1-1 By: Armbrister S.B. No. 1752
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 15, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 13, Nays 0; April 15, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1752 By: Armbrister
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the purchase of goods and services by the state and to
1-11 purchasing services provided by the state to local governments.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter A, Chapter 2152, Government Code, is
1-14 amended by adding Section 2152.003 to read as follows:
1-15 Sec. 2152.003. AUTHORITY TO ADOPT RULES. The commission may
1-16 adopt rules to efficiently and effectively administer this
1-17 subtitle.
1-18 SECTION 2. Section 2155.065, Government Code, is amended to
1-19 read as follows:
1-20 Sec. 2155.065. CONTRACTS WITH DEPARTMENT OF CRIMINAL
1-21 JUSTICE. (a) The commission is authorized to make contracts with
1-22 the Texas Department of Criminal Justice for the purchase of goods
1-23 and services for use by another state agency.
1-24 (b) The Texas Department of Criminal Justice shall test
1-25 goods and services it sells under this section before delivery to
1-26 the extent necessary to ensure quality. The department may enter
1-27 into a contract with a private or public entity to assist with
1-28 testing.
1-29 (c) The commission shall make awards under this section
1-30 based on proposed goods and services meeting formal state
1-31 specifications developed by the commission or meeting commercial
1-32 specifications approved by the commission.
1-33 SECTION 3. Section 2155.068, Government Code, is amended to
1-34 read as follows:
1-35 Sec. 2155.068. UNIFORM STANDARDS AND SPECIFICATIONS.
1-36 (a) The commission may coordinate uniform standards and
1-37 specifications for goods purchased by the commission. The
1-38 commission by rule may adopt appropriate standards developed by a
1-39 nationally recognized standards-making association as part of its
1-40 specifications and standards program.
1-41 (b) The commission shall enlist the cooperation of other
1-42 state agencies in the establishment, maintenance, and revision of
1-43 uniform standards and specifications [and shall foster their use to
1-44 accomplish continuously the most efficient purchase of goods].
1-45 (c) The commission shall review contracts administered by
1-46 the commission [and procedures] to ensure that all goods and
1-47 services meet contract specifications.
1-48 (d) As part of the standards and specifications program, the
1-49 commission shall review contracts for opportunities to recycle
1-50 [recycling] waste produced at state buildings.
1-51 SECTION 4. Section 2155.069, Government Code, is amended to
1-52 read as follows:
1-53 Sec. 2155.069. TESTING AND INSPECTION. (a) The commission
1-54 may [shall] test and inspect goods and services purchased under a
1-55 contract administered by the commission [under a program] to ensure
1-56 compliance with specifications.
1-57 (b) The commission may contract for testing under this
1-58 section.
1-59 (c) The commission may, on request, test and inspect goods
1-60 and services purchased by other state governmental entities on a
1-61 cost recovery basis [shall provide for testing and inspection of
1-62 all costly purchases and may adopt rules necessary to carry out
1-63 this duty].
1-64 (d) The commission may also test and inspect goods and
2-1 services before they are purchased. Other state agencies may test
2-2 and inspect goods and services before purchase under standard
2-3 industry testing methods, or they may contract for testing. The
2-4 commission may inform agencies about available private testing
2-5 facilities.
2-6 SECTION 5. Subsections (a), (b), and (d), Section 2155.070,
2-7 Government Code, are amended to read as follows:
2-8 (a) A state agency that determines that goods or services
2-9 received under a contract administered by the commission do not
2-10 meet specifications shall promptly notify the commission in writing
2-11 of the reasons for the determination. The commission shall
2-12 immediately make its own determination of whether the goods and
2-13 services meet specifications.
2-14 (b) The commission or a state agency, including an
2-15 institution of higher education, has the authority [has the sole
2-16 power] to determine that goods and services exempted from the
2-17 commission's purchasing authority meet or fail to meet
2-18 specifications.
2-19 (d) If the commission receives repeated complaints against a
2-20 vendor, the commission shall remove the vendor's name and the
2-21 vendor's goods and services from the commission's bidders list for
2-22 not longer than one year. If complaints resume after the vendor is
2-23 reinstated on the bidders list, the commission may bar the vendor
2-24 from participating in state contracts for a period under Section
2-25 2155.077.
2-26 SECTION 6. Subchapter B, Chapter 2155, Government Code, is
2-27 amended by adding Sections 2155.074 through 2155.082 to read as
2-28 follows:
2-29 Sec. 2155.074. BEST VALUE STANDARD FOR PURCHASE OF GOODS OR
2-30 SERVICES. (a) Each state agency, including the commission, shall
2-31 purchase goods and services that provide the best value for the
2-32 state.
2-33 (b) In determining the best value for the state, the
2-34 purchase price and whether the goods or services meet
2-35 specifications are the most important considerations. However, the
2-36 commission or other state agency may, subject to Subsection (c) and
2-37 Section 2155.075, consider other relevant factors, including:
2-38 (1) installation costs;
2-39 (2) life cycle costs;
2-40 (3) the quality and reliability of the goods and
2-41 services;
2-42 (4) the delivery terms;
2-43 (5) indicators of probable vendor performance under
2-44 the contract such as past vendor performance, the vendor's
2-45 financial resources and ability to perform, the vendor's experience
2-46 or demonstrated capability and responsibility, and the vendor's
2-47 ability to provide reliable maintenance agreements and support;
2-48 (6) the cost of any employee training associated with
2-49 a purchase;
2-50 (7) the effect of a purchase on agency productivity;
2-51 and
2-52 (8) other factors relevant to determining the best
2-53 value for the state in the context of a particular purchase.
