By Armbrister S.B. No. 1752
75R5789 JRD-F
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. Subchapter A, Chapter 2152, Government Code, is
1-6 amended by adding Section 2152.003 to read as follows:
1-7 Sec. 2152.003. AUTHORITY TO ADOPT RULES. The commission may
1-8 adopt rules to efficiently and effectively administer this
1-9 subtitle.
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 if the goods or services
1-16 provide the best value for the state. The Texas Department of
1-17 Criminal Justice shall test goods and services it sells under this
1-18 section before delivery in accordance with Section 2155.069 to the
1-19 extent necessary to ensure quality.
1-20 SECTION 3. Section 2155.068, Government Code, is amended to
1-21 read as follows:
1-22 Sec. 2155.068. UNIFORM STANDARDS AND SPECIFICATIONS. (a)
1-23 The commission may coordinate uniform standards and specifications
1-24 for goods purchased by the commission. The commission by rule may
2-1 adopt appropriate standards developed by a nationally recognized
2-2 standards-making association as part of its specifications and
2-3 standards program.
2-4 (b) The commission shall enlist the cooperation of other
2-5 state agencies in the establishment, maintenance, and revision of
2-6 uniform standards and specifications [and shall foster their use to
2-7 accomplish continuously the most efficient purchase of goods].
2-8 (c) The commission shall review contracts administered by
2-9 the commission [and procedures] to ensure that all goods and
2-10 services meet contract specifications.
2-11 (d) As part of the standards and specifications program, the
2-12 commission shall review contracts for opportunities to recycle
2-13 [recycling] waste produced at state buildings.
2-14 SECTION 4. Section 2155.069, Government Code, is amended to
2-15 read as follows:
2-16 Sec. 2155.069. TESTING AND INSPECTION. (a) The commission
2-17 may [shall] test and inspect goods and services purchased under a
2-18 contract administered by the commission [under a program] to ensure
2-19 compliance with specifications.
2-20 (b) The commission may contract for testing under this
2-21 section.
2-22 (c) The commission may test and inspect goods and services
2-23 purchased by other state governmental entities on a cost recovery
2-24 basis [shall provide for testing and inspection of all costly
2-25 purchases and may adopt rules necessary to carry out this duty].
2-26 (d) The commission may also test and inspect goods and
2-27 services before they are purchased. Other state agencies may test
3-1 and inspect goods and services before purchase under standard
3-2 industry testing methods, or they may contract for testing. The
3-3 commission may inform agencies about available private testing
3-4 facilities.
3-5 SECTION 5. Sections 2155.070(a) and (d), Government Code,
3-6 are amended to read as follows:
3-7 (a) A state agency that determines that goods or services
3-8 received under a contract administered by the commission do not
3-9 meet specifications shall promptly notify the commission in writing
3-10 of the reasons for the determination. The commission shall
3-11 immediately make its own determination of whether the goods and
3-12 services meet specifications.
3-13 (d) If the commission receives repeated complaints against a
3-14 vendor, the commission shall remove the vendor's name and the
3-15 vendor's goods and services from the commission's bidders list for
3-16 not longer than one year. If complaints resume after the vendor is
3-17 reinstated on the bidders list, the commission may bar the vendor
3-18 from participating in state contracts for a period under Section
3-19 2155.077.
3-20 SECTION 6. Subchapter B, Chapter 2155, Government Code, is
3-21 amended by adding Sections 2155.074-2155.082 to read as follows:
3-22 Sec. 2155.074. BEST VALUE STANDARD FOR PURCHASE OF GOODS OR
3-23 SERVICES. (a) Each state agency, including the commission, shall
3-24 purchase goods and services that provide the best value for the
3-25 state.
3-26 (b) In determining the best value for the state, the
3-27 purchase price and whether the goods or services meet
4-1 specifications are the most important considerations. However, the
4-2 commission or other state agency may, subject to Subsection (c) and
4-3 Section 2155.075, consider other relevant factors, including:
4-4 (1) installation costs;
4-5 (2) life cycle costs;
4-6 (3) the quality and reliability of the goods and
4-7 services;
4-8 (4) the delivery terms;
4-9 (5) indicators of probable vendor performance under
4-10 the contract such as past vendor performance, the vendor's
4-11 financial resources and ability to perform, the vendor's experience
4-12 and responsibility, and the vendor's ability to provide reliable
4-13 maintenance agreements and support;
4-14 (6) the cost of any employee training associated with
4-15 a purchase;
4-16 (7) the effect of a purchase on agency productivity;
4-17 and
4-18 (8) other factors relevant to determining the best
4-19 value for the state in the context of a particular purchase.
4-20 (c) A state agency shall consult with and receive approval
4-21 from the commission before considering factors other than price and
4-22 meeting specifications when the agency procures through competitive
4-23 bidding goods or services with a value that exceeds $100,000.
4-24 Sec. 2155.075. REQUIREMENT TO SPECIFY VALUE FACTORS IN
4-25 REQUEST FOR BIDS OR PROPOSALS. (a) For a purchase made through
4-26 competitive bidding, the commission or other state agency making
4-27 the purchase must specify in the request for bids the factors other
5-1 than price that the commission or agency will consider in
5-2 determining which bid offers the best value for the state.
