By Armbrister S.B. No. 1321
74R2866 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. Section 3.022, State Purchasing and General
2-22 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
2-23 amended to read as follows:
2-24 Sec. 3.022. COMPETITIVE SEALED PROPOSALS. (a) The
2-25 commission may acquire supplies, materials, services, or equipment
2-26 <telecommunications devices, systems, or services or any automated
2-27 information systems, the computers on which they are automated, or
3-1 a service related to the automation of information systems or the
3-2 computers on which they are automated, including computer
3-3 software,> by following a procedure using competitive sealed
3-4 proposals <if the commission determines by rule that competitive
3-5 sealed bidding or informal competitive bidding is not practical or
3-6 is disadvantageous to the state. Items to be purchased from higher
3-7 education research funds may be acquired by following a procedure
3-8 using competitive sealed proposals>. The commission, or a state
3-9 agency or <an> institution of higher education if the agency or
3-10 institution is making the acquisition <if research purchasing
3-11 authority has been delegated to that institution> under Section
3-12 3.06 or 3.08 of this article, must first determine that competitive
3-13 sealed bidding or informal competitive bidding is not practical or
3-14 is disadvantageous to the state. If the competitive sealed
3-15 proposal procedure is to be handled by the state agency or
3-16 institution of higher education, the agency or institution shall
3-17 follow the procedures outlined by this section for the commission.
3-18 (b) The commission shall consult with appropriate personnel
3-19 of a requisitioning agency to develop specifications for a request
3-20 for competitive sealed proposals under this section.
3-21 (c) The commission shall solicit proposals by a request for
3-22 proposals. The commission shall give public notice of a request
3-23 for proposals in the manner provided for requests for bids under
3-24 Section 3.12 of this article.
3-25 (d) <(c)> The commission shall open each proposal in a
3-26 manner that does not disclose the contents of the proposal during
3-27 the process of negotiating with competing offerors. The commission
4-1 shall file each proposal in a register of proposals, which shall be
4-2 open for public inspection after a contract is awarded unless the
4-3 register contains information that is excepted from disclosure <as
4-4 an open record> under Subchapter C, Chapter 552, Government Code
4-5 <Section 3, Chapter 424, Acts of the 63rd Legislature, Regular
4-6 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)>.
4-7 (e) <(d)> As provided in a request for proposals and under
4-8 the rules adopted by the commission, the commission may discuss
4-9 acceptable or potentially acceptable proposals with offerors in
4-10 order to assess an offeror's ability to meet the solicitation
4-11 requirements. After the submission of a proposal but before making
4-12 an award, the commission may permit the offeror to revise the
4-13 proposal in order to obtain the best final offer. The commission
4-14 may not disclose any information derived from proposals submitted
4-15 from competing offerors in conducting discussions under this
4-16 subsection. The commission shall provide each offeror with an
4-17 equal opportunity for discussion and revision of proposals.
4-18 (f) <(e)> The commission shall invite a requisitioning
4-19 agency to participate in discussions conducted under Subsection (e)
4-20 <(d)> of this section.
4-21 (g) <(f)> The commission shall make a written award of a
4-22 purchase or lease to the offeror whose proposal offers <is> the
4-23 best value <most advantageous> to the state, considering price,
4-24 past vendor performance, vendor reputation, and the evaluation
4-25 factors in the request for proposals, except that if the commission
4-26 finds that none of the offers is acceptable, it shall refuse all
4-27 offers. In determining which proposal offers the best value <is
5-1 most advantageous> to the state, the commission shall, when
5-2 applicable and subject to Sections 3.103 and 3.104 of this Act,
5-3 consider factors such as installation costs, the overall life of
5-4 the supplies, materials, <system> or equipment, the cost of
5-5 acquisition, operation, and maintenance <of hardware included
5-6 with,> associated with<, or required for> the supplies, materials,
5-7 <system> or equipment during the state's ownership or lease, the
5-8 cost of acquisition, operation, and maintenance of software
5-9 included with, associated with, or required for a proposed
5-10 automated information or telecommunications <the> system or item of
5-11 equipment during the state's ownership or lease, the estimated cost
5-12 of other supplies needed because of the acquisition, the estimated
5-13 costs of employee training needed because of the acquisition, the
5-14 estimated cost of additional long-term staff needed because of the
5-15 acquisition, and any <the> estimated increase in employee
5-16 productivity because of the acquisition. The contract file must
5-17 state in writing the basis on which the award is made.
5-18 (h) <(g)> The commission shall adopt rules necessary or
5-19 convenient to perform its responsibilities under this section and
5-20 shall request assistance from other state agencies as needed.
5-21 <(h) A medical or dental unit as that term is defined in
5-22 Section 61.003, Education Code, may purchase the following types of
5-23 medical equipment by the use of competitive sealed proposals if it
5-24 follows commission rules and procedures provided by this section
5-25 regarding the use of competitive sealed proposals and submits to
5-26 the commission a written finding that competitive sealed bidding or
5-27 informal competitive bidding is not practical or is disadvantageous
6-1 to the state for the proposed acquisition:>
6-2 <(1) prototypical medical equipment not yet available
6-3 on the market;>
6-4 <(2) medical equipment so new to the market that its
6-5 benefits are not fully known; or>
6-6 <(3) major medical equipment that is so technically
6-7 complex that development of specifications for competitive bidding
6-8 is not feasible.>
6-9 SECTION 4. Section 3.061(b), State Purchasing and General
6-10 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
6-11 amended to read as follows:
6-12 (b) The commission shall promulgate rules allowing purchases
6-13 through group purchasing programs unless the commission determines
6-14 within a reasonable period of time after receiving notification of
6-15 a particular purchase that a better value <lower price> is
6-16 available through the commission.