2-54 (c) A state agency shall consult with and receive approval
2-55 from the commission before considering factors other than price and
2-56 meeting specifications when the agency procures through competitive
2-57 bidding goods or services with a value that exceeds $100,000.
2-58 Sec. 2155.075. REQUIREMENT TO SPECIFY VALUE FACTORS IN
2-59 REQUEST FOR BIDS OR PROPOSALS. (a) For a purchase made through
2-60 competitive bidding, the commission or other state agency making
2-61 the purchase must specify in the request for bids the factors other
2-62 than price that the commission or agency will consider in
2-63 determining which bid offers the best value for the state.
2-64 (b) For a purchase made through competitive sealed
2-65 proposals, the commission or other state agency making the
2-66 purchase:
2-67 (1) must specify in the request for proposals the
2-68 known factors other than price that the commission or agency will
2-69 consider in determining which proposal offers the best value for
3-1 the state; and
3-2 (2) may concurrently inform each vendor that made a
3-3 proposal on the contract of any additional factors the commission
3-4 or agency will consider in determining which proposal offers the
3-5 best value for the state if the commission or other agency
3-6 determines after opening the proposals that additional factors not
3-7 covered under Subdivision (1) are relevant in determining which
3-8 proposal offers the best value for the state.
3-9 Sec. 2155.076. PROTEST PROCEDURES. (a) The commission and
3-10 each state agency by rule shall develop and adopt protest
3-11 procedures for resolving vendor protests relating to purchasing
3-12 issues. An agency's rules must be consistent with the commission's
3-13 rules. The rules must include standards for maintaining
3-14 documentation about the purchasing process to be used in the event
3-15 of a protest.
3-16 (b) A state agency that is not subject to Chapter 2001,
3-17 shall provide public notice of its proposed and adopted protest
3-18 rules and provide a procedure for public comment on the proposed
3-19 rules.
3-20 Sec. 2155.077. BARRING VENDOR FROM PARTICIPATION IN STATE
3-21 CONTRACTS. (a) The commission may bar a vendor from participating
3-22 in state contracts that are subject to this subtitle, including
3-23 contracts for which purchasing authority is delegated to a state
3-24 agency, for:
3-25 (1) substandard performance under a contract with the
3-26 state or a state agency;
3-27 (2) material misrepresentations in a bid or proposal
3-28 to the state or a state agency or during the course of performing a
3-29 contract with the state or a state agency;
3-30 (3) fraud; or
3-31 (4) breaching a contract with the state or a state
3-32 agency.
3-33 (b) The commission shall bar a vendor from participating in
3-34 state contracts under this section for a period that is
3-35 commensurate with the seriousness of the vendor's action and the
3-36 damage to the state's interests.
3-37 (c) The commission by rule shall:
3-38 (1) state generally the reasons for which a vendor may
3-39 be barred from participating in state contracts and the periods for
3-40 which the vendor may be barred; and
3-41 (2) prescribe the procedures under which the
3-42 commission will determine whether and for how long a vendor will be
3-43 barred.
3-44 Sec. 2155.078. TRAINING AND CERTIFICATION OF STATE AGENCY
3-45 PURCHASING PERSONNEL. (a) The commission shall establish and
3-46 administer a system of training, continuing education, and
3-47 certification for state agency purchasing personnel. The
3-48 commission may adopt rules to administer this section, including
3-49 rules relating to monitoring a certified purchaser's compliance
3-50 with the continuing education requirements of this section.
3-51 (b) Except as provided by Subsection (n), all state agency
3-52 purchasing personnel, including agencies exempted from the
3-53 purchasing authority of the commission, must receive the training
3-54 and continuing education to the extent required by rule of the
3-55 commission. A state agency employee who is required to receive the
3-56 training may not participate in purchases by the employing agency
3-57 unless the employee has received the required training or received
3-58 equivalent training from a national association recognized by the
3-59 commission. The equivalent training may count, as provided by
3-60 Subsection (k), toward the continuing education requirements.
3-61 (c) The commission shall set and collect a fee from state
3-62 agencies that employ purchasing personnel. The commission shall
3-63 set the fee in an amount that recovers the commission's costs under
3-64 this section.
3-65 (d) The commission may provide training, continuing
3-66 education, and certification under this section to purchasing
3-67 personnel employed by a political subdivision or other public
3-68 entity of the state. Political subdivision purchasing personnel
3-69 may receive, but are not required to receive, the training,
4-1 continuing education, or certification provided under this section.
4-2 The commission shall collect the fees described by Subsection (c)
4-3 for training, education, or certification under this subsection.
4-4 (e) The commission may provide training and continuing
4-5 education under this section using its own personnel or through
4-6 contracts with private entities. The commission may also, by
4-7 agreement with a public entity, use the services of persons
4-8 employed by the public entity to provide training and continuing
4-9 education under this section.
4-10 (f) The commission shall provide at least three levels of
4-11 training under this section.
4-12 (g) The basic training level must include an introduction to
4-13 contract purchasing methods, ethical issues affecting purchasing
4-14 decisions, and instruction in any other processes and issues that
4-15 the commission considers appropriate for introductory purchasing
4-16 training.
4-17 (h) The second training level must include advanced
4-18 instruction in formal and informal bidding methods, introduction to
4-19 negotiation methods, instruction in writing specifications, and
4-20 instruction in any other processes and issues that the commission
4-21 considers appropriate for the second level of purchasing training.
4-22 (i) The third training level must include an introduction to
4-23 complex negotiations, instruction in the criteria for determining
4-24 which product or service offers the best value for the state, and
4-25 instruction in any other processes and issues that the commission
4-26 considers appropriate for advanced purchasing training.
4-27 (j) The commission may prescribe the circumstances under
4-28 which a state agency may delegate to a certified purchaser
4-29 signature purchasing authority to approve purchase orders.
