79R13857 MXM-D
By: Zaffirini, et al. S.B. No. 12
A BILL TO BE ENTITLED
AN ACT
relating to contracting and ethics issues of state agencies;
providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHANGES TO LAW ON STATEWIDE CONTRACT MANAGEMENT
SECTION 1.01. Section 2262.001, Government Code, is amended
by amending Subdivision (3) and adding Subdivision (3-a) to read as
follows:
(3) "Contract manager" means a person who:
(A) is employed by a state agency; and
(B) has significant contract management duties
for the state agency[, as determined by the agency in consultation
with the state auditor].
(3-a) "Department" means the Department of
Information Resources.
SECTION 1.02. The heading to Section 2262.053, Government
Code, is amended to read as follows:
Sec. 2262.053. TRAINING FOR CONTRACT MANAGERS.
SECTION 1.03. Section 2262.053, Government Code, is amended
by amending Subsections (a) and (d) and adding Subsection (e) to
read as follows:
(a) In coordination with the [comptroller, Department of
Information Resources, and] state auditor and[,] the commission,
The University of Texas at Austin shall develop [or administer] a
training program for contract managers.
(d) The commission [Texas Building and Procurement
Commission] shall continue to administer the training program under
Section 2155.078 and coordinate the training it provides contract
managers under that section with the training provided under this
section. The commission shall certify contract managers who have
completed the contract management training required under this
section and Section 2155.078 and keep a list of those contract
managers.
(e) The program developed under this section must include a
separate class on ethics and contracting.
SECTION 1.04. Subchapter B, Chapter 2262, Government Code,
is amended by adding Section 2262.0535 and Sections
2262.055-2262.064 to read as follows:
Sec. 2262.0535. TRAINING FOR GOVERNING BODIES. (a) The
University of Texas at Austin shall adapt the program developed
under Section 2262.053 to develop an abbreviated program for
training the members of the governing bodies of state agencies. The
training may be provided together with other required training for
members of state agency governing bodies.
(b) All members of the governing body of a state agency
shall complete at least one course of the training developed under
this section. This subsection does not apply to a state agency that
does not enter into any contracts.
Sec. 2262.055. USE OF UNIFORM FORMS. Each state agency
shall use the forms developed under Section 2262.104.
Sec. 2262.056. STATE AGENCY REPOSITORY. (a) Each state
agency shall maintain in a central location all contracts for that
agency.
(b) Each state agency shall provide the department
electronic copies of the contracts.
Sec. 2262.057. REPORTING CONTRACTOR PERFORMANCE. (a)
After a contract is completed or otherwise terminated, each state
agency shall:
(1) review the contractor's performance under the
contract; and
(2) send a written review of the contractor's
performance to the department.
(b) Using the form and criteria developed by the team under
Sections 2262.104 and 2262.105, the state agency shall classify the
contractor as approved, not approved, on probation, or suspended
for the contract solicitation process for that agency. The agency
shall provide the contractor classification to the department as
part of the performance review.
Sec. 2262.058. EXCLUDING CONTRACTOR FROM SOLICITATION
PROCESS. Based on its own contractor performance reviews and on
information in the database developed under Section 2262.059, a
state agency may exclude a contractor from the solicitation process
for a contract if the agency determines the contractor has
performed poorly on a previous state contract without regard to
whether the contractor has been barred under Section 2155.077.
Sec. 2262.059. CONTRACTS AND CONTRACTOR PERFORMANCE
DATABASE. (a) The department shall store in a database the
contracts and contractor performance reviews, including the
contractor classifications, provided to the department by state
agencies under this subchapter.
(b) The department shall make the database available to
state agencies and searchable by:
(1) contractor;
(2) contract value;
(3) state agency; and
(4) date, including both the beginning date and the
end date of the contract.
(c) The department shall develop a system that incorporates
the performance reviews and aggregates the reviews for each
contractor.
(d) A state agency may use the performance review database
to determine whether to award a contract to a contractor reviewed in
the database.
Sec. 2262.060. PERFORMANCE MEASURES; REPORTS. (a) Each
state agency shall develop a plan for incorporating performance
measures into all contracts entered into by the agency.
