under this subsection.
4-9 (h) <(i)> The executive director or the executive director's
4-10 designee shall prepare and maintain a written policy statement to
4-11 assure implementation of a program of equal employment opportunity
4-12 under which all personnel transactions are made without regard to
4-13 race, color, handicap, sex, religion, age, or national origin. The
4-14 policy statement must include:
4-15 (1) personnel policies, including policies relating to
4-16 recruitment, evaluation, selection, appointment, training, and
4-17 promotion of personnel;
4-18 (2) a comprehensive analysis of the commission work
4-19 force that meets federal and state guidelines;
4-20 (3) procedures by which a determination can be made of
4-21 significant underutilization in the commission work force of all
4-22 persons for whom federal or state guidelines encourage a more
4-23 equitable balance; and
4-24 (4) reasonable methods to address appropriately those
4-25 areas of significant underutilization.
5-1 (i) <(j)> A policy statement prepared under Subsection (i)
5-2 of this section must cover an annual period, be updated at least
5-3 annually, and be filed with the governor's office.
5-4 (j) <(k)> The governor's office shall deliver a biennial
5-5 report to the legislature based on the information received under
5-6 Subsection (i<j>) of this section. The report may be made
5-7 separately or as a part of other biennial reports made to the
5-8 legislature.
5-9 SECTION 4. Section 2.07, State Purchasing and General
5-10 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
5-11 amended to read as follows:
5-12 Sec. 2.07. The commission is subject to Chapter 325,
5-13 Government Code (Texas Sunset Act). Unless continued in existence
5-14 as provided by that chapter, the commission is abolished and this
5-15 Act expires September 1, 2001 <1993>.
5-16 SECTION 5. Section 2.09, State Purchasing and General
5-17 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
5-18 amended to read as follows:
5-19 Sec. 2.09. (a) The commission is divided into divisions as
5-20 provided by this section. <One associate deputy director shall
5-21 direct the travel division and other divisions as directed by the
5-22 executive director. The other associate deputy director shall
5-23 direct the remaining divisions as directed by the executive
5-24 director.>
5-25 (b) Each division shall be managed by a division director
6-1 who shall report directly to the executive director or the
6-2 executive director's designee <appropriate associate deputy
6-3 director>.
6-4 SECTION 6. Section 3.01, State Purchasing and General
6-5 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
6-6 amended to read as follows:
6-7 Sec. 3.01. (a) The commission shall be the sole authority
6-8 to purchase, lease, rent, or otherwise acquire all supplies,
6-9 materials, services, and equipment for all state agencies,
6-10 including spot purchases and purchases that do not require a
6-11 competitive bid, except as provided in this article. <for the
6-12 following materials, supplies, equipment, and services acquired for
6-13 libraries operated as part of university systems or institutions of
6-14 higher education or for state-owned hospitals or clinics:>
6-15 <(1) serial and journal subscriptions;>
6-16 <(2) library materials, including books not available
6-17 under a statewide contract and papers;>
6-18 <(3) library services including binding services not
6-19 available under a statewide binding contract;>
6-20 <(4) library equipment and supplies; and>
6-21 <(5) materials, supplies, or equipment purchased by a
6-22 state-owned hospital or clinic through a group purchasing program
6-23 that offers purchasing services at discount prices to two or more
6-24 hospital or clinic facilities if the chief executive officer of the
6-25 hospital or clinic or his designee certifies that the purchase of
7-1 the particular supplies, material, or equipment through the group
7-2 purchasing program is the most cost-effective method of purchasing
7-3 available.>
7-4 (b) The commission shall institute and maintain the most
7-5 efficient, technologically modern, <an effective> and economical
7-6 system for purchasing supplies, materials, services, and equipment,
7-7 to serve the best interests of the state as a whole, as well as,
7-8 promptly serving the individual needs of each state agency.
7-9 (c) "Services," as used in this article, means the
7-10 furnishing of skilled labor or unskilled labor or professional
7-11 work, and also includes <but does not include>:
7-12 (1) professional services covered by the Professional
7-13 Services Procurement Act (Article 664-4, Vernon's Texas Civil
7-14 Statutes);
7-15 (2) services of an employee of a state agency;
7-16 (3) consulting services or services of a private
7-17 consultant as defined by Chapter 454, Acts of the 65th Legislature,
7-18 Regular Session, 1977 (Article 6252-11c, Vernon's Texas Civil
7-19 Statutes); or
7-20 (4) services of public utilities.
