By West S.B. No. 339
74R1497 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the powers and duties of the General Services
1-3 Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1.02(3), 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 (3) "Historically underutilized business" means any
1-9 legal entity, including<:>
1-10 <(A)> a corporation, sole proprietorship,
1-11 partnership, joint venture, or other entity that is formed for the
1-12 purpose of making a profit and in which at least 51 percent of all
1-13 <classes of> the ownership interests in the entity <shares of stock
1-14 or other equitable securities> are owned by one or more persons
1-15 who:
1-16 (A) <(i)> are socially disadvantaged because of
1-17 their identification as members of certain groups, including black
1-18 Americans, Hispanic Americans, women, Asian Pacific Americans, and
1-19 Native Americans, and have suffered the effects of discriminatory
1-20 practices or similar insidious circumstances over which they have
1-21 no control; and
1-22 (B) <(ii)> have a proportionate interest and
1-23 demonstrate active participation in the control, operation, and
1-24 management of the entity's <corporation's> affairs<;>
2-1 <(B) a sole proprietorship created for the
2-2 purpose of making a profit that is 100 percent owned, operated, and
2-3 controlled by a person described by Paragraph (A)(i) of this
2-4 subdivision;>
2-5 <(C) a partnership formed for the purpose of
2-6 making a profit in which at least 51 percent of the assets and
2-7 interest in the partnership is owned by one or more persons who:>
2-8 <(i) are described by Paragraph (A)(i) of
2-9 this subdivision; and>
2-10 <(ii) have a proportionate interest and
2-11 demonstrate active participation in the control, operation, and
2-12 management of the partnership affairs;>
2-13 <(D) a joint venture in which each entity in the
2-14 joint venture is a historically underutilized business under this
2-15 subdivision; or>
2-16 <(E) a supplier contract between a historically
2-17 underutilized business under this subdivision and a prime
2-18 contractor under which the historically underutilized business is
2-19 directly involved in the manufacture or distribution of the
2-20 supplies or materials or otherwise warehouses and ships the
2-21 supplies>.
2-22 SECTION 2. Section 1.03, State Purchasing and General
2-23 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
2-24 amended by amending Subsections (a) and (f) and adding Subsection
2-25 (q) to read as follows:
2-26 (a) The commission shall certify businesses that are
2-27 historically underutilized businesses. The commission by rule may
3-1 define, for purposes of Section 1.02(3) of this Act, what
3-2 constitutes active participation in the control, operation, and
3-3 management of an entity's affairs. As part of its certification
3-4 procedures, the commission may approve another certification <a
3-5 municipal> program that certifies historically underutilized
3-6 businesses under substantially the same definition prescribed by
3-7 Section 1.02(3) of this Act and may certify businesses certified by
3-8 the other program <municipality> as historically underutilized
3-9 businesses under this Act.
3-10 (f) A contractor or supplier to whom a state agency has
3-11 awarded a contract shall report to the agency the identity of each
3-12 historically underutilized business to whom the contractor or
3-13 supplier has awarded a subcontract for the purchase, manufacture,
3-14 distribution, or warehousing of supplies, materials, services, or
3-15 equipment.
3-16 (q) The commission may adopt rules to implement the
3-17 provisions of this Act that relate to historically underutilized
3-18 businesses.
3-19 SECTION 3. Article 1, State Purchasing and General Services
3-20 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
3-21 adding Section 1.05 to read as follows:
3-22 Sec. 1.05. CIVIL PENALTY. Chapter 881, Acts of the 73rd
3-23 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
3-24 Civil Statutes), applies according to its terms to a person
3-25 claiming status as a historically underutilized business in bidding
3-26 on a contract under this Act.
3-27 SECTION 4. Section 2.061, State Purchasing and General
4-1 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
4-2 amended to read as follows:
4-3 Sec. 2.061. CONFLICT OF INTEREST. <(a) An officer,
4-4 employee, or paid consultant of a Texas trade association of
4-5 business entities that contracts with the state may not be a member
4-6 of the commission or an employee of the commission who is exempt
4-7 from the state's position classification plan or is compensated at
4-8 or above the amount prescribed by the General Appropriations Act
4-9 for step 1, salary group 17, of the position classification salary
4-10 schedule.>
4-11 <(b) A person who is the spouse of an officer, manager, or
4-12 paid consultant of a Texas trade association of business entities
4-13 that contracts with the state may not be a commission member and
4-14 may not be a commission employee who is exempt from the state's
4-15 position classification plan or is compensated at or above the
4-16 amount prescribed by the General Appropriations Act for step 1,
4-17 salary group 17, of the position classification salary schedule.>
4-18 <(c) For the purposes of this section, a trade association
4-19 is a nonprofit, cooperative, and voluntarily joined association of
4-20 business or professional competitors designed to assist its members
4-21 and its industry or profession in dealing with mutual business or
4-22 professional problems and in promoting their common interest.>
4-23 <(d)> A person may not be a member of the commission or act
4-24 as the general counsel to the commission if the person is required
4-25 to register as a lobbyist under Chapter 305, Government Code,
4-26 because of the person's activities for compensation on behalf of a
4-27 profession related to the operation of the commission or a business
5-1 entity that contracts with the commission <state>.
5-2 SECTION 5. Section 2.081(a), State Purchasing and General
5-3 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
5-4 amended to read as follows:
5-5 (a) In this section, "nonresident bidder" has the meaning
5-6 assigned by Section 2252.001, Government Code <means a bidder who
5-7 does not maintain a permanently staffed full-time office in this
5-8 state>.
5-9 SECTION 6. Article 2, State Purchasing and General Services
5-10 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
5-11 adding Section 2.11 to read as follows:
5-12 Sec. 2.11. GIFTS AND GRANTS. The commission may accept
5-13 gifts, grants, and the gift or loan of a product for demonstration
5-14 or testing purposes.
