By Romo H.B. No. 2769
74R3935 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the purchase of goods and services by the state and to
1-3 purchasing services provided by the state to local governments.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1.02(5), State Purchasing and General
1-6 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
1-7 amended to read as follows:
1-8 (5) "Best value" for purposes of Section 3.081 of this
1-9 Act means lowest overall cost of information systems based on the
1-10 following factors, including, but not limited to:
1-11 (A) purchase price;
1-12 (B) compatibility to facilitate exchange of
1-13 existing data;
1-14 (C) capacity for expansion and upgrading to more
1-15 advanced levels of technology;
1-16 (D) quantitative reliability factors;
1-17 (E) the level of training required to bring
1-18 end-users to a stated level of proficiency;
1-19 (F) the technical support requirements for
1-20 maintenance of data across a network platform and management of the
1-21 network's hardware and software; and
1-22 (G) compliance with applicable statewide
1-23 standards adopted by the Department of Information Resources or a
1-24 subsequent entity as validated by criteria established by the
2-1 department or a subsequent entity in administrative rule.
2-2 SECTION 2. Article 3, State Purchasing and General Services
2-3 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
2-4 adding Section 3.011 to read as follows:
2-5 Sec. 3.011. PROVIDING CERTAIN PURCHASING SERVICES ON
2-6 FEE-FOR-SERVICE BASIS. (a) The commission may provide open market
2-7 purchasing services on a fee-for-service basis for state agency
2-8 purchases that are delegated to an agency under Section 3.06 or
2-9 3.08 of this Act. The commission shall set the fees in an amount
2-10 that recovers the commission's costs in providing the services.
2-11 (b) The commission shall publish a schedule of its fees for
2-12 services that are subject to this section. The schedule must
2-13 include the commission's fees for:
2-14 (1) reviewing bid and contract documents for clarity,
2-15 completeness, and compliance with laws and rules;
2-16 (2) developing and transmitting invitations to bid;
2-17 (3) receiving and tabulating bids;
2-18 (4) determining which bidder offers the best value to
2-19 the state and awarding the contract to that bidder; and
2-20 (5) creating and transmitting purchase orders.
2-21 SECTION 3. Article 3, State Purchasing and General Services
2-22 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
2-23 adding Section 3.015 to read as follows:
2-24 Sec. 3.015. CENTRAL ELECTRONIC PROCUREMENT DATABASE. (a)
2-25 The commission shall establish and manage a central electronic
2-26 procurement database. The commission may enter into contracts with
2-27 private or public entities to establish or maintain all or part of
3-1 the database.
3-2 (b) The commission may maintain in the database information
3-3 related to state procurement that the commission considers to be
3-4 useful. The database must contain:
3-5 (1) information about vendors, including information
3-6 from the centralized master bidders list and vendor performance
3-7 information;
3-8 (2) information about products, including product
3-9 testing results; and
3-10 (3) information that relates to commission and other
3-11 state agency purchasing contracts and that can be entered into the
3-12 database electronically without the need for duplicate data entry.
3-13 (c) The commission may require information from a state
3-14 agency for inclusion in the database.
3-15 (d) The commission shall make the database available to
3-16 state agencies and political subdivisions through the procurement
3-17 marketplace.
3-18 SECTION 4. Section 3.022, State Purchasing and General
3-19 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
3-20 amended to read as follows:
3-21 Sec. 3.022. COMPETITIVE SEALED PROPOSALS. (a) The
3-22 commission may acquire supplies, materials, services, or equipment
3-23 <telecommunications devices, systems, or services or any automated
3-24 information systems, the computers on which they are automated, or
3-25 a service related to the automation of information systems or the
3-26 computers on which they are automated, including computer
3-27 software,> by following a procedure using competitive sealed
4-1 proposals <if the commission determines by rule that competitive
4-2 sealed bidding or informal competitive bidding is not practical or
4-3 is disadvantageous to the state. Items to be purchased from higher
4-4 education research funds may be acquired by following a procedure
4-5 using competitive sealed proposals>. The commission, or a state
4-6 agency or <an> institution of higher education if the agency or
4-7 institution is making the acquisition <if research purchasing
4-8 authority has been delegated to that institution> under Section
4-9 3.06 or 3.08 of this article, must first determine that competitive
4-10 sealed bidding or informal competitive bidding is not practical or
4-11 is disadvantageous to the state. If the competitive sealed
4-12 proposal procedure is to be handled by the state agency or
4-13 institution of higher education, the agency or institution shall
4-14 follow the procedures outlined by this section for the commission.
4-15 (b) The commission shall consult with appropriate personnel
4-16 of a requisitioning agency to develop specifications for a request
4-17 for competitive sealed proposals under this section.
4-18 (c) The commission shall solicit proposals by a request for
4-19 proposals. The commission shall give public notice of a request
4-20 for proposals in the manner provided for requests for bids under
4-21 Section 3.12 of this article.
4-22 (d) <(c)> The commission shall open each proposal in a
4-23 manner that does not disclose the contents of the proposal during
4-24 the process of negotiating with competing offerors. The commission
4-25 shall file each proposal in a register of proposals, which shall be
4-26 open for public inspection after a contract is awarded unless the
4-27 register contains information that is excepted from disclosure <as
5-1 an open record> under Subchapter C, Chapter 552, Government Code
5-2 <Section 3, Chapter 424, Acts of the 63rd Legislature, Regular
5-3 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
5-4 (e) <(d)> As provided in a request for proposals and under
5-5 the rules adopted by the commission, the commission may discuss
5-6 acceptable or potentially acceptable proposals with offerors in
5-7 order to assess an offeror's ability to meet the solicitation
5-8 requirements. After the submission of a proposal but before making
5-9 an award, the commission may permit the offeror to revise the
5-10 proposal in order to obtain the best final offer. The commission
5-11 may not disclose any information derived from proposals submitted
5-12 from competing offerors in conducting discussions under this
5-13 subsection. The commission shall provide each offeror with an
5-14 equal opportunity for discussion and revision of proposals.
5-15 (f) <(e)> The commission shall invite a requisitioning
5-16 agency to participate in discussions conducted under Subsection (e)
5-17 <(d)> of this section.
