Amend CSHB 2525 (Senate committee printing) by adding the
following appropriately numbered SECTIONS to the bill and
renumbering subsequent SECTIONS of the bill appropriately:
SECTION __. Section 44.0311(a), Education Code, is amended
to read as follows:
(a) This subchapter does not apply [applies] to junior
college districts.
SECTION __. Subchapter A, Chapter 130, Education Code, is
amended by adding Section 130.0103 to read as follows:
Sec. 130.0103. POLICY AND REPORT REGARDING HISTORICALLY
UNDERUTILIZED BUSINESSES. (a) In this section, "historically
underutilized business" has the meaning assigned by Section
2161.001, Government Code.
(b) This section applies only to a junior college district
located wholly or partially in a county with a population of one
million or more.
(c) Each junior college district shall adopt a policy
stating its commitment to developing, maintaining, and enhancing
participation by historically underutilized businesses in all
phases of the district's procurement processes in order to support,
to the greatest extent feasible, the efforts of historically
underutilized businesses to compete for purchases of equipment,
supplies, and services and for construction project contracts.
(d) Annually, each junior college district shall publish a
report of the total number of contracts awarded by the district in
the preceding fiscal year and the number of those contracts awarded
to historically underutilized businesses. The report must be
published in a newspaper of general circulation in the county in
which the majority of the territory or population of the district is
located not later than the 60th day following the last day of the
district's fiscal year.
SECTION __. Chapter 130, Education Code, is amended by
adding Subchapters K and L to read as follows:
SUBCHAPTER K. PURCHASING CONTRACTS OTHER THAN
CONSTRUCTION CONTRACTS
Sec. 130.251. DEFINITIONS. In this subchapter:
(1) "Board of trustees" means the governing board of a
district.
(2) "District" means a public junior college district.
(3) "Purchase of goods":
(A) includes:
(i) contracting for the rights to use
rather than own goods; and
(ii) purchase of the materials and labor
incidental to the delivery and installation of personal property;
and
(B) does not include the purchase or lease of
real property.
(4) "Services" does not include:
(A) construction services; or
(B) professional services, including services of
an architect, engineer, auditor, accountant, attorney, or fiscal
agent.
Sec. 130.2511. USE OF TERMS "BIDDER," "VENDOR," AND "BID."
(a) The terms "bidder" and "vendor" may be used interchangeably to
identify an entity that responds to a request for competitive bids
or proposals, or for offers or qualifications.
(b) The term "bid" may be used to refer to a competitive bid
or proposal, or to an offer, or to a statement of qualifications.
Sec. 130.252. CONFLICT WITH OTHER LAW. To the extent of any
conflict, this subchapter prevails over any other law relating to
the purchase of goods and services by a district other than a law
relating to contracting with historically underutilized
businesses.
Sec. 130.253. PURCHASE METHODS. (a) Except as otherwise
provided by this subchapter, all contracts for the purchase by a
district of goods or services valued at $35,000 or more in the
aggregate for each 12-month fiscal year shall be made by the method,
of the following methods, that provides the best value for the
district:
(1) competitive sealed bids;
(2) competitive sealed proposals;
(3) the reverse auction procedure defined by Section
2155.062(d), Government Code; or
(4) the formation of a political subdivision
corporation under Section 304.001, Local Government Code.
(b) Only one of the methods listed in Subsection (a) may be
used for any individual contract. The district must determine
which method provides the best value for the district before
publishing the notice required by Section 130.258.
(c) If the district uses the competitive sealed proposal
method, the district shall:
(1) reveal when the proposals are opened the names of
the companies submitting proposals; and
(2) keep the contents of the proposals confidential
until the district concludes negotiations and awards a contract.
(d) For professional services not covered by Subchapter A,
Chapter 2254, Government Code, including services rendered by a
financial consultant, an auctioneer, a personnel services
contractor, a travel agent, a technology or educational consultant,
or a business engaged to teach approved courses, a district may
contract for the professional services in the manner provided by
Section 2254.003, Government Code, in lieu of the methods provided
by Subsection (a).
