By Wolens H.B. No. 2336
75R8553 T
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 2155.006, Government Code, is added to
1-6 read as follows:
1-7 Sec. 2155.006. AUTHORITY TO PROMULGATE RULES. The
1-8 commission may promulgate rules to efficiently and effectively
1-9 administer the provisions of Subtitle D, Title 10, Government Code.
1-10 SECTION 2. Section 2155.065, Government Code, is amended to
1-11 read as follows:
1-12 Sec. 2155.065. Contracts With Department of Criminal
1-13 Justice. The commission is authorized to make contracts with the
1-14 Texas Department of Criminal Justice for the purchase of goods and
1-15 services for use by another state agency. The Texas Department of
1-16 Criminal Justice shall test the goods and services in accordance
1-17 with Section 2155.069, Government Code, to the extent necessary to
1-18 ensure quality, based on considerations of the product, purchase
1-19 price, performance, delivery, and life cycle cost before entering
1-20 into a contract. The commission shall make awards based on best
1-21 value for products under this section.
1-22 SECTION 3. Section 2155.068, Government Code, is amended to
1-23 read as follows:
1-24 Sec. 2155.068. Uniform Standards and Specifications.
2-1 (a) The commission may coordinate uniform standards and
2-2 specifications for goods purchased by the commission. The
2-3 commission may adopt, by rule, appropriate standards developed by
2-4 nationally recognized entities as part of its specifications and
2-5 standards program.
2-6 (b) The commission shall enlist the cooperation of other
2-7 state agencies in the establishment, maintenance, and revision of
2-8 uniform standards and specifications. [and shall foster their use
2-9 to accomplish continuously the most efficient purchase of goods.]
2-10 (c) The commission shall review contracts [and procedures]
2-11 administered by the commission to ensure that all goods and
2-12 services meet contract specifications.
2-13 (d) As part of the standards and specifications program, the
2-14 commission shall review contracts for opportunities to include
2-15 recycling waste produced at state buildings.
2-16 SECTION 4. Section 2155.069, Government Code, is amended to
2-17 read as follows:
2-18 Sec. 2155.069. Testing and Inspection. (a) The commission
2-19 may [shall] test and inspect goods and services purchased from
2-20 contracts administered by the commission [under a program] to
2-21 ensure compliance with specifications.
2-22 (b) The commission may contract for testing under this
2-23 section.
2-24 (c) The commission may [shall provide for] test[ing] and
2-25 inspect[ion of] purchases exempted from the commission on a cost
2-26 recovery basis, [all costly purchases] and may adopt rules
2-27 necessary to carry out [this duty] such testing and inspection.
3-1 (d) The commission may also test and inspect products before
3-2 they are purchased. Other state agencies may test products before
3-3 purchase under standard industry testing methods, or may contract
3-4 for testing. The commission may also disseminate information to
3-5 agencies about available private testing facilities.
3-6 SECTION 5. Section 2155.070, Government Code, is amended to
3-7 read as follows:
3-8 Sec. 2155.070. Failure to Meet Specifications. (a) A state
3-9 agency that determines that goods or services received from
3-10 contracts administered by the commission do not meet specifications
3-11 shall promptly notify the commission in writing of the reasons for
3-12 the determination. The commission shall immediately make its own
3-13 determination of whether the goods and services meet
3-14 specifications.
3-15 (b) The commission has the sole power to determine that
3-16 goods and services meet or fail to meet specifications.
3-17 (c) On determining that contract specifications or
3-18 conditions have not been met, the commission shall act against the
3-19 defaulting contractor, with the assistance of the Attorney General
3-20 as necessary.
3-21 (d) If the commission receives repeated complaints against a
3-22 vendor, the commission shall remove the vendor's name and related
3-23 class and item from the commission's bidders list for not longer
3-24 than one year. In the event complaints continue after one year, the
3-25 commission may bar the vendor from participating in state contracts
3-26 for a period under Section 2155.077, Government Code.
3-27 SECTION 6. Chapter 2155, Government Code, is amended by
4-1 adding Sections 2155.074-2155.077 to read as follows:
4-2 Sec. 2155.074. BEST VALUE STANDARD FOR PURCHASE OF GOODS OR
4-3 SERVICES. (a) Each state agency, including the commission, shall
4-4 purchase goods and services that provide the best value for the
4-5 state.
4-6 (b) In determining the best value for the state, the
4-7 commission or other state agency making a purchase is not
4-8 restricted to considering lowest price meeting specifications
4-9 alone, but subject to Section 2155.075, Government Code, may
4-10 consider other relevant factors, including:
4-11 (1) installation costs;
4-12 (2) life cycle costs;
4-13 (3) the quality and reliability of the good or
4-14 service;
4-15 (4) the delivery terms;
4-16 (5) indicators of probable vendor performance under
4-17 the contract such as past vendor performance, the vendor's
4-18 financial resources and ability to perform, the vendor's experience
4-19 and responsibility, and the vendor's ability to provide reliable
4-20 maintenance agreements and support;
4-21 (6) the cost of any employee training associated with
4-22 a purchase;
4-23 (7) the effect of a purchase on agency productivity;
4-24 and
4-25 (8) other factors relevant to determining the best
4-26 value for the state in the context of a particular purchase.
