81R21395 MTB-F

By: Parker H.B. No. 4682

Substitute the following for H.B. No. 4682:

By: Solomons C.S.H.B. No. 4682

A BILL TO BE ENTITLED

AN ACT

relating to the use of private procurement specialists for certain state agency contracts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 2262.002(b), Government Code, is amended to read as follows:

(b) Except as provided by Section 2262.152, this [This] chapter does not apply to contracts of the Texas Department of Transportation that:

(1) relate to highway construction or highway engineering; or

(2) are subject to Section 201.112, Transportation Code.

SECTION 2. Section 2262.101, Government Code, is amended to read as follows:

Sec. 2262.101. CREATION; DUTIES. The Contract Advisory Team is created to assist state agencies in improving contract management practices by:

(1) [reviewing the solicitation of major contracts by state agencies;

[(2)] reviewing any findings or recommendations made by the state auditor, including those made under Section 2262.052(b), regarding a state agency's compliance with the contract management guide; and

(2) [(3)] providing recommendations to the commission regarding:

(A) the development of the contract management guide; and

(B) the training under Section 2262.053.

SECTION 3. Chapter 2262, Government Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. PRIVATE PROCUREMENT SPECIALISTS

Sec. 2262.151. DEFINITIONS. In this subchapter:

(1) "High-cost contract" means a state agency contract that has a value of at least $10 million.

(2) "Major information resources project" has the meaning assigned by Section 2054.003.

(3) "Solicitation" means a solicitation for bids, offers, qualifications, proposals, or similar expressions of interest for a high-cost contract.

Sec. 2262.152. APPLICABILITY TO CERTAIN CONTRACTS. (a) This subchapter applies to a Texas Department of Transportation contract only if the contract:

(1) is a high-cost contract; and

(2) is for a major information resources project.

(b) This subchapter does not apply to a contract for professional or consulting services under Chapter 2254.

Sec. 2262.153. PRIVATE PROCUREMENT SPECIALISTS. (a) The comptroller shall select and assign private procurement specialists as provided by this subchapter.

(b) A private procurement specialist must be a private person who is:

(1) an expert in the subject matter of the assigned contract; and

(2) proficient in the procurement laws applicable to the assigned contract.

(c) A private procurement specialist shall:

(1) review and approve actions under Section 2262.154(d); and

(2) throughout the contract formation and contract management process, provide recommendations and assistance to the state agency regarding the contract to which the private procurement specialist is assigned.

(d) Before the comptroller assigns a private procurement specialist, the comptroller and the state agency seeking to enter into the contract shall consider:

(1) each potential private procurement specialist's relative experience and knowledge on the subject matter of the contract; and

(2) any fees or costs associated with securing the services of the private procurement specialist.

(e) A private procurement specialist may not bid on or otherwise make a proposal to receive a contract to which the specialist was assigned.

Sec. 2262.154. USE OF PRIVATE PROCUREMENT SPECIALIST. (a) The comptroller shall assign a private procurement specialist for a high-cost contract if the comptroller determines that given the cost and nature of the proposed contract there will probably be a net savings to the state over the life of the contract if a specialist is assigned.

(b) A state agency may request that the comptroller assign a private procurement specialist for a proposed contract if the agency determines that given the cost and nature of the contract there will probably be a net savings to the state over the life of the contract if a specialist is assigned.

(c) A state agency seeking to enter into a high-cost contract must send to the comptroller the information necessary to make a determination under Subsection (a).

(d) During the contract formation and contract management process with respect to a high-cost contract to which a private procurement specialist is assigned, a state agency shall collaborate with and, except as provided by Subsection (f), obtain the approval of the private procurement specialist before taking any of the following actions in relation to the contract:

(1) publicly releasing solicitation documents;

(2) executing a final contract; and

(3) making a payment or a series of payments that equal half of the contract value.

(e) In determining whether to approve an action described by Subsection (d), the assigned private procurement specialist and the comptroller shall review related documentation to ensure that potential risks related to the high-cost contract have been identified and mitigated.

(f) If a state agency disagrees with a determination of a private procurement specialist regarding an action described by Subsection (d), the agency may take the action without the approval of the specialist if the administrative head of the agency and the comptroller approve the action.

Sec. 2262.155. SOLICITATION AND CONTRACT CANCELLATION. (a) After review of and comment on the matter by the Legislative Budget Board and the governor, the assigned private procurement specialist may recommend the cancellation of a solicitation or a contract under Section 2262.154(d) if:

(1) a proposed solicitation is not in the best interest of the state;

(2) a proposed contract would place the state at an unacceptable risk if executed; or

(3) an executed contract is experiencing performance failure or payment irregularities.

(b) Each high-cost contract is subject to cancellation in accordance with this section and Section 2262.154(d).

Sec. 2262.156. PAYMENT OF PRIVATE PROCUREMENT SPECIALIST SERVICES. (a) The state agency seeking to enter into a contract for which a private procurement specialist is assigned shall enter into an agreement with the specialist to compensate the specialist using either:

(1) a flat fee agreement; or

(2) a pay-for-performance agreement described by Subsection (b).

(b) If a pay-for-performance agreement is used, the state agency shall develop a pro forma budget for the contract based on the agency's expected cost of entering into and managing the contract if the agency were to enter into and manage the contract using ordinary procurement procedures but without using the services of a private procurement specialist. The pay-for-performance agreement must provide that the private procurement specialist will be paid a percentage of the savings realized by the agency as a result of employing the private procurement specialist, compared with the agency's pro forma budget for the contract.

Sec. 2262.157. REPORT. Not later than January 1 of each year, each state agency that has used the services of a private procurement specialist during the preceding year shall report to the comptroller the savings realized by the agency as a result of using the private procurement specialist's services.

Sec. 2262.158. RULES; WAIVER. The comptroller shall adopt rules to implement and administer this subchapter, including rules for waiving the approval of a private procurement specialist under Section 2262.154(d).

SECTION 4. Section 2262.051(f), Government Code, is repealed.

SECTION 5. Subchapter D, Chapter 2262, Government Code, as added by this Act, applies only in relation to a contract:

(1) for which the solicitation of bids, offers, qualifications, proposals, or similar expressions of interest is published on or after September 1, 2009;

(2) that is extended or modified on or after September 1, 2009; or

(3) for which a change order is submitted on or after September 1, 2009.

SECTION 6. This Act takes effect September 1, 2009.