5-15 SECTION 7. Section 3.022, State Purchasing and General
5-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
5-17 amended to read as follows:
5-18 Sec. 3.022. COMPETITIVE SEALED PROPOSALS. (a) The
5-19 commission may acquire supplies, materials, services, or equipment
5-20 <telecommunications devices, systems, or services or any automated
5-21 information systems, the computers on which they are automated, or
5-22 a service related to the automation of information systems or the
5-23 computers on which they are automated, including computer
5-24 software,> by following a procedure using competitive sealed
5-25 proposals <if the commission determines by rule that competitive
5-26 sealed bidding or informal competitive bidding is not practical or
5-27 is disadvantageous to the state. Items to be purchased from higher
6-1 education research funds may be acquired by following a procedure
6-2 using competitive sealed proposals>. The commission, or a state
6-3 agency or <an> institution of higher education if the agency or
6-4 institution is making the acquisition <if research purchasing
6-5 authority has been delegated to that institution> under Section
6-6 3.06 of this article, must first determine that competitive sealed
6-7 bidding or informal competitive bidding is not practical or is
6-8 disadvantageous to the state. If the competitive sealed proposal
6-9 procedure is to be handled by the state agency or institution of
6-10 higher education, the agency or institution shall follow the
6-11 procedures outlined by this section for the commission.
6-12 (b) The commission shall consult with appropriate personnel
6-13 of a requisitioning agency to develop specifications for a request
6-14 for competitive sealed proposals under this section.
6-15 (c) The commission shall solicit proposals by a request for
6-16 proposals. The commission shall give public notice of a request
6-17 for proposals in the manner provided for requests for bids under
6-18 Section 3.12 of this article.
6-19 (d) <(c)> The commission shall open each proposal in a
6-20 manner that does not disclose the contents of the proposal during
6-21 the process of negotiating with competing offerors. The commission
6-22 shall file each proposal in a register of proposals, which shall be
6-23 open for public inspection after a contract is awarded unless the
6-24 register contains information that is excepted from disclosure as
6-25 an open record under Subchapter C, Chapter 552, Government Code
6-26 <Section 3, Chapter 424, Acts of the 63rd Legislature, Regular
6-27 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
7-1 (e) <(d)> As provided in a request for proposals and under
7-2 the rules adopted by the commission, the commission may discuss
7-3 acceptable or potentially acceptable proposals with offerors in
7-4 order to assess an offeror's ability to meet the solicitation
7-5 requirements. After the submission of a proposal but before making
7-6 an award, the commission may permit the offeror to revise the
7-7 proposal in order to obtain the best final offer. The commission
7-8 may not disclose any information derived from proposals submitted
7-9 from competing offerors in conducting discussions under this
7-10 subsection. The commission shall provide each offeror with an
7-11 equal opportunity for discussion and revision of proposals.
7-12 (f) <(e)> The commission shall invite a requisitioning
7-13 agency to participate in discussions conducted under Subsection (e)
7-14 <(d)> of this section.
7-15 (g) <(f)> The commission shall make a written award of a
7-16 purchase or lease to the offeror whose proposal is the most
7-17 advantageous to the state, considering price and the evaluation
7-18 factors in the request for proposals, except that if the commission
7-19 finds that none of the offers is acceptable, it shall refuse all
7-20 offers. In determining which proposal is most advantageous to the
7-21 state, the commission shall, when applicable, consider factors such
7-22 as installation costs, the overall life of the supplies, materials,
7-23 <system> or equipment, the cost of acquisition, operation, and
7-24 maintenance <of hardware included with,> associated with<, or
7-25 required for> the supplies, materials, <system> or equipment during
7-26 the state's ownership or lease, the cost of acquisition, operation,
7-27 and maintenance of software included with, associated with, or
8-1 required for a proposed automated information or telecommunications
8-2 <the> system or item of equipment during the state's ownership or
8-3 lease, the estimated cost of other supplies needed because of the
8-4 acquisition, the estimated costs of employee training needed
8-5 because of the acquisition, the estimated cost of additional
8-6 long-term staff needed because of the acquisition, and any <the>
8-7 estimated increase in employee productivity because of the
8-8 acquisition. The contract file must state in writing the basis on
8-9 which the award is made.
8-10 (h) <(g)> The commission shall adopt rules necessary or
8-11 convenient to perform its responsibilities under this section and
8-12 shall request assistance from other state agencies as needed.
8-13 <(h) A medical or dental unit as that term is defined in
8-14 Section 61.003, Education Code, may purchase the following types of
8-15 medical equipment by the use of competitive sealed proposals if it
8-16 follows commission rules and procedures provided by this section
8-17 regarding the use of competitive sealed proposals and submits to
8-18 the commission a written finding that competitive sealed bidding or
8-19 informal competitive bidding is not practical or is disadvantageous
8-20 to the state for the proposed acquisition:>
8-21 <(1) prototypical medical equipment not yet available
8-22 on the market;>
8-23 <(2) medical equipment so new to the market that its
8-24 benefits are not fully known; or>
8-25 <(3) major medical equipment that is so technically
8-26 complex that development of specifications for competitive bidding
8-27 is not feasible.>
9-1 SECTION 8. Sections 3.081(a) and (d), State Purchasing and
9-2 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
9-3 are amended to read as follows:
9-4 (a) A vendor who wants to sell or lease automated
9-5 information systems under this section to state agencies covered by
9-6 the Information Resources Management Act (Article 4413(32j),
9-7 Revised Statutes) shall apply to the commission for designation as
9-8 a "qualified information systems vendor" according to an
9-9 application process promulgated by the commission. At a minimum,
9-10 the application process shall include submission of the following
9-11 elements:
9-12 (1) a catalogue containing all products and services
9-13 eligible for purchase by state agencies, including descriptions of
9-14 each product or service, the list price of each product or service,
9-15 and the price to Texas state agencies of each product or service;
9-16 (2) a maintenance, repair, and support plan for all
9-17 eligible products and services; and
9-18 (3) <proof of the applicant's financial resources and
9-19 ability to perform; and>
9-20 <(4)> a guarantee that the vendor will make available
9-21 equivalent replacement parts for products sold to Texas for at
9-22 least three years from the date of a product's discontinuation.