5-3 (b) For a purchase made through competitive sealed
5-4 proposals, the commission or other state agency making the
5-5 purchase:
5-6 (1) must specify in the request for proposals the
5-7 known factors other than price that the commission or agency will
5-8 consider in determining which proposal offers the best value for
5-9 the state; and
5-10 (2) may concurrently inform each vendor that made a
5-11 proposal on the contract of any additional factors the commission
5-12 or agency will consider in determining which proposal offers the
5-13 best value for the state if the commission or other agency
5-14 determines after opening the proposals that additional factors not
5-15 covered under Subdivision (1) are relevant in determining which
5-16 proposal offers the best value for the state.
5-17 Sec. 2155.076. PROTEST PROCEDURES. (a) The commission and
5-18 each state agency by rule shall develop and adopt protest
5-19 procedures for resolving vendor protests relating to purchasing
5-20 issues. An agency's rules must be consistent with the commission's
5-21 rules. The rules must include standards for maintaining
5-22 documentation about the purchasing process to be used in the event
5-23 of a protest.
5-24 (b) A state agency that is not subject to the administrative
5-25 procedure law, Chapter 2001, shall provide public notice of its
5-26 proposed and adopted protest rules and provide a procedure for
5-27 public comment on the proposed rules.
6-1 Sec. 2155.077. BARRING VENDOR FROM PARTICIPATION IN STATE
6-2 CONTRACTS. (a) The commission may bar a vendor from participating
6-3 in state contracts that are subject to this subtitle, including
6-4 contracts for which purchasing authority is delegated to a state
6-5 agency, for:
6-6 (1) substandard performance under a contract with the
6-7 state or a state agency;
6-8 (2) material misrepresentations in a bid or proposal
6-9 to the state or a state agency or during the course of performing a
6-10 contract with the state or a state agency;
6-11 (3) fraud; or
6-12 (4) breaching a contract with the state or a state
6-13 agency.
6-14 (b) The commission shall bar a vendor from participating in
6-15 state contracts under this section for a period that is
6-16 commensurate with the seriousness of the vendor's action and the
6-17 damage to the state's interests.
6-18 (c) The commission by rule shall:
6-19 (1) state generally the reasons for which a vendor may
6-20 be barred from participating in state contracts and the periods for
6-21 which the vendor may be barred; and
6-22 (2) prescribe the procedures under which the
6-23 commission will determine whether and for how long a vendor will be
6-24 barred.
6-25 Sec. 2155.078. TRAINING AND CERTIFICATION OF STATE AGENCY
6-26 PURCHASING PERSONNEL. (a) The commission shall establish and
6-27 administer a system of training, continuing education, and
7-1 certification for state agency purchasing personnel. The
7-2 commission may adopt rules to administer this section, including
7-3 rules relating to monitoring a certified purchaser's compliance
7-4 with the continuing education requirements of this section.
7-5 (b) All state agency purchasing personnel, including
7-6 agencies exempted from the purchasing authority of the commission,
7-7 must receive the training and continuing education to the extent
7-8 required by rule of the commission. A state agency employee who is
7-9 required to receive the training or continuing education may not
7-10 participate in purchases by the employing agency unless the
7-11 employee has received the required training.
7-12 (c) The commission shall set and collect a fee from state
7-13 agencies that employ purchasing personnel. The commission shall
7-14 set the fee in an amount that recovers the commission's costs under
7-15 this section.
7-16 (d) The commission may provide training, continuing
7-17 education, and certification under this section to purchasing
7-18 personnel employed by a political subdivision or other public
7-19 entity of the state. Political subdivision purchasing personnel
7-20 may receive, but are not required to receive, the training,
7-21 continuing education, or certification provided under this section.
7-22 The commission shall collect the fees described by Subsection (c)
7-23 for training, education, or certification under this subsection.
7-24 (e) The commission may provide training and continuing
7-25 education under this section using its own personnel or through
7-26 contracts with private entities. The commission may also, by
7-27 agreement with a public entity, use the services of persons
8-1 employed by the public entity to provide training and continuing
8-2 education under this section.
8-3 (f) The commission shall provide at least three levels of
8-4 training under this section.
8-5 (g) The basic training level must include an introduction to
8-6 contract purchasing methods, ethical issues affecting purchasing
8-7 decisions, and instruction in any other processes and issues that
8-8 the commission considers appropriate for introductory purchasing
8-9 training.
8-10 (h) The second training level must include advanced
8-11 instruction in formal and informal bidding methods, introduction to
8-12 negotiation methods, instruction in writing specifications, and
8-13 instruction in any other processes and issues that the commission
8-14 considers appropriate for the second level of purchasing training.
8-15 (i) The third training level must include an introduction to
8-16 complex negotiations, instruction in the criteria for determining
8-17 which product or service offers the best value for the state, and
8-18 instruction in any other processes and issues that the commission
8-19 considers appropriate for advanced purchasing training.
8-20 (j) The commission may prescribe the circumstances under
8-21 which a state agency may delegate to a certified purchaser
8-22 signature purchasing authority to approve purchase orders.
8-23 (k) The commission shall require 24 hours of continuing
8-24 education each year to maintain a certification level. The
8-25 commission may allow attendance at certification training classes
8-26 to count toward the continuing education requirement.
8-27 (l) The commission's prerequisites for receiving a level-two
9-1 purchaser certification must include completion of the basic
9-2 training level, passage of a written examination, and a minimum
9-3 number of years of purchasing experience prescribed by the
9-4 commission.