4-30 (k) The commission shall require 24 hours of continuing
4-31 education each year to maintain a certification level. The
4-32 commission may allow attendance at equivalent certification
4-33 training recognized by the commission to count toward up to 16
4-34 hours of the continuing education requirement.
4-35 (l) The commission's prerequisites for receiving a level-two
4-36 purchaser certification must include completion of the basic
4-37 training level, passage of a written examination, and a minimum
4-38 number of years of purchasing experience prescribed by the
4-39 commission.
4-40 (m) The commission's prerequisites for receiving a
4-41 level-three purchaser certification must include completion of the
4-42 second training level, passage of a written and an oral
4-43 examination, and a minimum of three years of purchasing experience.
4-44 (n) This section does not apply to a medical and dental unit
4-45 to which Section 51.933, Education Code, as added by Chapter 736,
4-46 Acts of the 74th Legislature, 1995, applies or to an institution to
4-47 which Section 73.115, Education Code, applies.
4-48 Sec. 2155.079. BUYING UNDER CONTRACT ESTABLISHED BY AGENCY
4-49 OTHER THAN COMMISSION. (a) The commission shall adopt rules
4-50 specifying the circumstances under which it is advantageous for the
4-51 state to allow a state agency to purchase goods or services under a
4-52 contract made by another state agency other than the commission.
4-53 (b) If commission rules allow other agencies to make
4-54 purchases under a contract entered into by an agency using
4-55 delegated purchasing authority, the agency purchasing under
4-56 delegated authority may offer the goods or services available under
4-57 the contract to other agencies only if the agency first:
4-58 (1) establishes that the goods or services being
4-59 offered under its contract are not available under a contract
4-60 administered by the commission; and
4-61 (2) informs the commission of the terms of the
4-62 contract and the capabilities of the vendor.
4-63 Sec. 2155.080. ADVISORY COMMITTEE ON PROCUREMENT. (a) The
4-64 commission may establish an advisory committee on procurement. The
4-65 purpose of the committee is to represent before the commission the
4-66 state agency purchasing community and the political subdivisions
4-67 that use the commission's purchasing services.
4-68 (b) The committee is composed of officers or employees from
4-69 the commission, from state agencies, including institutions of
5-1 higher education, and from political subdivisions who are invited
5-2 by the commission to serve on the committee. The commission shall
5-3 invite officers and employees who are experienced in public
5-4 purchasing, in public finance, or who possess other appropriate
5-5 expertise to serve on the committee. Service on the committee is
5-6 an additional duty of the member's public office or employment.
5-7 Article 6252-33, Revised Statutes, does not apply to the size or
5-8 composition of the committee. The commission shall set staggered
5-9 terms for the members of the committee.
5-10 (c) The committee may establish its own rules of operation.
5-11 (d) The committee shall recommend improvements in commission
5-12 or state agency purchasing practices to the commission. The
5-13 committee shall review and comment on findings and recommendations
5-14 related to purchasing that are made by state agency internal
5-15 auditors or by the state auditor.
5-16 Sec. 2155.081. VENDOR ADVISORY COMMITTEE. (a) The
5-17 commission may establish a vendor advisory committee. The purpose
5-18 of the committee is to represent before the commission the vendor
5-19 community, to provide information to vendors, and to obtain vendor
5-20 input on state procurement practices.
5-21 (b) The committee is composed of employees from the
5-22 commission and vendors who have done business with the state who
5-23 are invited by the commission to serve on the committee. The
5-24 commission shall invite a cross-section of the vendor community to
5-25 serve on the committee, inviting both large and small businesses
5-26 and vendors who provide a variety of different goods and services
5-27 to the state. Article 6252-33, Revised Statutes, does not apply to
5-28 the size or composition of the committee. The commission shall set
5-29 staggered terms for the members of the committee.
5-30 (c) The committee may establish its own rules of operation
5-31 but shall post notice of and hold its meetings in accordance with
5-32 Chapter 551.
5-33 Sec. 2155.082. PROVIDING CERTAIN PURCHASING SERVICES ON
5-34 FEE-FOR-SERVICE BASIS. (a) The commission may provide open market
5-35 purchasing services on a fee-for-service basis for state agency
5-36 purchases that are delegated to an agency under Section 2155.131,
5-37 2155.132, 2155.133, or 2157.121 or that are exempted from the
5-38 purchasing authority of the commission. The commission shall set
5-39 the fees in an amount that recovers the commission's costs in
5-40 providing the services.
5-41 (b) The commission shall publish a schedule of its fees for
5-42 services that are subject to this section. The schedule must
5-43 include the commission's fees for:
5-44 (1) reviewing bid and contract documents for clarity,
5-45 completeness, and compliance with laws and rules;
5-46 (2) developing and transmitting invitations to bid;
5-47 (3) receiving and tabulating bids;
5-48 (4) evaluating and determining which bidder offers the
5-49 best value to the state;
5-50 (5) creating and transmitting purchase orders; and
5-51 (6) participating in agencies' request for proposal
5-52 processes.
5-53 SECTION 7. Section 2155.132, Government Code, is amended to
5-54 read as follows:
5-55 Sec. 2155.132. PURCHASES LESS THAN SPECIFIED MONETARY
5-56 AMOUNT. (a) A state agency is delegated the authority to purchase
5-57 goods and services if the purchase does not exceed $15,000
5-58 [$5,000]. If the commission determines that a state agency has not
5-59 followed the commission's rules or the laws related to the
5-60 delegated purchases, the commission shall report its determination
5-61 to the governor, lieutenant governor, speaker of the house of
5-62 representatives, and Legislative Budget Board. [The agency may,
5-63 however, use the commission's services for those purchases.]