9-23 (d) A state agency covered by the Information Resources
9-24 Management Act (Article 4413(32j), Revised Statutes) may purchase
9-25 or lease automated information systems directly from a qualified
9-26 information systems vendor and may negotiate additional terms and
9-27 conditions to be included in contracts relating to the purchase or
10-1 lease, provided the purchase or lease is based on the best value
10-2 available and is in the state's best interest. In determining
10-3 which products or services are in the state's best interest, the
10-4 agency shall consider the following factors:
10-5 (1) installation costs and hardware costs;
10-6 (2) the overall life cycle cost of the system or
10-7 equipment;
10-8 (3) estimated cost of employee training and estimated
10-9 increase in employee productivity;
10-10 (4) estimated software and maintenance costs; <and>
10-11 (5) compliance with applicable statewide standards
10-12 adopted by the Department of Information Resources or a subsequent
10-13 entity as validated by criteria established by the department or a
10-14 subsequent entity in administrative rule; and
10-15 (6) proof of a vendor's financial resources and
10-16 ability to perform.
10-17 SECTION 9. Section 3.10(b), 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 (b) The commission and each state agency shall make a good
10-21 faith effort to assist historically underutilized businesses to
10-22 receive, directly or indirectly, not less than 30 percent of the
10-23 total value of all contract awards for the purchase of supplies,
10-24 materials, services, and equipment that the commission or other
10-25 agency expects to make during a fiscal year. The commission and
10-26 each state agency shall estimate the expected total value of the
10-27 contract awards they expect to make that are subject to this
11-1 subsection not later than the 60th day of the agency's fiscal year
11-2 and may revise the estimate as new information requires. This
11-3 subsection applies to all state agency contract awards for
11-4 purchasing supplies, materials, services, and equipment without
11-5 regard to:
11-6 (1) the source of funds for a contract;
11-7 (2) whether a contract is made by an agency acting
11-8 under delegated purchasing authority or under an exception to the
11-9 commission's purchasing authority; or
11-10 (3) whether the contract is made under the authority
11-11 of this Act or other law.
11-12 SECTION 10. Section 3.101(d), State Purchasing and General
11-13 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
11-14 amended to read as follows:
11-15 (d) The commission shall maintain a master bidders list and
11-16 biennially <annually> register on the list the name and address of
11-17 each vendor that applies for registration in accordance with rules
11-18 adopted under this section. The commission may include other
11-19 relevant vendor information on the list. Each state agency shall
11-20 solicit bids or proposals from all eligible vendors on the list
11-21 that serve the agency's geographic region, as provided by this
11-22 section, when the agency proposes to make a purchase or other
11-23 acquisition that will cost more than $15,000. The commission shall
11-24 maintain the master bidders list in a manner that facilitates a
11-25 state agency's solicitation of vendors that serve the agency's
11-26 geographic area.
11-27 SECTION 11. Section 3.30, State Purchasing and General
12-1 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
12-2 amended to read as follows:
12-3 Sec. 3.30. Authority to Pay Charges. The commission or a
12-4 state agency may pay a restocking charge, cancellation fee, or
12-5 other similar charge if the commission or other agency making the
12-6 purchase determines that the charge is justifiable.
12-7 SECTION 12. Section 4.10(c), State Purchasing and General
12-8 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
12-9 amended to read as follows:
12-10 (c) Grave spaces shall be allotted for a person eligible for
12-11 burial and for his or her spouse, together with his or her
12-12 unmarried child or children, which child or children shall be
12-13 buried in the same plot with <alongside> his, her, or their parent
12-14 or parents, provided that such child on the effective date of this
12-15 Act or at the time of his or her death is a resident in any state
12-16 eleemosynary institution. Children other than those hereinabove
12-17 made eligible for burial may not be included. The size of a grave
12-18 plot may not be longer than eight feet nor wider than three <five>
12-19 feet <times the number of persons of one family authorized
12-20 hereunder to be buried alongside one another>. Each family,
12-21 consisting of the person eligible for burial under Subsection (b)
12-22 of this section, the person's spouse, and the person's children who
12-23 are eligible for burial under this subsection, is limited to one
12-24 plot in the State Cemetery.
12-25 SECTION 13. Section 4.11, State Purchasing and General
12-26 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
12-27 amended to read as follows:
13-1 Sec. 4.11. FRENCH LEGATION <EMBASSY>. The property known as
13-2 the French Legation <Embassy> is set aside for the uses and
13-3 purposes of the Daughters of the Republic of Texas and they are
13-4 authorized to take full charge of said building and use it as they
13-5 may see proper. The French Legation <Embassy> shall be the
13-6 property of the state, and the title of said property shall remain
13-7 in custody of the commission.
13-8 SECTION 14. Section 5.01(a), State Purchasing and General
13-9 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
13-10 amended to read as follows:
13-11 (a) Under such terms and conditions as may be provided by
13-12 law, the commission may acquire necessary real and personal
13-13 property, modernize, remodel, build, and equip buildings for state
13-14 purposes, and make contracts necessary to carry out and effectuate
13-15 the purposes herein mentioned in keeping with appropriations
13-16 authorized by the legislature. The commission shall not sell or
13-17 dispose of any real property of the state except by specific
13-18 authority from:
13-19 (1) the legislature, if the legislature is in session
13-20 when the commission sells or disposes of or decides to sell or
13-21 dispose of the property; or
13-22 (2) the governor, if the legislature is not in session
13-23 when the commission sells or disposes of or decides to sell or
13-24 dispose of the property.
13-25 SECTION 15. Article 5, State Purchasing and General Services
13-26 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
13-27 adding Section 5.035 to read as follows:
14-1 Sec. 5.035. REAL ESTATE COMMISSIONS. (a) This section
14-2 applies to the commission and any other state agency acquiring a
14-3 building or land for a project, including a project otherwise
14-4 exempt from this article under Section 5.13 of this article or
14-5 other law.