5-18 (g) <(f)> The commission shall make a written award of a
5-19 purchase or lease to the offeror whose proposal offers <is> the
5-20 best value <most advantageous> to the state, considering price,
5-21 past vendor performance, vendor reputation, and the evaluation
5-22 factors in the request for proposals, except that if the commission
5-23 finds that none of the offers is acceptable, it shall refuse all
5-24 offers. In determining which proposal offers the best value <is
5-25 most advantageous> to the state, the commission shall, when
5-26 applicable and subject to Sections 3.103 and 3.104 of this Act,
5-27 consider factors such as installation costs, the overall life of
6-1 the supplies, materials, <system> or equipment, the cost of
6-2 acquisition, operation, and maintenance <of hardware included
6-3 with,> associated with<, or required for> the supplies, materials,
6-4 <system> or equipment during the state's ownership or lease, the
6-5 cost of acquisition, operation, and maintenance of software
6-6 included with, associated with, or required for a proposed
6-7 automated information or telecommunications <the> system or item of
6-8 equipment during the state's ownership or lease, the estimated cost
6-9 of other supplies needed because of the acquisition, the estimated
6-10 costs of employee training needed because of the acquisition, the
6-11 estimated cost of additional long-term staff needed because of the
6-12 acquisition, and any <the> estimated increase in employee
6-13 productivity because of the acquisition. The contract file must
6-14 state in writing the basis on which the award is made.
6-15 (h) <(g)> The commission shall adopt rules necessary or
6-16 convenient to perform its responsibilities under this section and
6-17 shall request assistance from other state agencies as needed.
6-18 <(h) A medical or dental unit as that term is defined in
6-19 Section 61.003, Education Code, may purchase the following types of
6-20 medical equipment by the use of competitive sealed proposals if it
6-21 follows commission rules and procedures provided by this section
6-22 regarding the use of competitive sealed proposals and submits to
6-23 the commission a written finding that competitive sealed bidding or
6-24 informal competitive bidding is not practical or is disadvantageous
6-25 to the state for the proposed acquisition:>
6-26 <(1) prototypical medical equipment not yet available
6-27 on the market;>
7-1 <(2) medical equipment so new to the market that its
7-2 benefits are not fully known; or>
7-3 <(3) major medical equipment that is so technically
7-4 complex that development of specifications for competitive bidding
7-5 is not feasible.>
7-6 SECTION 5. Section 3.061(b), State Purchasing and General
7-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
7-8 amended to read as follows:
7-9 (b) The commission shall promulgate rules allowing purchases
7-10 through group purchasing programs unless the commission determines
7-11 within a reasonable period of time after receiving notification of
7-12 a particular purchase that a better value <lower price> is
7-13 available through the commission.
7-14 SECTION 6. Article 3, State Purchasing and General Services
7-15 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
7-16 adding Sections 3.062-3.064 to read as follows:
7-17 Sec. 3.062. TRAINING AND CERTIFICATION OF STATE AGENCY
7-18 PURCHASING PERSONNEL. (a) The commission shall establish and
7-19 administer a system of training, continuing education, and
7-20 certification for state agency purchasing personnel. The commission
7-21 may adopt rules to administer this section, including rules
7-22 relating to monitoring certified purchaser's compliance with the
7-23 continuing education requirements of this section.
7-24 (b) All state agency purchasing personnel must receive the
7-25 training and continuing education to the extent required by rule of
7-26 the commission. A state agency employee who is required by rule
7-27 of the commission to receive the training or continuing education
8-1 may not participate in purchases by the employing agency unless the
8-2 employee has received the required training.
8-3 (c) The commission shall set and collect a fee from state
8-4 agencies that employ purchasing personnel who are trained,
8-5 educated, or certified under this section. The commission shall set
8-6 the fee in an amount that recovers the commission's costs under
8-7 this section.
8-8 (d) The commission may provide training, continuing
8-9 education, and certification under this section to purchasing
8-10 personnel employed by a political subdivision or other public
8-11 entity of the state. Political subdivision purchasing personnel may
8-12 receive, but are not required to receive, the training, continuing
8-13 education, or certification provided under this section. The
8-14 commission shall collect the fees described by Subsection (c) for
8-15 training, education, or certification under this subsection.
8-16 (e) The commission may provide training and continuing
8-17 education under this section using its own personnel and through
8-18 contracts with private entities. The commission may also, by
8-19 agreement with a public entity, use the services of persons
8-20 employed by the public entity to provide training and continuing
8-21 education under this section.
8-22 (f) The commission shall provide at least three levels of
8-23 training under this section.
8-24 (g) The basic training level must include an introduction to
8-25 contract purchasing methods and processes and informal bidding
8-26 processes, practical instruction in the use of automated
8-27 information tools used in the purchasing process, instruction in
9-1 receipting and payment processes and requirements, an introduction
9-2 to historically underutilized business programs and issues,
9-3 instruction in documenting a purchasing file, an introduction to
9-4 relevant ethical issues including an introduction to relevant
9-5 provisions of Chapter 572, Government Code, and Chapters 36 and 39,
9-6 Penal Code, and instruction in any other processes and issues that
9-7 the commission considers appropriate for introductory purchasing
9-8 training.
9-9 (h) The second training level must include advanced
9-10 instruction in formal and informal bidding methods, an introduction
9-11 to negotiation methods and to when negotiation is allowed,
9-12 instruction in writing specifications, instruction in the criteria
9-13 for determining which product or service offers the best value for
9-14 the state, more advanced instruction in documenting a purchasing
9-15 file, instruction in the use of electronic bulletin boards in
9-16 public purchasing, an introduction to evaluating vendors and to
9-17 looking at the public purchasing process from the vendor's
9-18 perspective, more advanced instruction in historically
9-19 underutilized business programs and issues, a review and more
9-20 advanced instruction in relevant ethical issues, and instruction in
9-21 any other processes and issues that the commission considers
9-22 appropriate for the second level of purchasing training.
9-23 (i) The third training level must include instruction in
9-24 complex negotiations, instruction in purchasing through the use of
9-25 requests for proposals, and instruction in any other processes and
9-26 issues that the commission considers appropriate for advanced
9-27 purchasing training.
