By: Zaffirini S.B. No. 1066
A BILL TO BE ENTITLED
AN ACT
1-1 relating to procurement practices by health and human services
1-2 agencies, by certain other agencies with programs related to health
1-3 or human services, and by certain public and private local
1-4 providers of health or human services.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter C, Chapter 2155, Government Code, is
1-7 amended by adding Section 2155.144 to read as follows:
1-8 Sec. 2155.144. PROCUREMENTS BY HEALTH AND HUMAN SERVICES
1-9 AGENCIES AND WORKERS' COMPENSATION COMMISSION. (a) This section
1-10 applies only to the Health and Human Services Commission, to each
1-11 health and human services agency, and to the Texas Workers'
1-12 Compensation Commission.
1-13 (b) An agency to which this section applies is delegated the
1-14 authority to procure its goods and services, except as provided by
1-15 this section.
1-16 (c) An agency to which this section applies shall acquire
1-17 goods or services by any procurement method approved by the Health
1-18 and Human Services Commission that provides the best value to the
1-19 agency. The agency shall document that it considered all relevant
1-20 factors under Subsection (d) in making the acquisition.
1-21 (d) Subject to Subsection (e), the agency may consider all
1-22 relevant factors in determining the best value, including:
1-23 (1) any installation costs;
2-1 (2) the delivery terms;
2-2 (3) the quality and reliability of the vendor's goods
2-3 or services;
2-4 (4) the extent to which the goods or services meet the
2-5 agency's needs;
2-6 (5) indicators of probable vendor performance under
2-7 the contract such as past vendor performance, the vendor's
2-8 financial resources and ability to perform, the vendor's experience
2-9 and responsibility, and the vendor's ability to provide reliable
2-10 maintenance agreements;
2-11 (6) the impact on the ability of the agency to comply
2-12 with laws and rules relating to historically underutilized
2-13 businesses;
2-14 (7) the total long-term cost to the agency of
2-15 acquiring the vendor's goods or services;
2-16 (8) the cost of any employee training associated with
2-17 the acquisition;
2-18 (9) the effect of an acquisition on agency
2-19 productivity;
2-20 (10) the acquisition price; and
2-21 (11) any other factor relevant to determining the best
2-22 value for the agency in the context of a particular acquisition.
2-23 (e) If an agency to which this section applies acquires
2-24 goods or services with a value that exceeds $100,000, the agency
2-25 shall consult with and receive approval from the Health and Human
3-1 Services Commission before considering factors other than price and
3-2 meeting specifications.
3-3 (f) The state auditor may audit the agency's acquisitions of
3-4 goods and services.
3-5 (g) The agency may adopt rules and procedures for the
3-6 acquisition of goods and services under this section.
3-7 (h) The Health and Human Services Commission shall adopt
3-8 rules and procedures for the acquisition of goods and services
3-9 under this section that apply to all health and human services
3-10 agencies, including rules adopted with the commission's assistance
3-11 that allow an agency to make purchases through a group purchasing
3-12 program except when a better value is available through another
3-13 procurement method. The rules of the health and human services
3-14 agencies must be consistent with the rules of the Health and Human
3-15 Services Commission.
3-16 (i) The Health and Human Services Commission shall
3-17 coordinate the procurement practices of all health and human
3-18 services agencies and encourage those agencies to use efficient
3-19 procurement practices such as the use of a group purchasing
3-20 program, combining maintenance contracts into one contract, and
3-21 obtaining prompt payment discounts. The Health and Human Services
3-22 Commission may transfer the procurement functions of a health and
3-23 human services agency to another appropriate state agency if it
3-24 determines that transferring those functions would be advantageous
3-25 to the state. Other state agencies and institutions with
4-1 experience in acquiring goods and services using the procedures
4-2 allowed under Subsections (c) and (d) shall on request assist the
4-3 Health and Human Services Commission to perform its functions under
4-4 this section.
4-5 (j) To the extent of any conflict, this section prevails
4-6 over any other state law relating to the procurement of goods and
4-7 services except a law relating to contracting with historically
4-8 underutilized businesses.
4-9 (k) In this section, "health and human services agency" has
4-10 the meaning assigned by Section 531.001.