7-21 (d) The commission <An institution of higher education> may
7-22 pay for books and other published library materials before
7-23 receiving them if reasonably necessary for the efficient operation
7-24 of the institution's libraries.
7-25 (e) The purchasing system under this article shall be
8-1 organized to include only one central office to serve statewide
8-2 needs and a maximum of 24 district offices, with district
8-3 boundaries defined by rule, each district office to serve the
8-4 unique needs of the state agencies located within its district
8-5 boundaries.
8-6 SECTION 7. Section 3.012, State Purchasing and General
8-7 Services Act (Article 601b, Vernon' s Texas Civil Statutes), is
8-8 amended to read as follows:
8-9 Sec. 3.012. (a) The commission, in order to achieve the
8-10 shortest processing time possible, <to the extent possible> shall
8-11 focus its efforts, under this article, primarily on emergency
8-12 purchases and statewide contracts for the purchase of all supplies,
8-13 materials, services and equipment that are needed by the state
8-14 agencies, and then secondarily on open market purchases for
8-15 non-routine special purchases <that involve relatively large
8-16 amounts of money>.
8-17 (b) The organization of the purchasing system of the
8-18 commission shall be primarily grouped functionally by process, in
8-19 order to achieve the shortest purchasing process cycle times
8-20 possible; and secondarily within the functional grouping, the
8-21 purchasing system shall be organized by zone, district, agency, or
8-22 political subdivision in order to address the specific needs of the
8-23 agencies or political subdivisions.
8-24 SECTION 8. Section 3.02, State Purchasing and General
8-25 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
9-1 amended to read as follows:
9-2 Sec. 3.02. The commission's authority does not extend to
9-3 purchases of supplies, materials, services, or equipment:
9-4 (1) for resale;
9-5 (2) for auxiliary enterprises; or
9-6 (3) <for organized activities relating to
9-7 instructional departments of institutions of higher learning and
9-8 similar activities of other state agencies; or>
9-9 <(4)> from gifts or grants, including industrial
9-10 grants or contracts in support of research or federal grants or
9-11 contracts in support of research.
9-12 SECTION 9. Section 3.022, State Purchasing and General
9-13 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
9-14 repealed.
9-15 SECTION 10. Section 3.024, State Purchasing and General
9-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
9-17 repealed.
9-18 SECTION 11. Section 3.03, State Purchasing and General
9-19 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
9-20 amended to read as follows:
9-21 Sec. 3.03. The commission shall provide contracts for the
9-22 purchase or lease of <purchase all> motor vehicles used for
9-23 transporting school children, including buses, bus chassis, and bus
9-24 bodies, tires, and tubes.<, for school districts participating in
9-25 the Foundation School Program as provided by Subchapter F, Chapter
10-1 21, Texas Education Code.(1) All purchases must comply with the
10-2 alternative fuels requirements specified by Subchapter F, Chapter
10-3 21, Texas Education Code.>
10-4 <(1) V.T.C.A. Education Code, & 21.161 et seq.>
10-5 SECTION 12. Section 3.04, State Purchasing and General
10-6 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-7 repealed.
10-8 SECTION 13. Section 3.05, State Purchasing and General
10-9 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-10 repealed.
10-11 SECTION 14. Section 3.051, State Purchasing and General
10-12 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-13 repealed.
10-14 SECTION 15. Section 3.06, State Purchasing and General
10-15 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-16 repealed.
10-17 SECTION 16. Section 3.07, State Purchasing and General
10-18 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-19 amended to read as follows:
10-20 Sec. 3.07. (a) The commission shall provide for emergency
10-21 purchases for <by> a state agency and may set a monetary limit on
10-22 the amount of each emergency purchase. The commission shall
10-23 establish and maintain this emergency purchasing system so that
10-24 purchases will be made in less than two weeks from the date of
10-25 written notification and emergency justification. The commission
11-1 by rules shall define the criteria to qualify for an emergency
11-2 purchase.
11-3 (b) Each emergency purchase made under this section is not
11-4 exempt from <is subject to the disadvantaged business> provisions
11-5 of Subsection 3.10(b) <Section 3.10> of this article.
