75R15156 JRD-F
By Zaffirini S.B. No. 1066
Substitute the following for S.B. No. 1066:
By Delisi C.S.S.B. No. 1066
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procurement practices by health and human services
1-3 agencies, by certain other agencies with programs related to health
1-4 or human services, and by certain public and private local
1-5 providers of health or human services.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Subchapter C, Chapter 2155, Government Code, is
1-8 amended by adding Section 2155.144 to read as follows:
1-9 Sec. 2155.144. PROCUREMENTS BY HEALTH AND HUMAN SERVICES
1-10 AGENCIES AND WORKERS' COMPENSATION COMMISSION. (a) This section
1-11 applies only to the Health and Human Services Commission, to each
1-12 health and human services agency, and to the Texas Workers'
1-13 Compensation Commission.
1-14 (b) An agency to which this section applies is delegated the
1-15 authority to procure its goods and services, except as provided by
1-16 this section.
1-17 (c) An agency to which this section applies shall acquire
1-18 goods or services by any procurement method approved by the Health
1-19 and Human Services Commission that provides the best value to the
1-20 agency. The agency shall document that it considered all relevant
1-21 factors under Subsection (d) in making the acquisition.
1-22 (d) Subject to Subsection (e), the agency may consider all
1-23 relevant factors in determining the best value, including:
1-24 (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 or relating to the procurement of goods and services
2-14 from persons with disabilities;
2-15 (7) the total long-term cost to the agency of
2-16 acquiring the vendor's goods or services;
2-17 (8) the cost of any employee training associated with
2-18 the acquisition;
2-19 (9) the effect of an acquisition on agency
2-20 productivity;
2-21 (10) the acquisition price; and
2-22 (11) any other factor relevant to determining the best
2-23 value for the agency in the context of a particular acquisition.
2-24 (e) If an agency to which this section applies acquires
2-25 goods or services with a value that exceeds $100,000, the agency
2-26 shall consult with and receive approval from the Health and Human
2-27 Services Commission before considering factors other than price and
3-1 meeting specifications.
3-2 (f) The state auditor may audit the agency's acquisitions of
3-3 goods and services.
3-4 (g) The agency may adopt rules and procedures for the
3-5 acquisition of goods and services under this section.
3-6 (h) The Health and Human Services Commission shall adopt
3-7 rules and procedures for the acquisition of goods and services
3-8 under this section that apply to all health and human services
3-9 agencies, including rules adopted with the commission's assistance
3-10 that allow an agency to make purchases through a group purchasing
3-11 program except when a better value is available through another
3-12 procurement method. The rules of the health and human services
3-13 agencies must be consistent with the rules of the Health and Human
3-14 Services Commission.
3-15 (i) The Health and Human Services Commission shall
3-16 coordinate the procurement practices of all health and human
3-17 services agencies and encourage those agencies to use efficient
3-18 procurement practices such as the use of a group purchasing
3-19 program, combining maintenance contracts into one contract, and
3-20 obtaining prompt payment discounts. The Health and Human Services
3-21 Commission may transfer the procurement functions of a health and
3-22 human services agency to another appropriate state agency if it
3-23 determines that transferring those functions would be advantageous
3-24 to the state. Other state agencies and institutions with
3-25 experience in acquiring goods and services using the procedures
3-26 allowed under Subsections (c) and (d) shall on request assist the
3-27 Health and Human Services Commission to perform its functions under
4-1 this section.
4-2 (j) To the extent of any conflict, this section prevails
4-3 over any other state law relating to the procurement of goods and
4-4 services except a law relating to contracting with historically
4-5 underutilized businesses or relating to the procurement of goods
4-6 and services from persons with disabilities.
4-7 (k) In this section, "health and human services agency" has
4-8 the meaning assigned by Section 531.001.
4-9 SECTION 2. Subchapter B, Chapter 32, Human Resources Code,
4-10 is amended by adding Sections 32.043 and 32.044 to read as follows:
4-11 Sec. 32.043. PROCUREMENT RULES FOR PUBLIC DISPROPORTIONATE
4-12 SHARE HOSPITALS. (a) A public hospital that is designated as a
4-13 disproportionate share hospital during a fiscal year may acquire
4-14 goods and services in accordance with this section during the
4-15 succeeding fiscal year. A procurement of goods or services made in
4-16 accordance with this section is considered to satisfy any state law
4-17 requiring purchases by competitive bidding or competitive
4-18 proposals.