6-17 SECTION 5. Article 3, State Purchasing and General Services
6-18 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
6-19 adding Sections 3.062-3.064 to read as follows:
6-20 Sec. 3.062. TRAINING AND CERTIFICATION OF STATE AGENCY
6-21 PURCHASING PERSONNEL. (a) The commission shall establish and
6-22 administer a system of training, continuing education, and
6-23 certification for state agency purchasing personnel. The commission
6-24 may adopt rules to administer this section, including rules
6-25 relating to monitoring certified purchaser's compliance with the
6-26 continuing education requirements of this section.
6-27 (b) All state agency purchasing personnel must receive the
7-1 training and continuing education to the extent required by rule of
7-2 the commission. A state agency employee who is required by rule
7-3 of the commission to receive the training or continuing education
7-4 may not participate in purchases by the employing agency unless the
7-5 employee has received the required training.
7-6 (c) The commission shall set and collect a fee from state
7-7 agencies that employ purchasing personnel who are trained,
7-8 educated, or certified under this section. The commission shall set
7-9 the fee in an amount that recovers the commission's costs under
7-10 this section.
7-11 (d) The commission may provide training, continuing
7-12 education, and certification under this section to purchasing
7-13 personnel employed by a political subdivision or other public
7-14 entity of the state. Political subdivision purchasing personnel may
7-15 receive, but are not required to receive, the training, continuing
7-16 education, or certification provided under this section. The
7-17 commission shall collect the fees described by Subsection (c) for
7-18 training, education, or certification under this subsection.
7-19 (e) The commission may provide training and continuing
7-20 education under this section using its own personnel and through
7-21 contracts with private or public entities.
7-22 (f) The commission shall provide at least three levels of
7-23 training under this section.
7-24 (g) The basic training level must include an introduction to
7-25 contract purchasing methods and processes and informal bidding
7-26 processes, practical instruction in the use of automated
7-27 information tools used in the purchasing process, instruction in
8-1 receipting and payment processes and requirements, an introduction
8-2 to historically underutilized business programs and issues,
8-3 instruction in documenting a purchasing file, an introduction to
8-4 relevant ethical issues including an introduction to relevant
8-5 provisions of Chapter 572, Government Code, and Chapters 36 and 39,
8-6 Penal Code, and instruction in any other processes and issues that
8-7 the commission considers appropriate for introductory purchasing
8-8 training.
8-9 (h) The second training level must include advanced
8-10 instruction in formal and informal bidding methods, an introduction
8-11 to negotiation methods and to when negotiation is allowed,
8-12 instruction in writing specifications, instruction in the criteria
8-13 for determining which product or service offers the best value for
8-14 the state, more advanced instruction in documenting a purchasing
8-15 file, instruction in the use of electronic bulletin boards in
8-16 public purchasing, an introduction to evaluating vendors, more
8-17 advanced instruction in historically underutilized business
8-18 programs and issues, a review and more advanced instruction in
8-19 relevant ethical issues, and instruction in any other processes and
8-20 issues that the commission considers appropriate for the second
8-21 level of purchasing training.
8-22 (i) The third training level must include instruction in
8-23 complex negotiations, instruction in purchasing through the use of
8-24 requests for proposals, and instruction in any other processes and
8-25 issues that the commission considers appropriate for advanced
8-26 purchasing training.
8-27 (j) The commission may prescribe the circumstances under
9-1 which a state agency may delegate authority to approve purchases.
9-2 (k) The commission shall provide at least two levels of
9-3 certification under this section.
9-4 (l) The commission shall require 24 hours of continuing
9-5 education each year to maintain a certification level. The
9-6 commission may allow attendance at training classes offered under
9-7 this section to count toward the continuing education requirement.
9-8 (m) The commission's prerequisites for receiving a level one
9-9 purchaser certification must include completion of the second
9-10 training level, passage of a written examination, and a minimum
9-11 number of years of purchasing experience prescribed by the
9-12 commission. Level one certified purchasers must be able to:
9-13 (1) manage formal and informal bidding procedures;
9-14 (2) prepare complex specifications that include the
9-15 criteria the agency will use to determine the best value for the
9-16 state;
9-17 (3) negotiate, when negotiation is allowed, price,
9-18 delivery terms, and service or maintenance requirements for all
9-19 types of products, including automated information systems
9-20 purchased through the catalogue purchasing procedure; and
9-21 (4) establish contracts.
9-22 (n) The commission's prerequisites for receiving a level two
9-23 purchaser certification must include completion of the third
9-24 training level, passage of a written and an oral examination, and a
9-25 minimum of three years of purchasing experience.
9-26 Sec. 3.063. PURCHASING PARTNERSHIPS BETWEEN AGENCIES. (a)
9-27 The commission shall manage a program that provides for
10-1 establishing purchasing partnerships between state agencies under
10-2 which one agency will make certain purchases for another agency.
10-3 An agency is not required to enter into a purchasing partnership
10-4 under this section.
10-5 (b) The commission shall identify agencies that are willing
10-6 to enter into purchasing partnerships with another agency and
10-7 attempt to appropriately match agencies for a purchasing
10-8 partnership based on factors such as whether an agency employs a
10-9 certified purchaser, the number and expertise of an agency's
10-10 certified purchasers, the strategic mission of an agency, the
10-11 existence or nature of an agency's automated purchasing tools, and
10-12 the types of goods and services typically purchased by an agency.
10-13 Sec. 3.064. BUYING UNDER CONTRACT ESTABLISHED BY AGENCY
10-14 OTHER THAN COMMISSION. (a) The commission shall adopt rules
10-15 specifying the circumstances under which it is advantageous for the
10-16 state to allow an agency to purchase goods or services under a
10-17 contract made by another agency other than the commission.