10-1 (j) The commission shall provide at least two levels of
10-2 certification under this section. The commission may prescribe the
10-3 circumstances under which a state agency may delegate to a
10-4 certified purchaser signature purchasing authority to approve
10-5 purchase orders.
10-6 (k) The commission shall require 24 hours of continuing
10-7 education each year to maintain a certification level. The
10-8 commission may allow attendance at training classes offered under
10-9 this section to count toward the continuing education requirement.
10-10 (l) The commission's prerequisites for receiving a level one
10-11 purchaser certification must include completion of the second
10-12 training level, passage of a written examination, and a minimum
10-13 number of years of purchasing experience prescribed by the
10-14 commission. Level one certified purchasers must be able to:
10-15 (1) manage formal and informal bidding procedures;
10-16 (2) prepare complex specifications that include the
10-17 criteria the agency will use to determine the best value for the
10-18 state;
10-19 (3) negotiate, when negotiation is allowed, price,
10-20 delivery terms, and service or maintenance requirements for all
10-21 types of products, including automated information systems
10-22 purchased through the catalogue purchasing procedure; and
10-23 (4) establish term contracts.
10-24 (m) The commission's prerequisites for receiving a level two
10-25 purchaser certification must include completion of the third
10-26 training level, passage of a written and an oral examination, and a
10-27 minimum of three years of purchasing experience.
11-1 Sec. 3.063. PURCHASING PARTNERSHIPS BETWEEN AGENCIES. (a)
11-2 The commission shall manage a program that provides for
11-3 establishing purchasing partnerships between state agencies under
11-4 which one agency will make certain purchases for another agency.
11-5 Purchases made by one agency for another under a purchasing
11-6 partnership may include only delegated purchases and other
11-7 purchases that the commission is not required to or does not have
11-8 the authority to make for the agency. An agency is not required to
11-9 enter into a purchasing partnership under this section.
11-10 (b) The commission shall identify agencies that are willing
11-11 to enter into purchasing partnerships with another agency and
11-12 attempt to appropriately match agencies for a purchasing
11-13 partnership based on factors such as whether an agency employs a
11-14 certified purchaser, the number and expertise of an agency's
11-15 certified purchasers, the strategic mission of an agency, the
11-16 existence or nature of an agency's automated purchasing tools, and
11-17 the types of goods and services typically purchased by an agency.
11-18 Sec. 3.064. BUYING UNDER CONTRACT ESTABLISHED BY AGENCY
11-19 OTHER THAN COMMISSION. (a) The commission shall adopt rules
11-20 specifying the circumstances under which it is advantageous for the
11-21 state to allow a state agency to purchase goods or services under a
11-22 contract made by another state agency other than the commission.
11-23 (b) A state agency that is a party to a contract with a
11-24 vendor who is able to supply goods or services to other agencies
11-25 under the contract shall, if commission rules allow other agencies
11-26 to make purchases under the contract:
11-27 (1) inform the commission of the terms of the contract
12-1 and the capabilities of the vendor; and
12-2 (2) post notice of the existence and terms of the
12-3 contract on the procurement marketplace.
12-4 SECTION 7. Section 3.08, State Purchasing and General
12-5 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
12-6 amended to read as follows:
12-7 Sec. 3.08. PURCHASES LESS THAN A SPECIFIED MONETARY AMOUNT.
12-8 (a) State agencies are delegated the authority to purchase
12-9 supplies, materials, and equipment if the purchase does not exceed
12-10 $25,000 <$5,000, although an agency may continue to use the
12-11 commission's services for those purchases>. The commission by rule
12-12 shall prescribe procedures for these purchases.
12-13 (b) The commission<, and> by rule may delegate to state
12-14 agencies the authority to purchase supplies, materials, or
12-15 equipment if the purchase exceeds $25,000 <$5,000>. In delegating
12-16 purchasing authority under this subsection or Section 3.06(b) of
12-17 this Act, the commission shall consider factors relevant to a state
12-18 agency's ability to perform purchasing functions, including:
12-19 (1) the capabilities of the agency's purchasing staff
12-20 and the existence of automated purchasing tools at the agency;
12-21 (2) the certification levels held by the agency's
12-22 purchasing personnel;
12-23 (3) the existence of recent satisfactory audits of the
12-24 agency's purchasing practices;
12-25 (4) the agency's compliance with the state's
12-26 purchasing programs for historically underutilized businesses and
12-27 the agency's good faith efforts to meet the state's purchasing
13-1 goals for historically underutilized businesses; and
13-2 (5) whether the agency has adopted and published
13-3 satisfactory protest procedures as part of its purchasing
13-4 practices.
13-5 (c) The commission shall monitor the purchasing practices of
13-6 state agencies that are making delegated purchases under Subsection
13-7 (b) of this section or Section 3.06(b) of this Act to ensure that
13-8 the certification levels of the agency's purchasing personnel and
13-9 the quality of the agency's purchasing practices continue to
13-10 warrant the extent to which the commission has delegated purchasing
13-11 authority to the agency. The commission may revoke for cause all or
13-12 part of the purchasing authority that the commission delegated to a
13-13 state agency. The commission shall adopt rules to administer this
13-14 subsection.
13-15 (d) <(b)> The commission by rule may delegate to the
13-16 comptroller the commission's authority under Section 3.15 to audit
13-17 purchases and purchase data when the purchases do not exceed $500
13-18 or a greater amount prescribed by the commission.
13-19 (e) <(c)> Competitive bidding, whether formal or informal,
13-20 is not required for a purchase by a state agency if the purchase
13-21 does not exceed $2,500 <$1,000>, or a greater amount prescribed by
13-22 rule of the commission.
13-23 (f) <(d)> Supplies or materials purchased under this section
13-24 may not include:
13-25 (1) items for which contracts have been awarded under
13-26 the contract purchase procedure, unless the quantity purchased is
13-27 less than the minimum quantity specified in the contract;
14-1 (2) any item required by statute to be purchased from
14-2 a particular source; or
14-3 (3) scheduled items that have been designated for
14-4 purchase by the commission.