11-6 SECTION 17. Section 3.08, State Purchasing and General
11-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
11-8 amended to read as follows:
11-9 Sec. 3.08. (a) The commission by rule may delegate to state
11-10 agencies <State agencies are delegated> the authority to purchase
11-11 supplies, materials, and equipment if the purchase does not exceed
11-12 $500 <$5,000>, although an agency may continue to use the
11-13 commission's services for those purchases. The commission by rule
11-14 shall prescribe procedures for these purchases.<, and by rule may
11-15 delegate to state agencies the authority to purchase supplies,
11-16 materials, and equipment if the purchase exceeds $5,000.> The
11-17 commission by rule may create a credit card purchasing system for
11-18 state agencies to purchase under this subsection.
11-19 (b) The commission by rule may delegate to the comptroller
11-20 the commission's authority under Section 3.15 to audit purchases
11-21 and purchase data when the purchases do not exceed $500 or a
11-22 greater amount prescribed by the commission.
11-23 (c) Competitive bidding, whether formal or informal, is not
11-24 required for a purchase <by a state agency> if the purchase does
11-25 not exceed $500. <$1,000, or a greater amount prescribed by rule
12-1 of the commission.>
12-2 (d) Supplies or materials purchased under this section may
12-3 not include:
12-4 (1) items for which contracts have been awarded under
12-5 the contract purchase procedure, unless the dollar amount
12-6 <quantity> purchased is less than the dollar amount limit allowed
12-7 for non-contract use as <minimum quantity> specified in the
12-8 contract;
12-9 (2) any item required by statute to be purchased from
12-10 a particular source; or
12-11 (3) scheduled items that have been designated for
12-12 purchase by the commission.
12-13 (e) Large purchases may not be divided into small lot
12-14 purchases in order to meet the specified dollar limits. <The
12-15 commission may not require that unrelated purchases be combined
12-16 into one purchase order in order to exceed the specified dollar
12-17 limits.>
12-18 (f) Purchases <Agencies making purchases under this
12-19 section> for which competitive bidding is required must attempt to
12-20 obtain at least three competitive bids, including at least one bid
12-21 each from a women-owned business and a historically underutilized
12-22 business, from sources which normally offer for sale the
12-23 merchandise being purchased. <and must comply with Section 3.101 of
12-24 this article.>
12-25 SECTION 18. Section 3.09, State Purchasing and General
13-1 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
13-2 amended to read as follows:
13-3 Sec. 3.09. (a) The commission shall review the
13-4 specifications and conditions of purchase of <any> supplies,
13-5 materials, equipment, or services desired to be purchased, that
13-6 require competitive bidding.
13-7 (b) If the commission finds that specifications and
13-8 conditions of a purchase request have been drawn to describe a
13-9 product which is proprietary to one manufacturer <vendor> and does
13-10 not include language which permits an equivalent product to be
13-11 supplied, it shall require written justification of the requested
13-12 specifications or conditions, signed by the agency head or the
13-13 chairman of the governing body. For an institution of higher
13-14 education, the written justification may be signed by the person
13-15 designated by the president or governing body. The commission by
13-16 rule shall establish what criteria the written justification must
13-17 address. <as purchase officer for the institution. The written
13-18 justification shall contain the following:>
13-19 <(1) explanation of the need for the specifications;>
13-20 <(2) the reason competing products are not
13-21 satisfactory; and>
13-22 <(3) other information requested by the commission.>
13-23 (c) If a resubmission with written justification is to be
13-24 required by the commission, it shall notify the requesting agency
13-25 of that fact within 10 days after the date of receipt of the
14-1 purchase request.
14-2 (d) If the commission, after considering all factors, takes
14-3 exception to the justifications, it shall purchase the supplies,
14-4 materials, services, or equipment as requested and report the
14-5 reasons for its exceptions to the agency head or the chairman of
14-6 the governing body, the state auditor, the Legislative Budget
14-7 Board, and the governor.
14-8 (e) The commission shall issue an invitation to bid to
14-9 vendors within 10 <20> days after the date of receipt of the
14-10 written justification required.