14-6 (b) The commission or other state agency shall collect from
14-7 the seller or other appropriate person a fee in an amount not to
14-8 exceed the amount of the customary commission, if any, that would
14-9 have been paid to a real estate agent representing the buyer in a
14-10 similar private transaction unless:
14-11 (1) the commission or other state agency is
14-12 represented by a private real estate agent in the transaction;
14-13 (2) the commission or other state agency determines
14-14 that the purchase price has been reduced in an amount equal to the
14-15 amount of the customary commission that would have been paid to a
14-16 real estate agent representing the buyer in a similar private
14-17 transaction; or
14-18 (3) the commission or other state agency makes a
14-19 written determination that it is in the best interest of the state
14-20 not to collect the fee.
14-21 SECTION 16. Section 5.04, State Purchasing and General
14-22 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
14-23 amended to read as follows:
14-24 Sec. 5.04. Title, Initial Occupants. The commission shall
14-25 obtain title for the state and retain control of the real property
14-26 acquired for sites and of the buildings located thereon. The
14-27 initial occupants of buildings shall be those state agencies
15-1 determined by the commission or the legislature. This section
15-2 shall apply to all new state buildings constructed heretofore or
15-3 that may be constructed hereafter <in Austin> by the commission.
15-4 SECTION 17. Section 5.13(a), State Purchasing and General
15-5 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
15-6 amended to read as follows:
15-7 (a) Except as otherwise provided by this article, this
15-8 article shall apply to all building construction projects as herein
15-9 defined which may be undertaken by the state, with the following
15-10 exceptions:
15-11 (1) all projects constructed by and for the State
15-12 Department of Highways and Public Transportation;
15-13 (2) all projects constructed by and for state
15-14 institutions of higher education;
15-15 (3) pens, sheds, and ancillary buildings constructed
15-16 by and for the Texas Department of Agriculture for the processing
15-17 of livestock prior to export;
15-18 (4) all projects of repair and rehabilitation, except
15-19 major renovations, of buildings and grounds on the commission
15-20 inventory;
15-21 (5) all projects constructed by the Parks and Wildlife
15-22 Department; <and>
15-23 (6) repair and rehabilitation projects of any other
15-24 using agency, provided all labor for such projects is provided by
15-25 the regular maintenance forces of the using agency under specific
15-26 legislative authorization, and provided further, that such projects
15-27 do not require the advance preparation of working plans and/or
16-1 drawings;
16-2 (7) all projects constructed by or for the Texas
16-3 Department of Mental Health and Mental Retardation; and
16-4 (8) all projects constructed by or for the Texas Youth
16-5 Commission.
16-6 SECTION 18. Sections 5.20(c), (d), and (e), State Purchasing
16-7 and General Services Act (Article 601b, Vernon's Texas Civil
16-8 Statutes), are amended to read as follows:
16-9 (c) The commission may contract for construction work
16-10 through the use of competitive bidding, through the use of
16-11 competitive sealed proposals by following the procedures described
16-12 by Section 6.051 of this Act, or through the use of negotiations.
16-13 The commission may consolidate design and construction work into
16-14 one contract with one entity if the commission complies with
16-15 applicable professional licensing laws and Subchapter A, Chapter
16-16 2254, and if the commission makes a written finding that the
16-17 consolidation of design and construction work is necessary. If
16-18 competitive bidding is used, then following <Following> final
16-19 approval of the working plans and specifications and their
16-20 acceptance by the using agency, the commission shall cause to be
16-21 advertised in not less than two newspapers of general circulation
16-22 for bids or proposals for performance of the construction and
16-23 related work on the project. The commission shall allow bidders or
16-24 proposers at least 30 days after the date that the commission
16-25 issues the bid documents to respond to an invitation to bid or make
16-26 proposals, but the commission may shorten the period to prevent
16-27 undue additional costs to a state agency or for emergency projects
17-1 to prevent or remove a hazard to life or property. Subject to the
17-2 applicable provisions of other law respecting the award of state
17-3 contracts, the contract or contracts shall be awarded to the
17-4 qualified bidder making the lowest and best bid or to the qualified
17-5 proposer making the best proposal under a competitive sealed
17-6 proposals or negotiation process; but no contract shall be awarded
17-7 for a sum in excess of the amount which the comptroller shall
17-8 certify to be available for such project. The commission shall
17-9 have the right to reject any and all bids or proposals.
17-10 (d) Before a contract is awarded for the major repair or
17-11 renovation of a state structure which has been designated by the
17-12 Texas Historical Commission as a Recorded Texas Historic Landmark,
17-13 the commission shall forward to the Texas Historical Commission a
17-14 copy of the bids or proposals received and an evaluation of the
17-15 qualifications of the bidders or proposers. The Texas Historical
17-16 Commission shall review the bids or proposals and the
17-17 qualifications of the bidders or proposers and recommend to the
17-18 commission the bidder or proposer to which the award should be
17-19 made. Based on the recommendation of the Texas Historical
17-20 Commission, the commission may award the contract to a bidder or
17-21 proposer other than the lowest bidder or proposer.
17-22 (e) Upon notice and on itemized statements by the
17-23 commission:
17-24 (1) the comptroller shall transfer from each project
17-25 appropriation to the State Building Construction Planning Fund
17-26 created by Section 5.24 of this article an amount certified by the
17-27 commission as sufficient to reimburse the planning fund for prior
18-1 expenditures on behalf of the project; and
18-2 (2) the comptroller shall reserve from each project
18-3 appropriation an amount estimated by the commission to be
18-4 sufficient to cover contingencies over and above all amounts
18-5 obligated by contract or otherwise, for planning, engineering, and
18-6 architectural work, site acquisition and development, and
18-7 construction, equipment, and furnishings contracts. The amount so
18-8 reserved shall be used only upon the following conditions:
18-9 (A) that the architect/engineer or the
18-10 contractor recommend and justify the proposed contingency
18-11 expenditures by submitting a change order request;
18-12 (B) that the proposed change order request be
18-13 approved by the architect/engineer;
18-14 (C) that the proposed change order request be
18-15 approved by the using agency which shall make formal request for
18-16 the allocation of funds from the contingency reserve; and
18-17 (D) that the commission <director of facilities
18-18 construction and space management> shall investigate the nature of
18-19 the change order and concur in the necessity of the proposed
18-20 expenditure or refuse same within 15 days after receiving the
18-21 request.