5-64 (b) The commission by rule may delegate to a state agency
5-65 the authority to purchase goods and services if the purchase
5-66 exceeds $15,000 [$5,000]. In delegating purchasing authority under
5-67 this subsection or Section 2155.131, the commission shall consider
5-68 factors relevant to a state agency's ability to perform purchasing
5-69 functions, including:
6-1 (1) the capabilities of the agency's purchasing staff
6-2 and the existence of automated purchasing tools at the agency;
6-3 (2) the certification levels held by the agency's
6-4 purchasing personnel;
6-5 (3) the results of the commission's procurement review
6-6 audits of an agency's purchasing practices; and
6-7 (4) whether the agency has adopted and published
6-8 protest procedures consistent with those of the commission as part
6-9 of its purchasing rules.
6-10 (c) The commission shall monitor the purchasing practices of
6-11 state agencies that are making delegated purchases under Subsection
6-12 (b) or Section 2155.131 to ensure that the certification levels of
6-13 the agency's purchasing personnel and the quality of the agency's
6-14 purchasing practices continue to warrant the amount of delegated
6-15 authority provided by the commission to the agency. The commission
6-16 may revoke for cause all or part of the purchasing authority that
6-17 the commission delegated to a state agency. The commission shall
6-18 adopt rules to administer this subsection.
6-19 (d) [(c)] The commission by rule:
6-20 (1) shall prescribe procedures for a delegated
6-21 purchase; and
6-22 (2) shall prescribe procedures by which agencies may
6-23 use the commission's services for delegated purchases, in
6-24 accordance with Section 2155.082 [may delegate to the comptroller
6-25 the commission's authority under Subchapter F to audit purchases
6-26 and purchase information if the purchases do not exceed $500 or a
6-27 greater amount prescribed by the commission].
6-28 (e) [(d)] Competitive bidding, whether formal or informal,
6-29 is not required for a purchase by a state agency if the purchase
6-30 does not exceed $2,000 [$1,000], or a greater amount prescribed by
6-31 commission rule.
6-32 (f) [(e)] Goods purchased under this section may not
6-33 include:
6-34 (1) an item for which a contract has been awarded
6-35 under the contract purchase procedure, unless the quantity
6-36 purchased is less than the minimum quantity specified in the
6-37 contract;
6-38 (2) an item required by statute to be purchased from a
6-39 particular source; or
6-40 (3) a scheduled item that has been designated for
6-41 purchase by the commission.
6-42 (g) [(f)] A large purchase may not be divided into small lot
6-43 purchases to meet the dollar limits prescribed by this section.
6-44 The commission may not require that unrelated purchases be combined
6-45 into one purchase order to exceed the dollar limits prescribed by
6-46 this section.
6-47 (h) [(g)] A state agency making a purchase under this
6-48 section for which competitive bidding is required must:
6-49 (1) attempt to obtain at least three competitive bids
6-50 from sources listed on the master bidders list that normally offer
6-51 for sale the goods being purchased; and
6-52 (2) comply with Subchapter E.
6-53 SECTION 8. Subsection (b), Section 2155.134, Government
6-54 Code, is amended to read as follows:
6-55 (b) The commission shall adopt rules that allow institutions
6-56 of higher education or state agencies to make purchases [purchases
6-57 to be made] through group purchasing programs except when the
6-58 commission determines within a reasonable time after receiving
6-59 notice of a particular purchase that costs more than $100,000 that
6-60 a better value [lower price] is available through the commission.
6-61 SECTION 9. Section 2155.138, Government Code, is amended to
6-62 read as follows:
6-63 Sec. 2155.138. EXEMPTION OF GOODS OR SERVICES OF BLIND OR
6-64 VISUALLY IMPAIRED PERSONS. (a) The competitive bidding provisions
6-65 of this chapter do not apply to a state purchase of goods or
6-66 services that:
6-67 (1) are made or provided by blind or visually impaired
6-68 persons;
6-69 (2) are offered for sale to a state agency through
7-1 efforts made under law by the Texas Council on Purchasing from
7-2 People with Disabilities [Committee on Purchases of Products and
7-3 Services of Blind and Severely Disabled Persons];
7-4 (3) meet state specifications for quantity, [and]
7-5 quality, delivery, and life cycle costs; and
7-6 (4) cost not more than the fair market price of
7-7 similar items.
7-8 (b) The council shall test the goods and services to the
7-9 extent necessary to ensure quality. The council may enter into a
7-10 contract with a private or public entity to assist with testing.
7-11 (c) The commission shall make awards under this section
7-12 based on proposed goods and services meeting formal state
7-13 specifications developed by the commission or meeting commercial
7-14 specifications approved by the commission.
7-15 SECTION 10. Section 2155.263, Government Code, is amended to
7-16 read as follows:
7-17 Sec. 2155.263. COMMISSION TO MAINTAIN CENTRALIZED MASTER
7-18 BIDDERS LIST. (a) The commission shall maintain a centralized
7-19 master bidders list and annually register on the list the name and
7-20 address of each vendor that applies for registration under rules
7-21 adopted under this subchapter. The commission may include other
7-22 relevant vendor information on the list.
7-23 (b) The commission shall maintain the centralized master
7-24 bidders list in a manner that facilitates a state agency's
7-25 solicitation of vendors that serve the agency's geographic area.
7-26 (c) The centralized master bidders list shall be used for
7-27 all available procurement processes authorized by this subtitle and
7-28 shall also be used to the fullest extent possible by state agencies
7-29 that make purchases exempt from the commission's purchasing
7-30 authority.
7-31 SECTION 11. Section 2155.268, Government Code, is amended by
7-32 adding Subsection (d) to read as follows:
7-33 (d) A state agency may purchase goods and services from a
7-34 vendor who is not on the bidders list if the purchase price does
7-35 not exceed $5,000.