10-18 (b) A state agency that is a party to a contract with a
10-19 vendor who is able to supply goods or services to other agencies
10-20 under the contract shall, if commission rules allow other agencies
10-21 to make purchases under the contract:
10-22 (1) inform the commission of the terms of the contract
10-23 and the capabilities of the vendor; and
10-24 (2) post notice of the existence and terms of the
10-25 contract on the procurement marketplace.
10-26 SECTION 6. Section 3.08, State Purchasing and General
10-27 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
11-1 amended to read as follows:
11-2 Sec. 3.08. PURCHASES LESS THAN A SPECIFIED MONETARY AMOUNT.
11-3 (a) State agencies are delegated the authority to purchase
11-4 supplies, materials, and equipment if the purchase does not exceed
11-5 $25,000 <$5,000, although an agency may continue to use the
11-6 commission's services for those purchases>. The commission by rule
11-7 shall prescribe procedures for these purchases.
11-8 (b) The commission<, and> by rule may delegate to state
11-9 agencies the authority to purchase supplies, materials, or
11-10 equipment if the purchase exceeds $25,000 <$5,000>. In delegating
11-11 purchasing authority under this subsection or Section 3.06(b) of
11-12 this Act, the commission shall consider factors relevant to a state
11-13 agency's ability to perform purchasing functions, including:
11-14 (1) the capabilities of the agency's purchasing staff
11-15 and the existence of automated purchasing tools at the agency;
11-16 (2) the certification levels held by the agency's
11-17 purchasing personnel;
11-18 (3) the existence of recent satisfactory audits of the
11-19 agency's purchasing practices;
11-20 (4) the agency's compliance with the state's
11-21 purchasing programs for historically underutilized businesses and
11-22 the agency's good faith efforts to meet the state's purchasing
11-23 goals for historically underutilized businesses; and
11-24 (5) whether the agency has adopted and published
11-25 satisfactory protest procedures as part of its purchasing
11-26 practices.
11-27 (c) The commission shall monitor the purchasing practices of
12-1 state agencies that are making delegated purchases under Subsection
12-2 (b) of this section or Section 3.06(b) of this Act to ensure that
12-3 the certification levels of the agency's purchasing personnel and
12-4 the quality of the agency's purchasing practices continue to
12-5 warrant the extent to which the commission has delegated purchasing
12-6 authority to the agency. The commission may revoke for cause all or
12-7 part of the purchasing authority that the commission delegated to a
12-8 state agency. The commission shall adopt rules to administer this
12-9 subsection.
12-10 (d) <(b)> The commission by rule may delegate to the
12-11 comptroller the commission's authority under Section 3.15 to audit
12-12 purchases and purchase data when the purchases do not exceed $500
12-13 or a greater amount prescribed by the commission.
12-14 (e) <(c)> Competitive bidding, whether formal or informal,
12-15 is not required for a purchase by a state agency if the purchase
12-16 does not exceed $2,500 <$1,000>, or a greater amount prescribed by
12-17 rule of the commission.
12-18 (f) <(d)> Supplies or materials purchased under this section
12-19 may not include:
12-20 (1) items for which contracts have been awarded under
12-21 the contract purchase procedure, unless the quantity purchased is
12-22 less than the minimum quantity specified in the contract;
12-23 (2) any item required by statute to be purchased from
12-24 a particular source; or
12-25 (3) scheduled items that have been designated for
12-26 purchase by the commission.
12-27 (g) <(e)> Large purchases may not be divided into small lot
13-1 purchases in order to meet the specified dollar limits. The
13-2 commission may not require that unrelated purchases be combined
13-3 into one purchase order in order to exceed the specified dollar
13-4 limits.
13-5 (h) <(f)> Agencies making purchases under this section for
13-6 which competitive bidding is required must attempt to obtain at
13-7 least three competitive bids from sources which normally offer for
13-8 sale the merchandise being purchased and must comply with Section
13-9 3.101 of this article.
13-10 SECTION 7. Section 3.101, State Purchasing and General
13-11 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
13-12 amended by adding Subsections (k) and (l) to read as follows:
13-13 (k) The commission shall require information about an
13-14 applicant's past history as a vendor with the state in the
13-15 commission's uniform registration form, including information about
13-16 the persons who own or control the applicant and information about
13-17 any vendor history the applicant or the persons who own or control
13-18 the applicant may have from doing business with the state under
13-19 other names.
13-20 (l) The commission shall include in the commission's uniform
13-21 registration form a statement about the applicability of relevant
13-22 criminal law, including Section 37.10, Penal Code, to entering
13-23 information on the form and to presenting documentation in
13-24 connection with the form. The commission shall refer any suspected
13-25 violations of relevant criminal law, including Section 37.10, Penal
13-26 Code, related to entering information on the form or presenting
13-27 documentation in connection with the form to the appropriate legal
14-1 authorities for investigation or prosecution.
14-2 SECTION 8. Article 3, State Purchasing and General Services
14-3 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
14-4 adding Sections 3.103 and 3.104 to read as follows:
14-5 Sec. 3.103. BEST VALUE STANDARD FOR PURCHASE OF GOODS OR
14-6 SERVICES. (a) Each state agency, including the commission, shall
14-7 purchase goods and services that provide the best value for the
14-8 state.
14-9 (b) In determining the best value for the state, the
14-10 commission or other state agency making a purchase is not
14-11 restricted to considering the purchase price alone, but subject to
14-12 Section 3.104 of this Act may also consider any other factor
14-13 relevant to evaluating the value to the state of a good or service,
14-14 including:
14-15 (1) installation costs;
14-16 (2) life-cycle costs;
14-17 (3) the quality, availability, adaptability, and
14-18 reliability of the good or service;
14-19 (4) the delivery terms;
14-20 (5) indicators of probable vendor performance under
14-21 the contract such as past vendor performance, the vendor's
14-22 financial resources, skill, and ability to perform, the vendor's
14-23 experience, responsibility, and reputation, the vendor's previous
14-24 and existing compliance with laws that relate to providing the good
14-25 or service, and the vendor's ability to provide reliable
14-26 maintenance and support;
14-27 (6) the number and scope of conditions attached to a
15-1 vendor's bid or proposal;
15-2 (7) the cost of any employee training associated with
15-3 a purchase;
15-4 (8) the effect of a purchase on agency productivity;
15-5 and
15-6 (9) factors relevant to determining the best value for
15-7 the state in the context of a particular purchase.
