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                                 * * * * *