7-36 SECTION 12. Section 2155.441, Government Code, is amended to
7-37 read as follows:
7-38 Sec. 2155.441. PREFERENCE FOR PRODUCTS OF PERSONS WITH
7-39 MENTAL RETARDATION OR PHYSICAL DISABILITIES. (a) The products of
7-40 workshops, organizations, or corporations whose primary purpose is
7-41 training and employing individuals having mental retardation or a
7-42 physical disability shall be given preference if they meet state
7-43 specifications regarding quantity, quality, delivery, life cycle
7-44 costs, and price.
7-45 (b) The workshops, organizations, or corporations shall test
7-46 the products to the extent necessary to ensure quality in
7-47 accordance with Section 2155.069 and may enter into contracts with
7-48 a private or public entity to assist with testing.
7-49 (c) The commission is not required to purchase products
7-50 under this section that do not meet formal state specifications
7-51 developed by the commission or meet commercial specifications
7-52 approved by the commission.
7-53 SECTION 13. Section 2156.005, Government Code, is amended to
7-54 read as follows:
7-55 Sec. 2156.005. BID SUBMISSION AND OPENING; PUBLIC
7-56 INSPECTION. (a) A bidder must submit a sealed bid to the
7-57 commission or to the state agency making a purchase. The bid must
7-58 be identified on the envelope as a bid.
7-59 (b) The commission or other state agency making a purchase
7-60 shall open bids at the time and place stated in the invitation to
7-61 bid.
7-62 (c) [The state auditor or a member of the state auditor's
7-63 staff may be present at a bid opening.]
7-64 [(d)] The commission shall keep a tabulation of all bids
7-65 received by the commission available for public inspection under
7-66 rules adopted by the commission. State agencies making purchases
7-67 shall adopt the commission's rules related to bid opening and
7-68 tabulation.
7-69 SECTION 14. Sections 2156.007 through 2156.010, Government
8-1 Code, are amended to read as follows:
8-2 Sec. 2156.007. CONTRACT AWARD. (a) The commission or other
8-3 state agency making a purchase shall award a contract to the bidder
8-4 offering the best value for the state while [submitting the lowest
8-5 and best bid] conforming to the specifications required.
8-6 (b) In determining the [lowest and best] bidder offering the
8-7 best value, the commission or other state agency may consider the
8-8 safety record of the bidder, the entity represented by the bidder,
8-9 and any person acting for the represented entity only if:
8-10 (1) the commission or other state agency has adopted a
8-11 written definition and criteria for accurately determining the
8-12 safety record of a bidder; and
8-13 (2) the commission or state agency provided [gave]
8-14 notice in the bid specifications to prospective bidders that a
8-15 bidder's safety record may be considered in determining the [lowest
8-16 and best] bidder offering the best value for the state.
8-17 (c) A determination of a bidder's safety record may not be
8-18 arbitrary and capricious.
8-19 (d) In determining the [lowest and best] bidder offering the
8-20 best value, in addition to price the commission or other state
8-21 agency shall consider:
8-22 (1) the quality and availability of the goods or
8-23 contractual services and their adaptability to the use required;
8-24 (2) the [number and] scope of conditions attached to
8-25 the bid;
8-26 (3) the bidder's ability, capacity, and skill to
8-27 perform the contract or provide the service required;
8-28 (4) the bidder's ability to perform the contract or
8-29 provide the service promptly, or in the time required, without
8-30 delay or interference;
8-31 (5) the bidder's character, responsibility, integrity,
8-32 [reputation,] and experience;
8-33 (6) the quality of performance of previous contracts
8-34 or services;
8-35 (7) the bidder's previous and existing compliance with
8-36 laws relating to the contract or service;
8-37 (8) the bidder's previous or existing noncompliance
8-38 with specification requirements relating to the time of submission
8-39 of specified information, including samples, models, drawings, or
8-40 certificates;
8-41 (9) the sufficiency of the bidder's financial
8-42 resources and ability to perform the contract or provide the
8-43 service; and
8-44 (10) the bidder's ability to provide future
8-45 maintenance, repair parts, and service for the use of the
8-46 contract's subject.
8-47 Sec. 2156.008. REJECTION OF BIDS. (a) The commission or
8-48 other state agency making the purchase shall reject a bid in which
8-49 there is a material failure to comply with specification
8-50 requirements.
8-51 (b) The commission or other state agency may reject all bids
8-52 or parts of bids if the rejection serves the state's interest.
8-53 Sec. 2156.009. REASONS FOR AWARD. On award of a contract,
8-54 the division of the commission responsible for purchasing or the
8-55 state agency making the purchase shall prepare and file with other
8-56 records relating to the transaction a statement of the reasons for
8-57 making the award to the successful bidder and the factors
8-58 considered in determining which bidder offered the best value for
8-59 the state [the lowest and best bid].
8-60 Sec. 2156.010. TIE BIDS. In the case of tie bids, the value
8-61 and cost to the state [quality and service] being equal, a contract
8-62 shall be awarded under commission rules.
8-63 SECTION 15. Sections 2156.062 and 2156.063, Government Code,
8-64 are amended to read as follows:
8-65 Sec. 2156.062. MINIMUM NUMBER AND EVALUATION OF BIDS. An
8-66 open market purchase shall, to the extent possible, be:
8-67 (1) based on at least three competitive bids; and
8-68 (2) awarded to the [lowest and best] bidder offering
8-69 the best value for the state in accordance with standards set forth
9-1 in Chapters 2155, 2156, 2157, and 2158.