15-8 Sec. 3.104. REQUIREMENT TO SPECIFY VALUE FACTORS IN REQUEST
15-9 FOR BIDS OR PROPOSALS. (a) For a purchase made through
15-10 competitive bidding, the commission or other state agency making
15-11 the purchase must specify in the request for bids the factors other
15-12 than price, past vendor performance, or vendor reputation that the
15-13 commission or agency will consider in determining which bid offers
15-14 the best value for the state.
15-15 (b) For a purchase made through competitive sealed
15-16 proposals, the commission or other state agency making the
15-17 purchase:
15-18 (1) must specify in the request for proposals the
15-19 known factors other than price, past vendor performance, or vendor
15-20 reputation that the commission or agency will consider in
15-21 determining which proposal offers the best value for the state; and
15-22 (2) may concurrently inform each vendor that made a
15-23 proposal on the contract of any additional factors the commission
15-24 or agency will consider in determining which proposal offers the
15-25 best value for the state if the commission or other agency
15-26 determines after opening the proposals that additional factors not
15-27 covered under Subdivision (1) of this subsection are relevant in
16-1 determining which proposal offers the best value for the state.
16-2 SECTION 9. Sections 3.11(b), (d), (e), (f), (g), and (h),
16-3 State Purchasing and General Services Act (Article 601b, Vernon's
16-4 Texas Civil Statutes), are amended to read as follows:
16-5 (b) Bidders List. The commission shall maintain a bidders
16-6 list and shall add or delete names from the list by the application
16-7 and utilization of applicable standards set forth in Subsection (e)
16-8 of this section. Bid invitations shall be sent only to those who
16-9 have expressed a desire to bid on the particular types of items
16-10 which are the subject of the bid invitation. Use of the bidders
16-11 list shall not be confined to contract purchases but it may be used
16-12 by the commission in making any purchase. The commission shall
16-13 inform applicants for the list about the applicability of relevant
16-14 criminal law, including Section 37.10, Penal Code, to entering
16-15 information on an application for inclusion on the list and to
16-16 presenting documentation in connection with the application. The
16-17 commission shall refer any suspected violations of relevant
16-18 criminal law, including Section 37.10, Penal Code, related to
16-19 entering information on an application for inclusion on the list or
16-20 presenting documentation in connection with the application to the
16-21 appropriate legal authorities for investigation or prosecution.
16-22 (d) Bid Opening Procedure. Bids shall be submitted to the
16-23 commission, sealed, and identified as bids on the envelope, except
16-24 that when the commission considers that the electronic information
16-25 capabilities of the state and of the vendor community are
16-26 sufficient, the commission may also allow facsimile or on-line
16-27 transmission of bids. Bids shall be opened at the time and place
17-1 stated in the public notices and the invitation to bid. The state
17-2 auditor or a member of his staff may be present at any bid opening.
17-3 A tabulation of all bids received shall be available for public
17-4 inspection under regulations to be established by the commission.
17-5 (e) Award of Contract. The commission shall award contracts
17-6 to the bidder offering the best value for the state while
17-7 <submitting the lowest and best bid> conforming to the
17-8 specifications required. Complying with the specified time limit
17-9 for submission of written data, samples, or models on or before bid
17-10 opening time is essential to the materiality of a bid, provided,
17-11 however, that the commission shall have the authority to waive this
17-12 provision if the failure to comply is beyond control of the bidder.
17-13 In determining which <who is the lowest and best> bidder offers the
17-14 best value for the state, the commission may take into account the
17-15 safety record of the bidder, or the firm, corporation, partnership,
17-16 or institution represented by the bidder, or anyone acting for such
17-17 firm, corporation, partnership, or institution, provided, however,
17-18 that the commission has adopted a written definition and criteria
17-19 for accurately determining the safety record of a bidder and has
17-20 given notice to prospective bidders, in the bid specifications,
17-21 that the safety record of a bidder may be considered in determining
17-22 the <lowest and best> bidder offering the best value for the state
17-23 and, provided further, that such determinations are not arbitrary
17-24 and capricious. The <In determining who is the lowest and best
17-25 bidder, in addition to price, the> commission shall determine which
17-26 bidder offers the best value for the state in accordance with
17-27 Sections 3.103 and 3.104 of this Act <consider:>
18-1 <(1) the quality, availability, and adaptability of
18-2 the supplies, materials, equipment, or contractual services, to the
18-3 particular use required;>
18-4 <(2) the number and scope of conditions attached to
18-5 the bid;>
18-6 <(3) the ability, capacity, and skill of the bidder to
18-7 perform the contract or provide the service required;>
18-8 <(4) whether the bidder can perform the contract or
18-9 provide the service promptly, or within the time required, without
18-10 delay or interference;>
18-11 <(5) the character, responsibility, integrity,
18-12 reputation, and experience of the bidder;>
18-13 <(6) the quality of performance of previous contracts
18-14 or services;>
18-15 <(7) the previous and existing compliance by the
18-16 bidder with laws relating to the contract or service;>
18-17 <(8) any previous or existing noncompliance by the
18-18 bidder with specification requirements relating to time of
18-19 submission of specified data such as samples, models, drawings,
18-20 certificates, or other information;>
18-21 <(9) the sufficiency of the financial resources and
18-22 ability of the bidder to perform the contract or provide the
18-23 service; and>
18-24 <(10) the ability of the bidder to provide future
18-25 maintenance, repair parts, and service for the use of the subject
18-26 of the contract>.