14-11 (f) The commission shall establish by rule a procedure by
14-12 which a purchase request from a state agency, that requires all
14-13 goods or services to be proprietary from one manufacturer, as
14-14 justified under this section, and has proof that the product is
14-15 available from only one source, may at the commission's option,
14-16 send an invitation to bid to only that one source. The commission
14-17 shall establish by rule what constitutes proof of availability from
14-18 only one source. <The commission shall not delay processing a
14-19 purchase requisition by submitting the specifications and
14-20 conditions to the state auditor's office for comment or
14-21 recommendation prior to issuing the invitation to bid to vendors.>
14-22 SECTION 19. Section 3.10, State Purchasing and General
14-23 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
14-24 amended to read as follows:
14-25 Sec. 3.10. (a) In purchasing and contracting for all
15-1 supplies, materials, services, and equipment the commission by rule
15-2 must, except as provided herein, <may> use recognized, appropriate,
15-3 competitive purchase procedures to obtain the best benefit for the
15-4 State.<, but is not limited to, the contract purchase procedure,
15-5 the multiple award contract procedure, and the open market purchase
15-6 procedure.> The commission shall have the authority to combine
15-7 orders in a system of schedule purchasing, and it shall at all
15-8 times try to benefit from purchasing in bulk. <All purchases of
15-9 and contract for supplies, materials, services, and equipment
15-10 shall, except as provided herein, be based whenever possible on
15-11 competitive bids.>
15-12 (b) The commission shall make a good faith effort to assist
15-13 disadvantaged businesses to receive at least 10 percent of the
15-14 total value of contract awards for the purchase of supplies,
15-15 materials, services, and equipment that the commission expects to
15-16 make for a state agency in its fiscal year. The commission shall
15-17 estimate the expected total value of an agency's contract awards
15-18 not later than the 60th day of the agency's fiscal year and may
15-19 revise the estimate as new information requires.
15-20 SECTION 20. Section 3.101, State Purchasing and General
15-21 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
15-22 amended to read as follows:
15-23 Sec. 3.101. (a) This section:
15-24 (1) applies to all purchases under this article for
15-25 which competitive bidding is <or competitive sealed proposals are>
16-1 required;
16-2 <(2) applies to all state agencies that make purchases
16-3 under this article, including the commission and agencies that make
16-4 purchases under Section 3.06 of this article; and>
16-5 <(3) does not apply to purchases made by the commission
16-6 under Section 3.11 of this article.>
16-7 (b) The commission shall develop a uniform registration form
16-8 for application to do business with the commission. <or with any
16-9 state agency. The registration forms shall constitute a valid
16-10 application for a bidders list by all state agencies. Nothing in
16-11 this subsection shall be construed as preventing any state agency
16-12 from developing and using its own registration form, but such forms
16-13 shall not be required in addition to or in lieu of the uniform
16-14 registration form developed by the commission.>
16-15 (c) The commission <Each state agency> shall maintain a
16-16 bidders list and annually register on the list the name and address
16-17 of each vendor that applies for registration in accordance with
16-18 rules adopted under this section. The commission <An agency> may
16-19 include other relevant vendor information on the list. The
16-20 commission <Each agency> shall solicit bids or proposals from all
16-21 eligible vendors on the list, as provided by this section, when the
16-22 commission <agency> proposes to make a purchase that will cost more
16-23 than $10,000. <$5,000.>
16-24 (d) The commission <A state agency> may charge applicants
16-25 for registration a fee and may charge registrants an annual renewal
17-1 fee in an amount designed to recover the commission's <agency's>
17-2 costs in developing and maintaining its bidders list and in
17-3 soliciting bids or proposals under this section. The commission
17-4 <An agency> shall set the amount of the fees by rule.
17-5 (e) The commission <Each state agency> shall adopt
17-6 procedures for developing and maintaining its bidders list and
17-7 procedures for removing inactive vendors from the list.
17-8 (f) The commission <Each state agency> shall establish by
17-9 rule a vendor classification process under which only vendors that
17-10 may be able to make a bid or proposal on a particular purchase are
17-11 solicited <under this section>.
17-12 (g) The commission shall add or delete names from the list
17-13 by the application and utilization of applicable standards set
17-14 forth in Subsection (c) of Section 3.11 of this article. <The
17-15 commission may establish by rule a process under which the
17-16 requirement for soliciting bids or proposals from eligible vendors
17-17 on the bidders list may be waived for appropriate state agencies or
17-18 appropriate purchases in circumstances in which the requirement is
17-19 not warranted. The commission also may assist state agencies
17-20 regarding issues that arise under this section.>
17-21 SECTION 21. Section 3.102, State Purchasing and General
17-22 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
17-23 amended to read as follows:
17-24 Sec. 3.102. The commission <A state agency> may not accept
17-25 a bid or award a contract that includes proposed financial
18-1 participation by a person who received compensation from the State
18-2 <agency> to participate in the preparation of the specifications or
18-3 request for proposals on which the bid or contract is based. A
18-4 bidder or contract participant may provide free technical
18-5 assistance to an agency under this section.