4-27 (c) When using factors other than price, during an
5-1 invitation for bid or request for proposal process, purchase price
5-2 is to be the dominant factor in each purchase decision; therefore,
5-3 the value assigned to every other individual evaluation factor
5-4 shall not exceed the value assigned to purchase price.
5-5 (d) When using factors other than price, during a
5-6 competitive bidding process for goods or services with a value in
5-7 excess of $100,000, the state agency shall consult with and receive
5-8 approval from the commission to use the additional factors listed
5-9 in subsection (b) above as a part of the evaluation criteria for
5-10 the purchase. The commission may, by rule, establish a higher
5-11 threshold level for the exercise of its review and approval
5-12 authority hereunder based on the criteria set forth in Section
5-13 2155.132(b).
5-14 Sec. 2155.075. REQUIREMENT TO SPECIFY VALUE FACTORS IN
5-15 REQUEST FOR BID OR PROPOSALS. (a) For a purchase made through
5-16 competitive bidding or competitive sealed proposal process, the
5-17 commission or other state agency must specify in the advertisement
5-18 the factors, other than price, that the commission or agency will
5-19 consider in determining which bid or proposal offers the best value
5-20 for the state, in accordance with Section 2155.074.
5-21 (b) For a purchase made through the competitive sealed
5-22 proposal process, the commission or other state agency may, after
5-23 opening the proposals and as a part of vendor's best and final
5-24 offer, the agency shall inform each vendor submitting a proposal of
5-25 any additional factors which will be considered in determining
5-26 which proposal offers the best value for the state. Such
5-27 notification must be made simultaneously to all vendors having
6-1 submitted responses.
6-2 Sec. 2155.076. PROTEST PROCEDURES. (a) Each state agency
6-3 shall develop and adopt, by rule, protest procedures for resolving
6-4 vendor protests relating to purchasing issues. Agency rules shall
6-5 be consistent with the commission protest procedures rules. The
6-6 rules must include standards for maintaining purchasing process
6-7 documentation to be used in the event of a protest.
6-8 (b) Agencies not subject to the administrative procedure
6-9 law, Chapter 2001, Government Code, shall provide public notice of
6-10 the proposed and adopted rules and provide a procedure for public
6-11 comment on the proposed rules.
6-12 Sec. 2155.077. BARRING VENDOR FROM PARTICIPATION IN STATE
6-13 CONTRACTS. (a) The commission may bar a vendor from participating
6-14 in state contracts that are subject to this Subtitle, including
6-15 contracts for which purchasing authority is delegated to a state
6-16 agency, for:
6-17 (1) substandard performance under a contract with the
6-18 state;
6-19 (2) material misrepresentations in a bid or proposal
6-20 for the state or a state agency or during the course of performing
6-21 a contract with the state or a state agency;
6-22 (3) fraud; or
6-23 (4) an act of breach under a state contract.
6-24 (b) The commission shall bar a vendor from participating in
6-25 state contracts under this section for a period that is
6-26 commensurate with the seriousness of the vendor's action and the
6-27 damage to the state's interests; and
7-1 (1) state generally the reasons for which a vendor may
7-2 be barred from participating in state contracts and the periods for
7-3 which the vendor may be barred; and
7-4 (2) prescribe the procedures under which the
7-5 commission will determine whether and for how long a vendor is
7-6 barred.
7-7 SECTION 7. Section 2155.132, Government Code, is amended to
7-8 read as follows:
7-9 Sec. 2155.132. Purchases Less Than Specified Monetary
7-10 Amount. (a) A state agency is delegated the authority to purchase
7-11 goods and services if the purchase does not exceed $15,000
7-12 [$5,000]. A state agency found through an audit by GSC to have not
7-13 followed the commission's rules or other laws related to the
7-14 procurements of goods and services under this delegated authority
7-15 shall be reported to the governor, lieutenant governor; speaker of
7-16 the house of representatives and Legislative Budget Board. [The
7-17 agency may, however, use the commission's services for those
7-18 purchases.]
7-19 (b) The commission, by rule, may delegate to a state agency
7-20 the authority to purchase goods and services if the purchase
7-21 exceeds $15,000 [$5,000]. In delegating purchasing authority under
7-22 this subsection or Section 2155.133, Government Code, the
7-23 commission shall require state agencies to perform or complete
7-24 certain purchasing functions, including:
7-25 (1) evaluating capabilities of the agency's purchasing
7-26 staff and the existence of automated purchasing tools at the
7-27 agency;
8-1 (2) ensuring appropriate certification levels are held
8-2 by the agency's purchasing personnel;
8-3 (3) requiring compliance with the commission's
8-4 procurement review audits of an agency's purchasing practices; and
8-5 (4) considering whether the agency has adopted and
8-6 published protest procedures consistent with those of the
8-7 commission as part of its purchasing rules.
8-8 (c) The commission shall monitor the purchasing practices of
8-9 state agencies that are making delegated purchases under Subsection
8-10 (b) of this Section or Section 2155.133, Government Code, to ensure
8-11 that the certification levels of the agency's purchasing personnel
8-12 and the quality of the agency's purchasing practices continue to
8-13 warrant the amount of delegated authority provided by the
8-14 commission to the agency. The commission may revoke for cause all
8-15 or part of the purchasing authority that the commission delegated
8-16 to a stage agency. The commission shall adopt rules to administer
8-17 this subsection.