18-27 (f) Rejection of Bids. If a bid is submitted in which there
19-1 is a material failure to comply with the specification
19-2 requirements, such bid shall be rejected and the contract awarded
19-3 to the bidder offering the best value for the state and <submitting
19-4 the lowest and best bid> conforming to the specifications,
19-5 provided, however, the commission shall in any event have the
19-6 authority to reject all bids or parts of bids when the interest of
19-7 the state will be served thereby.
19-8 (g) Bid Record. When an award is made, a statement of the
19-9 basis for placing the order with the successful bidder and the
19-10 factors considered in determining which bidder offered the best
19-11 value for the state <the lowest and best bid> shall be prepared by
19-12 the purchasing division and filed with other papers relating to the
19-13 transaction.
19-14 (h) Tie Bids. In case of tie bids, the value to the state
19-15 <quality and service> being equal, the contract shall be awarded
19-16 under rules and regulations to be adopted by the commission.
19-17 SECTION 10. Sections 3.12(b), (c), (e), and (f), State
19-18 Purchasing and General Services Act (Article 601b, Vernon's Texas
19-19 Civil Statutes), are amended to read as follows:
19-20 (b) Minimum Number of Bids. All open market purchases
19-21 shall, whenever possible, be based on at least three competitive
19-22 bids, and shall be awarded to the <lowest and best> bidder offering
19-23 the best value for the state in accordance with the standards set
19-24 forth under this article.
19-25 (c) Notice Inviting Bids. The commission shall solicit bids
19-26 by:
19-27 (1) direct mail request to prospective vendors; <or>
20-1 (2) telephone or telegraph;
20-2 (3) facsimile transmission;
20-3 (4) on-line electronic transmission; or
20-4 (5) posting on an electronic bulletin board.
20-5 (e) Agency Review. If a state agency requests that it be
20-6 allowed to review the bids on a purchase request, the commission
20-7 shall forward copies of the bids received or make the same
20-8 available to the requesting agency along with the commission's
20-9 recommended award. If, after review of the bids and evaluation of
20-10 the quality of products offered in the bids, the state agency
20-11 determines that the bid selected by the commission does <is> not in
20-12 its opinion offer the best value for the state <the lowest and best
20-13 bid>, it may file with the commission a written recommendation,
20-14 complete with justification, that the award be made to the bidder
20-15 determined to offer the best value for the state <be the lowest and
20-16 best bid>. The commission shall give consideration to, but is not
20-17 bound by, the agency recommendation in making the award.
20-18 (f) Statement of Award. A statement of the basis for
20-19 placing the order with the successful bidder and the factors
20-20 considered in determining the <lowest and best> bid offering the
20-21 best value for the state shall be prepared by the purchasing
20-22 division and filed with other papers relating to the transaction.
20-23 SECTION 11. Section 3.16, State Purchasing and General
20-24 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
20-25 amended by amending Subsection (a) and adding Subsections (c) and
20-26 (d) to read as follows:
20-27 (a) After the comptroller and the commission have approved
21-1 financial data and purchase data, when such advance approval is
21-2 required by the rules of the commission, the comptroller shall draw
21-3 a warrant upon the state treasury for the amount due on the invoice
21-4 or for so much thereof as has been allowed. The comptroller may
21-5 issue the warrant directly to the vendor. The comptroller, when
21-6 appropriate, may combine into a single warrant payments that the
21-7 state owes to a vendor under more than one invoice, including
21-8 payments to the vendor made on behalf of more than one state
21-9 agency.
21-10 (c) The comptroller may allow a state agency to schedule
21-11 payments that the comptroller will make to a vendor. The
21-12 comptroller shall prescribe the circumstances under which advance
21-13 scheduling of payments is appropriate.
21-14 (d) The comptroller may require vendors to provide payment
21-15 addresses, vendor identification numbers, and other account
21-16 information directly to the comptroller.
21-17 SECTION 12. Section 3.17(a), State Purchasing and General
21-18 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
21-19 amended to read as follows:
21-20 (a) The commission shall have the authority to establish and
21-21 maintain a specifications and standards program to coordinate the
21-22 establishment and maintenance of uniform standards and
21-23 specifications for materials, supplies, and equipment purchased by
21-24 the commission. The commission shall enlist the cooperation of
21-25 other state agencies, the advisory committee on procurement, and
21-26 the vendor advisory committee in the establishment, maintenance,
21-27 and revision of uniform standards and specifications and shall
22-1 encourage and foster the use of standard specifications in order
22-2 that the most efficient purchase of materials, supplies, and
22-3 equipment may be continuously accomplished.
22-4 SECTION 13. Section 3.20, State Purchasing and General
22-5 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
22-6 amended to read as follows:
22-7 Sec. 3.20. PREFERENCE FOR PRODUCTS OF RETARDED OR
22-8 HANDICAPPED PERSONS. The products of workshops, organizations, or
22-9 corporations whose primary purpose is training and employing
22-10 mentally retarded or physically handicapped persons shall be given
22-11 preference if they meet state specifications as to quantity,
22-12 quality, delivery, and price. The commission shall test the
22-13 products in accordance with Section 3.17 of this Act to the extent
22-14 necessary to ensure quality. The commission shall consider product
22-15 quality and delivery performance in agreeing to the price for
22-16 products purchased under this section.
22-17 SECTION 14. Section 3.22, State Purchasing and General
22-18 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
22-19 amended to read as follows:
22-20 Sec. 3.22. EXEMPTION OF GOODS OR SERVICES OF BLIND PERSONS.