(e) A district may purchase an item or service that is
available from only one source without complying with Subsection
(a), including:
(1) an item for which competition is precluded because
of the existence of a patent, copyright, secret process, or
monopoly;
(2) a film, recording, periodical, manuscript, or book
or computer software;
(3) a utility service, including gas or water;
(4) a captive replacement part or component for
equipment;
(5) a product needed to match or work with like
products; and
(6) technical or specialized services, including
advertising, audio/video production, and the repair and
maintenance of specialized equipment.
(f) Without complying with Subsection (a), a district may
purchase advertising services, meeting and catering services, and
travel services, including airfare, ground transportation, and
lodging. The district shall exercise reasonable and prudent care
to determine whether a contract with a company will provide the best
value to the district. The district shall document the process for
selecting the provider of the services and shall maintain a list of
companies contacted and the basis for selecting the provider. Any
company that has provided written notice to the district that it is
interested in being considered as a supplier of services covered by
this subsection shall be given the opportunity to make an offer to
provide the services. After rating and ranking the offers, the
district shall attempt to negotiate a contract with the highest
ranked company. If a contract cannot be negotiated with the highest
ranked company, the next highest ranked company shall be contacted.
(g) Without complying with Subsection (a), a district may
purchase an item or service under:
(1) an interlocal contract under Chapter 791,
Government Code;
(2) a catalog purchase as provided by Subchapter B,
Chapter 2157, Government Code; or
(3) a contract established by the Texas Building and
Procurement Commission or Department of Information Resources,
including a contract for the purchase of travel services, telephone
service, computers, and computer-related equipment and software.
(h) If the Texas Building and Procurement Commission, an
institution of higher education as defined by Section 61.003, or a
political subdivision of this state has entered into a contract
with a company to provide goods or services other than construction
services, then during the term of the contract a district may
purchase the goods or services directly from the company if the
company agrees to sell the goods or services to the district in
accordance with the terms and conditions of the original contract
at the same cost or at a cost lower than that stated in the original
contract. The purchase satisfies the requirements of this
subchapter if the original contract was awarded in compliance with
the statutory requirements applicable to the governmental entity
that awarded the contract and the district's purchase order
references the original contract and identifies the parties to the
contract. If the Texas Building and Procurement Commission is a
party to the original contract, the district may use the contract
under this section only if the district is a member of the Texas
Building and Procurement Commission Cooperative Purchasing
Program.
Sec. 130.254. PURCHASE OF INSURANCE. (a) A district may
acquire insurance using a two-step request for proposals process.
In the first step, the district shall determine which insurance
companies are represented by agents interested in providing
insurance for the district. If more than one agent indicates a
desire to represent the same company, the agent with the longest and
most substantial relationship with the insurance company shall be
authorized to submit a proposal for the designated insurance
company. In the second step, the district shall notify the
interested agents as to which insurance companies the agents
represent and request the agents to submit proposals for providing
insurance.
(b) In notifying the interested agents to begin the second
step, the district is not required to comply with Section 130.258.
However, the district in the request for proposals shall give the
interested agents notice of the date, time, and place where
proposals are to be submitted. Proposals received after the date
and time stated in the request for proposals may not be considered.
Sec. 130.255. MULTIYEAR CONTRACTS. A multiyear contract
must include a provision that permits termination at the end of each
fiscal year.
Sec. 130.256. EVALUATION AND AWARD OF CONTRACT. (a) Except
as otherwise provided by this subchapter, a district shall award a
contract to the lowest responsible bidder offering the best value
to the district according to the selection criteria established by
the district. The district shall publish in the request for bids,
proposals, or qualifications the criteria the district will use to
evaluate the offers and the relative weights given to the criteria
that are known at the time of the publication.
