By West S.B. No. 878
74R4270 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provisions of state agency strategic plans that
1-3 address contracting with historically underutilized businesses and
1-4 to auditing and enforcing agency compliance with those provisions.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 1.03, State Purchasing and General
1-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
1-8 amended by amending Subsections (l) and (m) and adding Subsections
1-9 (q)-(s) to read as follows:
1-10 (l) The commission and each state agency shall prepare as
1-11 part of its strategic plan under Chapter 2056, Government Code
1-12 <Article 6252-31, Revised Statutes, as added by Chapter 384, Acts
1-13 of the 72nd Legislature, Regular Session, 1991>, a written plan for
1-14 increasing the commission's or the agency's use of historically
1-15 underutilized businesses in purchasing and in construction <public
1-16 works> contracting. On request, the commission shall provide
1-17 technical assistance to an agency that is preparing its plan under
1-18 this subsection. The plan must include:
1-19 (1) a policy or mission statement relating to
1-20 increasing use of historically underutilized businesses by the
1-21 commission or agency;
1-22 (2) goals to be met by the commission or agency in
1-23 carrying out the policy or mission; <and>
1-24 (3) specific programs to be conducted by the
2-1 commission or agency to meet the goals stated in the plan,
2-2 including a specific program to encourage contractors to use
2-3 historically underutilized businesses as partners and
2-4 subcontractors;
2-5 (4) a plan to meet the goal of assisting historically
2-6 underutilized businesses to receive at least 30 percent of the
2-7 total value of all contract awards for purchases the commission or
2-8 agency expects to make during the next fiscal year in the
2-9 purchasing categories of commodities, professional services, other
2-10 services, and construction contracts;
2-11 (5) a list of employees responsible for implementing
2-12 the historically underutilized businesses provisions of the
2-13 strategic plan that includes for each employee the employee's title
2-14 and job description and the percentage of the employee's time
2-15 allocated to implementing the historically underutilized businesses
2-16 provisions of the strategic plan;
2-17 (6) a plan to:
2-18 (A) identify historically underutilized
2-19 businesses that can and are available to meet agency needs in each
2-20 purchasing category listed in Subdivision (4) of this subsection;
2-21 (B) classify the identified historically
2-22 underutilized businesses based on the race, ethnicity, and gender
2-23 of the socially disadvantaged controlling ownership of the
2-24 business; and
2-25 (C) assist historically underutilized businesses
2-26 of each racial, ethnic, and gender classification to receive a
2-27 percentage of the total value of all contract awards the agency
3-1 expects to make in the purchasing category that is proportionate to
3-2 the percentage of businesses that can and are available to meet
3-3 agency needs in the category and that are historically
3-4 underutilized businesses of that racial, ethnic, or gender
3-5 classification;
3-6 (7) goals for encouraging historically underutilized
3-7 businesses to participate as subcontractors on agency contracts,
3-8 including construction contracts, and methods to achieve those
3-9 goals;
3-10 (8) a plan to divide construction contract work or
3-11 purchases in the other purchasing categories listed in Subdivision
3-12 (4) of this subsection into the smallest reasonable units,
3-13 consistent with applicable industry standards and Section 3.08(e)
3-14 of this Act, to increase the possibility of participation by
3-15 historically underutilized businesses in the contracting
3-16 opportunity;
3-17 (9) a plan to ensure that the agency establishes
3-18 realistic delivery schedules that are consistent with the agency's
3-19 actual requirements;
3-20 (10) a plan to ensure that the agency's requisitions
3-21 contain terms, conditions, and specifications that reflect the
3-22 agency's actual needs, and do not contain elevated requirements in
3-23 matters such as insurance, bonding, and experience that exceed the
3-24 agency's needs;
3-25 (11) a plan to:
3-26 (A) advertise contracting opportunities in
3-27 general circulation media, trade association media, and media that
4-1 focus on serving one or more kinds of historically underutilized
4-2 businesses;
4-3 (B) effectively use the services of local,
4-4 state, and federal business assistance offices that provide
4-5 assistance in identifying historically underutilized businesses
4-6 that have the ability to perform agency contracts; and
4-7 (C) inform appropriate other persons and
4-8 organizations who can help widely disseminate information about
4-9 contracting opportunities to increase the likelihood that
4-10 interested historically underutilized businesses will learn of the
4-11 opportunity, including various minority and women chambers of
4-12 commerce, trade associations, building trade associations, and
4-13 contractor associations;
4-14 (12) a plan to provide interested historically
4-15 underutilized businesses with adequate information about bonding
4-16 and insurance requirements, the plans, specifications, and scope of
4-17 the work, and other requirements for agency contracts; and
4-18 (13) a plan to negotiate in good faith with interested
4-19 historically underutilized businesses whenever negotiation is
4-20 allowed.