18-6 SECTION 22. Section 3.11, State Purchasing and General
18-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
18-8 amended to read as follows:
18-9 Sec. 3.11. (a) Notice. Notice inviting bids shall be
18-10 mailed or electronically conveyed to the vendors <published at
18-11 least once in at least one newspaper of general circulation in the
18-12 state and> at least seven days preceding the last day set for the
18-13 receiving of bids. <The newspaper notice shall include a general
18-14 description of the articles to be purchased, and shall state where
18-15 bid blanks and specifications may be secured, and the time and
18-16 place for opening bids.>
18-17 (b) <Bidders List. The commission shall maintain a bidders
18-18 list and shall add or delete names from the list by the application
18-19 and utilization of applicable standards set forth in Subsection (e)
18-20 of this section. Bid invitations shall be sent only to those who
18-21 have expressed a desire to bid on the particular types of items
18-22 which are the subject of the bid invitation. Use of the bidders
18-23 list shall not be confined to contract purchases but it may be used
18-24 by the commission in making any purchase.>
18-25 <(c) Bid Deposits. When deemed necessary bid deposits in
19-1 amounts to be set by the commission shall be prescribed in the
19-2 public notices and the invitation to bid. The commission shall
19-3 establish and maintain records of bid deposits and their
19-4 disposition with the cooperation of the state auditor, and upon the
19-5 award of bids or rejection of all bids, bid deposits shall be
19-6 returned to unsuccessful bidders making bid deposits. The
19-7 commission may accept a bid deposit in the form of a blanket bond
19-8 from any bidder.>
19-9 <(d)> Bid Opening Procedure. Bids shall be submitted to the
19-10 commission, sealed, and identified as bids on the envelope.
19-11 Opening of the bids <Bids> shall be <opened> at the time and place
19-12 stated in the <public notices and> invitation to bid, and shall be
19-13 open to the public, and bids received after this stated time at
19-14 this stated place shall not be accepted. <The state auditor or a
19-15 member of his staff may be present at any bid opening.> A
19-16 tabulation of all bids received shall be available for public
19-17 inspection under regulations to be established by the commission.
19-18 (c) <(e)> Award of Contract. The commission shall award
19-19 contracts to the bidder submitting the lowest and best bid
19-20 conforming to the specifications required. Complying with all
19-21 conditions specified <the specified time limit for submission of
19-22 written data, samples, or models on or before bid opening time is
19-23 essential to the materiality of a bid, provided, however, that the
19-24 commission shall have the authority to waive this provision if the
19-25 failure to comply is beyond control of the bidder. In determining
20-1 who is the lowest and best bidder>, the commission may take into
20-2 account the safety record of the bidder, or the firm, corporation,
20-3 partnership, or institution represented by the bidder, or anyone
20-4 acting for such firm, corporation, partnership, or institution,
20-5 provided, <however, that> the commission has adopted a written
20-6 definition and criteria for <accurately> determining the safety
20-7 record of a bidder. <and has given notice to prospective, in the
20-8 bid specifications, that the safety record of a bidder may be
20-9 considered in determining the lowest and best bidder and, provided
20-10 further, that such determinations are not arbitrary and
20-11 capricious.> In determining who is the lowest and best bidder, in
20-12 addition to price, the commission shall consider the following
20-13 which may be based on a vendor performance data rating system:
20-14 (1) the quality, availability, and adaptability of the
20-15 supplies, materials, equipment, or contractual services, to the
20-16 particular use required;
20-17 (2) the number and scope of conditions attached to the
20-18 bid;
20-19 (3) the ability, capacity, and skill of the bidder to
20-20 perform the contract or provide the service required;
20-21 (4) whether the bidder can perform the contract or
20-22 provide the service promptly, or within the time required, without
20-23 delay or interference;
20-24 (5) the character, responsibility, integrity,
20-25 reputation, and experience of the bidder;
21-1 (6) the quality of performance of previous contracts
21-2 or services;
21-3 (7) the previous and existing compliance by the bidder
21-4 with laws relating to the contract or service;
21-5 (8) any previous or existing noncompliance by the
21-6 bidder; <with specification requirements relating to time of
21-7 submission of specified data such as samples, models, drawings,
21-8 certificates, or other information;>
21-9 (9) the sufficiency of the financial resources and
21-10 ability of the bidder to perform the contract or provide the
21-11 service; and
21-12 (10) the ability of the bidder to provide future
21-13 maintenance, repair parts, and service for the use of the subject
21-14 of the contract.