9-5 (m) The commission's prerequisites for receiving a
9-6 level-three purchaser certification must include completion of the
9-7 second training level, passage of a written and an oral
9-8 examination, and a minimum of three years of purchasing experience.
9-9 Sec. 2155.079. BUYING UNDER CONTRACT ESTABLISHED BY AGENCY
9-10 OTHER THAN COMMISSION. (a) The commission shall adopt rules
9-11 specifying the circumstances under which it is advantageous for the
9-12 state to allow a state agency to purchase goods or services under a
9-13 contract made by another state agency other than the commission.
9-14 (b) If commission rules allow other agencies to make
9-15 purchases under a contract entered into by an agency using
9-16 delegated purchasing authority, the agency purchasing under
9-17 delegated authority may offer the goods or services available under
9-18 the contract to other agencies only if the agency first:
9-19 (1) establishes that the goods or services being
9-20 offered under its contract are not available under a contract
9-21 administered by the commission; and
9-22 (2) informs the commission of the terms of the
9-23 contract and the capabilities of the vendor.
9-24 Sec. 2155.080. ADVISORY COMMITTEE ON PROCUREMENT. (a) The
9-25 commission may establish an advisory committee on procurement. The
9-26 purpose of the committee is to represent before the commission the
9-27 state agency purchasing community and the political subdivisions
10-1 that use the commission's purchasing services.
10-2 (b) The committee is composed of officers or employees from
10-3 the commission, from state agencies, including institutions of
10-4 higher education, and from political subdivisions who are invited
10-5 by the commission to serve on the committee. The commission shall
10-6 invite officers and employees who are experienced in public
10-7 purchasing, in public finance, or who possess other appropriate
10-8 expertise to serve on the committee. Service on the committee is
10-9 an additional duty of the member's public office or employment.
10-10 Article 6252-33, Revised Statutes, does not apply to the size or
10-11 composition of the committee. The commission shall set staggered
10-12 terms for the members of the committee.
10-13 (c) The committee may establish its own rules of operation.
10-14 (d) The committee shall recommend improvements in commission
10-15 or state agency purchasing practices to the commission. The
10-16 committee shall review and comment on findings and recommendations
10-17 related to purchasing that are made by state agency internal
10-18 auditors or by the state auditor.
10-19 Sec. 2155.081. VENDOR ADVISORY COMMITTEE. (a) The
10-20 commission may establish a vendor advisory committee. The purpose
10-21 of the committee is to represent before the commission the vendor
10-22 community, to provide information to vendors, and to obtain vendor
10-23 input on state procurement practices.
10-24 (b) The committee is composed of employees from the
10-25 commission and vendors who have done business with the state who
10-26 are invited by the commission to serve on the committee. The
10-27 commission shall invite a cross-section of the vendor community to
11-1 serve on the committee, inviting both large and small businesses
11-2 and vendors who provide a variety of different goods and services
11-3 to the state. Article 6252-33, Revised Statutes, does not apply to
11-4 the size or composition of the committee. The commission shall set
11-5 staggered terms for the members of the committee.
11-6 (c) The committee may establish its own rules of operation,
11-7 but shall post notice of and hold its meetings in accordance with
11-8 the open meetings law, Chapter 551.
11-9 Sec. 2155.082. PROVIDING CERTAIN PURCHASING SERVICES ON
11-10 FEE-FOR-SERVICE BASIS. (a) The commission may provide open
11-11 market purchasing services on a fee-for-service basis for state
11-12 agency purchases that are delegated to an agency under Section
11-13 2155.131, 2155.132, 2155.133, or 2157.121 or that are exempted from
11-14 the purchasing authority of the commission. The commission shall
11-15 set the fees in an amount that recovers the commission's costs in
11-16 providing the services.
11-17 (b) The commission shall publish a schedule of its fees for
11-18 services that are subject to this section. The schedule must
11-19 include the commission's fees for:
11-20 (1) reviewing bid and contract documents for clarity,
11-21 completeness, and compliance with laws and rules;
11-22 (2) developing and transmitting invitations to bid;
11-23 (3) receiving and tabulating bids;
11-24 (4) evaluating and determining which bidder offers the
11-25 best value to the state;
11-26 (5) creating and transmitting purchase orders; and
11-27 (6) participating in agencies' request for proposal
12-1 processes.
12-2 SECTION 7. Section 2155.132, Government Code, is amended to
12-3 read as follows:
12-4 Sec. 2155.132. PURCHASES LESS THAN SPECIFIED MONETARY
12-5 AMOUNT. (a) A state agency is delegated the authority to purchase
12-6 goods and services if the purchase does not exceed $15,000
12-7 [$5,000]. If the commission determines that a state agency has not
12-8 followed the commission's rules or the laws related to the
12-9 delegated purchases, the commission shall report its determination
12-10 to the governor, lieutenant governor, speaker of the house of
12-11 representatives, and Legislative Budget Board. [The agency may,
12-12 however, use the commission's services for those purchases.]
12-13 (b) The commission by rule may delegate to a state agency
12-14 the authority to purchase goods and services if the purchase
12-15 exceeds $15,000 [$5,000]. In delegating purchasing authority under
12-16 this subsection or Section 2155.131, the commission shall consider
12-17 factors relevant to a state agency's ability to perform purchasing
12-18 functions, including:
12-19 (1) the capabilities of the agency's purchasing staff
12-20 and the existence of automated purchasing tools at the agency;
12-21 (2) the certification levels held by the agency's
12-22 purchasing personnel;
12-23 (3) the results of the commission's procurement review
12-24 audits of an agency's purchasing practices; and
12-25 (4) whether the agency has adopted and published
12-26 protest procedures consistent with those of the commission as part
12-27 of its purchasing rules.