9-2 Sec. 2156.063. SOLICITATION OF BIDS. The commission and
9-3 each state agency making a purchase shall solicit bids under this
9-4 subchapter by direct mail, telephone, or telegraph.
9-5 SECTION 16. Sections 2156.065 and 2156.066, Government Code,
9-6 are amended to read as follows:
9-7 Sec. 2156.065. AGENCY REVIEW OF BIDS. (a) On the request
9-8 of a state agency to review the bids on a purchase administered by
9-9 the commission, the commission shall send or make available to the
9-10 requesting agency copies of each bid received and the commission's
9-11 recommended award.
9-12 (b) If, after review of the bids and evaluation of the
9-13 quality of goods or services offered in the bids, the state agency
9-14 determines that the bid selected by the commission does [is] not
9-15 offer the best value for the state [the lowest and best bid], the
9-16 agency may file with the commission a written recommendation that
9-17 the award be made to the bidder who, according to the agency's
9-18 determination, offers the best value for the state [made the lowest
9-19 and best bid]. The agency recommendation must include a
9-20 justification of the agency's determination.
9-21 (c) The commission shall consider, but is not bound by, the
9-22 agency recommendation in making the award.
9-23 Sec. 2156.066. STATEMENT OF REASONS FOR AWARD. The division
9-24 of the commission responsible for purchasing or the state agency
9-25 making a purchase shall prepare and file with other records
9-26 relating to a transaction under this subchapter a statement of the
9-27 reasons for placing an order with a successful bidder for the
9-28 transaction and the factors considered in determining the [lowest
9-29 and best] bid offering the best value for the state [for the
9-30 transaction].
9-31 SECTION 17. Subchapter C, Chapter 2156, Government Code, is
9-32 amended to read as follows:
9-33 SUBCHAPTER C. COMPETITIVE SEALED PROPOSALS FOR
9-34 ACQUISITION OF [CERTAIN] GOODS AND SERVICES
9-35 Sec. 2156.121. USE OF COMPETITIVE SEALED PROPOSALS [ELIGIBLE
9-36 ACQUISITIONS]. (a) The commission or other state agency may
9-37 follow a procedure using competitive sealed proposals to acquire[:]
9-38 [(1)] goods [having an acquisition cost of $1 million
9-39 or more;] or
9-40 [(2) routine] services if [having an acquisition cost
9-41 of $100,000 or more.]
9-42 [Sec. 2156.122. PURCHASE AUTHORITY LIMITED TO COMMISSION.
9-43 Only the commission may use competitive sealed proposals under this
9-44 subchapter to acquire goods or services. The commission may not
9-45 delegate this authority to a state agency.]
9-46 [Sec. 2156.123. DETERMINATION REGARDING COMPETITIVE BIDDING.
9-47 To acquire goods or services under this subchapter,] the commission
9-48 determines [must first determine in an open meeting] that
9-49 competitive sealed bidding and informal competitive bidding for the
9-50 purchase or type of purchase are not practical or are
9-51 disadvantageous to the state.
9-52 (b) A state agency shall send its proposal specifications
9-53 and criteria to the commission for approval or request the
9-54 commission to develop the proposal specifications and criteria.
9-55 Sec. 2156.122 [2156.124]. SOLICITATION OF PROPOSALS. The
9-56 commission or other state agency shall:
9-57 (1) solicit proposals under this subchapter by a
9-58 request for proposals; and
9-59 (2) give public notice of a request for proposals in
9-60 the manner provided for requests for bids under Subchapter B.
9-61 [Sec. 2156.125. DEVELOPMENT OF SPECIFICATIONS. The
9-62 commission shall consult with the appropriate personnel of a
9-63 requisitioning agency to develop the specifications for a request
9-64 for proposals under this subchapter.]
9-65 Sec. 2156.123 [2156.126]. OPENING AND FILING OF PROPOSALS;
9-66 PUBLIC INSPECTION. (a) The commission or other state agency shall
9-67 avoid disclosing the contents of each proposal on opening the
9-68 proposal and during negotiations with competing offerors.
9-69 (b) The commission or other state agency shall file each
10-1 proposal in a register of proposals, which, after a contract is
10-2 awarded, is open for public inspection unless the register contains
10-3 information that is excepted from required disclosure [as an open
10-4 record] under Subchapter C, Chapter 552.
10-5 Sec. 2156.124 [2156.127]. DISCUSSION AND REVISION OF
10-6 PROPOSALS. (a) As provided in a request for proposals and under
10-7 rules adopted by the commission, the commission or other state
10-8 agency may discuss acceptable or potentially acceptable proposals
10-9 with offerors to assess an offeror's ability to meet the
10-10 solicitation requirements. When the commission is managing the
10-11 request for proposals process, it [and] shall invite a
10-12 requisitioning agency to participate in discussions conducted under
10-13 this section.
10-14 (b) After receiving a proposal but before making an award,
10-15 the commission or other state agency may permit the offeror to
10-16 revise the proposal to obtain the best final offer.
10-17 (c) The commission or other state agency may not disclose
10-18 information derived from proposals submitted from competing
10-19 offerors in conducting discussions under this section.
10-20 (d) The commission or other state agency shall provide each
10-21 offeror an equal opportunity to discuss and revise proposals.
10-22 Sec. 2156.125 [2156.128]. CONTRACT AWARD. (a) The
10-23 commission or other state agency shall make a written award of a
10-24 contract to the offeror whose proposal offers [is] the best value
10-25 for [most advantageous to] the state, considering price, past
10-26 vendor performance, vendor experience, and the evaluation factors
10-27 in the request for proposals.
10-28 (b) The commission or other state agency shall refuse all
10-29 offers if none of the offers submitted is acceptable.