(b) In determining the lowest responsible bidder, the
district may consider:
(1) the purchase price;
(2) the reputation of the bidder and of the bidder's
goods or services;
(3) the quality of the bidder's goods or services;
(4) the extent to which the offered goods or services
meet the district's needs;
(5) the bidder's past relationship with the district;
(6) the total long-term cost to the district to
acquire the vendor's goods or services;
(7) the extent to which the offers comply with the
requirements of the request for bids, proposals, or qualifications;
(8) the sufficiency of the bidder's financial
resources and ability to perform the contract or provide
the service;
(9) the bidder's ability to provide future
maintenance, repair parts, and service;
(10) the installation cost;
(11) the cost of operation and maintenance;
(12) any other relevant factor specifically listed in
the request for bids or proposals;
(13) the impact on the ability of the district to
comply with laws and rules relating to historically underutilized
businesses;
(14) the bidder's compliance with a requirement for
attendance at a mandatory site visit or pre-bid conference; and
(15) the bidder's safety record, if:
(A) the district has adopted a written definition
and criteria for accurately determining the safety record of a
bidder;
(B) the district has given notice to prospective
bidders in the request for bids that the safety record of a bidder
may be considered in determining the responsibility of the bidder;
and
(C) the district's determinations are not
arbitrary and capricious.
(c) A district may reject all bids or proposals or parts of
bids or proposals if the rejection serves the district's interest.
(d) The district shall provide all bidders with the
opportunity to bid on the same items or services on equal terms and
have bids judged according to the same standards as those set forth
in the request for bids.
(e) The district shall receive bids under this subchapter in
a fair and confidential manner.
(f) Bids may be opened only by the district at a public
meeting in a district-owned or district-controlled facility. At
the time the district opens a competitive bid, the district shall
read aloud the name of the bidder and the total bid amount if a
member of the public is present and the bid is of a type that should
contain a bid amount. At least two district employees or trustees
must be present at the bid opening. When opening proposals or
qualifications, the district shall read aloud only the name of the
respondents and may not disclose the contents of a proposal on
opening the proposal or during negotiations with competing bidders.
(g) A bid that has been opened may not be changed for the
purpose of correcting an error in the bid price. If there is a
discrepancy between the total price and the unit price of a bid, the
unit price prevails. If there is a discrepancy between the written
price and the numerical price of a bid, the written price prevails.
(h) This subchapter does not change the common law right of
a bidder to withdraw a bid due to a material mistake in the bid.
(i) The district shall document the basis of its selection
and shall make its evaluations public not later than the seventh day
after the date the contract is awarded. The district shall state in
writing in the contract file the reasons for making an award.
(j) A contract awarded in violation of this subchapter is
void.
(k) If a purchase is made at the campus level in a district
with independently accredited junior colleges, and the district
delegates purchasing decisions to the campus level, this section
applies only to the campus and this subchapter does not require the
district to aggregate and jointly award the different campus
purchasing contracts. A district that adopts site-based purchasing
under this subsection shall adopt a policy to ensure that campus
purchases achieve the best value to the district and are not
intended or used to avoid the requirement that a district aggregate
purchases under Section 130.253(a).
(l) If district property is destroyed, stolen, or severely
damaged, a building or equipment undergoes major operational or
structural failure, or a contractor is unable to fulfill its
obligations in providing goods or services, and the board of
trustees determines that the delay posed by using the methods
required by Section 130.253(a) would pose a material threat to
personal safety or potential damage to other property or would
prevent or substantially impair the conduct of classes or other
essential district activities, then contracts for the replacement
or repair of the property may be made by methods other than those
required by Section 130.253(a).
Sec. 130.257. RULES AND PROCEDURES; AUDITS BY STATE
AUDITOR. (a) The board of trustees may adopt rules and procedures
for the acquisition of goods or services by the district.
(b) The state auditor may audit purchases of goods or
services by the district.
Sec. 130.258. NOTICE. (a) Except as otherwise provided by
this subchapter, for any method of contracting selected under
Section 130.253(a), the district shall publish the notice required
by this section in at least two successive issues of any newspaper
of general circulation in the county in which the district's
central administrative office is located. The deadline for
receiving bids or proposals may not be less than 10 business days
after the date of the publication of the last newspaper notice. The
deadline for receiving responses to a request for qualifications
may not be less than five business days after the date of the
publication of the last newspaper notice. If there is not a
newspaper in the county in which the district's central
administrative office is located, the notice shall be published in
a newspaper in the county nearest the county seat of the county in
which the district's central administrative office is located. In
a two-step procurement process, the time and place where the
second-step bids, proposals, or responses will be received are not
required to be published separately.