8-18 (d) [(c)] The commission by rule:
8-19 (1) shall prescribe procedures for a delegated
8-20 purchase; and
8-21 (2) shall prescribe rules by which agencies may use
8-22 the commission's services for delegated purchases, in accordance
8-23 with Section 2155.205, Government Code. [may delegate to the
8-24 comptroller the commission's authority under Subchapter F to audit
8-25 purchases and purchase information if the purchases do not exceed
8-26 $500 or a greater amount prescribed by the commission.]
8-27 (e) [(d)] Competitive bidding, whether formal or informal,
9-1 is not required for a purchase by a state agency if the purchase
9-2 does not exceed $2,000 [$1,000], or a greater amount prescribed by
9-3 commission rule.
9-4 (f) [(e)] Goods purchased under this section may not
9-5 include:
9-6 (1) an item for which a contract has been awarded
9-7 under the contract purchase procedure, unless the quantity
9-8 purchased is less than the minimum quantity specified in the
9-9 contract;
9-10 (2) an item required by statute to be purchased from a
9-11 particular source; or
9-12 (3) a scheduled item that has been designated for
9-13 purchase by the commission.
9-14 (g) [(f)] A large purchase may not be divided into small lot
9-15 purchases to meet the dollar limits prescribed by this section.
9-16 The commission may not require that unrelated purchases be combined
9-17 into one purchase order to exceed the dollar limits prescribed by
9-18 this section.
9-19 (h) [(g)] A state agency making a purchase under this
9-20 section for which competitive bidding is required must:
9-21 (1) attempt to obtain at least three competitive bids
9-22 from sources listed on the master bidders list that normally offer
9-23 for sale the goods being purchased; and
9-24 (2) comply with Subchapter E.
9-25 SECTION 8. Section 2155.134, Government Code, is amended to
9-26 read as follows:
9-27 Sec. 2155.134. Group Purchasing Programs. (a) An
10-1 institution of higher education, as defined by Section 61.003,
10-2 Education Code, may purchase goods through a group purchasing
10-3 program that offers discount prices to institutions of higher
10-4 education.
10-5 (b) The commission shall adopt rules that allow institutions
10-6 of higher education or state agencies to make purchases [purchases
10-7 to be made] through group purchasing programs except when the
10-8 commission determines within a reasonable time after receiving
10-9 notice of a particular purchase that a better value [lower price]
10-10 is available through the commission.
10-11 (c) The rules must provide for commission determination of
10-12 compliance with state laws and commission rules on purchasing from
10-13 a historically underutilized business.
10-14 (d) This section does not affect other authority granted to
10-15 an institution of higher education under this subtitle.
10-16 SECTION 9. Section 2155.138, Government Code, is amended to
10-17 read as follows:
10-18 Sec. 2155.138. Exemption of Goods or Services of Blind or
10-19 Visually Impaired Persons. (a) The competitive bidding provisions
10-20 of this chapter do not apply to a state purchase of goods or
10-21 services that:
10-22 (1) are made or provided by blind or visually impaired
10-23 persons;
10-24 (2) are offered for sale to a state agency through
10-25 efforts made under law by the Texas Council on Purchasing from
10-26 People with Disabilities [Committee on Purchases of Products and
10-27 Services of Blind and Severely Disabled Persons];
11-1 (3) meet state specifications as to [for] quantity,
11-2 [and] quality, delivery and life cycle costs; and
11-3 (4) cost not more than the fair market price of
11-4 similar items.
11-5 (b) The council shall test the goods and services in
11-6 accordance with Section 2155.069, Government Code, to the extent
11-7 necessary to ensure quality, based on considerations of product,
11-8 purchase price, life cycle cost and delivery performance. The
11-9 council may enter into a contract with a private or public entity
11-10 to assist with testing. The commission shall consider best value
11-11 for goods and services purchased under this section.
11-12 SECTION 10. Chapter 2155, Government Code, is amended by
11-13 adding Sections 2155.144-2155.148, to read as follows:
11-14 Sec. 2155.144. TRAINING AND CERTIFICATION OF STATE AGENCY
11-15 PURCHASING PERSONNEL. (a) The commission shall establish and
11-16 administer a system of training, continuing education, and
11-17 certification for state agency purchasing personnel. The
11-18 commission may adopt rules to administer this section, including
11-19 rules relating to monitoring certified purchaser's compliance with
11-20 the continuing education requirements of this section.
11-21 (b) All state agency purchasing personnel, including
11-22 agencies with exempted purchasing authority from the commission,
11-23 must receive the training and continuing education to the extent
11-24 required by rule of the commission. A state agency employee who is
11-25 required to receive the training or continuing education may not
11-26 participate in purchases by the employing agency unless the
11-27 employee has received the required training.
12-1 (c) The commission shall set and collect a fee from state
12-2 agencies that employ purchasing personnel. The commission shall
12-3 set the fee in an amount that recovers the commission's costs under
12-4 this section.