18-22 <In the event the director shall refuse to concur in a
18-23 proposed contingency expenditure, the using agency may appeal to
18-24 the commission and the findings of the commission shall be final.
18-25 The commission shall promulgate regulations setting forth the
18-26 procedures for such appeals.>
18-27 If an approved change order shall result in a reduction of
19-1 construction cost, the contingency reserve shall be increased by
19-2 the amount of such reduction.
19-3 SECTION 19. Sections 5.26(a-1), (a-3), and (b), State
19-4 Purchasing and General Services Act (Article 601b, Vernon's Texas
19-5 Civil Statutes), are amended to read as follows:
19-6 (a-1) On construction projects in which trench excavation
19-7 will exceed a depth of five feet, the uniform set of general
19-8 conditions must require that the bid or proposal documents provided
19-9 to all of the bidders or proposers and the contract include:
19-10 (1) a reference to the Occupational Safety and Health
19-11 Administration's standards for trench safety that will be in effect
19-12 during the period of construction of the project;
19-13 (2) a copy of the special shoring requirements, if
19-14 any, of the state, with a separate pay item for such special
19-15 shoring requirements;
19-16 (3) a copy of any geotechnical information that was
19-17 obtained by the owner for use by the contractor in the design of
19-18 the trench safety system; and
19-19 (4) a separate pay item for trench excavation safety
19-20 protection.
19-21 (a-3) A state agency may require the bidders or proposers to
19-22 attend a <pre-bid> conference before bids or proposals are accepted
19-23 for the purpose of coordinating a geotechnical investigation of the
19-24 project site by the bidders or proposers. In awarding a contract,
19-25 an agency shall not consider a bid or proposal from a bidder or
19-26 proposer who failed to attend the <a pre-bid> conference required
19-27 by the agency under this subsection <section>.
20-1 (b) The commission shall cause the uniform general
20-2 conditions of state building construction contracts to be reviewed
20-3 whenever in its opinion such review is desirable, but in no event
20-4 less frequently than once every five years. The review shall be
20-5 made by a committee appointed by the commission consisting of an
20-6 employee of the commission appointed by the commission <director of
20-7 facilities construction and space management>, who shall serve ex
20-8 officio as chairman of the committee and who shall vote only in the
20-9 event of a tie; one person appointed by the commission from a list
20-10 of nominees submitted to it by the President of the Texas Society
20-11 of Architects; one person appointed by the commission from a list
20-12 of nominees submitted to it by the President of the Texas Society
20-13 of Professional Engineers; one person appointed by the commission
20-14 from a list of nominees submitted to it by the Chairman of the
20-15 Executive Council of the Texas Associated General Contractors
20-16 Chapters; one person appointed by the commission from the list of
20-17 nominees submitted to it by the Executive Secretary of the
20-18 Mechanical Contractors Associations of Texas, Incorporated; one
20-19 person appointed by the commission from a list of nominees
20-20 submitted to it by the Executive Secretary of the Texas Building
20-21 and Construction Trades Council; one person appointed by the
20-22 commission from a list of nominees submitted to it by the President
20-23 of the Associated Builders and Contractors of Texas; one person
20-24 appointed by the commission from a list of nominees submitted to it
20-25 by the Executive Director of the National Association of Minority
20-26 Contractors residing in Texas; one person appointed by the
20-27 commission representing an institution of higher education, as
21-1 defined by Section 61.003, Education Code; one person appointed by
21-2 the commission representing a state agency that has a substantial
21-3 ongoing construction program; and one person appointed by the
21-4 commission representing the attorney general's office. Members of
21-5 any review committee appointed pursuant to this subsection shall
21-6 serve without compensation but may be reimbursed for their
21-7 necessary and actual expenses.
21-8 SECTION 20. Sections 5.342(a) and (b), State Purchasing and
21-9 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
21-10 are amended to read as follows:
21-11 (a) This section applies only to meeting <office> space
21-12 needs of one or more state agencies in a county in which the state
21-13 is leasing at least 50,000 square feet of usable <office> space.
21-14 (b) The commission may meet <office> space needs of one or
21-15 more state agencies that are being met through leased space by
21-16 purchasing one or more existing or proposed buildings in accordance
21-17 with this section. The purchase of a building may include the
21-18 purchase of the building's grounds and related improvements. The
21-19 purchase of an existing or proposed <a> building under this section
21-20 must be:
21-21 (1) financed through bonds issued by the Texas Public
21-22 Finance Authority; and
21-23 (2) approved by the legislature if it is in session or
21-24 by the Legislative Budget Board if the legislature is not in
21-25 session.
21-26 SECTION 21. Section 5.36, State Purchasing and General
21-27 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
22-1 amended to read as follows:
22-2 Sec. 5.36. Public Works Contracts with Certain Businesses.
22-3 (a) A state agency that enters into a contract for a project or
22-4 other construction work, including a project or other construction
22-5 work constructed by or for an agency otherwise excepted from this
22-6 article under Section 5.13 of this article or other law, shall make
22-7 a good faith effort to assist historically underutilized businesses
22-8 to receive, directly or indirectly, not less than 30 percent of the
22-9 total value of each construction contract award that the agency
22-10 expects to make in its fiscal year.
22-11 (b) Each agency shall estimate the expected total value of
22-12 contract awards subject to <under> this section <article> not later
22-13 than the 60th day of its fiscal year and may revise the estimate as
22-14 new information requires.