21-15 (d) <(f)> Rejection of Bids. If a bid is submitted in which
21-16 there is a material failure to comply with the specification
21-17 requirements, such bid shall be rejected and the award shall be
21-18 made <contract awarded> to the bidder submitting the lowest and
21-19 best bid conforming to the specifications, provided, however, the
21-20 commission shall in any event have the authority to reject all bids
21-21 or parts of bids when the interest of the state will be served
21-22 thereby.
21-23 (e) <(g)> Bid Record. When an award is made, a statement of
21-24 the basis for placing the order with the successful bidder and the
21-25 factors considered in determining the lowest and best bid shall be
22-1 prepared by the purchasing division and filed with other papers
22-2 relating to the transaction.
22-3 (f) <(h)> Tie Bids. In case of tie bids, quality and
22-4 service being equal, the contract shall be awarded under rules and
22-5 regulations to be adopted by the commission.
22-6 (g) <(i)> Performance Bonds. The commission may require a
22-7 performance bond before entering a contract in such amount as it
22-8 finds reasonable and necessary to protect the interests of the
22-9 state. Any bond required under this subsection shall be
22-10 conditioned that the bidder will faithfully execute the terms of
22-11 the contract into which he has entered. Any bond required shall be
22-12 filed with the commission and recoveries may be had thereon until
22-13 it is exhausted.
22-14 SECTION 23. Section 3.12, State Purchasing and General
22-15 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
22-16 amended to read as follows:
22-17 Sec. 3.12. (a) The average number of days to process an
22-18 open market purchase shall be a maximum of 21 days, except for the
22-19 purchases made under Section 3.09 of this article. <When the
22-20 commission determines that any purchase of supplies, materials,
22-21 equipment, or services may be made most effectively in the open
22-22 market, such purchases may be made without newspaper advertising.>
22-23 (b) Minimum Number of Bids. All open market purchases shall
22-24 attempt to obtain<, whenever possible, be based on> at least three
22-25 competitive bids, of which at least one each will be from a
23-1 women-owned business and a historically underutilized business, and
23-2 shall be awarded to the lowest and best bidder in accordance with
23-3 the standards set forth under this article.
23-4 (c) Notice Inviting Bids. The commission shall solicit bids
23-5 by:
23-6 (1) direct mail request to prospective vendors; <or>
23-7 (2) telephone or telegraph;
23-8 (3) electronic methods; or
23-9 (4) other methods as deemed appropriate to the
23-10 commission.
23-11 (d) Recording. The commission shall keep a record of all
23-12 open market orders and bids submitted thereon, and a tabulation of
23-13 the bids shall, under rules and regulations to be established by
23-14 the commission, be open to public inspection; provided, they shall
23-15 always be open to inspection by the state auditor or his
23-16 representatives.
23-17 (e) Agency Review. If a state agency requests that it be
23-18 allowed to review the bids on a purchase request, the commission
23-19 shall forward copies of the bids received or make the same
23-20 available to the requesting agency along with the commission's
23-21 recommended award. If, after review of the bids and evaluation of
23-22 the quality of products offered in the bids, the state agency
23-23 determines that the bid selected by the commission is not in its
23-24 opinion the lowest and best bid, it may file with the commission a
23-25 written recommendation, complete with justification, that the award
24-1 be made to the bidder determined to be the lowest and best bid.
24-2 The commission shall give consideration to, but is not bound by,
24-3 the agency recommendation in making the award.
24-4 (f) Statement of Award. A statement of the basis for
24-5 placing the order with the successful bidder and the facts
24-6 considered in determining the lowest and best bid shall be prepared
24-7 by the purchasing division and filed with other papers relating to
24-8 the transaction.
24-9 SECTION 24. Section 3.15(h), State Purchasing and General
24-10 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
24-11 amended to read as follows:
24-12 (h) This section does not apply to interagency purchases or
24-13 transactions. Interagency purchases and transactions must be
24-14 accomplished on special vouchers or electronically as prescribed by
24-15 the comptroller. <of public accounts. The commission shall audit
24-16 all interagency purchases and transactions after they have been
24-17 completed.>
24-18 SECTION 25. Section 3.17, State Purchasing and General
24-19 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
24-20 amended to read as follows:
24-21 Sec. 3.17. (a) The commission shall have the authority to
24-22 establish and maintain a specifications and standards program to
24-23 coordinate the establishment and maintenance of uniform standards
24-24 and specifications for materials, supplies, and equipment purchased
24-25 by the commission. The commission shall enlist the cooperation of
25-1 other state agencies in the establishment, maintenance, and
25-2 revision of uniform standards and specifications and shall
25-3 encourage and foster the use of standard specifications in order
25-4 that the most efficient purchase of materials, supplies, and
25-5 equipment may be continuously accomplished.