13-1 (c) The commission shall monitor the purchasing practices of
13-2 state agencies that are making delegated purchases under Subsection
13-3 (b) or Section 2155.131 to ensure that the certification levels of
13-4 the agency's purchasing personnel and the quality of the agency's
13-5 purchasing practices continue to warrant the amount of delegated
13-6 authority provided by the commission to the agency. The commission
13-7 may revoke for cause all or part of the purchasing authority that
13-8 the commission delegated to a state agency. The commission shall
13-9 adopt rules to administer this subsection.
13-10 (d) [(c)] The commission by rule:
13-11 (1) shall prescribe procedures for a delegated
13-12 purchase; and
13-13 (2) shall prescribe procedures by which agencies may
13-14 use the commission's services for delegated purchases, in
13-15 accordance with Section 2155.082 [may delegate to the comptroller
13-16 the commission's authority under Subchapter F to audit purchases
13-17 and purchase information if the purchases do not exceed $500 or a
13-18 greater amount prescribed by the commission].
13-19 (e) [(d)] Competitive bidding, whether formal or informal,
13-20 is not required for a purchase by a state agency if the purchase
13-21 does not exceed $2,000 [$1,000], or a greater amount prescribed by
13-22 commission rule.
13-23 (f) [(e)] Goods purchased under this section may not
13-24 include:
13-25 (1) an item for which a contract has been awarded
13-26 under the contract purchase procedure, unless the quantity
13-27 purchased is less than the minimum quantity specified in the
14-1 contract;
14-2 (2) an item required by statute to be purchased from a
14-3 particular source; or
14-4 (3) a scheduled item that has been designated for
14-5 purchase by the commission.
14-6 (g) [(f)] A large purchase may not be divided into small lot
14-7 purchases to meet the dollar limits prescribed by this section.
14-8 The commission may not require that unrelated purchases be combined
14-9 into one purchase order to exceed the dollar limits prescribed by
14-10 this section.
14-11 (h) [(g)] A state agency making a purchase under this
14-12 section for which competitive bidding is required must:
14-13 (1) attempt to obtain at least three competitive bids
14-14 from sources listed on the master bidders list that normally offer
14-15 for sale the goods being purchased; and
14-16 (2) comply with Subchapter E.
14-17 SECTION 8. Section 2155.134(b), Government Code, is amended
14-18 to read as follows:
14-19 (b) The commission shall adopt rules that allow institutions
14-20 of higher education or state agencies to make purchases [purchases
14-21 to be made] through group purchasing programs except when the
14-22 commission determines within a reasonable time after receiving
14-23 notice of a particular purchase that a better value [lower price]
14-24 is available through the commission.
14-25 SECTION 9. Section 2155.138, Government Code, is amended to
14-26 read as follows:
14-27 Sec. 2155.138. EXEMPTION OF GOODS OR SERVICES OF BLIND OR
15-1 VISUALLY IMPAIRED PERSONS. (a) The competitive bidding provisions
15-2 of this chapter do not apply to a state purchase of goods or
15-3 services that:
15-4 (1) are made or provided by blind or visually impaired
15-5 persons;
15-6 (2) are offered for sale to a state agency through
15-7 efforts made under law by the Texas Council on Purchasing from
15-8 People with Disabilities [Committee on Purchases of Products and
15-9 Services of Blind and Severely Disabled Persons];
15-10 (3) meet state specifications for quantity, [and]
15-11 quality, delivery, and life cycle costs; and
15-12 (4) cost not more than the fair market price of
15-13 similar items.
15-14 (b) The council shall test the goods and services in
15-15 accordance with Section 2155.069 to the extent necessary to ensure
15-16 quality. The council may enter into a contract with a private or
15-17 public entity to assist with testing.
15-18 (c) The commission is not required to purchase goods and
15-19 services under this section that do not provide the best value.
15-20 SECTION 10. Section 2155.263, Government Code, is amended to
15-21 read as follows:
15-22 Sec. 2155.263. COMMISSION TO MAINTAIN CENTRALIZED MASTER
15-23 BIDDERS LIST. (a) The commission shall maintain a centralized
15-24 master bidders list and annually register on the list the name and
15-25 address of each vendor that applies for registration under rules
15-26 adopted under this subchapter. The commission may include other
15-27 relevant vendor information on the list.
16-1 (b) The commission shall maintain the centralized master
16-2 bidders list in a manner that facilitates a state agency's
16-3 solicitation of vendors that serve the agency's geographic area.
16-4 (c) The centralized master bidders list shall be used for
16-5 all available procurement processes authorized by this subtitle and
16-6 shall also be used by state agencies that are otherwise exempt from
16-7 the commission's purchasing authority.
16-8 SECTION 11. Section 2155.441, Government Code, is amended to
16-9 read as follows:
16-10 Sec. 2155.441. PREFERENCE FOR PRODUCTS OF PERSONS WITH
16-11 MENTAL RETARDATION AND PHYSICAL DISABILITIES. (a) The products of
16-12 workshops, organizations, or corporations whose primary purpose is
16-13 training and employing individuals having mental retardation or a
16-14 physical disability shall be given preference if they meet state
16-15 specifications regarding quantity, quality, delivery, life cycle
16-16 costs, and price.
