1-1 By: West S.B. No. 878
1-2 (In the Senate - Filed March 2, 1995; March 6, 1995, read
1-3 first time and referred to Committee on State Affairs;
1-4 March 20, 1995, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 5; March 20, 1995, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: West
1-7 Amend SECTION 1 of S.B. No. 878 as follows:
1-8 (1) In Section 1.03, State Purchasing and General Services
1-9 Act, Subsection (m) after the word "commission" and before the word
1-10 "agency", delete the word "or" and substitute "and each <or>" in
1-11 lieu thereof (introduced version page 4, line 27; committee
1-12 printing page 2, line 58).
1-13 (2) In Subsection (m) after the word "the" and before the
1-14 word "lieutenant", restore the struck word "governor" to its
1-15 original form (introduced version page 5, line 1; committee
1-16 printing page 2, line 59).
1-17 (3) In Subsection (r) after the word "auditor" and before
1-18 the word "shall" delete the words "and the commission" (introduced
1-19 version page 5, line 21; committee printing page 3, line 9).
1-20 A BILL TO BE ENTITLED
1-21 AN ACT
1-22 relating to the provisions of state agency strategic plans that
1-23 address contracting with historically underutilized businesses and
1-24 to auditing and enforcing agency compliance with those provisions.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Section 1.03, State Purchasing and General
1-27 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
1-28 amended by amending Subsections (l) and (m) and by adding
1-29 Subsections (q), (r), and (s) to read as follows:
1-30 (l) The commission and each state agency shall prepare as
1-31 part of its strategic plan under Chapter 2056, Government Code
1-32 <Article 6252-31, Revised Statutes, as added by Chapter 384, Acts
1-33 of the 72nd Legislature, Regular Session, 1991>, a written plan for
1-34 increasing the commission's or the agency's use of historically
1-35 underutilized businesses in purchasing and in construction <public
1-36 works> contracting. On request, the commission shall provide
1-37 technical assistance to an agency that is preparing its plan under
1-38 this subsection. The plan must include:
1-39 (1) a policy or mission statement relating to
1-40 increasing use of historically underutilized businesses by the
1-41 commission or agency;
1-42 (2) goals to be met by the commission or agency in
1-43 carrying out the policy or mission; <and>
1-44 (3) specific programs to be conducted by the
1-45 commission or agency to meet the goals stated in the plan,
1-46 including a specific program to encourage contractors to use
1-47 historically underutilized businesses as partners and
1-48 subcontractors;
1-49 (4) a plan to meet the goal of assisting historically
1-50 underutilized businesses to receive at least 30 percent of the
1-51 total value of all contract awards for purchases the commission or
1-52 agency expects to make during the next fiscal year in the
1-53 purchasing categories of commodities, professional services, other
1-54 services, and construction contracts;
1-55 (5) a list of employees responsible for implementing
1-56 the historically underutilized businesses provisions of the
1-57 strategic plan that includes for each employee the employee's title
1-58 and job description and the percentage of the employee's time
1-59 allocated to implementing the historically underutilized businesses
1-60 provisions of the strategic plan;
1-61 (6) a plan to:
1-62 (A) identify historically underutilized
1-63 businesses that can and are available to meet agency needs in each
1-64 purchasing category listed in Subdivision (4) of this subsection;
1-65 (B) classify the identified historically
1-66 underutilized businesses based on the race, ethnicity, and gender
1-67 of the socially disadvantaged controlling ownership of the
1-68 business; and
2-1 (C) assist historically underutilized businesses
2-2 of each racial, ethnic, and gender classification to receive a
2-3 percentage of the total value of all contract awards the agency
2-4 expects to make in the purchasing category that is proportionate to
2-5 the percentage of businesses that can and are available to meet
2-6 agency needs in the category and that are historically
2-7 underutilized businesses of that racial, ethnic, or gender
2-8 classification;
2-9 (7) goals for encouraging historically underutilized
2-10 businesses to participate as subcontractors on agency contracts,
2-11 including construction contracts, and methods to achieve those
2-12 goals;
2-13 (8) a plan to divide construction contract work or
2-14 purchases in the other purchasing categories listed in Subdivision
2-15 (4) of this subsection into the smallest reasonable units,
2-16 consistent with applicable industry standards and Section 3.08(e)
2-17 of this Act, to increase the possibility of participation by
2-18 historically underutilized businesses in the contracting
2-19 opportunity;
2-20 (9) a plan to ensure that the agency establishes
2-21 realistic delivery schedules that are consistent with the agency's
2-22 actual requirements;
2-23 (10) a plan to ensure that the agency's requisitions
2-24 contain terms, conditions, and specifications that reflect the
2-25 agency's actual needs and do not contain elevated requirements in
2-26 matters such as insurance, bonding, and experience that exceed the
2-27 agency's needs;
2-28 (11) a plan to:
2-29 (A) advertise contracting opportunities in
2-30 general circulation media, trade association media, and media that
2-31 focus on serving one or more kinds of historically underutilized
2-32 businesses;
2-33 (B) effectively use the services of local,
2-34 state, and federal business assistance offices that provide
2-35 assistance in identifying historically underutilized businesses
2-36 that have the ability to perform agency contracts; and
2-37 (C) inform appropriate other persons and
2-38 organizations who can help widely disseminate information about
2-39 contracting opportunities to increase the likelihood that
2-40 interested historically underutilized businesses will learn of the
2-41 opportunity, including various minority and women chambers of
2-42 commerce, trade associations, building trade associations, and
2-43 contractor associations;
2-44 (12) a plan to provide interested historically
2-45 underutilized businesses with adequate information about bonding
2-46 and insurance requirements, the plans, specifications, and scope of
2-47 the work, and other requirements for agency contracts; and
2-48 (13) a plan to negotiate in good faith with interested
2-49 historically underutilized businesses whenever negotiation is
2-50 allowed.