14-5 (g) <(e)> Large purchases may not be divided into small lot
14-6 purchases in order to meet the specified dollar limits. The
14-7 commission may not require that unrelated purchases be combined
14-8 into one purchase order in order to exceed the specified dollar
14-9 limits.
14-10 (h) <(f)> Agencies making purchases under this section for
14-11 which competitive bidding is required must attempt to obtain at
14-12 least three competitive bids from sources which normally offer for
14-13 sale the merchandise being purchased and must comply with Section
14-14 3.101 of this article.
14-15 SECTION 8. Section 3.101, State Purchasing and General
14-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
14-17 amended by adding Subsections (k) and (l) to read as follows:
14-18 (k) The commission shall require information about an
14-19 applicant's past history as a vendor with the state in the uniform
14-20 registration form, including information about the persons who own
14-21 or control the applicant and information about any vendor history
14-22 the applicant or the persons who own or control the applicant may
14-23 have from doing business with the state under other names.
14-24 (l) The commission shall include in the uniform registration
14-25 form a statement about the applicability of relevant criminal law,
14-26 including Section 37.10, Penal Code, to entering information on the
14-27 form and to presenting documentation in connection with the form.
15-1 The commission shall refer any suspected violations of relevant
15-2 criminal law, including Section 37.10, Penal Code, related to
15-3 entering information on the form or presenting documentation in
15-4 connection with the form to the appropriate legal authorities for
15-5 investigation or prosecution.
15-6 SECTION 9. Article 3, State Purchasing and General Services
15-7 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
15-8 adding Sections 3.103-3.106 to read as follows:
15-9 Sec. 3.103. BEST VALUE STANDARD FOR PURCHASE OF GOODS OR
15-10 SERVICES. (a) Each state agency including the commission shall
15-11 purchase goods and services that provide the best value for the
15-12 state.
15-13 (b) In determining the best value for the state, the
15-14 commission or other state agency making a purchase is not
15-15 restricted to considering the purchase price alone, but subject to
15-16 Section 3.104 of this Act may also consider any other factor
15-17 relevant to evaluating the value to the state of a good or service
15-18 including:
15-19 (1) installation costs;
15-20 (2) life-cycle costs;
15-21 (3) the quality and reliability of the good or
15-22 service;
15-23 (4) the delivery terms;
15-24 (5) indicators of probable vendor performance under
15-25 the contract such as past vendor performance, the vendor's
15-26 financial resources and ability to perform, the vendor's
15-27 experience, responsibility, and reputation, and the vendor's
16-1 ability to provide reliable maintenance and support;
16-2 (6) the cost of any employee training associated with
16-3 a purchase;
16-4 (7) the effect of a purchase on agency productivity;
16-5 and
16-6 (8) factors relevant to determining the best value for
16-7 the state in the context of a particular purchase.
16-8 Sec. 3.104. REQUIREMENT TO SPECIFY VALUE FACTORS IN REQUEST
16-9 FOR BIDS OR PROPOSALS. (a) For a purchase made through
16-10 competitive bidding, the commission or other state agency making
16-11 the purchase must specify in the request for bids the factors other
16-12 than price, past vendor performance, or vendor reputation that the
16-13 commission or agency will consider in determining which bid offers
16-14 the best value for the state.
16-15 (b) For a purchase made through competitive sealed
16-16 proposals, the commission or other state agency making the
16-17 purchase:
16-18 (1) must specify in the request for proposals the
16-19 known factors other than price, past vendor performance, or vendor
16-20 reputation that the commission or agency will consider in
16-21 determining which proposal offers the best value for the state; and
16-22 (2) may concurrently inform each vendor that made a
16-23 proposal on the contract of any additional factors the commission
16-24 or agency will consider in determining which proposal offers the
16-25 best value for the state if the commission or other agency
16-26 determines after opening the proposals that additional factors not
16-27 covered under Subdivision (1) of this subsection are relevant in
17-1 determining which proposal offers the best value for the state.
17-2 Sec. 3.105. PROTEST PROCEDURES. (a) The commission shall
17-3 develop and adopt by rule protest procedures for resolving vendor
17-4 protests relating to purchases made by the commission. The rules
17-5 must include standards for maintaining necessary documentation for
17-6 a purchase so that purchasing decisions can be supported in the
17-7 event of a protest.
17-8 (b) Each state agency by rule shall adopt protest procedures
17-9 for resolving vendor protests relating to purchases made by the
17-10 agency. The procedures must be consistent with the commission's
17-11 protest procedures. Agencies that are not subject to the
17-12 administrative procedure law, Chapter 2001, Government Code, shall
17-13 provide public notice of the text of the proposed and adopted rules
17-14 and provide a procedure for meaningful public comment on the
17-15 proposed rules.
17-16 Sec. 3.106. BARRING VENDOR FROM PARTICIPATION IN STATE
17-17 CONTRACTS. (a) The commission may bar a vendor from participating
17-18 in state contracts that are subject to this Act, including
17-19 contracts for which purchasing authority is delegated to a state
17-20 agency under this Act, for:
17-21 (1) substandard performance under a contract with the
17-22 state or a state agency that is significantly detrimental to the
17-23 interests of the state;
17-24 (2) material misrepresentations in a bid or proposal
17-25 for the state or a state agency or during the course of performing
17-26 a contract with the state or a state agency;
17-27 (3) fraud; or
18-1 (4) breaching a contract with the state or a state
18-2 agency in a manner that is significantly detrimental to the
18-3 interests of the state.
18-4 (b) The commission shall bar a vendor from participating in
18-5 state and state agency contracts under this section for a period
18-6 that is commensurate with the seriousness of the vendor's action
18-7 and the extent to which the state's interests were damaged.
18-8 (c) The commission shall adopt rules to administer this
18-9 section, including rules that:
18-10 (1) state generally the reasons for which a vendor may
18-11 be barred from participating in state and state agency contracts
18-12 under this section and the periods for which the vendor may be
18-13 barred; and
18-14 (2) prescribe the procedures under which the
18-15 commission will determine whether and for how long a vendor is
18-16 barred from participating in state and state agency contracts under
18-17 this section.