(b) Not later than March 1 of each year, each state agency
shall report to the governor, lieutenant governor, and speaker of
the house of representatives regarding performance measures in the
agency's contracts. The report must describe the agency's efforts
to include performance-based provisions in the agency's contracts.
(c) The agency shall make the report accessible to the
public on the agency's website.
Sec. 2262.061. CONTRACT MANAGERS. (a) Each state agency
that enters into contracts other than interagency contracts shall
establish a career ladder program for contract management in the
agency.
(b) An employee hired as a contract manager is responsible
for procurement planning, contract solicitation, contract
formation, price establishment, and contract oversight.
(c) Each state agency shall determine, in consultation with
the state auditor, the amount and significance of contract
management duties sufficient for an employee to be considered a
contract manager under this chapter.
Sec. 2262.062. APPROVAL OF CONTRACTS. (a) Each state
agency shall establish formal guidelines regarding who may approve
a contract for the agency.
(b) The guidelines must require that at least two persons
approve the contract, including a supervisor and a contract manager
certified under Section 2262.053. This subsection applies both to
contracts that agency staff is authorized to enter into without
further approval by the governing body and to contracts that must be
approved by the governing body.
(c) Each state agency shall annually report to the
commission a list of each person authorized to approve contracts at
the agency. The list must include the person's name, position, and
supervisory responsibility, if any.
Sec. 2262.063. NEGOTIATION OF CONTRACT BY SINGLE EMPLOYEE
PROHIBITED. A state agency may not negotiate a contract with only
one employee engaging in the negotiation.
Sec. 2262.064. CONSISTENT PRICING BY CONTRACTORS. (a) The
commission shall solicit a contract for the creation of a mechanism
for tracking and comparing prices that state agencies pay for
similar products or services.
(b) On behalf of the state, a contractor awarded a contract
under Subsection (a) may renegotiate state agency contracts for
products or services to obtain the best value for the state when the
tracking and comparing mechanism shows a disparity in the price
paid for similar products or services. A contract under Subsection
(a) may allow the selected contractor to keep a percentage of the
savings obtained in the renegotiated contracts.
(c) A state agency shall give a contractor selected under
Subsection (a) the information the contractor requires for the
purpose of tracking and comparing prices that state agencies pay
for similar products and services.
(d) A contractor selected under Subsection (a) may not sell
information it receives under Subsection (c) or otherwise make use
of the information for a purpose other than performing its contract
with the state.
SECTION 1.05. Subchapter C, Chapter 2262, Government Code,
is amended by adding Sections 2262.104 and 2262.105 to read as
follows:
Sec. 2262.104. UNIFORM DEFINITIONS AND FORMS. (a) The team
shall develop and publish a uniform set of definitions for use as
applicable in state contracts.
(b) The team shall develop and publish a uniform and
automated set of forms for use in the different stages of the
contracting process.
Sec. 2262.105. CLASSIFYING CONTRACTOR PERFORMANCE. (a)
The team shall develop criteria for use by state agencies in
classifying a contractor's performance under Section 2262.057.
(b) As part of the uniform forms published under Section
2262.104, the team shall develop a form for use by state agencies in
classifying a contractor's performance based on criteria developed
under Subsection (a).
SECTION 1.06. Chapter 2262, Government Code, is amended by
adding Subchapters D, E, and F to read as follows:
SUBCHAPTER D. CONTRACT PROVISIONS
Sec. 2262.151. CONTRACT TERMS RELATING TO NONCOMPLIANCE.
(a) The team shall develop recommendations for contract terms
regarding penalties for contractors who do not comply with a
contract, including penalties for contractors who do not disclose
conflicts of interest under Section 2262.201. The team may develop
recommended contract terms that are generally applicable to state
contracts and terms that are applicable to important types of state
contracts.
(b) A state agency may include applicable recommended terms
in a contract entered into by the agency.
Sec. 2262.152. REQUIRED PROVISION RELATING TO
SUBCONTRACTOR COMPLIANCE. Each state agency contract must include
a provision that:
(1) holds the contractor responsible for the conduct
of all subcontractors in complying with the contractor's contract
with the state agency; and
(2) requires each subcontractor to disclose all
potential conflicts of interest to the state agency, according to
guidelines developed under Section 2262.201(b), when the
subcontractor contracts with or is otherwise hired by the
contractor.