12-5 (d) The commission may provide training, continuing
12-6 education, and certification under this section to purchasing
12-7 personnel employed by a political subdivision or other public
12-8 entity of the state. Political subdivision purchasing personnel
12-9 may receive, but are not required to receive, the training,
12-10 continuing education, or certification provided under this section.
12-11 The commission shall collect the fees described by Subsection (c)
12-12 for training, education, or certification under this subsection.
12-13 (e) The commission may provide training and continuing
12-14 education under this section using its own personnel or through
12-15 contracts with private entities. The commission may also, by
12-16 agreement with a public entity, use the services of persons
12-17 employed by the public entity to provide training and continuing
12-18 education under this section.
12-19 (f) The commission shall provide at least three levels of
12-20 training under this section.
12-21 (g) The basic training level must include an introduction to
12-22 contract purchasing methods, ethical issues impacting purchasing
12-23 decisions, and instruction in any other processes and issues that
12-24 the commission considers appropriate for introductory purchasing
12-25 training.
12-26 (h) The second training level must include advanced
12-27 instruction in formal and informal bidding methods, introduction to
13-1 negotiation methods, instruction in writing specifications and
13-2 instruction in any other processes and issues that the commission
13-3 considers appropriate for the second level of purchasing training.
13-4 (i) The third training level must include an introduction to
13-5 complex negotiations, instruction in the criteria for determining
13-6 which product or service offers the best value for the state, and
13-7 instruction in any other processes and issues that the commission
13-8 considers appropriate for advanced purchasing training.
13-9 (j) The commission may prescribe the circumstances under
13-10 which a state agency may delegate to a certified purchaser
13-11 signature purchasing authority to approve purchase orders.
13-12 (k) The commission shall require 24 hours of continuing
13-13 education each year to maintain a certification level. The
13-14 commission may allow attendance at training classes created as a
13-15 result of this section to count toward the continuing education
13-16 requirement.
13-17 (l) The commission's prerequisites for receiving a level two
13-18 purchaser certification must include completion of the basic
13-19 training level, passage of a written examination, and a minimum
13-20 number of years of purchasing experience prescribed by the
13-21 commission.
13-22 (m) The commission's prerequisites for receiving a level
13-23 three purchaser certification must include completion of the second
13-24 training level, passage of a written and an oral examination, and a
13-25 minimum of three years of purchasing experience.
13-26 Sec. 2155.145. BUYING UNDER CONTRACT ESTABLISHED BY AGENCY
13-27 OTHER THAN COMMISSION. (a) The commission shall adopt rules
14-1 specifying the circumstances under which it is advantageous for the
14-2 state to allow a state agency to purchase goods or services under a
14-3 contract made by another state agency other than the commission.
14-4 (b) If commission rules allow other agencies to make
14-5 purchases under a contract entered into by an agency using
14-6 delegated authority, the agency exercising delegated authority may
14-7 only offer the goods or services available under the contract if it
14-8 first:
14-9 (1) establishes that the goods and services being
14-10 offered under its contract are not available on a contract entered
14-11 into by the commission;
14-12 (2) informs the commission of the terms of the
14-13 contract and the capabilities of the vendor; and
14-14 (3) posts notice of the existence and terms of the
14-15 contract on the procurement marketplace.
14-16 Sec. 2155.146. ADVISORY COMMITTEE ON PROCUREMENT. (a) The
14-17 commission may establish an advisory committee on procurement. The
14-18 purpose of the committee is to represent before the commission the
14-19 state agency purchasing community and the political subdivisions
14-20 that use the commission's purchasing services.
14-21 (b) The committee is composed of employees from the
14-22 commission, state agencies, including institutions of higher
14-23 education, and political subdivisions who are invited by the
14-24 commission to serve on the committee. The commission shall invite
14-25 officers and employees who are experienced in public purchasing, in
14-26 public finance, or who possess other appropriate expertise to serve
14-27 on the committee. Service on the committee is an additional duty
15-1 of the member's public office or employment. Article 6252-33,
15-2 Revised Statutes, does not apply to the size or composition of the
15-3 committee. The commission shall set staggered terms for the
15-4 members of the committee.
15-5 (c) The committee may establish its own rules of operation.
15-6 (d) The committee shall recommend improvements in commission
15-7 or state agency purchasing practices to the commission. The
15-8 committee shall review and comment on findings and recommendations
15-9 related to purchasing that are made by state agency internal
15-10 auditors or by the state auditor.
15-11 Sec. 2155.147. VENDOR ADVISORY COMMITTEE. (a) The
15-12 commission may establish a vendor advisory committee. The purpose
15-13 of the committee is to represent before the commission the vendor
15-14 community, to provide information to vendors, and to obtain vendor
15-15 input on state procurement practices.
15-16 (b) The committee is composed of employees from the
15-17 commission and vendors who have done business with the state who
15-18 are invited by the commission to serve on the committee. The
15-19 commission shall invite a cross-section of the vendor community to
15-20 serve on the committee, inviting both large and small businesses,
15-21 and vendors who provide a variety of different goods and services
15-22 to the state. Article 6252-33, Revised Statutes, does not apply to
15-23 the size or composition of the committee. The commission shall set
15-24 staggered terms for the members of the committee.
