79(R) SB 823 - Introduced version


                                                                                

79R5849 KEG-D

By:  Shapleigh                                                    S.B. No. 823



A BILL TO BE ENTITLED

AN ACT

relating to restrictions on the use of foreign workers in the 
performance of certain government service contracts that relate to 
health and human services.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Subtitle F, Title 10, Government Code, is 
amended by adding Chapter 2264 to read as follows:

CHAPTER 2264. RESTRICTIONS ON USE OF FOREIGN WORKERS IN CERTAIN 
HEALTH AND HUMAN SERVICES CONTRACTS

SUBCHAPTER A. GENERAL PROVISIONS
	Sec. 2264.001.  DEFINITIONS.  In this chapter:                          
		(1)  "Commission" means the Health and Human Services 
Commission.    
		(2)  "Domestic worker" means an individual in the 
United States who performs a service for a contractor or 
subcontractor.
		(3)  "Foreign worker" means an individual in a country 
other than the United States who performs a service for a contractor 
or subcontractor.
		(4)  "Public agency" means this state or an agency, 
instrumentality, or political subdivision of this state.
	Sec. 2264.002.  APPLICABILITY OF CHAPTER.  This chapter 
applies only in relation to a contract that is:
		(1)  primarily a contract for services entered into by 
a public agency for which the agency will spend money derived 
directly or indirectly from the state treasury; and
		(2)  for the performance of a function that the public 
agency is required or encouraged to perform in whole or in part 
through a contract with a private entity under Chapter 198, Acts of 
the 78th Legislature, Regular Session, 2003, or a law added or 
amended by Chapter 198, Acts of the 78th Legislature, Regular 
Session, 2003.

[Sections 2264.003-2264.050 reserved for expansion]

SUBCHAPTER B. DOMESTIC WORKER REQUIREMENTS FOR SERVICE CONTRACTS
	Sec. 2264.051.  PROHIBITION ON CERTAIN HEALTH AND HUMAN 
SERVICES CONTRACTS THAT PROVIDE JOBS TO FOREIGN WORKERS. A public 
agency may not award a contract to a contractor or subcontractor 
that proposes to perform any portion of the contract with foreign 
workers.
	Sec. 2264.052.  STATEMENT IN CERTAIN BIDS FOR HEALTH AND 
HUMAN SERVICES CONTRACTS.  A contractor or subcontractor that 
submits a bid, proposal, or other offer to a public agency for a 
contract must include in the bid, proposal, or other offer a 
verified statement certifying that the work required by the 
contract and any subcontract performed under that contract will be 
performed only by domestic workers.  The contractor must:
		(1)  require each subcontractor that submits a bid, 
proposal, or other offer in relation to the contract to include in 
the bid, proposal, or other offer a verified statement that 
identifies the public contract and the subcontractor and certifies 
that the work performed under the subcontract will be performed 
only by domestic workers; and
		(2)  send a copy of each verified statement received 
under Subdivision (1) to the public agency in the manner prescribed 
by the agency.
	Sec. 2264.053.  PROVISION IN CERTAIN HEALTH AND HUMAN 
SERVICES CONTRACTS.  A public agency that enters into a contract 
must include in the contract a provision stating that, in the event 
a contractor or subcontractor performs any part of the contract or a 
subcontract with foreign workers, the contract shall be terminated 
and the contractor or subcontractor shall be liable to the public 
agency in an amount equal to the amount paid by the public agency 
for the percentage of work that was performed with foreign workers.

[Sections 2264.054-2264.100 reserved for expansion]

SUBCHAPTER C. WAIVER OF DOMESTIC WORKER REQUIREMENTS FOR CERTAIN 
HEALTH AND HUMAN SERVICES CONTRACTS
	Sec. 2264.101.  AUTOMATIC WAIVER IN CERTAIN CIRCUMSTANCES.  
The requirements of Subchapter B are automatically waived in 
circumstances under which compliance with Subchapter B would create 
a violation of the specific terms of the Agreement on Government 
Procurement of the World Trade Organization or any bilateral or 
regional free trade agreement with which the State of Texas must 
comply.
	Sec. 2264.102.  REQUEST FOR WAIVER IN CERTAIN CIRCUMSTANCES.  
(a)  The commission may waive the requirements of Subchapter B for a 
particular contract or proposed contract for a specified period of 
time not to exceed one year.
	(b)  To request a waiver under this section, a public agency 
must submit a written request to the commission that includes the 
agency's findings that:
		(1)  the contract is necessary to respond to an 
emergency, as determined by the agency, because:
			(A)  the ability of the agency to provide 
essential services would be adversely affected if the contract is 
not performed;
			(B)  public health, safety, or welfare would be 
endangered if the contract is not performed; and
			(C)  no contractor or subcontractor that has the 
ability to perform the contract solely with domestic workers is 
immediately available to perform the contract; or
		(2)  the contract is necessary to provide a unique 
service, as determined by the agency, because:
			(A)  the agency regards a particular service to be 
performed under the contract as essential; and
			(B)  domestic workers cannot adequately perform 
the unique service to be performed under the contract.
	Sec. 2264.103.  GRANT OF WAIVER.  A waiver request submitted 
in accordance with Section 2264.102 is considered to be granted 
unless it is denied in writing by the commission not later than the 
30th day after the date of the commission's receipt of the request.
	Sec. 2264.104.  REJECTION OF WAIVER AFTER COMMENCEMENT OF 
CONTRACT. If the commission rejects a request for a waiver that is 
submitted in accordance with Section 2264.102 during the time the 
contract is being performed or after the contract has been 
completed, the contractor or subcontractor shall be liable to the 
public agency in an amount equal to the amount paid by the public 
agency for the percentage of work that was performed with foreign 
workers.
	Sec. 2264.105.  REPORT OF WAIVER REQUEST TO CERTAIN 
LEGISLATIVE COMMITTEES.  At the same time that a public agency 
provides a written request for a waiver to the commission under 
Section 2264.102, the agency shall provide a copy of that request to 
the House Committee on Human Services, the House Committee on 
Appropriations, the Senate Committee on Health and Human Services, 
and the Senate Committee on Finance.
	SECTION 2.  (a)  The changes in law made by this Act to public 
contracting procedures for certain health and human services 
contracts apply only to a contract for which a public agency first 
advertises or otherwise solicits bids, proposals, offers, or 
qualifications, as applicable, on or after September 1, 2005.
	(b)  A contract for which a public agency first advertised or 
otherwise solicited bids, proposals, offers, or qualifications, as 
applicable, before September 1, 2005, is governed by the law as it 
existed immediately before the effective date of this Act, and that 
law is continued in effect for that purpose.
	SECTION 3.  This Act takes effect September 1, 2005.