4-11 SECTION 2. Subchapter B, Chapter 32, Human Resources Code,
4-12 is amended by adding Sections 32.043 and 32.044 to read as follows:
4-13 Sec. 32.043. PROCUREMENT RULES FOR PUBLIC DISPROPORTIONATE
4-14 SHARE HOSPITALS. (a) A public hospital that is designated as a
4-15 disproportionate share hospital during a fiscal year may acquire
4-16 goods and services in accordance with this section during the
4-17 succeeding fiscal year. A procurement of goods or services made in
4-18 accordance with this section is considered to satisfy any state law
4-19 requiring purchases by competitive bidding or competitive
4-20 proposals.
4-21 (b) The public hospital shall acquire goods or services by
4-22 any procurement method approved by the Health and Human Services
4-23 Commission that provides the best value to the public hospital.
4-24 The public hospital shall document that it considered all relevant
4-25 factors under Subsection (c) in making the acquisition.
5-1 (c) The public hospital may consider all relevant factors in
5-2 determining the best value, including:
5-3 (1) any installation costs;
5-4 (2) the delivery terms;
5-5 (3) the quality and reliability of the vendor's goods
5-6 or services;
5-7 (4) the extent to which the goods or services meet the
5-8 public hospital's needs;
5-9 (5) indicators of probable vendor performance under
5-10 the contract such as past vendor performance, the vendor's
5-11 financial resources and ability to perform, the vendor's experience
5-12 and responsibility, and the vendor's ability to provide reliable
5-13 maintenance agreements;
5-14 (6) the impact on the ability of the public hospital
5-15 to comply with laws and rules relating to historically
5-16 underutilized businesses;
5-17 (7) the total long-term cost to the public hospital of
5-18 acquiring the vendor's goods or services;
5-19 (8) the cost of any employee training associated with
5-20 the acquisition;
5-21 (9) the effect of an acquisition on the public
5-22 hospital's productivity;
5-23 (10) the acquisition price; and
5-24 (11) any other factor relevant to determining the best
5-25 value for the public hospital in the context of a particular
6-1 acquisition.
6-2 (d) The state auditor or the department may audit the public
6-3 hospital's acquisitions of goods and services to the extent that
6-4 state money or federal money appropriated by the state is used to
6-5 acquire the goods and services.
6-6 (e) The public hospital may adopt rules and procedures for
6-7 the acquisition of goods and services under this section.
6-8 Sec. 32.044. GROUP PURCHASING FOR DISPROPORTIONATE SHARE
6-9 HOSPITALS. (a) A public or private hospital that is designated as
6-10 a disproportionate share hospital during a fiscal year may purchase
6-11 goods and services in accordance with this section during the
6-12 succeeding fiscal year. A purchase of goods or services made in
6-13 accordance with this section is considered to satisfy any state law
6-14 requiring purchases by competitive bidding or competitive
6-15 proposals.
6-16 (b) A state or local governmental entity may allow the
6-17 public or private hospital to purchase goods or services by
6-18 participating in one or more of the entity's contracts for the
6-19 purchase of goods or services.
6-20 (c) The public or private hospital may purchase goods or
6-21 services in accordance with this section through a group purchasing
6-22 program that offers discount prices to hospitals or other providers
6-23 of health care services.
6-24 (d) The department with the assistance of the Health and
6-25 Human Services Commission and the General Services Commission shall
7-1 adopt rules under this section that allow the public or private
7-2 hospital to make purchases through group purchasing programs except
7-3 when the department has reason to believe that a better value is
7-4 available through another procurement method.
7-5 (e) This section applies to private hospitals only to the
7-6 extent it authorizes private hospitals to participate in purchasing
7-7 contracts with governmental entities or to satisfy any state law
7-8 that may require goods and services the hospital purchases to be
7-9 competitively procured. This section does not impose new
7-10 purchasing requirements on a private hospital, except to the extent
7-11 that the private hospital agrees to be bound by the terms of a
7-12 contract that is authorized by this section and that it chooses to
7-13 enter. This section does not affect any explicit or implicit
7-14 authority that a private hospital has under other law to
7-15 participate in a group purchasing program or to participate in a
7-16 purchasing contract with a public entity.