22-15 (c) This section applies to a state agency contract for a
22-16 construction project or other construction work without regard to
22-17 the source of funds for the contract for the construction project
22-18 or other construction work.
22-19 SECTION 22. Section 6.031, State Purchasing and General
22-20 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
22-21 amended by adding Subsections (c) and (d) to read as follows:
22-22 (c) Notwithstanding Section 6.05 of this article, the
22-23 commission may negotiate with a lessor under an existing lease to
22-24 add space under the lease for the purpose of locating one or more
22-25 health and human services agencies with another health and human
22-26 services agency. The commission is not required to make a written
22-27 determination that competition is not available to negotiate for
23-1 space under this subsection.
23-2 (d) Notwithstanding Section 6.05 of this article, the
23-3 commission may negotiate with a lessor under an existing lease to
23-4 add space under the lease for the purpose of locating one or more
23-5 state agencies with another state agency. The commission is not
23-6 required to make a written determination that competition is not
23-7 available to negotiate for space under this subsection, but the
23-8 commission shall make a written determination that locating the
23-9 agencies together is in the best interest of the state.
23-10 SECTION 23. Section 6.04, State Purchasing and General
23-11 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
23-12 amended to read as follows:
23-13 Sec. 6.04. Preference. In filling a request for space, the
23-14 commission shall give preference to available state-owned space.
23-15 The commission shall assign <give first priority in assigning
23-16 office> space in state buildings financed from bond proceeds in a
23-17 manner designed to reduce the amount of <to state agencies funded
23-18 from sources other than> general revenue spent for space needs.
23-19 SECTION 24. Section 6.09, State Purchasing and General
23-20 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
23-21 amended to read as follows:
23-22 Sec. 6.09. Option to Purchase. (a) When the commission
23-23 considers it advisable, the commission may lease space for a state
23-24 agency by a contract which contains an option for the commission to
23-25 purchase the space subject to the availability <legislature's
23-26 appropriation> of funds for the purchase under Subsection (c) of
23-27 this section.
24-1 (b) A lease contract containing the option shall show the
24-2 amount that will be accumulated by the commission and credited
24-3 toward the purchase at various periods during the term of the lease
24-4 and the purchase price of the property at the beginning of each
24-5 fiscal biennium during the term of the lease.
24-6 (c) The commission shall exercise the option to purchase in
24-7 accordance with Section 5.342 of this Act, except that the
24-8 commission may purchase the space with appropriated funds if the
24-9 legislature specifically appropriates funds for the purchase.
24-10 SECTION 25. Article 6, State Purchasing and General Services
24-11 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
24-12 adding Section 6.15 to read as follows:
24-13 Sec. 6.15. REAL ESTATE COMMISSIONS. (a) This section
24-14 applies to the commission and any other state agency leasing space,
24-15 including space that is not included within the definition of space
24-16 under Section 6.01 of this article and space otherwise exempt from
24-17 this article under Section 6.11 of this article. This section also
24-18 applies to an institution of higher education leasing space under
24-19 Section 6.111 of this article.
24-20 (b) The commission or other state agency shall collect from
24-21 the lessor or other appropriate person a fee in an amount not to
24-22 exceed the amount of the customary commission, if any, that would
24-23 have been paid to a real estate agent representing the lessee in a
24-24 similar private transaction unless:
24-25 (1) the commission or other state agency is
24-26 represented by a private real estate agent in the transaction;
24-27 (2) the commission or other state agency determines
25-1 that the lease price has been reduced in an amount equal to the
25-2 amount of the customary commission that would have been paid to a
25-3 real estate agent representing the lessee in a similar private
25-4 transaction; or
25-5 (3) the commission or other state agency makes a
25-6 written determination that it is in the best interest of the state
25-7 not to collect the fee.
25-8 SECTION 26. Section 9.01(a)(7), State Purchasing and General
25-9 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
25-10 amended to read as follows:
25-11 (7) "Assistance organization" means:
25-12 (A) a nonprofit organization that provides:
25-13 (i) educational, health, or human
25-14 services; or
25-15 (ii) assistance to homeless individuals;
25-16 (B) a nonprofit food bank that solicits,
25-17 warehouses, and redistributes edible but unmarketable food to
25-18 agencies that feed needy families and individuals; and
25-19 (C) Texas Partners of the Americas, a registered
25-20 agency with the Advisory Committee on Voluntary Foreign Aid, with
25-21 the approval of the Partners of the Alliance office of the Agency
25-22 for International Development.
25-23 SECTION 27. Section 9.04(c), State Purchasing and General
25-24 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
25-25 amended to read as follows:
25-26 (c) During the 30-day <35-day> period following the date
25-27 <of> the commission disseminates information <notice> under
26-1 Subsection (b) of this section, a state agency, <or> political
26-2 subdivision, or assistance organization may coordinate <negotiate>
26-3 directly with the reporting state agency for a transfer of the
26-4 property at a price established by the reporting agency <mutually
26-5 agreed upon value>. The reporting agency shall transfer the
26-6 property to the first state agency, political subdivision, or
26-7 assistance organization that agrees to pay the established price.
26-8 If a transfer is made to a state agency, the participating agencies
26-9 shall report the transaction to the comptroller <and the
26-10 commission>. The comptroller shall debit and credit the proper
26-11 appropriations and <the commission shall> adjust the state property
26-12 accounting <inventory> records if necessary <inventoried property
26-13 is transferred>. <During the 35-day period, priority shall be
26-14 given to transfer to a state agency, under rules adopted by the
26-15 commission.>
26-16 SECTION 28. Section 9.06, State Purchasing and General
26-17 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
26-18 amended to read as follows:
26-19 Sec. 9.06. Destruction of Surplus or Salvage Property. If
26-20 the commission or state agency advertises <cannot sell or dispose
26-21 of any property reported to it as> surplus or salvage <it may order
26-22 the> property for sale and receives no bids, or if property the
26-23 agency has declared as surplus or salvage has no resale value in
26-24 the agency's judgment, the agency may delete the property from the
26-25 state's property accounting records and dispose of the property in
26-26 a manner that best serves the interests of the state <destroyed as
26-27 worthless salvage and report the destruction to the declaring
27-1 agency. The destruction of salvage shall authorize the commission
27-2 to remove reported property from the state inventory if on the
27-3 state inventory. Authorization by the commission to delete salvage
27-4 items not its own from the state inventory shall not be required.