18-18 SECTION 10. Sections 3.11(a), (b), (d), (e), (f), (g), and
18-19 (h), State Purchasing and General Services Act (Article 601b,
18-20 Vernon's Texas Civil Statutes), are amended to read as follows:
18-21 (a) Notice. In addition to any electronic dissemination of
18-22 invitations to bid required or allowed under law, notice <Notice>
18-23 inviting bids shall be published at least once in at least one
18-24 newspaper of general circulation in the state and at least seven
18-25 days preceding the last day set for the receipt of bids. The
18-26 newspaper notice shall include a general description of the
18-27 articles to be purchased, and shall state where bid blanks and
19-1 specifications may be secured, and the time and place for opening
19-2 bids.
19-3 (b) Bidders List. The commission shall maintain a bidders
19-4 list and shall add or delete names from the list by the application
19-5 and utilization of applicable standards set forth in Subsection (e)
19-6 of this section. Bid invitations shall be sent only to those who
19-7 have expressed a desire to bid on the particular types of items
19-8 which are the subject of the bid invitation. Use of the bidders
19-9 list shall not be confined to contract purchases but it may be used
19-10 by the commission in making any purchase. The commission shall
19-11 inform applicants for the list about the applicability of relevant
19-12 criminal law, including Section 37.10, Penal Code, to entering
19-13 information on an application for inclusion on the list and to
19-14 presenting documentation in connection with the application. The
19-15 commission shall refer any suspected violations of relevant
19-16 criminal law, including Section 37.10, Penal Code, related to
19-17 entering information on an application for inclusion on the list or
19-18 presenting documentation in connection with the application to the
19-19 appropriate legal authorities for investigation or prosecution.
19-20 (d) Bid Opening Procedure. Bids shall be submitted to the
19-21 commission, sealed, and identified as bids on the envelope, except
19-22 that when the commission considers that the electronic information
19-23 capabilities of the state and of the vendor community are
19-24 sufficient, the commission may also allow facsimile or on-line
19-25 transmission of bids. Bids shall be opened at the time and place
19-26 stated in the public notices and the invitation to bid. The state
19-27 auditor or a member of his staff may be present at any bid opening.
20-1 A tabulation of all bids received shall be available for public
20-2 inspection under regulations to be established by the commission.
20-3 (e) Award of Contract. The commission shall award contracts
20-4 to the bidder offering the best value for the state while
20-5 <submitting the lowest and best bid> conforming to the
20-6 specifications required. Complying with the specified time limit
20-7 for submission of written data, samples, or models on or before bid
20-8 opening time is essential to the materiality of a bid, provided,
20-9 however, that the commission shall have the authority to waive this
20-10 provision if the failure to comply is beyond control of the bidder.
20-11 In determining which <who is the lowest and best> bidder offers the
20-12 best value for the state, the commission may take into account the
20-13 safety record of the bidder, or the firm, corporation, partnership,
20-14 or institution represented by the bidder, or anyone acting for such
20-15 firm, corporation, partnership, or institution, provided, however,
20-16 that the commission has adopted a written definition and criteria
20-17 for accurately determining the safety record of a bidder and has
20-18 given notice to prospective bidders, in the bid specifications,
20-19 that the safety record of a bidder may be considered in determining
20-20 the <lowest and best> bidder offering the best value for the state
20-21 and, provided further, that such determinations are not arbitrary
20-22 and capricious. The <In determining who is the lowest and best
20-23 bidder, in addition to price, the> commission shall determine which
20-24 bidder offers the best value for the state in accordance with
20-25 Sections 3.103 and 3.104 of this Act <consider:>
20-26 <(1) the quality, availability, and adaptability of
20-27 the supplies, materials, equipment, or contractual services, to the
21-1 particular use required;>
21-2 <(2) the number and scope of conditions attached to
21-3 the bid;>
21-4 <(3) the ability, capacity, and skill of the bidder to
21-5 perform the contract or provide the service required;>
21-6 <(4) whether the bidder can perform the contract or
21-7 provide the service promptly, or within the time required, without
21-8 delay or interference;>
21-9 <(5) the character, responsibility, integrity,
21-10 reputation, and experience of the bidder;>
21-11 <(6) the quality of performance of previous contracts
21-12 or services;>
21-13 <(7) the previous and existing compliance by the
21-14 bidder with laws relating to the contract or service;>
21-15 <(8) any previous or existing noncompliance by the
21-16 bidder with specification requirements relating to time of
21-17 submission of specified data such as samples, models, drawings,
21-18 certificates, or other information;>
21-19 <(9) the sufficiency of the financial resources and
21-20 ability of the bidder to perform the contract or provide the
21-21 service; and>
21-22 <(10) the ability of the bidder to provide future
21-23 maintenance, repair parts, and service for the use of the subject
21-24 of the contract>.
21-25 (f) Rejection of Bids. If a bid is submitted in which there
21-26 is a material failure to comply with the specification
21-27 requirements, such bid shall be rejected and the contract awarded
22-1 to the bidder offering the best value for the state and <submitting
22-2 the lowest and best bid> conforming to the specifications,
22-3 provided, however, the commission shall in any event have the
22-4 authority to reject all bids or parts of bids when the interest of
22-5 the state will be served thereby.
22-6 (g) Bid Record. When an award is made, a statement of the
22-7 basis for placing the order with the successful bidder and the
22-8 factors considered in determining which bidder offered the best
22-9 value for the state <the lowest and best bid> shall be prepared by
22-10 the purchasing division and filed with other papers relating to the
22-11 transaction.
22-12 (h) Tie Bids. In case of tie bids, the value to the state
22-13 <quality and service> being equal, the contract shall be awarded
22-14 under rules and regulations to be adopted by the commission.
22-15 SECTION 11. Sections 3.12(b), (c), (e), and (f), State
22-16 Purchasing and General Services Act (Article 601b, Vernon's Texas
22-17 Civil Statutes), are amended to read as follows:
22-18 (b) Minimum Number of Bids. All open market purchases
22-19 shall, whenever possible, be based on at least three competitive
22-20 bids, and shall be awarded to the <lowest and best> bidder offering
22-21 the best value for the state in accordance with the standards set
22-22 forth under this article.