15-25 (c) The committee may establish its own rules of operation,
15-26 but shall post notice of and hold its meetings in accordance with
15-27 the open meetings law, Chapter 551, Government Code.
16-1 SECTION 11. Section 2155.205, Government Code, is added to
16-2 read as follows:
16-3 Sec. 2155.205. PROVIDING CERTAIN PURCHASING SERVICES ON
16-4 FEE-FOR-SERVICE BASIS. (a) The commission using the best value
16-5 analysis or competitive seal proposal process, may provide open
16-6 market purchasing services on a fee-for-service basis for state
16-7 agency purchases that are exempted from the commission or delegated
16-8 to an agency under Sections 2155.132, 2155.133 and 2157.121,
16-9 Government Code. The commission shall set the fees in an amount
16-10 that recovers the commission's costs in providing the services.
16-11 (b) The commission shall publish a schedule of its fees for
16-12 services that are subject to this section. The schedule must
16-13 include the commission's fees for:
16-14 (1) reviewing bid and contract documents for clarity,
16-15 completeness, and compliance with laws and rules;
16-16 (2) developing and transmitting invitations to bid;
16-17 (3) receiving and tabulating bids;
16-18 (4) evaluating and determining which bidder offers the
16-19 best value to the state;
16-20 (5) creating and transmitting purchase orders; and
16-21 (6) participating in agencies' request for proposal
16-22 processes.
16-23 SECTION 12. Section 2155.263, Government Code, is amended to
16-24 read as follows:
16-25 Sec. 2155.263. Commission to Maintain Master Bidders List.
16-26 (a) The commission shall maintain a centralized master bidders
16-27 list and annually register on the list the name and address of each
17-1 vendor that applies for registration under rules adopted under this
17-2 subchapter. The commission may include other relevant vendor
17-3 information on the list.
17-4 (b) The commission shall maintain the master bidders list in
17-5 a manner that facilitates a state agency's solicitation of vendors
17-6 that serve the agency's geographic area.
17-7 (c) The master bidders list shall be used for all available
17-8 procurement processes authorized by this Subtitle and shall be used
17-9 by state agencies that are otherwise exempt from the commission's
17-10 purchasing authority.
17-11 SECTION 13. Section 2155.441, Government Code, is amended to
17-12 read as follows:
17-13 Sec. 2155.441. Preference for Products of Persons With
17-14 Mental Retardation and Physical Disabilities. The products of
17-15 workshops, organizations, or corporations whose primary purpose is
17-16 training and employing individuals having mental retardation or a
17-17 physical disability shall be given preference if they meet state
17-18 specifications regarding quantity, quality, delivery, life cycle
17-19 cost and price. The workshops, organizations or corporations shall
17-20 test the products in accordance with Section 2155.069, Government
17-21 Code, to ensure quality based on considerations of the product,
17-22 purchase price, its life cycle cost and delivery performance, and
17-23 may enter into contracts with a private or public entity to assist
17-24 with testing. The commission shall consider best value for
17-25 products purchased under this section.
17-26 SECTION 14. Section 2156.005, Government Code, is amended to
17-27 read as follows:
18-1 Sec. 2156.005. Bid Submission and Opening; Public
18-2 Inspection. (a) A bidder must submit a sealed bid to the
18-3 commission or state agency making a purchase. The bid must be
18-4 identified on the envelope.
18-5 (b) The commission or state agency making a purchase shall
18-6 open bids at the time and place stated in the invitation to bid.
18-7 [(c) The state auditor or a member of the state auditor's
18-8 staff may be present at a bid opening.]
18-9 (c) [(d)] The commission shall keep a tabulation of all bids
18-10 received and administered by the commission available for public
18-11 inspection under rules adopted by the commission. State agencies
18-12 making purchases shall adopt the commission's regulations related
18-13 to bid opening and tabulation.
18-14 SECTION 15. Section 2156.007, Government Code, is amended to
18-15 read as follows:
18-16 Sec. 2156.007. Contract Award. (a) The commission or state
18-17 agency making a purchase shall award a contract to the bidder
18-18 offering the best value to the state while [submitting the lowest
18-19 and best bid] conforming to the specifications required.
18-20 (b) In determining the [lowest and best] bidder offering the
18-21 best value and meeting specifications, the commission or state
18-22 agency may consider the safety record of the bidder, the entity
18-23 represented by the bidder, and any person acting for the
18-24 represented entity only if:
18-25 (1) the commission or state agency has adopted a
18-26 written definition and criteria for accurately determining the
18-27 safety record of a bidder; and
19-1 (2) the commission or state agency provided [gave]
19-2 notice in the bid specifications to prospective bidders that a
19-3 bidder's safety record may be considered in determining the [lowest
19-4 and best] bidder offering the best value to the state.
19-5 (c) A determination of a bidder's safety record may not be
19-6 arbitrary and capricious.