25-6 (b) As part of the standards and specification program, the
25-7 commission shall review existing contracts for recycling waste
25-8 produced at state buildings. The commission shall review existing
25-9 contracts and procedures to ensure that all services meet contract
25-10 specifications.
25-11 (c) The commission shall establish and maintain a program of
25-12 testing and inspecting to ensure that materials, supplies,
25-13 services, and equipment meet specifications, and may make contracts
25-14 for testing. If any state agency determines that any supplies,
25-15 materials, services, or equipment received do not meet
25-16 specifications, it shall promptly notify the commission in writing
25-17 detailing the reasons why the supplies, materials, services, or
25-18 equipment do not meet the specifications of the contract. The
25-19 commission shall immediately determine whether or not the reported
25-20 supplies, materials, services, or equipment meet specifications.
25-21 The final authority <sole power> to determine whether materials,
25-22 supplies, services, or equipment meet specifications shall rest
25-23 with the commission. The commission shall provide for the
25-24 inspecting and testing of all costly purchases and may adopt rules
25-25 necessary to carry out this duty. When the commission finds that
26-1 contract specifications or conditions have not been complied with,
26-2 it shall take action, with the assistance of the attorney general,
26-3 if necessary, against the defaulting contractor. If the commission
26-4 receives repeated complaints, as defined by commission rule,
26-5 regarding a vendor, the commission shall remove the vendor's name
26-6 from the commission's bidder's list for a period not to exceed one
26-7 year.
26-8 (d) The personnel of the inspection and testing program
26-9 shall not directly or indirectly report to the director of the
26-10 purchasing division as established under this article.
26-11 SECTION 26. Section 3.181, State Purchasing and General
26-12 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
26-13 repealed.
26-14 SECTION 27. Section 3.19, State Purchasing and General
26-15 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
26-16 amended to read as follows:
26-17 Sec. 3.19. (a) No member of the commission or any employee
26-18 or appointee of the commission shall be interested in, or in any
26-19 manner connected with, any contract for bid for furnishing
26-20 supplies, materials, services, and equipment of any kind to any
26-21 agency of the state of Texas. Neither shall any member or employee
26-22 or appointee, under penalty of dismissal, accept or receive from
26-23 any person, firm, or corporation to whom any contract may be
26-24 awarded, directly or indirectly, by rebate, gift, or otherwise, any
26-25 money or other thing of value whatever, nor shall he receive any
27-1 promise, obligation, or contract for future reward or compensation
27-2 from any such party.
27-3 (b) No member, employee, or appointee, under penalty of
27-4 dismissal, of a state agency, except the commission, shall be
27-5 allowed to purchase goods and services above the amount specified
27-6 in Subsections 3.08(a) and (c) of this article. The office of the
27-7 State Auditor shall be allowed by the commission to audit the
27-8 purchase data of the purchases made by the commission for the
27-9 commission.
27-10 SECTION 28. The State Purchasing and General Services Act
27-11 (Article 601b, Vernon's Texas Civil Statutes) is amended by adding
27-12 Section 3.20A to read as follows:
27-13 Sec. 3.20A. (a) The commission shall provide for
27-14 preferences for the purchase of goods, materials and services under
27-15 the following conditions and other conditions as the commission may
27-16 establish by rule which will be in the best interest of the state:
27-17 (1) products and services of entities whose primary
27-18 purpose is the training, employment or rehabilitation of mentally
27-19 or physically handicapped persons;
27-20 (2) products and services of the state prison system;
27-21 (3) products which are energy efficient;
27-22 (4) products produced from recycled materials, so that
27-23 the commission shall make every effort to promote the use of
27-24 recyclable and reuseable products;
27-25 (5) products produced in, grown in, or offered by
28-1 Texas bidders; and
28-2 (6) products produced in, or grown in the U.S.A.
28-3 (b) The commission may establish a percentage preference for
28-4 recycled products procured under this section, all other products
28-5 and services shall be given preference if the cost, quantity and
28-6 quality are equal. Preferences shall not exceed 10% except for
28-7 asphalt made with recycled rubber from tires which shall be 15%
28-8 based on life cycle cost benefit analysis.