Sec. 2262.153. REQUIRED CONTRACTOR DISCLOSURE STATEMENT;
STATE AGENCY EMPLOYEES. (a) The team shall develop a standard
contract provision requiring a contractor to disclose:
(1) each employee of the contractor who was employed
by the state at any time during the two years before the date of the
disclosure; and
(2) each state employee who was employed by the
contractor at any time during the year before the date of the
disclosure.
(b) A state agency shall include the provision in a contract
entered into by the agency.
Sec. 2262.154. REQUIRED CONTRACTOR DISCLOSURE STATEMENT;
OUTSOURCING. (a) Each contract entered into by a state agency must
include a provision requiring disclosure of any services required
to fulfill the contract, including services performed by a
subcontractor, that will be or are performed in a country other than
the United States.
(b) The contract must include a provision allowing the state
agency to terminate the contract and solicit a new contract if:
(1) the contractor or a subcontractor of the
contractor performs a service required to fulfill the contract in a
country other than the United States; and
(2) the contractor did not disclose in the contract at
the time the contract was originally entered into that the service
would be performed in a country other than the United States.
(c) A state agency that decides not to solicit a new
contract under circumstances in which the agency is authorized to
do so under a contract provision required by Subsection (b) shall
report this decision to:
(1) the governor;
(2) the lieutenant governor;
(3) the speaker of the house of representatives; and
(4) the team.
[Sections 2262.156-2262.200 reserved for expansion]
SUBCHAPTER E. ETHICS; CONFLICT OF INTEREST
Sec. 2262.201. CONTRACTOR CONFLICTS OF INTEREST. (a) Each
contractor who responds to a state agency's contract solicitation
shall disclose in its response all potential conflicts of interest
to the agency.
(b) The team shall develop guidelines to aid contractors and
state agencies in identifying potential conflicts of interest.
Sec. 2262.202. EXECUTIVE DIRECTORS; ETHICS IN CONTRACTING
CLASS. Each executive director of a state agency shall annually
complete the ethics and contracting class developed under Section
2262.053. This section does not apply to a state agency that does
not enter into any contracts.
[Sections 2262.203-2262.250 reserved for expansion]
SUBCHAPTER F. CHANGES TO CONTRACTS
Sec. 2262.251. CONTRACT AMENDMENTS. (a) An amendment to a
contract is subject to the same approval processes as the original
contract.
(b) A state agency may not amend a contract unless:
(1) the agency complies with the same approval
processes for the amendment as required for the original contract;
and
(2) a contract manager for the agency states in
writing why the amendment is necessary.
(c) This section does not require a new solicitation for a
new contract.
Sec. 2262.252. LARGE CHANGE IN CONTRACT VALUE. (a) A
contract amendment, including a contract extension, may not change
the monetary value of a contract by more than 10 percent.
(b) If a proposed contract amendment or extension changes
the monetary value of a contract by more than 10 percent, the state
agency must issue a new solicitation for a new contract.
SECTION 1.07. Section 2262.003, Government Code, is
transferred to Subchapter D, Chapter 2262, Government Code, as
added by this Act, is redesignated as Section 2262.155, Government
Code, and is amended to read as follows:
Sec. 2262.155 [2262.003]. REQUIRED [CONTRACT] PROVISION
RELATING TO AUDITING. (a) Each state agency shall include in each
of its contracts a term that provides that:
(1) the state auditor may conduct an audit or
investigation of any entity receiving funds from the state directly
under the contract or indirectly through a subcontract under the
contract; and
(2) acceptance of funds directly under the contract or
indirectly through a subcontract under the contract acts as
acceptance of the authority of the state auditor, under the
direction of the legislative audit committee, to conduct an audit
or investigation in connection with those funds.
(b) The state auditor shall provide assistance to a state
agency in developing the contract provisions.
SECTION 1.08. (a) Section 2262.063, Government Code, as
added by this article, applies only to a contract for which a state
agency first advertises or otherwise solicits bids, proposals,
offers, or qualifications on or after the effective date of this
Act.
(b) Section 2262.201(a), Government Code, as added by this
article, applies only in relation to a contract for which a state
agency first solicits bids, proposals, offers, or qualifications on
or after the date that the Contract Advisory Team's guidelines
regarding potential conflicts of interest take effect.