4-19 (b) The public hospital shall acquire goods or services by
4-20 any procurement method approved by the Health and Human Services
4-21 Commission that provides the best value to the public hospital.
4-22 The public hospital shall document that it considered all relevant
4-23 factors under Subsection (c) in making the acquisition.
4-24 (c) The public hospital may consider all relevant factors in
4-25 determining the best value, including:
4-26 (1) any installation costs;
4-27 (2) the delivery terms;
5-1 (3) the quality and reliability of the vendor's goods
5-2 or services;
5-3 (4) the extent to which the goods or services meet the
5-4 public hospital's needs;
5-5 (5) indicators of probable vendor performance under
5-6 the contract such as past vendor performance, the vendor's
5-7 financial resources and ability to perform, the vendor's experience
5-8 and responsibility, and the vendor's ability to provide reliable
5-9 maintenance agreements;
5-10 (6) the impact on the ability of the public hospital
5-11 to comply with laws and rules relating to historically
5-12 underutilized businesses or relating to the procurement of goods
5-13 and services from persons with disabilities;
5-14 (7) the total long-term cost to the public hospital of
5-15 acquiring the vendor's goods or services;
5-16 (8) the cost of any employee training associated with
5-17 the acquisition;
5-18 (9) the effect of an acquisition on the public
5-19 hospital's productivity;
5-20 (10) the acquisition price; and
5-21 (11) any other factor relevant to determining the best
5-22 value for the public hospital in the context of a particular
5-23 acquisition.
5-24 (d) The state auditor or the department may audit the public
5-25 hospital's acquisitions of goods and services to the extent that
5-26 state money or federal money appropriated by the state is used to
5-27 acquire the goods and services.
6-1 (e) The public hospital may adopt rules and procedures for
6-2 the acquisition of goods and services under this section.
6-3 Sec. 32.044. GROUP PURCHASING FOR DISPROPORTIONATE SHARE
6-4 HOSPITALS. (a) A public or private hospital that is designated as
6-5 a disproportionate share hospital during a fiscal year may purchase
6-6 goods and services in accordance with this section during the
6-7 succeeding fiscal year. A purchase of goods or services made in
6-8 accordance with this section is considered to satisfy any state law
6-9 requiring purchases by competitive bidding or competitive
6-10 proposals.
6-11 (b) A state or local governmental entity may allow the
6-12 public or private hospital to purchase goods or services by
6-13 participating in one or more of the entity's contracts for the
6-14 purchase of goods or services.
6-15 (c) The public or private hospital may purchase goods or
6-16 services in accordance with this section through a group purchasing
6-17 program that offers discount prices to hospitals or other providers
6-18 of health care services.
6-19 (d) The department with the assistance of the Health and
6-20 Human Services Commission and the General Services Commission shall
6-21 adopt rules under this section that allow the public or private
6-22 hospital to make purchases through group purchasing programs except
6-23 when the department has reason to believe that a better value is
6-24 available through another procurement method.
6-25 (e) This section applies to private hospitals only to the
6-26 extent it authorizes private hospitals to participate in purchasing
6-27 contracts with governmental entities or to satisfy any state law
7-1 that may require goods and services the hospital purchases to be
7-2 competitively procured. This section does not impose new
7-3 purchasing requirements on a private hospital, except to the extent
7-4 that the private hospital agrees to be bound by the terms of a
7-5 contract that is authorized by this section and that it chooses to
7-6 enter. This section does not affect any explicit or implicit
7-7 authority that a private hospital has under other law to
7-8 participate in a group purchasing program or to participate in a
7-9 purchasing contract with a public entity.
7-10 SECTION 3. Subsections (a) and (b), Section 12.052, Health
7-11 and Safety Code, are amended to read as follows:
7-12 (a) The expenditure of funds received by local units of
7-13 government from the department is governed by Chapter 783,
7-14 Government Code, [the Uniform Grant and Contract Management Act of
7-15 1981 (Article 4413(32g), Vernon's Texas Civil Statutes)] and the
7-16 rules adopted under that law, except as provided by Section 12.055
7-17 [Act].