7-17 SECTION 3. Subsections (a) and (b), Section 12.052, Health
7-18 and Safety Code, are amended to read as follows:
7-19 (a) The expenditure of funds received by local units of
7-20 government from the department is governed by Chapter 783,
7-21 Government Code, [the Uniform Grant and Contract Management Act of
7-22 1981 (Article 4413(32g), Vernon's Texas Civil Statutes)] and the
7-23 rules adopted under that law, except as provided by Section 12.055
7-24 [Act].
7-25 (b) The expenditure of funds received by other state
8-1 agencies from the department is governed by Subtitle D, Title 10,
8-2 Government Code, [the State Purchasing and General Services Act
8-3 (Article 601b, Vernon's Texas Civil Statutes)] and the rules
8-4 adopted under that law, except as provided by Section 12.055 [Act].
8-5 SECTION 4. Subchapter E, Chapter 12, Health and Safety Code,
8-6 is amended by adding Sections 12.055 and 12.056 to read as follows:
8-7 Sec. 12.055. CERTAIN PROCUREMENTS MADE WITH DEPARTMENT
8-8 FUNDS. (a) A state agency or local unit of government that
8-9 expends funds received from the department for the acquisition of
8-10 goods and services may satisfy the requirements of Section 12.052
8-11 or of another state law requiring procurements by competitive
8-12 bidding or competitive sealed proposals by procuring goods or
8-13 services with those funds in accordance with Section 12.056 or in
8-14 accordance with:
8-15 (1) Section 2155.144, Government Code, if the entity
8-16 is a state agency subject to that law;
8-17 (2) Section 32.043 or 32.044, Human Resources Code, if
8-18 the entity is a public hospital subject to those laws; or
8-19 (3) this section, if the entity is not covered by
8-20 Subdivision (1) or (2).
8-21 (b) A state agency or local unit of government under
8-22 Subsection (a)(3) shall acquire goods or services by any
8-23 procurement method approved by the Health and Human Services
8-24 Commission that provides the best value to the state agency or
8-25 local unit of government. The state agency or local unit of
9-1 government shall document that the state agency or local unit of
9-2 government considered all relevant factors under Subsection (c) in
9-3 making the acquisition.
9-4 (c) Subject to Subsection (d), the state agency or local
9-5 unit of government may consider all relevant factors in determining
9-6 the best value, including:
9-7 (1) any installation costs;
9-8 (2) the delivery terms;
9-9 (3) the quality and reliability of the vendor's goods
9-10 or services;
9-11 (4) the extent to which the goods or services meet the
9-12 state agency's or local unit of government's needs;
9-13 (5) indicators of probable vendor performance under
9-14 the contract such as past vendor performance, the vendor's
9-15 financial resources and ability to perform, the vendor's experience
9-16 and responsibility, and the vendor's ability to provide reliable
9-17 maintenance agreements;
9-18 (6) the impact on the ability of the state agency or
9-19 local unit of government to comply with laws and rules relating to
9-20 historically underutilized businesses;
9-21 (7) the total long-term cost to the state agency or
9-22 local unit of government of acquiring the vendor's goods or
9-23 services;
9-24 (8) the cost of any employee training associated with
9-25 the acquisition;
10-1 (9) the effect of an acquisition on the state agency's
10-2 or local unit of government's productivity;
10-3 (10) the acquisition price; and
10-4 (11) any other factor relevant to determining the best
10-5 value for the state agency or local unit of government in the
10-6 context of a particular acquisition.
10-7 (d) If a state agency to which this section applies acquires
10-8 goods or services with a value that exceeds $100,000, the state
10-9 agency shall consult with and receive approval from the Health and
10-10 Human Services Commission before considering factors other than
10-11 price and meeting specifications.
10-12 (e) The state auditor or the department may audit the state
10-13 agency's or local unit of government's acquisitions of goods and
10-14 services under this section.
10-15 (f) The state agency or local unit of government may adopt
10-16 rules and procedures for the acquisition of goods and services
10-17 under this section.
10-18 Sec. 12.056. PARTICIPATION IN DEPARTMENT PURCHASING
10-19 CONTRACTS OR GROUP PURCHASING PROGRAM. The department may allow a
10-20 state agency, local unit of government, or private entity that
10-21 expends funds received by the department to purchase goods or
10-22 services using those funds by participating in:
10-23 (1) a contract the department has made to purchase
10-24 goods or services; or
10-25 (2) a group purchasing program established or
11-1 designated by the department that offers discounts to providers of
11-2 health services.