10-30 (c) The commission or other state agency shall determine
10-31 which proposal offers the best value for the state in accordance
10-32 with Sections 2155.074 and 2155.075.
10-33 (d) The commission or other state agency shall state in
10-34 writing in the contract file the reasons for making an award.
10-35 Sec. 2156.126 [2156.129]. ADOPTION OF RULES; STATE AGENCY
10-36 ASSISTANCE. The commission may adopt rules and request assistance
10-37 from other state agencies to perform its responsibilities under
10-38 this subchapter.
10-39 Sec. 2156.127 [2156.130]. COMPETITIVE SEALED PROPOSALS FOR
10-40 TELECOMMUNICATIONS AND AUTOMATED INFORMATION SYSTEMS NOT AFFECTED.
10-41 This subchapter does not affect Subchapter C, Chapter 2157.
10-42 SECTION 18. Section 2157.003, Government Code, is amended to
10-43 read as follows:
10-44 Sec. 2157.003. DETERMINING BEST VALUE FOR PURCHASES OF
10-45 AUTOMATED INFORMATION SYSTEMS. "Best value" for purposes of this
10-46 chapter means the lowest overall cost of an automated information
10-47 system. In determining the lowest overall cost for a purchase or
10-48 lease of an automated information system under this chapter, the
10-49 commission or a state agency shall consider factors including:
10-50 (1) the purchase price;
10-51 (2) the compatibility to facilitate the exchange of
10-52 existing data;
10-53 (3) the capacity for expanding and upgrading to more
10-54 advanced levels of technology;
10-55 (4) quantitative reliability factors;
10-56 (5) the level of training required to bring persons
10-57 using the system to a stated level of proficiency;
10-58 (6) the technical support requirements for the
10-59 maintenance of data across a network platform and the management of
10-60 the network's hardware and software; [and]
10-61 (7) the compliance with applicable Department of
10-62 Information Resources statewide standards validated by criteria
10-63 adopted by the department by rule; and
10-64 (8) applicable factors listed in Section 2155.074(b).
10-65 SECTION 19. Subchapter B, Chapter 2157, Government Code, is
10-66 amended by adding Section 2157.0611 to read as follows:
10-67 Sec. 2157.0611. REQUIREMENT TO EVALUATE THREE PROPOSALS WHEN
10-68 POSSIBLE. A catalogue purchase or lease shall, when possible, be
10-69 based on an evaluation of at least three catalogue proposals made
11-1 to the commission or other state agency by qualified information
11-2 systems vendors. If at least three catalogue proposals are not
11-3 evaluated by the commission or other state agency before the
11-4 purchase or lease is made, the commission or other agency shall
11-5 document the reasons for that fact before making the purchase or
11-6 lease under Section 2157.063.
11-7 SECTION 20. Sections 2157.121 through 2157.125, Government
11-8 Code, are amended to read as follows:
11-9 Sec. 2157.121. ACQUISITION THROUGH COMPETITIVE SEALED
11-10 PROPOSALS. (a) The commission or other state agency may acquire a
11-11 telecommunications device, system, or service or an automated
11-12 information system by using competitive sealed proposals if the
11-13 commission determines [by rule] that competitive sealed bidding and
11-14 informal competitive bidding are not practical or are
11-15 disadvantageous to the state.
11-16 (b) A state agency shall send its proposal specifications
11-17 and criteria to the commission for approval or request the
11-18 commission to develop the proposal specifications and criteria.
11-19 Sec. 2157.122. SOLICITATION OF PROPOSALS; PUBLIC NOTICE.
11-20 The commission or other state agency shall:
11-21 (1) solicit proposals under this subchapter by a
11-22 request for proposals; and
11-23 (2) give public notice of the request in the manner
11-24 provided for requests for bids under Subchapter B, Chapter 2156.
11-25 Sec. 2157.123. OPENING AND FILING PROPOSALS; PUBLIC
11-26 INSPECTION. (a) The commission or other state agency shall avoid
11-27 disclosing the contents of each proposal on opening the proposal
11-28 and during negotiations with competing offerors.
11-29 (b) The commission or other state agency shall file each
11-30 proposal in a register of proposals, which, after a contract is
11-31 awarded, is open for public inspection unless the register contains
11-32 information that is excepted from required disclosure [as an open
11-33 record] under Subchapter C, Chapter 552.
11-34 Sec. 2157.124. DISCUSSION AND REVISION OF PROPOSAL. (a) As
11-35 provided by a request for proposals and under commission rules, the
11-36 commission or other state agency may discuss an acceptable or
11-37 potentially acceptable proposal with an offeror to assess the
11-38 offeror's ability to meet the solicitation requirements. When the
11-39 commission is managing the request for proposals process, it [and]
11-40 shall invite a requisitioning agency to participate in discussions
11-41 conducted under this section.
11-42 (b) After receiving a proposal but before making an award,
11-43 the commission or other state agency may permit an offeror to
11-44 revise a proposal to obtain the best final offer.
11-45 (c) The commission or other state agency may not disclose
11-46 information derived from a proposal submitted by a competing
11-47 offeror in conducting discussions under this section.
11-48 (d) The commission or other state agency shall provide each
11-49 offeror an equal opportunity to discuss and revise proposals.
11-50 Sec. 2157.125. CONTRACT AWARD; FACTORS CONSIDERED. (a) The
11-51 commission or other state agency shall make a written award of a
11-52 purchase or lease to the offeror whose proposal under this
11-53 subchapter offers [is] the best value for [most advantageous to]
11-54 the state, considering price, past vendor performance, vendor
11-55 experience, and the evaluation factors in the request for
11-56 proposals.
11-57 (b) The commission or other state agency shall refuse all
11-58 offers if no offer submitted is acceptable.