7-18 (b) The expenditure of funds received by other state
7-19 agencies from the department is governed by Subtitle D, Title 10,
7-20 Government Code, [the State Purchasing and General Services Act
7-21 (Article 601b, Vernon's Texas Civil Statutes)] and the rules
7-22 adopted under that law, except as provided by Section 12.055 [Act].
7-23 SECTION 4. Subchapter E, Chapter 12, Health and Safety Code,
7-24 is amended by adding Sections 12.055 and 12.056 to read as follows:
7-25 Sec. 12.055. CERTAIN PROCUREMENTS MADE WITH DEPARTMENT
7-26 FUNDS. (a) A state agency or local unit of government that
7-27 expends funds received from the department for the acquisition of
8-1 goods and services may satisfy the requirements of Section 12.052
8-2 or of another state law requiring procurements by competitive
8-3 bidding or competitive sealed proposals by procuring goods or
8-4 services with those funds in accordance with Section 12.056 or in
8-5 accordance with:
8-6 (1) Section 2155.144, Government Code, if the entity
8-7 is a state agency subject to that law;
8-8 (2) Section 32.043 or 32.044, Human Resources Code, if
8-9 the entity is a public hospital subject to those laws; or
8-10 (3) this section, if the entity is not covered by
8-11 Subdivision (1) or (2).
8-12 (b) A state agency or local unit of government under
8-13 Subsection (a)(3) shall acquire goods or services by any
8-14 procurement method approved by the Health and Human Services
8-15 Commission that provides the best value to the state agency or
8-16 local unit of government. The state agency or local unit of
8-17 government shall document that the state agency or local unit of
8-18 government considered all relevant factors under Subsection (c) in
8-19 making the acquisition.
8-20 (c) Subject to Subsection (d), the state agency or local
8-21 unit of government may consider all relevant factors in determining
8-22 the best value, including:
8-23 (1) any installation costs;
8-24 (2) the delivery terms;
8-25 (3) the quality and reliability of the vendor's goods
8-26 or services;
8-27 (4) the extent to which the goods or services meet the
9-1 state agency's or local unit of government's needs;
9-2 (5) indicators of probable vendor performance under
9-3 the contract such as past vendor performance, the vendor's
9-4 financial resources and ability to perform, the vendor's experience
9-5 and responsibility, and the vendor's ability to provide reliable
9-6 maintenance agreements;
9-7 (6) the impact on the ability of the state agency or
9-8 local unit of government to comply with laws and rules relating to
9-9 historically underutilized businesses or relating to the
9-10 procurement of goods and services from persons with disabilities;
9-11 (7) the total long-term cost to the state agency or
9-12 local unit of government of acquiring the vendor's goods or
9-13 services;
9-14 (8) the cost of any employee training associated with
9-15 the acquisition;
9-16 (9) the effect of an acquisition on the state agency's
9-17 or local unit of government's productivity;
9-18 (10) the acquisition price; and
9-19 (11) any other factor relevant to determining the best
9-20 value for the state agency or local unit of government in the
9-21 context of a particular acquisition.
9-22 (d) If a state agency to which this section applies acquires
9-23 goods or services with a value that exceeds $100,000, the state
9-24 agency shall consult with and receive approval from the Health and
9-25 Human Services Commission before considering factors other than
9-26 price and meeting specifications.
9-27 (e) The state auditor or the department may audit the state
10-1 agency's or local unit of government's acquisitions of goods and
10-2 services under this section.
10-3 (f) The state agency or local unit of government may adopt
10-4 rules and procedures for the acquisition of goods and services
10-5 under this section.
10-6 Sec. 12.056. PARTICIPATION IN DEPARTMENT PURCHASING
10-7 CONTRACTS OR GROUP PURCHASING PROGRAM. The department may allow a
10-8 state agency, local unit of government, or private entity that
10-9 expends funds received by the department to purchase goods or
10-10 services using those funds by participating in:
10-11 (1) a contract the department has made to purchase
10-12 goods or services; or
10-13 (2) a group purchasing program established or
10-14 designated by the department that offers discounts to providers of
10-15 health services.