27-5 It is not the intention of this section to alter, enlarge, or amend
27-6 the law providing for the deletion from inventory upon the
27-7 authorization of the auditor of property that is missing from any
27-8 agency>.
27-9 SECTION 29. Article 9, State Purchasing and General Services
27-10 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
27-11 adding Section 9.095 to read as follows:
27-12 Sec. 9.095. FEE FOR SERVICES. The commission may collect a
27-13 fee from entities for which the commission provides a service
27-14 relating to state surplus property under this article. The
27-15 commission shall set the fees in an amount that recovers its costs
27-16 in providing the service.
27-17 SECTION 30. Section 9.11, State Purchasing and General
27-18 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
27-19 amended to read as follows:
27-20 Sec. 9.11. Purchase of Legislative Chairs. Notwithstanding
27-21 any provision of law to the contrary, upon the vacation of an
27-22 office or the termination of employment, an elected officer, an
27-23 appointed officer, or an executive head of a state agency within
27-24 the legislative, executive, and judicial departments of state
27-25 government may purchase the chair used by the officer or employee
27-26 during his or her tenure of service for its fair market value. A
27-27 determination of the fair market value of the chair shall be made
28-1 by the governing officer or the presiding officer of the governing
28-2 body <commission> for executive and legislative agencies other than
28-3 the legislature, by the chief justice for judicial agencies, by the
28-4 speaker of the house of representatives for the house of
28-5 representatives, and by the lieutenant governor for the senate.
28-6 SECTION 31. Section 9.16(j), State Purchasing and General
28-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-8 amended to read as follows:
28-9 (j) A charge collected under Subsection (i) of this section
28-10 shall be deposited in the state treasury to the credit of the
28-11 federal surplus property service charge fund, and income earned on
28-12 money in the federal surplus property service charge fund shall be
28-13 credited to that fund. Money in the fund may be used only to carry
28-14 out the functions of the commission under this section.
28-15 SECTION 32. Section 10.05(b), State Purchasing and General
28-16 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
28-17 amended to read as follows:
28-18 (b) The commission may on request provide telecommunications
28-19 services on the consolidated telecommunications system to a
28-20 nongovernmental entity for the limited purpose of allowing the
28-21 entity to perform under a contract with a governmental entity that
28-22 is using the system. Services provided under this subsection do
28-23 not constitute the resale or carriage of services. The commission
28-24 shall provide the services when appropriate, on an integrated or
28-25 shared basis, and for a fee. <The commission, the Department of
28-26 Information Resources, and the comptroller shall develop, in
28-27 coordination with The Texas A&M University System, The University
29-1 of Texas System, other institutions of higher education, and other
29-2 state agencies, a plan for a state telecommunications network that
29-3 will effectively and efficiently meet the long-term voice, video,
29-4 and computer communications requirements of state government. The
29-5 plan should recognize that all state agencies and institutions of
29-6 higher education are a single entity for purposes of purchasing and
29-7 determining tariffs. The plan shall incorporate efficiencies
29-8 obtained through the use of shared transmission services and open
29-9 systems architecture as they become available, building on existing
29-10 systems as appropriate, and the developers of the plan shall make
29-11 use of the technical expertise of the institutions of higher
29-12 education and state agencies. The commission, department, and
29-13 comptroller shall present to the governor and the legislature a
29-14 comprehensive summary of the plan and its implementation schedule
29-15 before September 1, 1994.>
29-16 SECTION 33. Article 11, State Purchasing and General
29-17 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
29-18 amended by adding Section 11.022 to read as follows:
29-19 Sec. 11.022. MAIL SERVICES FOR POLITICAL SUBDIVISIONS IN
29-20 AUSTIN AREA. (a) On agreement between the commission and a
29-21 political subdivision in the Austin area, the commission may
29-22 provide one or more of its mail services to the political
29-23 subdivision.
29-24 (b) The commission shall recover from a political
29-25 subdivision its costs in providing a service under this section.
29-26 The political subdivision shall pay the commission in the manner
29-27 prescribed by the commission.
30-1 SECTION 34. Sections 11.03(a) and (b), State Purchasing and
30-2 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
30-3 are amended to read as follows:
30-4 (a) The commission shall maintain a facility for the repair
30-5 of office machines and shall offer the service to state agencies,
30-6 including the legislature and legislative agencies, and political
30-7 subdivisions located in or near Austin.
30-8 (b) Using agencies shall make payment to the commission for
30-9 repair services by vouchers prepared and submitted to the using
30-10 agency by the commission. Political subdivisions shall make
30-11 payment to the commission in the manner prescribed by the
30-12 commission.
30-13 SECTION 35. Section 11.04, State Purchasing and General
30-14 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
30-15 amended to read as follows:
30-16 Sec. 11.04. Central Supply Store. (a) The commission shall
30-17 operate a central supply store where state agencies, including the
30-18 legislature and legislative agencies, and political subdivisions
30-19 can secure small supply items.
30-20 (b) The commission shall submit a purchase voucher to each
30-21 using agency after the close of each month covering supply items
30-22 purchased. A political subdivision shall pay the commission in the
30-23 manner prescribed by the commission.
30-24 (c) Purchases from the central supply store may be made only
30-25 by state agencies and political subdivisions.
