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.