2-51 (m) The commission and each state agency shall prepare an
2-52 annual report for each fiscal year documenting progress under its
2-53 plan for increasing use of historically underutilized businesses.
2-54 The report must describe the agency's achievements during the
2-55 fiscal year in preparing and implementing the historically
2-56 underutilized businesses provisions of the agency's strategic plan
2-57 as required by Subsection (l) of this section. The commission or
2-58 agency shall file the report with the <governor,> lieutenant
2-59 governor<,> and speaker of the house of representatives not later
2-60 than December 9th <31> of each year and shall include the report in
2-61 the financial report the agency submits under Section 2101.011,
2-62 Government Code.
2-63 (q) The state auditor shall audit a state agency's
2-64 compliance with the historically underutilized businesses
2-65 provisions of the agency's strategic plan in accordance with
2-66 Chapter 321, Government Code.
2-67 (r) The state auditor shall report to the commission a state
2-68 agency that is not complying with the requirements of Subsection
2-69 (l) of this section or with the historically underutilized
2-70 businesses provisions of the agency's strategic plan that the
3-1 agency prepares under Subsection (l) of this section. The state
3-2 auditor shall also report to the commission a state agency that is
3-3 not in the state auditor's opinion making a good faith effort to
3-4 comply with the requirements of Subsection (l) of this section or
3-5 with the historically underutilized businesses provisions of the
3-6 agency's strategic plan that the agency prepares under Subsection
3-7 (l) of this section. In determining whether a state agency is
3-8 making a good faith effort to comply, the state auditor and the
3-9 commission shall also consider whether the agency has:
3-10 (1) adopted rules and procedures governing the
3-11 agency's contract awards in the purchasing categories of
3-12 commodities, professional services, other services, and
3-13 construction contracts that are designed to help the agency achieve
3-14 historically underutilized businesses procurement goals in each
3-15 purchasing category;
3-16 (2) sent agency representatives to attend or
3-17 participate in trade fairs, conferences, matchmaker programs, or
3-18 workshops that focus on serving one or more kinds of historically
3-19 underutilized businesses;
3-20 (3) established a procedure to waive bonding
3-21 requirements for historically underutilized businesses, to the
3-22 extent allowed by law;
3-23 (4) negotiated in good faith with interested
3-24 historically underutilized businesses whenever negotiation was
3-25 allowed, investigated the interested historically underutilized
3-26 businesses' capabilities, and documented the reasons for not
3-27 contracting with a historically underutilized business when
3-28 negotiations with the business did not result in a contract;
3-29 (5) established a list of commodities, professional
3-30 services, other services, and construction contracts that could be
3-31 provided by historically underutilized businesses;
3-32 (6) implemented a specific initiative to encourage
3-33 historically underutilized businesses to participate in agency
3-34 procurement opportunities; and
3-35 (7) designated a senior employee with appropriate
3-36 experience and authority to serve as the agency's coordinator for
3-37 agency attempts to utilize historically underutilized businesses.
3-38 (s) The commission may also require a state agency to send
3-39 information to the commission that demonstrates whether the agency
3-40 is complying with the requirements of Subsection (l) of this
3-41 section and is, whenever appropriate, taking the actions required
3-42 under the historically underutilized businesses provisions of the
3-43 agency's strategic plan prepared under Subsection (l) of this
3-44 section. If the commission, after considering the state auditor's
3-45 report together with any additional information the commission
3-46 acquires, determines that a state agency is not making a good faith
3-47 effort to comply with the requirements of Subsection (l) of this
3-48 section or with the historically underutilized businesses
3-49 provisions of the agency's strategic plan that the agency prepares
3-50 under Subsection (l) of this section, the commission may revoke
3-51 purchasing authority that the commission delegated to the agency
3-52 under Section 3.06 of this Act or that the commission delegated to
3-53 the agency by rule under Section 3.08(a) of this Act. If the
3-54 commission revokes an agency's delegated purchasing authority under
3-55 this subsection, the governor and the Legislative Budget Board may
3-56 consider that fact an emergency requiring a transfer from the
3-57 agency's appropriated funds to the commission's appropriated funds
3-58 of an amount equal to the cost the commission will incur in
3-59 performing the purchasing functions formerly delegated to the
3-60 agency.
3-61 SECTION 2. This Act takes effect September 1, 1995.
3-62 SECTION 3. The importance of this legislation and the
3-63 crowded condition of the calendars in both houses create an
3-64 emergency and an imperative public necessity that the
3-65 constitutional rule requiring bills to be read on three several
3-66 days in each house be suspended, and this rule is hereby suspended.
3-67 * * * * *