(b) The district may, as an alternative to publishing
individual notices in a newspaper, publish on a publicly accessible
Internet site the notices required by this section, provided the
district publishes in a newspaper of general circulation at least
one time per week the Internet address where district notices may be
found. Notice posted on the Internet under this subsection must be
posted every day for at least 10 business days before the deadline
for receiving the bids, proposals, or responses to a request for
qualifications.
(c) The notice required by this section must include:
(1) the date, time, and place for receiving and
opening bids, proposals, or statements of qualifications;
(2) a description of the goods or services;
(3) the location of any mandatory site inspections or
pre-bid meetings at which bid, proposal, or qualification documents
may be obtained or examined; and
(4) the amount of any required bid bond, payment bond,
or performance bond.
Sec. 130.259. DISCUSSION AND REVISION OF PROPOSALS. (a) As
provided in a request for proposals and under rules adopted by the
district, the district may discuss acceptable or potentially
acceptable proposals with bidders to assess a bidder's ability to
meet the solicitation requirements.
(b) After receiving a proposal but before making an award,
the district may permit the bidder to revise the proposal to obtain
the best final offer.
(c) The district may not disclose information derived from
proposals submitted from competing bidders in conducting
discussions under this section.
(d) The district shall provide each bidder an equal
opportunity to discuss and revise the bidder's proposal.
Sec. 130.260. PRE-BID CONFERENCE. (a) The district may
require a principal, officer, or employee of each prospective
bidder to attend a mandatory pre-bid conference conducted for the
purpose of discussing contract requirements and answering
questions from prospective bidders. Notice under this subsection
must be included in the notice published under Section 130.258.
(b) After the district conducts a mandatory pre-bid
conference, the district may send any additional required notice
for the proposed contract only to prospective bidders who attended
the conference.
Sec. 130.261. IDENTICAL BIDS. If, after considering the
factors described by Section 130.256, the district determines that
the district has received identical bids, the district shall cast
lots to determine which bidder will be awarded the contract. The
district shall invite the bidders to witness the selection process
under this section. The selection process must be conducted by at
least two district employees or members of the district's board of
trustees.
Sec. 130.262. BID DEPOSIT. (a) The district may, as the
district determines necessary, require a bid deposit in an amount
determined by the district. The amount of the deposit, if any, must
be stated in the notice required by Section 130.258 of the
invitation to bid.
(b) On the award of a contract or the rejection of all bids,
the district shall refund the bid deposit of an unsuccessful
bidder.
(c) For public work contracts, the bid deposit required by
the district, if any, may only be in the form of a bid bond written
by a surety authorized to conduct business in this state.
(d) For contracts other than public work contracts, the bid
deposit required by the district, if any, may only be in the form of
a bid bond written by a surety authorized to conduct business in
this state or a cashier's check.
Sec. 130.263. PERFORMANCE BOND. A district may require a
contractor to provide a performance bond in the amount of the
contract before executing a contract for the purchase of goods or
services with a value of $100,000 or more. The bond must be written
by a surety authorized to conduct business in this state.
Sec. 130.264. ENFORCEMENT OF PURCHASING PROCEDURES:
CRIMINAL PENALTIES; REMOVAL; INELIGIBILITY; INJUNCTION. (a) In
this section:
(1) "Component purchases" means purchases of the
component parts of an item that in normal purchasing practices
would be purchased in one purchase.
(2) "Separate purchases" means purchases, made
separately, of items that in normal purchasing practices would be
purchased in one purchase.
(3) "Sequential purchases" means purchases, made over
a period, of items that in normal purchasing practices would be
purchased in one purchase.
(b) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence makes or authorizes
separate, sequential, or component purchases for the purpose of
avoiding the requirements of Section 130.253 or 130.256. An
offense under this subsection is a Class B misdemeanor and is an
offense involving moral turpitude that causes a forfeiture of an
officer's public office.
(c) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence violates Section
130.253 or 130.256 other than by conduct described by Subsection
(b). An offense under this subsection is a Class B misdemeanor and
is an offense involving moral turpitude that causes a forfeiture of
an officer's public office.