22-23 (c) Notice Inviting Bids. The commission shall solicit bids
22-24 by:
22-25 (1) direct mail request to prospective vendors; <or>
22-26 (2) telephone or telegraph;
22-27 (3) facsimile transmission;
23-1 (4) on-line electronic transmission; or
23-2 (5) posting on an electronic bulletin board.
23-3 (e) Agency Review. If a state agency requests that it be
23-4 allowed to review the bids on a purchase request, the commission
23-5 shall forward copies of the bids received or make the same
23-6 available to the requesting agency along with the commission's
23-7 recommended award. If, after review of the bids and evaluation of
23-8 the quality of products offered in the bids, the state agency
23-9 determines that the bid selected by the commission does <is> not in
23-10 its opinion offer the best value for the state <the lowest and best
23-11 bid>, it may file with the commission a written recommendation,
23-12 complete with justification, that the award be made to the bidder
23-13 determined to offer the best value for the state <be the lowest and
23-14 best bid>. The commission shall give consideration to, but is not
23-15 bound by, the agency recommendation in making the award.
23-16 (f) Statement of Award. A statement of the basis for
23-17 placing the order with the successful bidder and the factors
23-18 considered in determining the <lowest and best> bid offering the
23-19 best value for the state shall be prepared by the purchasing
23-20 division and filed with other papers relating to the transaction.
23-21 SECTION 12. Section 3.17, State Purchasing and General
23-22 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
23-23 amended by amending Subsections (a) and (c) and adding Subsections
23-24 (d)-(g) to read as follows:
23-25 (a) The commission shall have the authority to establish and
23-26 maintain a specifications and standards program to coordinate the
23-27 establishment and maintenance of uniform standards and
24-1 specifications for materials, supplies, and equipment purchased by
24-2 the commission. The commission may adopt by rule appropriate
24-3 standards developed by nationally recognized standards-making
24-4 entities as part of its specifications and standards program. The
24-5 commission shall enlist the cooperation of other state agencies,
24-6 the advisory committee on procurement, and the vendor advisory
24-7 committee in the establishment, maintenance, and revision of
24-8 uniform standards and specifications and shall encourage and foster
24-9 the use of standard specifications in order that the most efficient
24-10 purchase of materials, supplies, and equipment may be continuously
24-11 accomplished.
24-12 (c) The commission shall establish and maintain a program of
24-13 testing and inspecting to ensure that materials, supplies,
24-14 services, and equipment meet specifications, and may make contracts
24-15 for testing. If any state agency determines that any supplies,
24-16 materials, services, or equipment received do not meet
24-17 specifications, it shall promptly notify the commission in writing
24-18 detailing the reasons why the supplies, materials, services, or
24-19 equipment do not meet the specifications of the contract. The
24-20 commission shall immediately determine whether or not the reported
24-21 supplies, materials, services, or equipment meet specifications.
24-22 The sole power to determine whether materials, supplies, services,
24-23 and equipment meet specifications shall rest with the commission.
24-24 The commission shall provide for the inspecting and testing of all
24-25 costly purchases and may adopt rules necessary to carry out this
24-26 duty. When the commission finds that contract specifications or
24-27 conditions have not been complied with, it shall take action, with
25-1 the assistance of the attorney general, if necessary, against the
25-2 defaulting contractor. If the commission receives repeated
25-3 complaints regarding a vendor, the commission shall either remove
25-4 the vendor's name from the commission's bidder's list for a period
25-5 not to exceed one year or bar the vendor from participating in
25-6 state contracts for a period under Section 3.106.
25-7 (d) The commission may also provide for testing and
25-8 inspecting products before they are purchased. Other state
25-9 agencies may test products before purchase under standard testing
25-10 methods prescribed by the commission. The commission shall
25-11 disseminate information to agencies about available private testing
25-12 facilities. The commission shall also prescribe procedures for
25-13 using information obtained from product testing performed by or for
25-14 the agency or the commission when the agency develops product
25-15 specifications or invitations to bid.
25-16 (e) The commission may establish a qualified products list
25-17 that includes products tested by or for the commission or another
25-18 state agency that are approved by the commission for state agency
25-19 use. The commission or other state agency making a purchase may
25-20 when appropriate restrict bidding to bids offering products listed
25-21 on the qualified products list.
25-22 (f) The commission shall consult the advisory committee on
25-23 procurement and the vendor advisory committee regarding its testing
25-24 and inspection program.
25-25 (g) The commission shall make the qualified products list
25-26 and other documented product-performance information available
25-27 through the procurement marketplace.
26-1 SECTION 13. Section 3.20, State Purchasing and General
26-2 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
26-3 amended to read as follows:
26-4 Sec. 3.20. PREFERENCE FOR PRODUCTS OF RETARDED OR
26-5 HANDICAPPED PERSONS. The products of workshops, organizations, or
26-6 corporations whose primary purpose is training and employing
26-7 mentally retarded or physically handicapped persons shall be given
26-8 preference if they meet state specifications as to quantity,
26-9 quality, delivery, and price. The commission shall test the
26-10 products in accordance with Section 3.17 of this Act to the extent
26-11 necessary to ensure quality. The commission shall consider product
26-12 quality and delivery performance in agreeing to the price for
26-13 products purchased under this section.
26-14 SECTION 14. Section 3.22, 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. 3.22. EXEMPTION OF GOODS OR SERVICES OF BLIND PERSONS.
26-18 The provisions of this article with respect to competitive bids are
26-19 not applicable to state purchases of blind-made goods or services
26-20 offered for sale to state agencies as a result of efforts made by
26-21 the Texas Committee on Purchases of Blind-Made Goods and Services
26-22 acting in accordance with legislation applicable to the committee
26-23 if the goods or services meet state specifications as to delivery,
26-24 quantity, and quality and the cost is not in excess of the fair
26-25 market price of like items. The commission shall test the goods or
26-26 services in accordance with Section 3.17 of this Act to the extent
26-27 necessary to ensure quality. The commission shall consider product
27-1 or service quality and delivery performance in agreeing to the
27-2 price for goods or services purchased under this section.