28-9 SECTION 29. Section 3.20, State Purchasing and General
28-10 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-11 repealed.
28-12 SECTION 30. Section 3.202, State Purchasing and General
28-13 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-14 repealed.
28-15 SECTION 31. Section 3.21, State Purchasing and General
28-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-17 repealed.
28-18 SECTION 32. Section 3.211, State Purchasing and General
28-19 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-20 repealed.
28-21 SECTION 33. Section 3.212, State Purchasing and General
28-22 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-23 repealed.
28-24 SECTION 34. Section 3.23, State Purchasing and General
28-25 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-1 repealed.
29-2 SECTION 35. Section 3.24, State Purchasing and General
29-3 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-4 amended to read as follows:
29-5 Sec. 3.24. (a) All state agencies are authorized to make
29-6 advanced payments to federal and other state agencies for
29-7 merchandise purchased from such agencies when advanced payments
29-8 will expedite the delivery of the merchandise.
29-9 (b) Advance payments may be made to vendors by rule and
29-10 approval of the commission when in the best interest of the state.
29-11 The commission shall establish procedures for this process.
29-12 SECTION 36. Section 3.28, State Purchasing and General
29-13 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-14 repealed.
29-15 SECTION 37. Section 3.291, State Purchasing and General
29-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-17 repealed.
29-18 SECTION 38. Section 3.30, State Purchasing and General
29-19 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-20 amended to read as follows:
29-21 Sec. 3.30. A <The commission or a> state agency may pay a
29-22 restocking charge, cancellation fee, or other similar charge if the
29-23 commission determines that the charge is justifiable.
29-24 SECTION 39. Section 3.31, State Purchasing and General
29-25 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
30-1 amended to read as follows:
30-2 Sec. 3.31. A state agency <that purchases road construction
30-3 materials> may pay for the purchase of road construction materials
30-4 delivered in a vehicle that exceeds the maximum gross weight
30-5 authorized by law for the vehicle, an amount computed using the
30-6 lesser of:
30-7 (1) the actual weight of the load; or
30-8 (2) the weight determined by subtracting the weight of
30-9 the vehicle from the sum of the maximum gross weight authorized by
30-10 law for the vehicle and the tolerance allowance set for the gross
30-11 weight of that vehicle by Subdivision 1, Section 6, Chapter 42,
30-12 General Laws, Acts of the 41st Legislature, 2nd Called Session,
30-13 1929 (Article 6701d-11, Vernon's Texas Civil Statutes).
30-14 SECTION 40. ARTICLE 13, State Purchasing and General
30-15 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
30-16 repealed.
30-17 SECTION 41. On the effective date of this Act, all powers,
30-18 duties, and obligations relating to the purchasing of goods and
30-19 services are transferred from the state agencies to the General
30-20 Services Commission as provided by this Act. All property in the
30-21 custody of the state agencies and the original or a copy of any
30-22 record that relates to the purchasing of goods and services are
30-23 transferred to the General Services Commission. All appropriations
30-24 to the state agencies for the activity of purchasing goods and
30-25 services and all employees of the state agencies employed primarily
31-1 to engage in the activity of purchasing goods and services are
31-2 transferred to the General Services Commission. A requisition
31-3 submitted to be processed for a delegated purchase is transferred
31-4 without change in status from the state agencies to the General
31-5 Services Commission. All rules, standards, and specifications of
31-6 the state agencies relating to the activity of purchasing goods and
31-7 services remain in effect as rules, standards, and specifications
31-8 of the General Services Commission unless superseded by proper
31-9 authority of that commission.
31-10 SECTION 42. The consolidation of all the state agencies'
31-11 purchasing offices into 24 district offices as stated in Section
31-12 3.01(e), State Purchasing and General Services Act (Article 601b,
31-13 Vernon's Texas Civil Statutes), shall take effect on or before
31-14 September 1, 1994 and any reduction in employee staff to accomplish
31-15 this consolidation for the best benefit to the State shall be
31-16 accomplished by attrition only.
31-17 SECTION 43. This Act takes effect September 1, 1993.
31-18 SECTION 44. The importance of this legislation and the
31-19 crowded condition of the calendars in both houses create an
31-20 emergency and an imperative public necessity that the
31-21 constitutional rule requiring bills to be read on three several
31-22 days in each house be suspended, and this rule is hereby suspended.