22-21 The provisions of this article with respect to competitive bids are
22-22 not applicable to state purchases of blind-made goods or services
22-23 offered for sale to state agencies as a result of efforts made by
22-24 the Texas Committee on Purchases of Blind-Made Goods and Services
22-25 acting in accordance with legislation applicable to the committee
22-26 if the goods or services meet state specifications as to delivery,
22-27 quantity, and quality and the cost is not in excess of the fair
23-1 market price of like items. The commission shall test the goods or
23-2 services in accordance with Section 3.17 of this Act to the extent
23-3 necessary to ensure quality. The commission shall consider product
23-4 or service quality and delivery performance in agreeing to the
23-5 price for goods or services purchased under this section.
23-6 SECTION 15. Section 3.23, State Purchasing and General
23-7 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
23-8 amended to read as follows:
23-9 Sec. 3.23. CONTRACTS WITH DEPARTMENT OF CRIMINAL JUSTICE.
23-10 The commission is authorized to make contracts with the Texas
23-11 Department of Criminal Justice for the purchase of supplies,
23-12 equipment, services, and materials for use by other state agencies.
23-13 The commission shall test the supplies, equipment, services, and
23-14 materials in accordance with Section 3.17 of this Act to the extent
23-15 necessary to ensure quality. The commission shall consider product
23-16 or service quality and delivery performance in agreeing to the
23-17 price for supplies, equipment, services, and materials purchased
23-18 under this section.
23-19 SECTION 16. Article 3, State Purchasing and General Services
23-20 Act (Article 601b, Vernon's Texas Civil Statutes), is amended by
23-21 adding Sections 3.34 and 3.35 to read as follows:
23-22 Sec. 3.34. ADVISORY COMMITTEE ON PROCUREMENT. (a) The
23-23 commission shall establish an advisory committee on procurement.
23-24 The purpose of the committee is to represent before the commission
23-25 the state agency purchasing community and the political
23-26 subdivisions that use the commission's purchasing services.
23-27 (b) The committee is composed of officers or employees of
24-1 state agencies, including institutions of higher education, and
24-2 political subdivisions who are invited by the commission to serve
24-3 on the committee. The commission shall invite officers and
24-4 employees who are experienced in public purchasing, in public
24-5 finance, or who possess other appropriate expertise to serve on the
24-6 committee. Service on the committee is an additional duty of the
24-7 member's public office or employment. Article 6252-33, Revised
24-8 Statutes, does not apply to the size or composition of the
24-9 committee. The commission shall set staggered terms for the members
24-10 of the committee.
24-11 (c) The committee may establish its own rules of operation.
24-12 (d) The committee shall recommend improvements in commission
24-13 or state agency purchasing practices to the commission. The
24-14 committee shall review and comment on findings and recommendations
24-15 related to purchasing that are made by state agency internal
24-16 auditors or by the state auditor.
24-17 Sec. 3.35. VENDOR ADVISORY COMMITTEE. (a) The commission
24-18 shall establish a vendor advisory committee. The purpose of the
24-19 committee is to represent before the commission the vendor
24-20 community, to provide information to vendors, and to obtain vendor
24-21 input on state procurement practices.
24-22 (b) The committee is composed of vendors who have done
24-23 business with the state who are invited by the commission to serve
24-24 on the committee. The commission shall invite a cross-section of
24-25 the vendor community to serve on the committee, inviting both large
24-26 and small businesses, both historically underutilized businesses
24-27 and businesses that are not historically underutilized businesses,
25-1 and vendors who provide a variety of different goods and services
25-2 to the state. Article 6252-33, Revised Statutes, does not apply to
25-3 the size or composition of the committee. The commission shall set
25-4 staggered terms for the members of the committee.
25-5 (c) The committee may establish its own rules of operation,
25-6 but shall post notice of and hold its meetings in accordance with
25-7 the open meetings law, Chapter 551, Government Code.
25-8 SECTION 17. Article 11, State Purchasing and General
25-9 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
25-10 amended by adding Sections 11.08-11.11 to read as follows:
25-11 Sec. 11.08. ELECTRONIC BULLETIN BOARD POSTING OF NOTICE FOR
25-12 PROCUREMENTS EXCEEDING $25,000. (a) This section applies to each
25-13 state agency making a procurement that will exceed $25,000 in
25-14 value:
25-15 (1) without regard to the source of funds the agency
25-16 will use for the procurement; and
25-17 (2) including a procurement that:
25-18 (A) is a procurement by a state agency but is
25-19 otherwise exempt from the commission's purchasing authority or the
25-20 application of this Act;
25-21 (B) is made under delegated purchasing
25-22 authority;
25-23 (C) is related to a construction project; or
25-24 (D) is a procurement of professional or
25-25 consulting services.
25-26 (b) The commission shall send to the comptroller for posting
25-27 on the comptroller's Windows on State Government electronic
26-1 bulletin board information as prescribed by this section about
26-2 commission or other state agency procurements that will exceed
26-3 $25,000 in value. The commission may also send to the comptroller
26-4 for posting on the electronic bulletin board other information
26-5 relating to the business activity of the state that the commission
26-6 considers to be of interest to the public. The commission shall
26-7 send the information in a format agreed to by the comptroller.
26-8 (c) The commission shall include in the information sent to
26-9 the comptroller, to the extent it is feasible and cost-effective,
26-10 the following information for each procurement that the commission
26-11 or another state agency will make that is estimated to exceed
26-12 $25,000 in value:
26-13 (1) a description of the goods or services to be
26-14 procured;
26-15 (2) the estimated quantity of goods or services to be
26-16 procured;
26-17 (3) the bid or proposal opening date; and
26-18 (4) the name, business mailing address, and business
26-19 telephone number of the commission employee or other state agency
26-20 employee a person can contact to obtain all necessary information
26-21 related to making a bid or proposal or other applicable expression
26-22 of interest for the procurement contract.