(d) An officer or employee of a district commits an offense
if the officer or employee knowingly violates Section 130.253 or
Section 130.256 other than by conduct described by Subsection (b)
or (c). An offense under this subsection is a Class C misdemeanor.
(e) The final conviction of a person other than a trustee of
a district for an offense under Subsection (b) or (c) results in the
immediate removal from office or employment of that person. A
trustee who is convicted of an offense under this section is subject
to removal as provided by Chapter 66, Civil Practice and Remedies
Code. For four years after the date of the final conviction, the
removed person is ineligible to be a candidate for or to be
appointed or elected to a public office in this state, is ineligible
to be employed by or act as an agent for this state or a political
subdivision of this state, and is ineligible to receive any
compensation through a contract with this state or a political
subdivision of this state. This subsection does not prohibit the
payment of retirement benefits to the removed person or the payment
of workers' compensation benefits to the removed person for an
injury that occurred before the commission of the offense for which
the person was removed. This subsection does not make a person
ineligible for an office for which the federal or state
constitution prescribes exclusive eligibility requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, district
attorney, criminal district attorney, citizen of the county in
which the district is located, or interested party may bring an
action for an injunction. A party who prevails in an action brought
under this subsection is entitled to reasonable attorney's fees as
approved by the court.
Sec. 130.265. ADDITIONAL REQUIREMENTS FOR PURCHASING
SERVICES AND CERTAIN COMMODITIES. (a) This section applies only
to:
(1) the purchase of tangible personal property,
including produce, gasoline, and fuel oil, if the cost of the
commodity is expected to exceed $35,000 during a fiscal year and
must be determined at the time the need for the commodity arises;
and
(2) the purchase of services other than construction
services or professional services.
(b) The notice requirements of Section 130.258 apply to
purchases made under this section, except that the notice must
specify the categories of property or services to be purchased
under this section and solicit the names, addresses, and telephone
numbers of vendors that are interested in supplying the property or
services to the district. For each category specified by the
district, the district shall create a vendor list consisting of
each qualified vendor that responds to the notice and any other
vendors the district elects to include.
(c) Before the district makes a purchase subject to this
section in a category specified by the district, the district must
obtain written or telephone price quotations from at least three
vendors from the list created by the district for that category. If
fewer than three vendors are on the list, the district shall contact
each vendor on the list. Whenever possible, the district shall
confirm telephone quotes in writing, including electronic mail or
facsimile transmission. The bidding records must be retained with
the district's competitive bidding records and are subject to
audit. In determining from whom to purchase the property or
services, the district may consider the provisions of Section
130.256.
Sec. 130.266. NOTIFICATION OF CRIMINAL HISTORY OF
CONTRACTOR. (a) A person or business entity that enters into a
contract with a district must give advance notice to the district if
the person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a felony.
(b) A district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection (a)
or misrepresented the conduct resulting in the conviction. The
district must compensate the person or business entity for services
performed before the termination of the contract.
(c) This section does not apply to a publicly held
corporation.
SUBCHAPTER L. SALE OF PERSONAL PROPERTY BY DISTRICT
AND AWARD OF MISCELLANEOUS CONTRACTS FOR SERVICES
Sec. 130.301. SALE OF PERSONAL PROPERTY BY DISTRICT. A sale
of personal property by a junior college district that is not
covered by Chapter 791, Government Code, shall be solicited and
awarded in the same manner as a contract for a purchase of personal
property or services under Subchapter K.
Sec. 130.302. AWARD OF MISCELLANEOUS CONTRACTS FOR
SERVICES. Miscellaneous contracts for services, including
contracts for bookstore services, food services, and vending
services, shall be solicited and awarded in the same manner as a
contract for a purchase of personal property or services under
Subchapter K.
SECTION __. Section 271.023, Local Government Code, is
amended to read as follows:
Sec. 271.023. CONFLICT OF LAWS. To the extent of any
conflict, the provisions of Subchapter B, Chapter 44, Education
Code, relating to the purchase of goods and services under contract
by a school district and the provisions of Subchapter K, Chapter
130, Education Code, relating to the purchase of goods and services
under contract by a junior college prevail over this subchapter.
SECTION __. Sections 44.0311(b), 130.010, and 130.0101,
Education Code, are repealed.