19-7 (d) In determining the [lowest] bidder offering the best
19-8 value and meeting specifications [and best bidder], in addition to
19-9 price, the commission or state agency shall consider:
19-10 (1) the quality and availability of the goods or
19-11 contractual services and their adaptability to the use required;
19-12 (2) the [number and] scope of conditions attached to
19-13 the bid;
19-14 (3) the bidder's ability, capacity, and skill to
19-15 perform the contract or provide the service required;
19-16 (4) the bidder's ability to perform the contract or
19-17 provide the service promptly, or in the time required, without
19-18 delay or interference;
19-19 (5) the bidder's character, responsibility, integrity,
19-20 [reputation,] and experience;
19-21 (6) the quality of performance of previous contracts
19-22 or services;
19-23 (7) the bidder's previous and existing compliance with
19-24 laws relating to the contract or service;
19-25 (8) the bidder's previous or existing noncompliance
19-26 with specification requirements relating to the time of submission
19-27 of specified information, including samples, models, drawings, or
20-1 certificates;
20-2 (9) the sufficiency of the bidder's financial
20-3 resources and ability to perform the contract or provide the
20-4 service; and
20-5 (10) the bidder's ability to provide future
20-6 maintenance, repair parts, and service for the use of the
20-7 contract's subject.
20-8 SECTION 16. Sections 2156.008-2156.010, Government Code, are
20-9 amended to read as follows:
20-10 Sec. 2156.008. Rejection of Bids. (a) The commission or
20-11 state agency making the purchase shall reject a bid in which there
20-12 is a material failure to comply with specification requirements.
20-13 (b) The commission or state agency making the purchase may
20-14 reject all bids or parts of bids if the rejection serves the
20-15 state's interest.
20-16 Sec. 2156.009. Reasons for Award. On award of a contract,
20-17 the division of the commission responsible for purchasing or the
20-18 state agency making the purchase shall prepare and file with other
20-19 records relating to the transaction a statement of the reasons for
20-20 making the award to the successful bidder and the factors
20-21 considered in determining which bidder offered the best value for
20-22 the state [the lowest and best bid].
20-23 Sec. 2156.010. Tie Bids. In the case of tie bids, the value
20-24 and cost to the state [quality and service] being equal, a contract
20-25 shall be awarded under commission rules.
20-26 SECTION 17. Sections 2156.062-2156.063, Government Code, are
20-27 amended to read as follows:
21-1 Sec. 2156.062. Minimum Number and Evaluation of Bids. All
21-2 purchases using a competitive bidding process [An open market
21-3 purchase] shall, to the extent possible, be:
21-4 (1) based on at least three competitive bids; and
21-5 (2) awarded to the [lowest and best] bidder offering
21-6 the best value to the state in accordance with standards set forth
21-7 in Chapters 2155, 2156, 2157, and 2158.
21-8 Sec. 2156.063. Solicitation of Bids. The commission and
21-9 each agency making a purchase shall solicit bids under this
21-10 subchapter by direct mail, telephone, or telegraph.
21-11 SECTION 18. Section 2156.065, Government Code, is amended to
21-12 read as follows:
21-13 Sec. 2156.065. Agency Review of Bids. (a) Upon [On] the
21-14 request of a state agency to review the bids on a purchase
21-15 administered by the commission, the commission shall send or make
21-16 available to the requesting agency copies of each bid received and
21-17 the commission's recommended award.
21-18 (b) If, after review of the bids and evaluation of the
21-19 quality of goods or services offered in the bids, the state agency
21-20 determines that the bid selected by the commission does [is] not
21-21 offer the best value for the state [the lowest and best bid], the
21-22 agency may file with the commission a written recommendation that
21-23 the award be made to the bidder who, according to the agency's
21-24 determination, offers the best value for the state [made the lowest
21-25 and best bid]. The agency recommendation must include a
21-26 justification of the agency's determination.
21-27 (c) The commission shall consider, but is not bound by, the
22-1 agency recommendation in making the award.
22-2 SECTION 19. Section 2156.066, Government Code, is amended to
22-3 read as follows:
22-4 Sec. 2156.066. Statement of Reasons for Award. The division
22-5 of the commission responsible for purchasing or the state agency
22-6 making a purchase shall prepare and file with other records
22-7 relating to a transaction under this subchapter a statement of the
22-8 reasons for placing an order with a successful bidder for the
22-9 transaction and the factors considered in determining the [lowest
22-10 and best] bid offering the best value for the state [for the
22-11 transaction].
22-12 SECTION 20. Section 2157.003, Government Code, is amended to
22-13 read as follows:
22-14 Sec. 2157.003. DETERMINING BEST VALUE FOR PURCHASES OF
22-15 AUTOMATED INFORMATION SYSTEMS. (a) "Best value," for purposes of
22-16 this chapter, means the lowest overall cost of an automated
22-17 information system. In determining the lowest overall cost for a
22-18 purchase or lease of an automated information system under this
22-19 chapter, the commission or a state agency shall consider factors
22-20 including:
22-21 (1) the purchase price;
22-22 (2) the compatibility to facilitate the exchange of
22-23 existing data;
22-24 (3) the capacity for expanding and upgrading to more
22-25 advanced levels of technology;
22-26 (4) quantitative reliability factors;
22-27 (5) the level of training required to bring persons
23-1 using the system to a stated level of proficiency;
23-2 (6) the technical support requirements for the
23-3 maintenance of data across a network platform and the management of
23-4 the network's hardware and software; and
23-5 (7) the compliance with applicable Department of
23-6 Information Resources statewide standards validated by criteria
23-7 adopted by the department by rule.