16-17 (b) The workshops, organizations, or corporations shall test
16-18 the products to ensure quality in accordance with Section 2155.069
16-19 and may enter into contracts with a private or public entity to
16-20 assist with testing.
16-21 (c) The commission is not required to purchase products
16-22 under this section that do not provide the best value.
16-23 SECTION 12. Section 2156.005, Government Code, is amended to
16-24 read as follows:
16-25 Sec. 2156.005. BID SUBMISSION AND OPENING; PUBLIC
16-26 INSPECTION. (a) A bidder must submit a sealed bid to the
16-27 commission or to the state agency making a purchase. The bid must
17-1 be identified on the envelope as a bid.
17-2 (b) The commission or other state agency making a purchase
17-3 shall open bids at the time and place stated in the invitation to
17-4 bid.
17-5 (c) [The state auditor or a member of the state auditor's
17-6 staff may be present at a bid opening.]
17-7 [(d)] The commission shall keep a tabulation of all bids
17-8 received by the commission available for public inspection under
17-9 rules adopted by the commission. State agencies making purchases
17-10 shall adopt the commission's rules related to bid opening and
17-11 tabulation.
17-12 SECTION 13. Sections 2156.007-2156.010, Government Code, are
17-13 amended to read as follows:
17-14 Sec. 2156.007. CONTRACT AWARD. (a) The commission or other
17-15 state agency making a purchase shall award a contract to the bidder
17-16 offering the best value for the state while [submitting the lowest
17-17 and best bid] conforming to the specifications required.
17-18 (b) In determining the [lowest and best] bidder offering the
17-19 best value, the commission or other state agency may consider the
17-20 safety record of the bidder, the entity represented by the bidder,
17-21 and any person acting for the represented entity only if:
17-22 (1) the commission or other state agency has adopted a
17-23 written definition and criteria for accurately determining the
17-24 safety record of a bidder; and
17-25 (2) the commission or state agency provided [gave]
17-26 notice in the bid specifications to prospective bidders that a
17-27 bidder's safety record may be considered in determining the [lowest
18-1 and best] bidder offering the best value for the state.
18-2 (c) A determination of a bidder's safety record may not be
18-3 arbitrary and capricious.
18-4 (d) In determining the [lowest and best] bidder offering the
18-5 best value, in addition to price the commission or other state
18-6 agency shall consider:
18-7 (1) the quality and availability of the goods or
18-8 contractual services and their adaptability to the use required;
18-9 (2) the [number and] scope of conditions attached to
18-10 the bid;
18-11 (3) the bidder's ability, capacity, and skill to
18-12 perform the contract or provide the service required;
18-13 (4) the bidder's ability to perform the contract or
18-14 provide the service promptly, or in the time required, without
18-15 delay or interference;
18-16 (5) the bidder's character, responsibility, integrity,
18-17 [reputation,] and experience;
18-18 (6) the quality of performance of previous contracts
18-19 or services;
18-20 (7) the bidder's previous and existing compliance with
18-21 laws relating to the contract or service;
18-22 (8) the bidder's previous or existing noncompliance
18-23 with specification requirements relating to the time of submission
18-24 of specified information, including samples, models, drawings, or
18-25 certificates;
18-26 (9) the sufficiency of the bidder's financial
18-27 resources and ability to perform the contract or provide the
19-1 service; and
19-2 (10) the bidder's ability to provide future
19-3 maintenance, repair parts, and service for the use of the
19-4 contract's subject.
19-5 Sec. 2156.008. REJECTION OF BIDS. (a) The commission or
19-6 other state agency making the purchase shall reject a bid in which
19-7 there is a material failure to comply with specification
19-8 requirements.
19-9 (b) The commission or other state agency may reject all bids
19-10 or parts of bids if the rejection serves the state's interest.
19-11 Sec. 2156.009. REASONS FOR AWARD. On award of a contract,
19-12 the division of the commission responsible for purchasing or the
19-13 state agency making the purchase shall prepare and file with other
19-14 records relating to the transaction a statement of the reasons for
19-15 making the award to the successful bidder and the factors
19-16 considered in determining which bidder offered the best value for
19-17 the state [the lowest and best bid].
19-18 Sec. 2156.010. TIE BIDS. In the case of tie bids, the value
19-19 and cost to the state [quality and service] being equal, a contract
19-20 shall be awarded under commission rules.
19-21 SECTION 14. Sections 2156.062 and 2156.063, Government Code,
19-22 are amended to read as follows:
19-23 Sec. 2156.062. MINIMUM NUMBER AND EVALUATION OF BIDS. An
19-24 open market purchase shall, to the extent possible, be:
19-25 (1) based on at least three competitive bids; and
19-26 (2) awarded to the [lowest and best] bidder offering
19-27 the best value for the state in accordance with standards set forth
20-1 in Chapters 2155, 2156, 2157, and 2158.
20-2 Sec. 2156.063. SOLICITATION OF BIDS. The commission and
20-3 each state agency making a purchase shall solicit bids under this
20-4 subchapter by direct mail, telephone, or telegraph.