11-3 SECTION 5. Subchapter A, Chapter 533, Health and Safety
11-4 Code, is amended by adding Sections 533.016 and 533.017 to read as
11-5 follows:
11-6 Sec. 533.016. CERTAIN PROCUREMENTS OF GOODS AND SERVICES BY
11-7 SERVICE PROVIDERS. (a) A state agency, local agency, local mental
11-8 health authority, or local mental retardation authority that
11-9 expends public money to acquire goods or services in connection
11-10 with providing or coordinating the provision of mental health or
11-11 mental retardation services may satisfy the requirements of any
11-12 state law requiring procurements by competitive bidding or
11-13 competitive sealed proposals by procuring goods or services with
11-14 the public money in accordance with Section 533.017 or in
11-15 accordance with:
11-16 (1) Section 2155.144, Government Code, if the entity
11-17 is a state agency subject to that law;
11-18 (2) Section 32.043 or 32.044, Human Resources Code, if
11-19 the entity is a public hospital subject to those laws; or
11-20 (3) this section, if the entity is not covered by
11-21 Subdivision (1) or (2).
11-22 (b) An agency or authority under Subsection (a)(3) may
11-23 acquire goods or services by any procurement method that provides
11-24 the best value to the agency or authority. The agency or authority
11-25 shall document that the agency or authority considered all relevant
12-1 factors under Subsection (c) in making the acquisition.
12-2 (c) Subject to Subsection (d), the agency or authority may
12-3 consider all relevant factors in determining the best value,
12-4 including:
12-5 (1) any installation costs;
12-6 (2) the delivery terms;
12-7 (3) the quality and reliability of the vendor's goods
12-8 or services;
12-9 (4) the extent to which the goods or services meet the
12-10 agency's or authority's needs;
12-11 (5) indicators of probable vendor performance under
12-12 the contract such as past vendor performance, the vendor's
12-13 financial resources and ability to perform, the vendor's experience
12-14 and responsibility, and the vendor's ability to provide reliable
12-15 maintenance agreements;
12-16 (6) the impact on the ability of the agency or
12-17 authority to comply with laws and rules relating to historically
12-18 underutilized businesses;
12-19 (7) the total long-term cost to the agency or
12-20 authority of acquiring the vendor's goods or services;
12-21 (8) the cost of any employee training associated with
12-22 the acquisition;
12-23 (9) the effect of an acquisition on the agency's or
12-24 authority's productivity;
12-25 (10) the acquisition price; and
13-1 (11) any other factor relevant to determining the best
13-2 value for the agency or authority in the context of a particular
13-3 acquisition.
13-4 (d) If a state agency to which this section applies acquires
13-5 goods or services with a value that exceeds $100,000, the state
13-6 agency shall consult with and receive approval from the Health and
13-7 Human Services Commission before considering factors other than
13-8 price and meeting specifications.
13-9 (e) The state auditor or the department may audit the
13-10 agency's or authority's acquisitions of goods and services under
13-11 this section to the extent state money or federal money
13-12 appropriated by the state is used to make the acquisitions.
13-13 (f) The agency or authority may adopt rules and procedures
13-14 for the acquisition of goods and services under this section.
13-15 Sec. 533.017. PARTICIPATION IN DEPARTMENT PURCHASING
13-16 CONTRACTS OR GROUP PURCHASING PROGRAM. The department may allow a
13-17 state agency, local agency, local mental health authority, or local
13-18 mental retardation authority that expends public money to purchase
13-19 goods or services in connection with providing or coordinating the
13-20 provision of mental health or mental retardation services to
13-21 purchase goods or services with the public money by participating
13-22 in:
13-23 (1) a contract the department has made to purchase
13-24 goods or services; or
13-25 (2) a group purchasing program established or
14-1 designated by the department that offers discounts to providers of
14-2 mental health or mental retardation services.
14-3 SECTION 6. This Act takes effect September 1, 1997.
14-4 SECTION 7. The importance of this legislation and the
14-5 crowded condition of the calendars in both houses create an
14-6 emergency and an imperative public necessity that the
14-7 constitutional rule requiring bills to be read on three several
14-8 days in each house be suspended, and this rule is hereby suspended.