23-8 (b) In using "best value" as defined in this Section, the
23-9 commission or state agency making a purchase shall also comply with
23-10 Section 2155.074(c) and 2155.075, Government Code.
23-11 SECTION 21. Section 2157.0611, Government Code, is added to
23-12 read as follows:
23-13 Sec. 2157.0611. MINIMUM NUMBER OF AUTOMATED INFORMATION
23-14 SYSTEMS TO BE CONSIDERED. A catalogue purchase shall, to the
23-15 extent possible, be:
23-16 (1) based on at least three catalogue proposals
23-17 provided by qualified information system vendors; and
23-18 (2) when three catalogue proposals are not available
23-19 for consideration, the commission or state agency making the
23-20 purchase must document why three catalogue entries are not
23-21 available prior to proceeding under Section 2157.063, Government
23-22 Code.
23-23 SECTION 22. Section 2157.121, Government Code, is amended to
23-24 read as follows:
23-25 Sec. 2157.121. Acquisition Through Competitive Sealed
23-26 Proposals. (a) The commission or state agency making a purchase
23-27 may acquire goods and services [a telecommunications device,
24-1 system, or service or automated information system] by using
24-2 competitive sealed proposals if the commission determines [by rule]
24-3 that competitive sealed bidding and informal competitive bidding
24-4 are not practical or are disadvantageous to the state.
24-5 (b) The requesting agency shall consult and receive approval
24-6 from the commission to develop specifications for a competitive
24-7 sealed proposal process and review criteria for a request for
24-8 competitive sealed proposals under this chapter.
24-9 SECTION 23. Sections 2157.122-2157.125, Government Code, are
24-10 amended to read as follows:
24-11 Sec. 2157.122. Solicitation of Proposals; Public Notice.
24-12 The commission or state agency making a purchase shall:
24-13 (1) solicit proposals under this subchapter by a
24-14 request for proposals; and
24-15 (2) give public notice of the request in the manner
24-16 provided for requests for bids under Subchapter B, Chapter 2156.
24-17 Sec. 2157.123. Opening and Filing Proposals; Public
24-18 Inspection. (a) The commission or state agency making a purchase
24-19 shall avoid disclosing the contents of each proposal on opening the
24-20 proposal and during negotiations with competing offerors.
24-21 (b) The commission or state agency shall file each proposal
24-22 in a register of proposals, which, after a contract is awarded, is
24-23 open for public inspection unless the register contains information
24-24 that is excepted from disclosure [as an open record] under
24-25 Subchapter C, Chapter 552.
24-26 Sec. 2157.124. Discussion and Revision of Proposal. (a) As
24-27 provided by a request for proposals and under commission rules, the
25-1 commission or state agency making a purchase may discuss an
25-2 acceptable or potentially acceptable proposal with an offer or to
25-3 assess the offeror's ability to meet the solicitation requirements.
25-4 When the commission is managing the request for proposal process,
25-5 it [and] shall invite a requisitioning agency to participate in
25-6 discussions conducted under this section.
25-7 (b) After receiving a proposal but before making an award,
25-8 the commission or state agency may permit an offeror to revise a
25-9 proposal to obtain the best final offer.
25-10 (c) The commission or state agency may not disclose
25-11 information derived from a proposal submitted by a competing
25-12 offeror in conducting discussions under this section.
25-13 (d) The commission or state agency shall provide each
25-14 offeror an equal opportunity to discuss and revise proposals.
25-15 Sec. 2157.125. Contract Award; Factors Considered. (a) The
25-16 commission or state agency making a purchase shall make a written
25-17 award of a purchase or lease to the offeror whose proposal under
25-18 this subchapter offers [is] the best value for [most advantageous
25-19 to] the state, considering price, past vendor performance, vendor
25-20 experience, and the evaluation factors in the request for
25-21 proposals.
25-22 (b) The commission or state agency shall refuse all offers
25-23 if no offer submitted is acceptable.
25-24 (c) In determining which [whether a] proposal under this
25-25 subchapter offers the best value for [is most advantageous to] the
25-26 state, the commission or state agency shall consider factors
25-27 including:
26-1 (1) the [installation] cost;
26-2 (2) the overall life of the goods [system or
26-3 equipment];
26-4 (3) the cost of acquisition, operation, and
26-5 maintenance [of hardware included with,] associated with[, or
26-6 required for] the goods [system or equipment] during the state's
26-7 ownership or lease;
26-8 (4) the cost of acquisition, operation, and
26-9 maintenance of software included with, associated with, or required
26-10 for a proposed automated information [the] system or item of
26-11 equipment during the state's ownership or lease;
26-12 (5) the estimated cost of other supplies needed
26-13 because of the acquisition;
26-14 (6) the estimated cost of employee training needed
26-15 because of the acquisition;
26-16 (7) the estimated cost of necessary additional
26-17 permanent employees because of the acquisition; and
26-18 (8) the estimated increase in employee productivity
26-19 because of the acquisition.
26-20 (d) The commission or state agency shall state in writing in
26-21 the contract file the reasons for making an award.