20-5 SECTION 15. Sections 2156.065 and 2156.066, Government Code,
20-6 are amended to read as follows:
20-7 Sec. 2156.065. AGENCY REVIEW OF BIDS. (a) On the request
20-8 of a state agency to review the bids on a purchase administered by
20-9 the commission, the commission shall send or make available to the
20-10 requesting agency copies of each bid received and the commission's
20-11 recommended award.
20-12 (b) If, after review of the bids and evaluation of the
20-13 quality of goods or services offered in the bids, the state agency
20-14 determines that the bid selected by the commission does [is] not
20-15 offer the best value for the state [the lowest and best bid], the
20-16 agency may file with the commission a written recommendation that
20-17 the award be made to the bidder who, according to the agency's
20-18 determination, offers the best value for the state [made the lowest
20-19 and best bid]. The agency recommendation must include a
20-20 justification of the agency's determination.
20-21 (c) The commission shall consider, but is not bound by, the
20-22 agency recommendation in making the award.
20-23 Sec. 2156.066. STATEMENT OF REASONS FOR AWARD. The division
20-24 of the commission responsible for purchasing or the state agency
20-25 making a purchase shall prepare and file with other records
20-26 relating to a transaction under this subchapter a statement of the
20-27 reasons for placing an order with a successful bidder for the
21-1 transaction and the factors considered in determining the [lowest
21-2 and best] bid offering the best value for the state [for the
21-3 transaction].
21-4 SECTION 16. Subchapter C, Chapter 2156, Government Code, is
21-5 amended to read as follows:
21-6 SUBCHAPTER C. COMPETITIVE SEALED PROPOSALS FOR
21-7 ACQUISITION OF [CERTAIN] GOODS AND SERVICES
21-8 Sec. 2156.121. USE OF COMPETITIVE SEALED PROPOSALS [ELIGIBLE
21-9 ACQUISITIONS]. (a) The commission or other state agency may
21-10 follow a procedure using competitive sealed proposals to acquire[:]
21-11 [(1)] goods [having an acquisition cost of $1 million
21-12 or more;] or
21-13 [(2) routine] services if [having an acquisition cost
21-14 of $100,000 or more.]
21-15 [Sec. 2156.122. PURCHASE AUTHORITY LIMITED TO COMMISSION.
21-16 Only the commission may use competitive sealed proposals under this
21-17 subchapter to acquire goods or services. The commission may not
21-18 delegate this authority to a state agency.]
21-19 [Sec. 2156.123. DETERMINATION REGARDING COMPETITIVE BIDDING.
21-20 To acquire goods or services under this subchapter,] the commission
21-21 determines [must first determine in an open meeting] that
21-22 competitive sealed bidding and informal competitive bidding for the
21-23 purchase or type of purchase are not practical or are
21-24 disadvantageous to the state.
21-25 (b) A state agency shall send its proposal specifications
21-26 and criteria to the commission for approval or request the
21-27 commission to develop the proposal specifications and criteria.
22-1 Sec. 2156.122 [2156.124]. SOLICITATION OF PROPOSALS. The
22-2 commission or other state agency shall:
22-3 (1) solicit proposals under this subchapter by a
22-4 request for proposals; and
22-5 (2) give public notice of a request for proposals in
22-6 the manner provided for requests for bids under Subchapter B.
22-7 [Sec. 2156.125. DEVELOPMENT OF SPECIFICATIONS. The
22-8 commission shall consult with the appropriate personnel of a
22-9 requisitioning agency to develop the specifications for a request
22-10 for proposals under this subchapter.]
22-11 Sec. 2156.123 [2156.126]. OPENING AND FILING OF PROPOSALS;
22-12 PUBLIC INSPECTION. (a) The commission or other state agency shall
22-13 avoid disclosing the contents of each proposal on opening the
22-14 proposal and during negotiations with competing offerors.
22-15 (b) The commission or other state agency shall file each
22-16 proposal in a register of proposals, which, after a contract is
22-17 awarded, is open for public inspection unless the register contains
22-18 information that is excepted from required disclosure [as an open
22-19 record] under Subchapter C, Chapter 552.
22-20 Sec. 2156.124 [2156.127]. DISCUSSION AND REVISION OF
22-21 PROPOSALS. (a) As provided in a request for proposals and under
22-22 rules adopted by the commission, the commission or other state
22-23 agency may discuss acceptable or potentially acceptable proposals
22-24 with offerors to assess an offeror's ability to meet the
22-25 solicitation requirements. When the commission is managing the
22-26 request for proposals process, it [and] shall invite a
22-27 requisitioning agency to participate in discussions conducted under
23-1 this section.
23-2 (b) After receiving a proposal but before making an award,
23-3 the commission or other state agency may permit the offeror to
23-4 revise the proposal to obtain the best final offer.
23-5 (c) The commission or other state agency may not disclose
23-6 information derived from proposals submitted from competing
23-7 offerors in conducting discussions under this section.
23-8 (d) The commission or other state agency shall provide each
23-9 offeror an equal opportunity to discuss and revise proposals.
23-10 Sec. 2156.125 [2156.128]. CONTRACT AWARD. (a) The
23-11 commission or other state agency shall make a written award of a
23-12 contract to the offeror whose proposal offers [is] the best value
23-13 for [most advantageous to] the state, considering price, past
23-14 vendor performance, vendor experience, and the evaluation factors
23-15 in the request for proposals.
23-16 (b) The commission or other state agency shall refuse all
23-17 offers if none of the offers submitted is acceptable.