SECTION 1.09. Not later than March 1, 2006, The University
of Texas at Austin shall develop the training program, including
the ethics and contracting class, required by Section 2262.053,
Government Code, as amended by this article, and Section 2262.0535,
Government Code, as added by this article.
SECTION 1.10. A member of a governing body of a state agency
is not required to complete the training developed under Section
2262.0535, Government Code, as added by this article, until
September 1, 2007.
SECTION 1.11. An executive director of a state agency is not
required to comply with Section 2262.202, Government Code, as added
by this article, until September 1, 2007.
SECTION 1.12. A contract manager is not required to be
certified under Chapter 2262, Government Code, as amended by this
article, until September 1, 2007.
SECTION 1.13. (a) As soon as practicable, and not later
than March 1, 2006, the Contract Advisory Team shall develop the
forms, criteria, recommendations, and provisions required by this
article, including Sections 2262.104, 2262.105, 2262.151,
2262.153, and 2262.201(b), Government Code, as added by this
article.
(b) A state agency is not required to comply with Sections
2262.055-2262.062 and Sections 2262.152-2262.154, Government Code,
as added by this article, until September 1, 2007. A state agency
may comply earlier if the forms, electronic requirements, database,
or other items are available before that date.
ARTICLE 2. CHANGES TO LAW ON PERSONAL FINANCIAL DISCLOSURE,
STANDARDS OF CONDUCT, AND CONFLICT OF INTEREST
SECTION 2.01. Subchapter C, Chapter 572, Government Code,
is amended by adding Section 572.060 to read as follows:
Sec. 572.060. CONFLICT OF INTEREST OF STATE OFFICER OR
EMPLOYEE OR LEGISLATIVE CONSULTANT; CIVIL PENALTY. (a) In this
section:
(1) "Legislative consultant" means:
(A) a person providing services under contract as
a consultant to the senate, the house of representatives, or a
member or committee of either house; or
(B) a person providing services under contract as
a consultant to a state agency in connection with legislation or
communications with members of the legislature or legislative
employees.
(2) "Legislative employee" means a person employed by:
(A) the senate, the house of representatives, or
a committee of either house; or
(B) a member of the legislature acting in the
member's official capacity.
(3) "Member of the governor's executive staff" means a
person employed by the governor acting in the governor's official
capacity whose regular job duties include:
(A) the formulation of policy or testifying
before and meeting with members of the legislature; or
(B) supervising other employees in the
governor's office whose regular job duties include those described
by Paragraph (A).
(4) "State agency legislative liaison" means an
employee of a state agency who serves as a legislative liaison or
government affairs officer or acts in a similar capacity or whose
regular job duties include testifying before and meeting with
members of the legislature.
(5) "State agency procurement agent" means an employee
of a state agency whose regular job duties include soliciting,
evaluating, or awarding bids, proposals, or contracts for the
procurement by the state agency of property or services.
(b) This section applies to an appointed officer, executive
head of a state agency, member of the governor's executive staff,
legislative employee, state agency legislative liaison, state
agency procurement agent, or legislative consultant.
(c) For purposes of this section, a person to whom this
section applies has a conflict of interest if the person has a
personal financial or other interest in the subject matter of a
governmental decision or action that compromises or has the
appearance of compromising the person's professional judgment or
integrity.
(d) A person to whom this section applies who has a conflict
of interest with respect to a governmental decision or action
shall:
(1) disclose the conflict in writing delivered to the
state officer or state agency employing or contracting with the
person; and
(2) abstain from further participation in the
governmental decision or action.
(e) A person who violates this section is liable for a civil
penalty of not less than $500 and not more than the value of a
monetary gain the person receives because of the governmental
decision or action.
(f) Subsection (e) does not prohibit:
(1) the imposition of a civil penalty under Chapter
571; or
(2) removal of an appointed officer under Section
572.058 for conduct that violates both this section and Section
572.058.
SECTION 2.02. Section 572.060, Government Code, as added by
this article, applies only to participation in a governmental
decision made or action taken on or after September 1, 2005.
Participation in a governmental decision made or action taken
before September 1, 2005, is governed by the law in effect on the
date the decision is made or the action is taken, and the former law
is continued in effect for that purpose.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2005.