27-3 SECTION 15. Section 3.23, State Purchasing and General
27-4 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
27-5 amended to read as follows:
27-6 Sec. 3.23. CONTRACTS WITH DEPARTMENT OF CRIMINAL JUSTICE.
27-7 The commission is authorized to make contracts with the Texas
27-8 Department of Criminal Justice for the purchase of supplies,
27-9 equipment, services, and materials for use by other state agencies.
27-10 The commission shall test the supplies, equipment, services, and
27-11 materials in accordance with Section 3.17 of this Act to the extent
27-12 necessary to ensure quality. The commission shall consider product
27-13 or service quality and delivery performance in agreeing to the
27-14 price for supplies, equipment, services, and materials purchased
27-15 under this section.
27-16 SECTION 16. Article 3, State Purchasing and General Services
27-17 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
27-18 adding Sections 3.34 and 3.35 to read as follows:
27-19 Sec. 3.34. ADVISORY COMMITTEE ON PROCUREMENT. (a) The
27-20 commission shall establish an advisory committee on procurement.
27-21 The purpose of the committee is to represent before the commission
27-22 the state agency purchasing community and the political
27-23 subdivisions that use the commission's purchasing services.
27-24 (b) The committee is composed of officers or employees of
27-25 state agencies, including institutions of higher education, and
27-26 political subdivisions who are invited by the commission to serve
27-27 on the committee. The commission shall invite officers and
28-1 employees who are experienced in public purchasing, in public
28-2 finance, or who possess other appropriate expertise to serve on the
28-3 committee. Service on the committee is an additional duty of the
28-4 member's public office or employment. Article 6252-33, Revised
28-5 Statutes, does not apply to the size or composition of the
28-6 committee. The commission shall set staggered terms for the members
28-7 of the committee.
28-8 (c) The committee may establish its own rules of operation.
28-9 (d) The committee shall recommend improvements in commission
28-10 or state agency purchasing practices to the commission. The
28-11 committee shall review and comment on findings and recommendations
28-12 related to purchasing that are made by state agency internal
28-13 auditors or by the state auditor.
28-14 Sec. 3.35. VENDOR ADVISORY COMMITTEE. (a) The commission
28-15 shall establish a vendor advisory committee. The purpose of the
28-16 committee is to represent before the commission the vendor
28-17 community, to provide information to vendors, and to obtain vendor
28-18 input on state procurement practices.
28-19 (b) The committee is composed of vendors who have done
28-20 business with the state who are invited by the commission to serve
28-21 on the committee. The commission shall invite a cross-section of
28-22 the vendor community to serve on the committee, inviting both large
28-23 and small businesses, both historically underutilized businesses
28-24 and businesses that are not historically underutilized businesses,
28-25 and vendors who provide a variety of different goods and services
28-26 to the state. Article 6252-33, Revised Statutes, does not apply to
28-27 the size or composition of the committee. The commission shall set
29-1 staggered terms for the members of the committee.
29-2 (c) The committee may establish its own rules of operation,
29-3 but shall post notice of and hold its meetings in accordance with
29-4 the open meetings law, Chapter 551, Government Code.
29-5 SECTION 17. Article 11, State Purchasing and General
29-6 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-7 amended by adding Sections 11.08-11.10 to read as follows:
29-8 Sec. 11.08. ELECTRONIC BULLETIN BOARD POSTING OF NOTICE FOR
29-9 PROCUREMENTS EXCEEDING $25,000. (a) This section applies to each
29-10 state agency making a procurement that will exceed $25,000 in
29-11 value:
29-12 (1) without regard to the source of funds the agency
29-13 will use for the procurement; and
29-14 (2) including a procurement that:
29-15 (A) is a procurement by a state agency but is
29-16 otherwise exempt from the commission's purchasing authority or the
29-17 application of this Act;
29-18 (B) is made under delegated purchasing
29-19 authority;
29-20 (C) is related to a construction project; or
29-21 (D) is a procurement of professional or
29-22 consulting services.
29-23 (b) The commission shall send to the comptroller for posting
29-24 on the comptroller's Windows on State Government electronic
29-25 bulletin board information as prescribed by this section about
29-26 commission or other state agency procurements that will exceed
29-27 $25,000 in value. The commission may also send to the comptroller
30-1 for posting on the electronic bulletin board other information
30-2 relating to the business activity of the state that the commission
30-3 considers to be of interest to the public. The commission shall
30-4 send the information in a format agreed to by the comptroller.
30-5 (c) The commission shall include in the information sent to
30-6 the comptroller, to the extent it is feasible and cost-effective,
30-7 the following information for each procurement that the commission
30-8 or another state agency will make that is estimated to exceed
30-9 $25,000 in value:
30-10 (1) a description of the goods or services to be
30-11 procured;
30-12 (2) the estimated cost of the procurement;
30-13 (3) the estimated quantity of goods or services to be
30-14 procured;
30-15 (4) if applicable, the previous price paid by the
30-16 commission or other state agency for the same or similar goods or
30-17 services;
30-18 (5) the estimated date on which the goods or services
30-19 to be procured will be needed; and
30-20 (6) the name, business mailing address, and business
30-21 telephone number of the commission employee or other state agency
30-22 employee a person can contact to obtain all necessary information
30-23 related to making a bid or proposal or other applicable expression
30-24 of interest for the procurement contract.
30-25 (d) Each state agency that will award a procurement contract
30-26 estimated to exceed $25,000 in value shall send to the commission:
30-27 (1) the information the commission requires for
31-1 posting on the comptroller's electronic bulletin board under this
31-2 section; and
31-3 (2) a notice when the procurement contract has been
31-4 awarded.
31-5 (e) The commission may adopt rules, prescribe forms, and
31-6 require information to administer this section. The commission
31-7 shall send any proposed rules to the comptroller for review and
31-8 comment.
31-9 (f) The requirements of this section are in addition to the
31-10 requirements of other law relating to the solicitation of bids,
31-11 proposals, or expressions of interest for a procurement by the
31-12 commission or another state agency. This section does not affect
31-13 whether the commission or other state agency is required to award a
31-14 procurement contract through competitive bidding, competitive
31-15 sealed proposals, or another method.