23-18 (c) The commission or other state agency shall determine
23-19 which proposal offers the best value for the state in accordance
23-20 with Sections 2155.074 and 2155.075.
23-21 (d) The commission or other state agency shall state in
23-22 writing in the contract file the reasons for making an award.
23-23 Sec. 2156.126 [2156.129]. ADOPTION OF RULES; STATE AGENCY
23-24 ASSISTANCE. The commission may adopt rules and request assistance
23-25 from other state agencies to perform its responsibilities under
23-26 this subchapter.
23-27 Sec. 2156.127 [2156.130]. COMPETITIVE SEALED PROPOSALS FOR
24-1 TELECOMMUNICATIONS AND AUTOMATED INFORMATION SYSTEMS NOT AFFECTED.
24-2 This subchapter does not affect Subchapter C, Chapter 2157.
24-3 SECTION 17. Section 2157.003, Government Code, is amended to
24-4 read as follows:
24-5 Sec. 2157.003. DETERMINING BEST VALUE FOR PURCHASES OF
24-6 AUTOMATED INFORMATION SYSTEMS. "Best value" for purposes of this
24-7 chapter means the lowest overall cost of an automated information
24-8 system. In determining the lowest overall cost for a purchase or
24-9 lease of an automated information system under this chapter, the
24-10 commission or a state agency shall consider factors including:
24-11 (1) the purchase price;
24-12 (2) the compatibility to facilitate the exchange of
24-13 existing data;
24-14 (3) the capacity for expanding and upgrading to more
24-15 advanced levels of technology;
24-16 (4) quantitative reliability factors;
24-17 (5) the level of training required to bring persons
24-18 using the system to a stated level of proficiency;
24-19 (6) the technical support requirements for the
24-20 maintenance of data across a network platform and the management of
24-21 the network's hardware and software; [and]
24-22 (7) the compliance with applicable Department of
24-23 Information Resources statewide standards validated by criteria
24-24 adopted by the department by rule; and
24-25 (8) applicable factors listed in Section 2155.074(b).
24-26 SECTION 18. Subchapter B, Chapter 2157, Government Code, is
24-27 amended by adding Section 2157.0611 to read as follows:
25-1 Sec. 2157.0611. REQUIREMENT TO EVALUATE THREE PROPOSALS WHEN
25-2 POSSIBLE. A catalogue purchase or lease shall, when possible, be
25-3 based on an evaluation of at least three catalogue proposals made
25-4 to the commission or other state agency by qualified information
25-5 systems vendors. If at least three catalogue proposals are not
25-6 evaluated by the commission or other state agency before the
25-7 purchase or lease is made, the commission or other agency shall
25-8 document the reasons for that fact before making the purchase or
25-9 lease under Section 2157.063.
25-10 SECTION 19. Sections 2157.121-2157.125, Government Code, are
25-11 amended to read as follows:
25-12 Sec. 2157.121. ACQUISITION THROUGH COMPETITIVE SEALED
25-13 PROPOSALS. (a) The commission or other state agency may acquire a
25-14 telecommunications device, system, or service or an automated
25-15 information system by using competitive sealed proposals if the
25-16 commission determines [by rule] that competitive sealed bidding and
25-17 informal competitive bidding are not practical or are
25-18 disadvantageous to the state.
25-19 (b) A state agency shall send its proposal specifications
25-20 and criteria to the commission for approval or request the
25-21 commission to develop the proposal specifications and criteria.
25-22 Sec. 2157.122. SOLICITATION OF PROPOSALS; PUBLIC NOTICE.
25-23 The commission or other state agency shall:
25-24 (1) solicit proposals under this subchapter by a
25-25 request for proposals; and
25-26 (2) give public notice of the request in the manner
25-27 provided for requests for bids under Subchapter B, Chapter 2156.
26-1 Sec. 2157.123. OPENING AND FILING PROPOSALS; PUBLIC
26-2 INSPECTION. (a) The commission or other state agency shall avoid
26-3 disclosing the contents of each proposal on opening the proposal
26-4 and during negotiations with competing offerors.
26-5 (b) The commission or other state agency shall file each
26-6 proposal in a register of proposals, which, after a contract is
26-7 awarded, is open for public inspection unless the register contains
26-8 information that is excepted from required disclosure [as an open
26-9 record] under Subchapter C, Chapter 552.
26-10 Sec. 2157.124. DISCUSSION AND REVISION OF PROPOSAL. (a) As
26-11 provided by a request for proposals and under commission rules, the
26-12 commission or other state agency may discuss an acceptable or
26-13 potentially acceptable proposal with an offeror to assess the
26-14 offeror's ability to meet the solicitation requirements. When the
26-15 commission is managing the request for proposals process, it [and]
26-16 shall invite a requisitioning agency to participate in discussions
26-17 conducted under this section.
26-18 (b) After receiving a proposal but before making an award,
26-19 the commission or other state agency may permit an offeror to
26-20 revise a proposal to obtain the best final offer.
26-21 (c) The commission or other state agency may not disclose
26-22 information derived from a proposal submitted by a competing
26-23 offeror in conducting discussions under this section.
26-24 (d) The commission or other state agency shall provide each
26-25 offeror an equal opportunity to discuss and revise proposals.