10-16 SECTION 5. Subchapter A, Chapter 533, Health and Safety
10-17 Code, is amended by adding Sections 533.016 and 533.017 to read as
10-18 follows:
10-19 Sec. 533.016. CERTAIN PROCUREMENTS OF GOODS AND SERVICES BY
10-20 SERVICE PROVIDERS. (a) A state agency, local agency, local mental
10-21 health authority, or local mental retardation authority that
10-22 expends public money to acquire goods or services in connection
10-23 with providing or coordinating the provision of mental health or
10-24 mental retardation services may satisfy the requirements of any
10-25 state law requiring procurements by competitive bidding or
10-26 competitive sealed proposals by procuring goods or services with
10-27 the public money in accordance with Section 533.017 or in
11-1 accordance with:
11-2 (1) Section 2155.144, Government Code, if the entity
11-3 is a state agency subject to that law;
11-4 (2) Section 32.043 or 32.044, Human Resources Code, if
11-5 the entity is a public hospital subject to those laws; or
11-6 (3) this section, if the entity is not covered by
11-7 Subdivision (1) or (2).
11-8 (b) An agency or authority under Subsection (a)(3) may
11-9 acquire goods or services by any procurement method that provides
11-10 the best value to the agency or authority. The agency or authority
11-11 shall document that the agency or authority considered all relevant
11-12 factors under Subsection (c) in making the acquisition.
11-13 (c) Subject to Subsection (d), the agency or authority may
11-14 consider all relevant factors in determining the best value,
11-15 including:
11-16 (1) any installation costs;
11-17 (2) the delivery terms;
11-18 (3) the quality and reliability of the vendor's goods
11-19 or services;
11-20 (4) the extent to which the goods or services meet the
11-21 agency's or authority's needs;
11-22 (5) indicators of probable vendor performance under
11-23 the contract such as past vendor performance, the vendor's
11-24 financial resources and ability to perform, the vendor's experience
11-25 and responsibility, and the vendor's ability to provide reliable
11-26 maintenance agreements;
11-27 (6) the impact on the ability of the agency or
12-1 authority to comply with laws and rules relating to historically
12-2 underutilized businesses or relating to the procurement of goods
12-3 and services from persons with disabilities;
12-4 (7) the total long-term cost to the agency or
12-5 authority of acquiring the vendor's goods or services;
12-6 (8) the cost of any employee training associated with
12-7 the acquisition;
12-8 (9) the effect of an acquisition on the agency's or
12-9 authority's productivity;
12-10 (10) the acquisition price; and
12-11 (11) any other factor relevant to determining the best
12-12 value for the agency or authority in the context of a particular
12-13 acquisition.
12-14 (d) If a state agency to which this section applies acquires
12-15 goods or services with a value that exceeds $100,000, the state
12-16 agency shall consult with and receive approval from the Health and
12-17 Human Services Commission before considering factors other than
12-18 price and meeting specifications.
12-19 (e) The state auditor or the department may audit the
12-20 agency's or authority's acquisitions of goods and services under
12-21 this section to the extent state money or federal money
12-22 appropriated by the state is used to make the acquisitions.
12-23 (f) The agency or authority may adopt rules and procedures
12-24 for the acquisition of goods and services under this section.
12-25 Sec. 533.017. PARTICIPATION IN DEPARTMENT PURCHASING
12-26 CONTRACTS OR GROUP PURCHASING PROGRAM. The department may allow a
12-27 state agency, local agency, local mental health authority, or local
13-1 mental retardation authority that expends public money to purchase
13-2 goods or services in connection with providing or coordinating the
13-3 provision of mental health or mental retardation services to
13-4 purchase goods or services with the public money by participating
13-5 in:
13-6 (1) a contract the department has made to purchase
13-7 goods or services; or
13-8 (2) a group purchasing program established or
13-9 designated by the department that offers discounts to providers of
13-10 mental health or mental retardation services.
13-11 SECTION 6. This Act takes effect September 1, 1997.
13-12 SECTION 7. The importance of this legislation and the
13-13 crowded condition of the calendars in both houses create an
13-14 emergency and an imperative public necessity that the
13-15 constitutional rule requiring bills to be read on three several
13-16 days in each house be suspended, and this rule is hereby suspended.