4-21 (m) The commission and each state agency shall prepare an
4-22 annual report for each fiscal year documenting progress under its
4-23 plan for increasing use of historically underutilized businesses.
4-24 The report must describe the agency's achievements during the
4-25 fiscal year in preparing and implementing the historically
4-26 underutilized businesses provisions of the agency's strategic plan
4-27 as required by Subsection (l) of this section. The commission or
5-1 agency shall file the report with the <governor,> lieutenant
5-2 governor<,> and speaker of the house of representatives not later
5-3 than December 9th <31> of each year and shall include the report in
5-4 the financial report the agency submits under Section 2101.011,
5-5 Government Code.
5-6 (q) The state auditor shall audit a state agency's
5-7 compliance with the historically underutilized businesses
5-8 provisions of the agency's strategic plan in accordance with
5-9 Chapter 321, Government Code.
5-10 (r) The state auditor shall report to the commission a state
5-11 agency that is not complying with the requirements of Subsection
5-12 (l) of this section or with the historically underutilized
5-13 businesses provisions of the agency's strategic plan that the
5-14 agency prepares under Subsection (l). The state auditor shall also
5-15 report to the commission a state agency that is not in the state
5-16 auditor's opinion making a good faith effort to comply with the
5-17 requirements of Subsection (l) of this section or with the
5-18 historically underutilized businesses provisions of the agency's
5-19 strategic plan that the agency prepares under Subsection (l). In
5-20 determining whether a state agency is making a good faith effort to
5-21 comply, the state auditor and the commission shall also consider
5-22 whether the agency has:
5-23 (1) adopted rules and procedures governing the
5-24 agency's contract awards in the purchasing categories of
5-25 commodities, professional services, other services, and
5-26 construction contracts that are designed to help the agency achieve
5-27 historically underutilized businesses procurement goals in each
6-1 purchasing category;
6-2 (2) sent agency representatives to attend or
6-3 participate in trade fairs, conferences, matchmaker programs, or
6-4 workshops that focus on serving one or more kinds of historically
6-5 underutilized businesses;
6-6 (3) established a procedure to waive bonding
6-7 requirements for historically underutilized businesses, to the
6-8 extent allowed by law;
6-9 (4) negotiated in good faith with interested
6-10 historically underutilized businesses whenever negotiation was
6-11 allowed, investigated the interested historically underutilized
6-12 businesses' capabilities, and documented the reasons for not
6-13 contracting with a historically underutilized business when
6-14 negotiations with the business did not result in a contract;
6-15 (5) established a list of commodities, professional
6-16 services, other services, and construction contracts that could be
6-17 provided by historically underutilized businesses;
6-18 (6) implemented a specific initiative to encourage
6-19 historically underutilized businesses to participate in agency
6-20 procurement opportunities; and
6-21 (7) designated a senior employee with appropriate
6-22 experience and authority to serve as the agency's coordinator for
6-23 agency attempts to utilize historically underutilized businesses.
6-24 (s) The commission may also require a state agency to send
6-25 information to the commission that demonstrates whether the agency
6-26 is complying with the requirements of Subsection (l) of this
6-27 section and is, whenever appropriate, taking the actions required
7-1 under the historically underutilized businesses provisions of the
7-2 agency's strategic plan prepared under Subsection (l). If the
7-3 commission, after considering the state auditor's report together
7-4 with any additional information the commission acquires, determines
7-5 that a state agency is not making a good faith effort to comply
7-6 with the requirements of Subsection (l) of this section or with the
7-7 historically underutilized businesses provisions of the agency's
7-8 strategic plan that the agency prepares under Subsection (l), the
7-9 commission may revoke purchasing authority that the commission
7-10 delegated to the agency under Section 3.06 of this Act or that the
7-11 commission delegated to the agency by rule under Section 3.08(a) of
7-12 this Act. If the commission revokes an agency's delegated
7-13 purchasing authority under this subsection, the governor and the
7-14 Legislative Budget Board may consider that fact an emergency
7-15 requiring a transfer from the agency's appropriated funds to the
7-16 commission's appropriated funds of an amount equal to the cost the
7-17 commission will incur in performing the purchasing functions
7-18 formerly delegated to the agency.
7-19 SECTION 2. This Act takes effect September 1, 1995.
7-20 SECTION 3. The importance of this legislation and the
7-21 crowded condition of the calendars in both houses create an
7-22 emergency and an imperative public necessity that the
7-23 constitutional rule requiring bills to be read on three several
7-24 days in each house be suspended, and this rule is hereby suspended.