26-23 (d) Each state agency that will award a procurement contract
26-24 estimated to exceed $25,000 in value shall send to the commission:
26-25 (1) the information the commission requires for
26-26 posting on the comptroller's electronic bulletin board under this
26-27 section; and
27-1 (2) a notice when the procurement contract has been
27-2 awarded.
27-3 (e) The commission may adopt rules, prescribe forms, and
27-4 require information to administer this section.
27-5 (f) The requirements of this section are in addition to the
27-6 requirements of other law relating to the solicitation of bids,
27-7 proposals, or expressions of interest for a procurement by the
27-8 commission or another state agency. This section does not affect
27-9 whether the commission or other state agency is required to award a
27-10 procurement contract through competitive bidding, competitive
27-11 sealed proposals, or another method.
27-12 Sec. 11.09. ELECTRONIC PROCUREMENT DATABASE. (a) The
27-13 commission shall establish and manage an electronic procurement
27-14 database. The commission may enter into contracts with private or
27-15 public entities to establish or maintain all or part of the
27-16 database.
27-17 (b) The commission may maintain in the database information
27-18 related to state procurement that the commission considers to be
27-19 useful. The database must contain:
27-20 (1) information about vendors, including information
27-21 from the centralized master bidders list and vendor performance
27-22 information;
27-23 (2) information about products, including product
27-24 testing results; and
27-25 (3) information that relates to commission and other
27-26 state agency purchasing contracts and that can be entered into the
27-27 database electronically without the need for duplicate data entry.
28-1 (c) The commission may require information from a state
28-2 agency for inclusion in the database.
28-3 (d) The commission shall make the database available to
28-4 state agencies and political subdivisions through the procurement
28-5 marketplace.
28-6 Sec. 11.10. ELECTRONIC PROCUREMENT MARKETPLACE. (a) The
28-7 commission shall establish and manage an electronic procurement
28-8 marketplace through which the commission and state agencies may:
28-9 (1) communicate information relevant to the state's
28-10 procurement of goods and services; and
28-11 (2) conduct elements of purchasing transactions within
28-12 state government electronically to the extent that it is feasible
28-13 and cost-effective to do so.
28-14 (b) The commission shall design the procurement marketplace
28-15 as an interactive gateway between all state databases that relate
28-16 to procurement, including databases that contain information about
28-17 the availability of surplus property. The commission shall define
28-18 standards, including keyword and product code standards, for the
28-19 procurement marketplace.
28-20 (c) The commission may adopt rules relating to the design
28-21 and use of the procurement marketplace, including rules that
28-22 require state agencies to provide information for or receive
28-23 information from the procurement marketplace. A state agency must
28-24 first check the procurement marketplace to determine the most
28-25 appropriate method for acquiring a good or service before the
28-26 agency develops a contract for or makes an open market purchase of
28-27 the good or service.
29-1 (d) The commission shall make state procurement information
29-2 available to political subdivisions through the procurement
29-3 marketplace on a fee-for-service basis. The commission shall set
29-4 the fees in an amount that recovers the state's costs in providing
29-5 the access to a political subdivision.
29-6 Sec. 11.11. ELECTRONIC COMMERCE NETWORK USING ELECTRONIC
29-7 DATA INTERCHANGE. (a) The commission shall establish and manage
29-8 an electronic commerce network under which the state's purchasing
29-9 transactions with vendors can be accomplished electronically by
29-10 means of facsimile transmissions and on-line transmission of
29-11 necessary information. The commission shall base the network on the
29-12 standard data protocol developed by the American National Standards
29-13 Institute known as electronic data interchange.
29-14 (b) The commission may enter into contracts with one or more
29-15 public or private entities to establish or support various elements
29-16 of the network. The commission may provide for a gateway between
29-17 the procurement marketplace and the electronic commerce network so
29-18 that the elements of a procurement transaction that are within
29-19 state government and the elements of a procurement transaction that
29-20 involve communication with a vendor may all be accomplished
29-21 electronically.
29-22 (c) Each state agency that is capable of participating in
29-23 the electronic commerce network must participate in the network and
29-24 participate in contracts entered into by the commission for the
29-25 establishment or support of the network. The commission shall
29-26 charge an agency a fee for network services provided to the agency
29-27 by the commission and require an agency to pay a fee to a
30-1 contractor for network services provided to the agency by the
30-2 contractor, so that the cost of providing network services to an
30-3 agency is paid by the agency.
30-4 (d) The commission may allow political subdivisions and
30-5 other public entities to participate in the electronic commerce
30-6 network. The commission shall provide that a participating
30-7 political subdivision is charged fees for network services provided
30-8 to the political subdivision in the same manner that participating
30-9 state agencies are charged fees under Subsection (c) of this
30-10 section.
30-11 (e) The commission may:
30-12 (1) adopt rules to administer this section; and
30-13 (2) require participating state agencies, political
30-14 subdivisions, and other public entities to designate a network
30-15 coordinator.
30-16 SECTION 18. Article 15, State Purchasing and General
30-17 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
30-18 amended by adding Section 15.11 to read as follows:
30-19 Sec. 15.11. CONSOLIDATING OR CONTRACTING FOR MATERIALS
30-20 MANAGEMENT FUNCTIONS. (a) The council shall study the materials
30-21 management functions of state agencies. When the council determines
30-22 a course of action that will more effectively or efficiently
30-23 accomplish an agency's materials management functions, the council
30-24 may:
30-25 (1) order two or more state agencies to consolidate
30-26 between them warehousing, inventory control, or other materials
30-27 management functions; or
31-1 (2) order a state agency to obtain under a contract
31-2 with another state agency or a private commercial source the
31-3 agency's warehousing, inventory control, or other materials
31-4 management functions.