31-16 Sec. 11.09. ELECTRONIC PROCUREMENT MARKETPLACE. (a) The
31-17 commission shall establish and manage an electronic procurement
31-18 marketplace through which the commission and state agencies may:
31-19 (1) communicate information relevant to the state's
31-20 procurement of goods and services; and
31-21 (2) conduct elements of purchasing transactions within
31-22 state government electronically to the extent that it is feasible
31-23 and cost-effective to do so.
31-24 (b) The commission shall design the procurement marketplace
31-25 as an interactive gateway between all state databases that relate
31-26 to procurement, including databases that contain information about
31-27 the availability of surplus property. The commission shall define
32-1 standards, including keyword and product code standards, for the
32-2 procurement marketplace.
32-3 (c) The commission may adopt rules relating to the design
32-4 and use of the procurement marketplace, including rules that
32-5 require state agencies to provide information for or receive
32-6 information from the procurement marketplace. A state agency must
32-7 first check the procurement marketplace to determine the most
32-8 appropriate method for acquiring a good or service before the
32-9 agency develops a contract for or makes an open market purchase of
32-10 the good or service.
32-11 (d) The commission shall make state procurement information
32-12 available to political subdivisions through the procurement
32-13 marketplace on a fee-for-service basis. The commission shall set
32-14 the fees in an amount that recovers the state's costs in providing
32-15 the access to a political subdivision.
32-16 Sec. 11.10. ELECTRONIC COMMERCE NETWORK USING ELECTRONIC
32-17 DATA INTERCHANGE. (a) The commission shall establish and manage
32-18 an electronic commerce network under which the state's purchasing
32-19 transactions with vendors can be accomplished electronically by
32-20 means of facsimile transmissions and on-line transmission of
32-21 necessary information. The commission shall base the network on the
32-22 standard data protocol developed by the American National Standards
32-23 Institute known as electronic data interchange.
32-24 (b) The commission may enter into contracts with one or more
32-25 public or private entities to establish or support various elements
32-26 of the network. The commission may provide for a gateway between
32-27 the procurement marketplace and the electronic commerce network so
33-1 that the elements of a procurement transaction that are within
33-2 state government and the elements of a procurement transaction that
33-3 involve communication with a vendor may all be accomplished
33-4 electronically.
33-5 (c) Each state agency that is capable of participating in
33-6 the electronic commerce network must participate in the network and
33-7 participate in contracts entered into by the commission for the
33-8 establishment or support of the network. The commission shall
33-9 charge an agency a fee for network services provided to the agency
33-10 by the commission and require an agency to pay a fee to a
33-11 contractor for network services provided to the agency by the
33-12 contractor, so that the cost of providing network services to an
33-13 agency is paid by the agency.
33-14 (d) The commission may allow political subdivisions and
33-15 other public entities to participate in the electronic commerce
33-16 network. The commission shall provide that a participating
33-17 political subdivision is charged fees for network services provided
33-18 to the political subdivision in the same manner that participating
33-19 state agencies are charged fees under Subsection (c) of this
33-20 section.
33-21 (e) The commission may:
33-22 (1) adopt rules to administer this section; and
33-23 (2) require participating state agencies, political
33-24 subdivisions, and other public entities to designate a network
33-25 coordinator.
33-26 SECTION 18. Article 15, State Purchasing and General
33-27 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
34-1 amended by adding Section 15.11 to read as follows:
34-2 Sec. 15.11. CONSOLIDATING OR CONTRACTING FOR MATERIALS
34-3 MANAGEMENT FUNCTIONS. (a) The council shall study the materials
34-4 management functions of state agencies. When the council determines
34-5 a course of action that will more effectively or efficiently
34-6 accomplish an agency's materials management functions, the council
34-7 may:
34-8 (1) order two or more state agencies to consolidate
34-9 between them warehousing, inventory control, or other materials
34-10 management functions; or
34-11 (2) order a state agency to obtain under a contract
34-12 with another state agency or a private commercial source the
34-13 agency's warehousing, inventory control, or other materials
34-14 management functions.
34-15 (b) State agencies shall consolidate or contract for
34-16 materials management functions in the manner directed by the
34-17 council.
34-18 SECTION 19. (a) The state auditor and the advisory
34-19 committee on procurement established by this Act shall study how
34-20 the classification levels of state agency purchasing personnel
34-21 should be revised to reflect the increased levels of responsibility
34-22 and accountability given to state agency purchasing personnel under
34-23 the changes in law made by this Act. The state auditor and the
34-24 committee should consider how best to provide purchasing personnel
34-25 with a pay scale and a career path, including goals, incentives,
34-26 and initiatives, commensurate with the purchaser's knowledge,
34-27 authority, and responsibility.
35-1 (b) The state auditor and the committee shall present their
35-2 written recommendations and the results of their study to the
35-3 legislature not later than November 1, 1996.
35-4 SECTION 20. The commission may conduct pilot studies of
35-5 regional contracts and no-stock contracts.
35-6 SECTION 21. The Legislative Budget Board and the division of
35-7 the governor's office that works with budget and planning issues
35-8 shall study and consider:
35-9 (1) ways to obtain information about planned state
35-10 procurements as part of the reporting and information gathering
35-11 functions of the state's appropriations process; and
35-12 (2) ways to use that information to increase the
35-13 state's buying power.
35-14 SECTION 22. The General Services Commission shall gradually
35-15 phase in, in the most cost-effective manner and in accordance with
35-16 available appropriations, the changes in law made by this Act that
35-17 require the establishment of electronic or automated marketplaces,
35-18 networks, or databases.
35-19 SECTION 23. Sections 3.0221 and 3.09(d), State Purchasing
35-20 and General Services Act (Article 601b, Vernon's Texas Civil
35-21 Statutes), are repealed.
35-22 SECTION 24. This Act takes effect September 1, 1995.
35-23 SECTION 25. The importance of this legislation and the
35-24 crowded condition of the calendars in both houses create an
35-25 emergency and an imperative public necessity that the
35-26 constitutional rule requiring bills to be read on three several
35-27 days in each house be suspended, and this rule is hereby suspended.