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A BILL TO BE ENTITLED
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AN ACT
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relating to the performance of a private commercial contractor that |
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provides a service of a state agency. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2162.103, Government Code, is amended |
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to read as follows: |
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Sec. 2162.103. COST COMPARISON AND CONTRACT |
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CONSIDERATIONS. (a) In comparing the cost of providing a service, |
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the council shall conduct and consider the conclusions of |
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cost-benefit analyses that compare the costs and benefits of |
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[consider the]: |
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(1) a private contractor's performance of the service, |
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including considering the cost of supervising the work of a private |
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contractor; [and] |
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(2) [cost of] a state agency's performance of the |
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service, including considering the cost of: |
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(A) services provided by [the costs of] the |
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comptroller, attorney general, and other support agencies; and |
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(B) other indirect expenses [costs] related to |
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the agency's performance of the service; and |
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(3) improving the state agency's performance by: |
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(A) developing and implementing a most efficient |
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organization model; |
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(B) implementing recommendations of state |
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oversight agencies such as the Legislative Budget Board, the state |
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auditor, and the Sunset Advisory Commission; and |
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(C) implementing the recommendations of the |
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agency's governing body intended to improve the agency's provision |
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of a service the council identifies under Section 2162.102(a). |
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(b) The state agency may submit a proposal to the council |
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describing a reorganized service delivery method to compete |
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directly with the performance of a private commercial contractor. |
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(c) In comparing the cost of providing a service, the |
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council in conjunction with the state agency shall prepare and |
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consider an estimate of the costs of returning the performance of |
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the service from the contractor to the state agency in the event |
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that it proves necessary to do so. The estimate must include a |
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reasonable proposed timetable for actions necessary to return the |
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service to the state agency. |
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(d) [(b)] A bid or contract must include an analysis of |
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health care benefits, retirement, and workers' compensation |
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insurance for a contractor's employees that are reasonably |
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comparable to the health care benefits, retirement, and workers' |
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compensation insurance of the state. |
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(e) Cost-benefit analyses used for an evaluation under |
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Subsection (a) must include a short-term analysis covering a period |
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of not more than six months and a long-term analysis covering a |
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period of at least one and not more than five years. |
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SECTION 2. Subchapter C, Chapter 2162, Government Code, is |
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amended by adding Section 2162.106 to read as follows: |
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Sec. 2162.106. AUDIT REQUIREMENTS AND CONTRACT CONDITIONS. |
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(a) A contract awarded to a private commercial contractor under |
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this subchapter must include a provision that the continuation of |
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the contract for the entire contract period is contingent on the |
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outcome of audits conducted under this section. |
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(b) A private commercial contractor to which a contract is |
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awarded under this subchapter must cooperate with a compliance |
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audit conducted by the state auditor. The state auditor shall |
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conduct the audit not later than the end of the sixth month after |
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the month the contract was awarded. In conducting the audit, the |
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state auditor shall: |
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(1) determine whether the contractor has met the |
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conditions of its contract and cooperated with the audit under this |
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section; |
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(2) assess whether the contractor has provided a level |
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of service delivery comparable to that provided by the state agency |
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that most recently provided the service before the service was |
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performed by a private commercial contractor; and |
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(3) assess whether the cost savings presented in the |
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contractor's contract bid are being realized by the contractor. |
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(c) If the state auditor concludes after the audit that the |
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private commercial contractor has performed satisfactorily, the |
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contractor may continue to perform under the contract until the |
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state auditor completes a second audit. The state auditor shall |
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conduct the second audit not earlier than the end of the sixth month |
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after the completion of the first audit under this section and not |
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later than the 18th month after that audit is completed. |
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(d) If the state auditor concludes after the initial or |
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second audit conducted under this section that the contractor has |
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not performed satisfactorily, the state agency shall terminate the |
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contract with the commercial contractor and the state agency shall |
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take the necessary actions to resume its role in providing the |
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service in accordance with the timetable prepared under Section |
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2162.103(c). |
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(e) If a service obligation is returned to the state agency |
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under Subsection (d): |
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(1) the state agency immediately shall complete a |
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performance evaluation to design a program to improve the delivery |
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of the service and implement the program designed; and |
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(2) until the end of the sixth month after the month |
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the contract terminated under Subsection (d), the council may not: |
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(A) require the service to be submitted to |
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competitive bidding; or |
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(B) make a determination regarding the service |
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under Section 2162.102(b). |
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(f) If in the performance of a compliance audit under this |
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section the state auditor notes an irregularity that may indicate |
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that the state has overpaid the contractor or has made a payment for |
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a service not performed, the state auditor shall conduct a recovery |
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audit designed to identify any amounts overpaid or amounts paid for |
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unperformed services. The state auditor shall report the results |
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of the recovery audit to the attorney general and the affected state |
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agency. The attorney general and affected state agency shall |
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cooperate in taking action to recover the amounts owed to the state. |
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SECTION 3. The changes in law made by this Act apply only |
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to: |
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(1) the activities of the State Council on Competitive |
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Government or a state agency, concerning a proposal to contract |
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with a commercial source to provide services being performed by a |
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state agency, on or after the effective date of this Act; and |
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(2) the evaluation of the services performed by a |
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contractor under a contract made on or after the effective date of |
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this Act. |
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SECTION 4. This Act takes effect September 1, 2007. |