31-5 (b) State agencies shall consolidate or contract for
31-6 materials management functions in the manner directed by the
31-7 council.
31-8 SECTION 19. Section 321.013, Government Code, is amended by
31-9 adding Subsection (k) to read as follows:
31-10 (k) The State Auditor shall periodically conduct a
31-11 compliance audit and other appropriate audits of the purchasing
31-12 practices of each state agency, including each institution of
31-13 higher education. The audits must include an audit of the state
31-14 agency's compliance with applicable provisions of the state's
31-15 program to assist historically underutilized businesses to
31-16 participate in state contracting opportunities. In planning an
31-17 audit under this subsection, the State Auditor shall consider
31-18 issues raised by the General Services Commission or the comptroller
31-19 relating to the state agency's purchasing practices together with
31-20 the agency's response to the commission or the comptroller.
31-21 SECTION 20. Chapter 2102, Government Code, is amended by
31-22 adding Section 2102.013 to read as follows:
31-23 Sec. 2102.013. AUDITING OF AGENCY PURCHASING PRACTICES. (a)
31-24 The internal auditor shall frequently audit the purchasing
31-25 practices of the state agency. The audits must include an audit of
31-26 the state agency's compliance with applicable provisions of the
31-27 state's program to assist historically underutilized businesses to
32-1 participate in state contracting opportunities.
32-2 (b) The internal auditor shall investigate any exceptions or
32-3 issues raised by the General Services Commission or the comptroller
32-4 relating to the state agency's purchasing practices and, if
32-5 possible, report the findings of the investigation to the
32-6 administrator before the administrator responds to the commission
32-7 or the comptroller.
32-8 (c) The administrator shall report the results of the audits
32-9 and investigations performed by the internal auditor under this
32-10 section, together with the administrator's response to any
32-11 exceptions or issues raised by the General Services Commission or
32-12 the comptroller relating to the state agency's purchasing
32-13 practices, to the state auditor, the comptroller, and the General
32-14 Services Commission.
32-15 SECTION 21. (a) Section 2251.026, Government Code, is
32-16 amended to read as follows:
32-17 Sec. 2251.026. PAYMENT OF INTEREST BY STATE AGENCY. (a) If
32-18 the warrant for a payment the originating state agency owes is not
32-19 mailed or electronically transmitted before the payment is overdue,
32-20 the agency is liable for an interest payment that accrues under
32-21 this chapter.
32-22 (b) The comptroller shall compute interest imposed on the
32-23 state agency under this chapter.
32-24 (c) The comptroller shall pay the interest at the time
32-25 payment is made on the principal.
32-26 (d) The comptroller shall submit the interest payment with
32-27 the net amount due for goods and services.
33-1 (e) The comptroller and the state agency may not require a
33-2 vendor to petition, bill, or wait an additional day to receive the
33-3 interest due.
33-4 (f) The comptroller may require necessary and timely
33-5 information and adopt rules to administer this section.
33-6 (b) This section takes effect September 1, 1997. The change
33-7 in law made by this section applies only to interest on a payment
33-8 by a state agency that becomes overdue under Chapter 2251,
33-9 Government Code, on or after that date. Interest on a payment by a
33-10 state agency that becomes overdue under Chapter 2251, Government
33-11 Code, before that date is governed by Section 2251.026, Government
33-12 Code, as it exists on the date the payment becomes overdue, and the
33-13 prior law is continued in effect for this purpose.
33-14 SECTION 22. (a) The state auditor and the advisory
33-15 committee on procurement established by this Act shall study how
33-16 the classification levels of state agency purchasing personnel
33-17 should be revised to reflect the increased levels of responsibility
33-18 and accountability given to state agency purchasing personnel under
33-19 the changes in law made by this Act. The state auditor and the
33-20 committee should consider how best to provide purchasing personnel
33-21 with a pay scale and a career path, including goals, incentives,
33-22 and initiatives, commensurate with the purchaser's knowledge,
33-23 authority, and responsibility.
33-24 (b) The state auditor and the committee shall present their
33-25 written recommendations and the results of their study to the
33-26 legislature not later than November 1, 1996.
33-27 SECTION 23. The commission may conduct pilot studies of
34-1 regional contracts and no-stock contracts.
34-2 SECTION 24. The Legislative Budget Board and the division of
34-3 the governor's office that works with budget and planning issues
34-4 shall study and consider:
34-5 (1) ways to obtain information about planned state
34-6 procurements as part of the reporting and information gathering
34-7 functions of the state's appropriations process; and
34-8 (2) ways to use that information to increase the
34-9 state's buying power.
34-10 SECTION 25. The General Services Commission shall gradually
34-11 phase in, in the most cost-effective manner and in accordance with
34-12 available appropriations, the changes in law made by this Act that
34-13 require the establishment of electronic or automated marketplaces,
34-14 networks, or databases.
34-15 SECTION 26. Sections 3.0221 and 3.09(d), State Purchasing
34-16 and General Services Act (Article 601b, Vernon's Texas Civil
34-17 Statutes), are repealed.
34-18 SECTION 27. (a) Section 2251.041, Government Code, is
34-19 repealed.
34-20 (b) This section takes effect September 1, 1997. The change
34-21 in law made by this section applies only to interest on a payment
34-22 by a state agency that becomes overdue under Chapter 2251,
34-23 Government Code, on or after that date. Interest on a payment by a
34-24 state agency that becomes overdue under Chapter 2251, Government
34-25 Code, before that date is governed by Section 2251.041, Government
34-26 Code, as it exists on the date the payment becomes overdue, and the
34-27 prior law is continued in effect for this purpose.
35-1 SECTION 28. Except as otherwise provided by this Act, this
35-2 Act takes effect September 1, 1995.
35-3 SECTION 29. 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.