26-22 SECTION 24. Section 2162.106, Government Code, is amended to
26-23 read as follows:
26-24 Sec. 2162.106. PERSONNEL DEVELOPMENT STUDY. (a) The state
26-25 auditor and the advisory committee on procurement established by
26-26 this Title shall study how the classification levels of state
26-27 agency purchasing personnel should be revised to reflect the
27-1 increased levels of responsibility and accountability given to
27-2 state agency purchasing personnel under the changes in law made by
27-3 this Act. The state auditor and the committee should consider how
27-4 best to provide purchasing personnel with a pay scale and a career
27-5 path, including goals, incentives, and initiatives, commensurate
27-6 with the purchaser's knowledge, authority, and responsibility.
27-7 (b) The state auditor and the committee shall present their
27-8 written recommendations and the results of their study to the
27-9 legislature not later than January 1, 1999.
27-10 SECTION 25. Section 2101.038, Government Code, is amended to
27-11 read as follows:
27-12 Sec. 2101.038. Duties of the State Auditor. The state
27-13 auditor, when reviewing the operation of a state agency, shall
27-14 audit for compliance with the uniform statewide accounting system,
27-15 the comptroller's rules, [and] the Legislative Budget Board's
27-16 performance and workload measures, and compliance with the
27-17 practices of Subtitle D of this Title for those agencies with
27-18 purchasing authority exempted from direct commission jurisdiction.
27-19 The state auditor shall notify the project advisory committee, the
27-20 controller, the governor, the Lieutenant Governor, Speaker of the
27-21 House and the Legislative Budget Board as soon as practicable when
27-22 a state agency is not in compliance.
27-23 SECTION 26. Section 496.051, Government Code, is amended to
27-24 read as follows:
27-25 Sec. 496.051. Purchasing Procedures. (a) The department
27-26 shall comply with any special purchasing procedures requiring
27-27 competitive review under the State Purchasing and General Services
28-1 Act (Article 601b, Vernon's Texas Civil Statutes). The department
28-2 shall test the goods and services that it purchases in accordance
28-3 with Section 2155.069, Government Code, and may enter into a
28-4 contract with a private or public entity to assist with testing.
28-5 (b) The board may authorize the executive director to adopt
28-6 policies allowing the institutional division to purchase directly
28-7 or at public auction livestock, agricultural commodities,
28-8 agricultural or industrial equipment, supplies, and raw materials
28-9 for agricultural or industrial production, breeding, consumption,
28-10 or resale, if the division determines that the purchase is
28-11 economically advantageous to the division. The State Purchasing
28-12 and General Services Act (Article 601b, Vernon's Texas Civil
28-13 Statutes) does not apply to purchases made under this subsection.
28-14 The institutional division shall notify the General Services
28-15 Commission as soon as practicable of a purchase made under this
28-16 subsection and the purchase price.
28-17 (c) To carry out Subsection (b), the industrial and
28-18 agricultural fund is created. The fund must be deposited in a
28-19 local bank. The fund may be expended only for purchases under
28-20 Subsection (b). Unexpended balances of the fund must be carried
28-21 forward from fiscal year to fiscal year.
28-22 SECTION 27. Section 122.007, Human Resources Code, is
28-23 amended to read as follows:
28-24 Sec. 122.007. Fair Market Price; Purchasing Procedure. (a)
28-25 The council shall ensure best value according to Section 2155.077,
28-26 Government Code, and determine the fair market price of all
28-27 products and services manufactured or provided by persons with
29-1 disabilities and offered for sale to the various agencies and
29-2 departments of the state and its political subdivisions by a
29-3 community rehabilitation program.
29-4 (b) A subcommittee composed of three council members
29-5 appointed by the presiding officer shall ensure best value
29-6 according to Section 2155.077, Government Code, and review the data
29-7 used to determine fair market price and shall make recommendations
29-8 to the council concerning fair market price for products and
29-9 services.
29-10 (c) The council shall revise the prices periodically to
29-11 reflect changing market conditions.
29-12 (d) Prior to offering for sale to the various state agencies
29-13 products and services manufactured or provided by persons with
29-14 disabilities, the council shall test the goods and services in
29-15 accordance with Section 2155.069, Government Code, to the extent
29-16 necessary to ensure quality. The council may enter into a contract
29-17 with a private or public entity to assist with testing. The
29-18 commission shall consider best value and the price for goods and
29-19 services purchased under this section.
29-20 (e) Requisitions for products and services required by state
29-21 agencies are processed by the commission according to rules
29-22 established by the commission.
29-23 SECTION 28. Depending on the results of the feasibility
29-24 study authorized in Section 2177.103, Government Code, the General
29-25 Services Commission shall phase in, subject to available
29-26 appropriations, the changed in law make by this Act relating to the
29-27 establishment of an electronic marketplace and network systems.
30-1 SECTION 29. Sections 2155.067(e), 2156.121-2156.130,
30-2 Government Code, are repealed.
30-3 SECTION 30. This Act shall take effect on September 1, 1997.
30-4 SECTION 31. The importance of this legislation and the
30-5 crowded condition of the calendars in both houses create an
30-6 emergency and an imperative public necessity that the
30-7 constitutional rule requiring bills to be read on three several
30-8 days in each house be suspended, and this rule is hereby suspended.