30-26 SECTION 36. Sections 14.02(a) and (b), State Purchasing and
30-27 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
31-1 are amended to read as follows:
31-2 (a) The central travel office shall monitor travel
31-3 reservations and other travel arrangements required for business
31-4 travel by a state employee or state agency and shall provide
31-5 travel-related services as delineated by this article. It is the
31-6 intent of the legislature that state agencies use the services
31-7 provided by the office to the maximum extent consistent with
31-8 improved economy and efficiency. <After approval by the executive
31-9 director, the central travel office shall designate state agencies
31-10 that may use the services of the office. The executive director
31-11 shall approve the use of those services by the designated state
31-12 agencies after the director of the travel division certifies to the
31-13 executive director that the central travel office is capable of
31-14 providing services.>
31-15 (b) The office may negotiate contracts with private travel
31-16 agents, with travel and transportation providers, and with credit
31-17 card companies that provide travel services and other benefits to
31-18 the state. The commission may set and collect a fee from each of
31-19 those entities in an amount designed to recover the commission's
31-20 costs under the contract. The commission shall make contracts with
31-21 more than one provider of travel agency services. Contracts
31-22 entered into under this section are not subject to the competitive
31-23 bidding requirements imposed under Article 3 of this Act. The
31-24 comptroller of public accounts shall audit travel vouchers in
31-25 accordance with Chapter 403, Government Code, and its subsequent
31-26 amendments, for compliance with rules adopted to enforce the
31-27 provisions of this section.
32-1 SECTION 37. Article 15, State Purchasing and General
32-2 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
32-3 amended by adding Section 15.11 to read as follows:
32-4 Sec. 15.11. CONSOLIDATION OF SUPPORT OPERATIONS. (a) In
32-5 addition to its other powers and duties under this article, the
32-6 council may order two or more state agencies to consolidate between
32-7 them one or more administrative support functions to more
32-8 efficiently or effectively accomplish the function.
32-9 (b) State agencies shall consolidate the functions in the
32-10 manner directed by the council.
32-11 SECTION 38. Section 1(2), Chapter 881, Acts of the 73rd
32-12 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
32-13 Civil Statutes), is amended to read as follows:
32-14 (2) "Historically underutilized business"
32-15 <"Disadvantaged business"> has the meaning assigned by Section
32-16 1.02, State Purchasing and General Services Act (Article 601b,
32-17 Vernon's Texas Civil Statutes). In addition, for the purpose of
32-18 this Act, the owners of a historically underutilized
32-19 <disadvantaged> business must participate in the control,
32-20 operation, and management in a manner proportionate to their
32-21 ownership so that the business is clearly controlled by the
32-22 socially disadvantaged owners.
32-23 SECTION 39. Section 2, Chapter 881, Acts of the 73rd
32-24 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
32-25 Civil Statutes), is amended to read as follows:
32-26 Sec. 2. APPLICATION. This Act applies to each public
32-27 contract entered into by a governmental entity and a contractor in
33-1 which the contractor claims to be a historically underutilized
33-2 <disadvantaged> business.
33-3 SECTION 40. Section 3, Chapter 881, Acts of the 73rd
33-4 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
33-5 Civil Statutes), is amended to read as follows:
33-6 Sec. 3. PROHIBITED ACT. A contractor may not claim
33-7 historically underutilized <disadvantaged> business status in
33-8 bidding on a public contract unless the contractor meets the
33-9 definition of a historically underutilized <disadvantaged> business
33-10 and that contractor will personally execute the terms of the
33-11 contract.
33-12 SECTION 41. Section 4, Chapter 881, Acts of the 73rd
33-13 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
33-14 Civil Statutes), is amended to read as follows:
33-15 Sec. 4. SPECIFIC REQUIREMENTS. To qualify as a contractor
33-16 claiming historically underutilized <disadvantaged> business status
33-17 under this Act:
33-18 (1) the general contractor will perform all of the
33-19 estimating and contract administration functions with the employees
33-20 of that contractor;
33-21 (2) subcontractors will perform all of their work of
33-22 their trade with their own employees, or, if the subcontractor uses
33-23 an employee leasing firm for the purpose of providing salary and
33-24 benefit administration, with employees who in all other respects
33-25 are supervised and perform on the job as if they were employees of
33-26 the subcontractor; and
33-27 (3) a prime contractor who intends to subcontract
34-1 specific trades may do so if the dollar value of the subcontracts
34-2 does not exceed 75 percent of the original value of the contract,
34-3 and all work in the trade of the prime contractor is accomplished
34-4 by employees of that contractor, or, if the prime contractor uses
34-5 an employee leasing firm for the purposes of salary and benefit
34-6 administration, with employees who in all other respects are
34-7 supervised and perform on the job as if they were employees of the
34-8 prime contractor.
34-9 SECTION 42. Section 5(a), Chapter 881, Acts of the 73rd
34-10 Legislature, Regular Session, 1993 (Article 601i, Vernon's Texas
34-11 Civil Statutes), is amended to read as follows:
34-12 (a) The attorney general or a district, county, or city
34-13 attorney may institute an action in district court to recover a
34-14 civil penalty against a person who claims historically
34-15 underutilized <disadvantaged> business status and the general
34-16 contractor who knowingly contracts with a person claiming the
34-17 historically underutilized <disadvantaged> business status in
34-18 violation of Section 3 of this Act.
34-19 SECTION 43. (a) Sections 2.06(c), 2.09, 3.0221, 3.024,
34-20 3.051, 3.18, 4.07, 4.12, 5.15(b), and 5.22(a), State Purchasing and
34-21 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
34-22 are repealed.
34-23 (b) Section 21.167, Education Code, is repealed.
34-24 SECTION 44. The repeal of Section 3.024, State Purchasing
34-25 and General Services Act (Article 601b, Vernon's Texas Civil
34-26 Statutes), does not affect the validity of a term or condition of
34-27 an existing contract that was included in the contract under
35-1 Section 3.024.
35-2 SECTION 45. This Act takes effect September 1, 1995.
35-3 SECTION 46. The importance of this legislation and the
35-4 crowded condition of the calendars in both houses create an
35-5 emergency and an imperative public necessity that the
35-6 constitutional rule requiring bills to be read on three several
35-7 days in each house be suspended, and this rule is hereby suspended.