11-59 (c) In determining which [whether a] proposal under this
11-60 subchapter offers the best value for [is most advantageous to] the
11-61 state, the commission or other state agency shall, when applicable
11-62 and subject to Sections 2155.074 and 2155.075, consider factors
11-63 including:
11-64 (1) the installation cost;
11-65 (2) the overall life of the system or equipment;
11-66 (3) the cost of acquisition, operation, and
11-67 maintenance of hardware included with, associated with, or required
11-68 for the system or equipment during the state's ownership or lease;
11-69 (4) the cost of acquisition, operation, and
12-1 maintenance of software included with, associated with, or required
12-2 for the system or equipment during the state's ownership or lease;
12-3 (5) the estimated cost of other supplies needed
12-4 because of the acquisition;
12-5 (6) the estimated cost of employee training needed
12-6 because of the acquisition;
12-7 (7) the estimated cost of necessary additional
12-8 permanent employees because of the acquisition; and
12-9 (8) the estimated increase in employee productivity
12-10 because of the acquisition.
12-11 (d) The commission or other state agency shall state in
12-12 writing in the contract file the reasons for making an award.
12-13 SECTION 21. Section 2101.038, Government Code, is amended to
12-14 read as follows:
12-15 Sec. 2101.038. DUTIES OF STATE AUDITOR. The state auditor,
12-16 when reviewing the operation of a state agency, shall audit for
12-17 compliance with the uniform statewide accounting system, the
12-18 comptroller's rules, and the Legislative Budget Board's performance
12-19 and workload measures. The state auditor shall also audit state
12-20 agencies that make purchases that are exempted from the purchasing
12-21 authority of the General Services Commission or that make purchases
12-22 under delegated purchasing authority for compliance with applicable
12-23 provisions of Subtitle D, except that this section does not require
12-24 the state auditor to audit purchases made under Section 51.933,
12-25 Education Code, as added by Chapter 736, Acts of the 74th
12-26 Legislature, 1995, or made under Section 73.115, Education Code.
12-27 The state auditor shall notify the project advisory committee, the
12-28 comptroller, the governor, the lieutenant governor, the speaker of
12-29 the house of representatives, and the Legislative Budget Board as
12-30 soon as practicable when a state agency is not in compliance.
12-31 SECTION 22. Subsection (a), Section 496.051, Government
12-32 Code, is amended to read as follows:
12-33 (a) The department shall comply with any special purchasing
12-34 procedures requiring competitive review under Subtitle D, Title 10
12-35 [the State Purchasing and General Services Act (Article 601b,
12-36 Vernon's Texas Civil Statutes)]. The department shall test the
12-37 goods and services that it purchases in accordance with Section
12-38 2155.069 and may enter into a contract with a private or public
12-39 entity to assist with testing.
12-40 SECTION 23. Section 122.007, Human Resources Code, is
12-41 amended to read as follows:
12-42 Sec. 122.007. FAIR MARKET PRICE; PURCHASING PROCEDURES.
12-43 (a) The council shall determine the fair market price of all
12-44 products and services manufactured or provided by persons with
12-45 disabilities and offered for sale to the various agencies and
12-46 departments of the state and its political subdivisions by a
12-47 community rehabilitation program. The council shall ensure that
12-48 the products and services offered for sale offer the best value for
12-49 the state or a political subdivision.
12-50 (b) A subcommittee composed of three council members
12-51 appointed by the presiding officer shall review the data used to
12-52 determine fair market price and shall make recommendations to the
12-53 council concerning fair market price for the products and services
12-54 and offering the best value to customers.
12-55 (c) The council shall revise the prices periodically to
12-56 reflect changing market conditions.
12-57 (d) Before offering for sale products and services
12-58 manufactured or provided by persons with disabilities to state
12-59 agencies and political subdivisions, the council shall test the
12-60 goods and services in accordance with Section 2155.069, Government
12-61 Code, to the extent necessary to ensure quality. The council may
12-62 enter into a contract with a private or public entity to assist
12-63 with testing. The commission shall make awards under this section
12-64 based on proposed goods and services meeting formal state
12-65 specifications developed by the commission or meeting commercial
12-66 specifications approved by the commission.
12-67 (e) Requisitions for products and services required by state
12-68 agencies are processed by the commission according to rules
12-69 established by the commission.
13-1 SECTION 24. (a) The state auditor and the advisory
13-2 committee on procurement established by this Act shall study how
13-3 the classification levels of state agency purchasing personnel
13-4 should be revised to reflect the increased levels of responsibility
13-5 and accountability given to state agency purchasing personnel under
13-6 the changes in law made by this Act. The state auditor and the
13-7 committee should consider how best to provide purchasing personnel
13-8 with a pay scale and a career path, including goals, incentives,
13-9 and initiatives, commensurate with the purchaser's knowledge,
13-10 authority, and responsibility.
13-11 (b) The state auditor and the committee shall present their
13-12 written recommendations and the results of their study to the
13-13 legislature not later than January 1, 1999.
13-14 SECTION 25. Subsection (e), Section 2155.067, Government
13-15 Code, is repealed.
13-16 SECTION 26. The changes in law made by Sections 2155.078
13-17 through 2155.081, Government Code, as added by this Act, relating
13-18 to training and certification of existing state agency purchasing
13-19 personnel, shall be implemented not later than September 1, 1998.
13-20 SECTION 27. Except as provided by Section 26 of this Act,
13-21 this Act takes effect September 1, 1997.
13-22 SECTION 28. The importance of this legislation and the
13-23 crowded condition of the calendars in both houses create an
13-24 emergency and an imperative public necessity that the
13-25 constitutional rule requiring bills to be read on three several
13-26 days in each house be suspended, and this rule is hereby suspended.
13-27 * * * * *