26-26 Sec. 2157.125. CONTRACT AWARD; FACTORS CONSIDERED. (a) The
26-27 commission or other state agency shall make a written award of a
27-1 purchase or lease to the offeror whose proposal under this
27-2 subchapter offers [is] the best value for [most advantageous to]
27-3 the state, considering price, past vendor performance, vendor
27-4 experience, and the evaluation factors in the request for
27-5 proposals.
27-6 (b) The commission or other state agency shall refuse all
27-7 offers if no offer submitted is acceptable.
27-8 (c) In determining which [whether a] proposal under this
27-9 subchapter offers the best value for [is most advantageous to] the
27-10 state, the commission or other state agency shall, when applicable
27-11 and subject to Sections 2155.074 and 2155.075, consider factors
27-12 including:
27-13 (1) the installation cost;
27-14 (2) the overall life of the system or equipment;
27-15 (3) the cost of acquisition, operation, and
27-16 maintenance of hardware included with, associated with, or required
27-17 for the system or equipment during the state's ownership or lease;
27-18 (4) the cost of acquisition, operation, and
27-19 maintenance of software included with, associated with, or required
27-20 for the system or equipment during the state's ownership or lease;
27-21 (5) the estimated cost of other supplies needed
27-22 because of the acquisition;
27-23 (6) the estimated cost of employee training needed
27-24 because of the acquisition;
27-25 (7) the estimated cost of necessary additional
27-26 permanent employees because of the acquisition; and
27-27 (8) the estimated increase in employee productivity
28-1 because of the acquisition.
28-2 (d) The commission or other state agency shall state in
28-3 writing in the contract file the reasons for making an award.
28-4 SECTION 20. Section 2101.038, Government Code, is amended to
28-5 read as follows:
28-6 Sec. 2101.038. DUTIES OF STATE AUDITOR. The state auditor,
28-7 when reviewing the operation of a state agency, shall audit for
28-8 compliance with the uniform statewide accounting system, the
28-9 comptroller's rules, and the Legislative Budget Board's performance
28-10 and workload measures. The state auditor shall also audit state
28-11 agencies that make purchases that are exempted from the purchasing
28-12 authority of the General Services Commission or that make purchases
28-13 under delegated purchasing authority for compliance with applicable
28-14 provisions of Subtitle D. The state auditor shall notify the
28-15 project advisory committee, the comptroller, the governor, the
28-16 lieutenant governor, the speaker of the house of representatives,
28-17 and the Legislative Budget Board as soon as practicable when a
28-18 state agency is not in compliance.
28-19 SECTION 21. Section 496.051(a), Government Code, is amended
28-20 to read as follows:
28-21 (a) The department shall comply with any special purchasing
28-22 procedures requiring competitive review under Subtitle D, Title 10
28-23 [the State Purchasing and General Services Act (Article 60lb,
28-24 Vernon's Texas Civil Statutes)]. The department shall test the
28-25 goods and services that it purchases in accordance with Section
28-26 2155.069 and may enter into a contract with a private or public
28-27 entity to assist with testing.
29-1 SECTION 22. Section 122.007, Human Resources Code, is
29-2 amended to read as follows:
29-3 Sec. 122.007. FAIR MARKET PRICE; PURCHASING PROCEDURES.
29-4 (a) The council shall determine the fair market price of all
29-5 products and services manufactured or provided by persons with
29-6 disabilities and offered for sale to the various agencies and
29-7 departments of the state and its political subdivisions by a
29-8 community rehabilitation program. The council shall ensure that
29-9 the products and services offered for sale offer the best value for
29-10 the state or a political subdivision.
29-11 (b) A subcommittee composed of three council members
29-12 appointed by the presiding officer shall review the data used to
29-13 determine fair market price and shall make recommendations to the
29-14 council concerning fair market price for the products and services
29-15 and offering the best value to customers.
29-16 (c) The council shall revise the prices periodically to
29-17 reflect changing market conditions.
29-18 (d) Before offering for sale products and services
29-19 manufactured or provided by persons with disabilities to state
29-20 agencies and political subdivisions, the council shall test the
29-21 goods and services in accordance with Section 2155.069, Government
29-22 Code, to the extent necessary to ensure quality. The council may
29-23 enter into a contract with a private or public entity to assist
29-24 with testing.
29-25 (e) Requisitions for products and services required by state
29-26 agencies are processed by the commission according to rules
29-27 established by the commission.
30-1 SECTION 23. (a) The state auditor and the advisory
30-2 committee on procurement established by this Act shall study how
30-3 the classification levels of state agency purchasing personnel
30-4 should be revised to reflect the increased levels of responsibility
30-5 and accountability given to state agency purchasing personnel under
30-6 the changes in law made by this Act. The state auditor and the
30-7 committee should consider how best to provide purchasing personnel
30-8 with a pay scale and a career path, including goals, incentives,
30-9 and initiatives, commensurate with the purchaser's knowledge,
30-10 authority, and responsibility.
30-11 (b) The state auditor and the committee shall present their
30-12 written recommendations and the results of their study to the
30-13 legislature not later than January 1, 1999.
30-14 SECTION 24. Section 2155.067(e), Government Code, is
30-15 repealed.
30-16 SECTION 25. This Act takes effect September 1, 1997.
30-17 SECTION 26. The importance of this legislation and the
30-18 crowded condition of the calendars in both houses create an
30-19 emergency and an imperative public necessity that the
30-20 constitutional rule requiring bills to be read on three several
30-21 days in each house be suspended, and this rule is hereby suspended.