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A BILL TO BE ENTITLED
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AN ACT
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relating to the use of private procurement specialists for certain |
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state agency contracts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2262.002(b), Government Code, is amended |
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to read as follows: |
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(b) Except as provided by Section 2262.152, this [This] |
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chapter does not apply to contracts of the Texas Department of |
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Transportation that: |
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(1) relate to highway construction or highway |
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engineering; or |
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(2) are subject to Section 201.112, Transportation |
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Code. |
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SECTION 2. Section 2262.101, Government Code, is amended to |
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read as follows: |
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Sec. 2262.101. CREATION; DUTIES. The Contract Advisory |
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Team is created to assist state agencies in improving contract |
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management practices by: |
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(1) [reviewing the solicitation of major contracts by
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state agencies;
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[(2)] reviewing any findings or recommendations made |
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by the state auditor, including those made under Section |
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2262.052(b), regarding a state agency's compliance with the |
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contract management guide; and |
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(2) [(3)] providing recommendations to the commission |
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regarding: |
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(A) the development of the contract management |
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guide; and |
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(B) the training under Section 2262.053. |
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SECTION 3. Chapter 2262, Government Code, is amended by |
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adding Subchapter D to read as follows: |
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SUBCHAPTER D. PRIVATE PROCUREMENT SPECIALISTS |
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Sec. 2262.151. DEFINITIONS. In this subchapter: |
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(1) "High-cost contract" means a state agency contract |
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that has a value of at least $10 million. |
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(2) "Major information resources project" has the |
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meaning assigned by Section 2054.003. |
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(3) "Solicitation" means a solicitation for bids, |
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offers, qualifications, proposals, or similar expressions of |
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interest for a high-cost contract. |
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Sec. 2262.152. APPLICABILITY TO CERTAIN CONTRACTS. (a) |
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This subchapter applies to a Texas Department of Transportation |
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contract only if the contract: |
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(1) is a high-cost contract; and |
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(2) is for a major information resources project. |
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(b) This subchapter does not apply to a contract entered |
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into under Chapter 2166. |
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Sec. 2262.153. PRIVATE PROCUREMENT SPECIALISTS. (a) A |
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state agency shall, when appropriate, select a private procurement |
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specialist as provided by this subchapter. |
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(b) A private procurement specialist must be a person from |
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the private sector who is: |
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(1) an expert in the subject matter of the contract for |
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which the private procurement specialist is selected; and |
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(2) proficient in the procurement laws applicable to |
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the contract for which the private procurement specialist is |
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selected. |
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(c) A private procurement specialist shall: |
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(1) review and approve actions under Section |
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2262.154(d); and |
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(2) throughout the contract formation and contract |
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management process, provide recommendations and assistance to the |
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state agency regarding the contract for which the private |
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procurement specialist is selected. |
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(d) Before the comptroller or, if applicable, the |
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Department of Information Resources approves the use of a private |
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procurement specialist under Section 2262.154, the comptroller or, |
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if applicable, the Department of Information Resources and the |
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state agency seeking to enter into the contract shall consider: |
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(1) potential private procurement specialists' |
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relative experience and knowledge on the subject matter of the |
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contract; and |
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(2) probable fees or costs associated with securing |
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the services of a private procurement specialist. |
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(e) A private procurement specialist or a business entity in |
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which the specialist has a substantial interest may not bid on or |
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otherwise make a proposal to receive a contract for which the |
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specialist was selected. A selected private procurement specialist |
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or a business entity in which the specialist has a substantial |
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interest may not provide services for or to a client, other than |
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services provided to the state agency under this subchapter, if the |
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provision of services: |
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(1) involves a matter directly related to the contract |
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for which the specialist was selected by the agency; or |
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(2) creates a conflict of interest that may directly |
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affect the state's interest. |
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(f) The prohibitions in Subsection (e) also apply to: |
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(1) a person that is an agent, subsidiary, or parent |
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company of the private procurement specialist; or |
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(2) a person related within the second degree by |
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consanguinity or affinity to the private procurement specialist. |
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(g) For purposes of this section, a private procurement |
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specialist has a substantial interest in a business entity if: |
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(1) the specialist or the specialist's spouse, if |
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applicable, owns the business entity, or the combined ownership of |
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the specialist and the specialist's spouse, if applicable, is at |
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least 10 percent of the voting stock or shares of the business |
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entity; or |
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(2) the specialist or the specialist's spouse, if |
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applicable, is a partner, limited partner, or officer of the |
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business entity. |
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(h) In this section, "business entity" means a sole |
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proprietorship, partnership, firm, corporation, holding company, |
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joint-stock company, receivership, trust, or other entity |
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recognized by law. |
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Sec. 2262.154. USE OF PRIVATE PROCUREMENT SPECIALIST. (a) |
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With the approval of the comptroller or, if applicable, the |
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Department of Information Resources, a state agency shall use a |
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private procurement specialist for a high-cost contract if the |
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agency determines that given the cost and nature of the proposed |
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contract there will probably be a net savings to the state over the |
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life of the contract if a specialist is selected. |
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(b) The approval of the Department of Information Resources |
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is required, rather than the comptroller's approval, in order to |
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use a private procurement specialist under Subsection (a) for a |
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high-cost contract that is for a major information resources |
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project. |
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(c) A state agency seeking to enter into a high-cost |
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contract must send to the comptroller or, if applicable, to the |
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Department of Information Resources the information necessary to |
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approve the use of a private procurement specialist under this |
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section. At a minimum, the information must include the state |
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agency's draft solicitation for the contract. |
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(d) During the contract formation and contract management |
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process with respect to a high-cost contract for which a private |
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procurement specialist is approved, a state agency shall |
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collaborate with and, except as provided by Subsection (f), obtain |
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the approval of the private procurement specialist before taking |
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any of the following actions in relation to the contract: |
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(1) publicly releasing solicitation documents; |
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(2) executing a final contract; and |
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(3) making a payment or a series of payments that equal |
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half of the contract value. |
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(e) In determining whether to approve an action described by |
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Subsection (d), the selected private procurement specialist shall |
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review related documentation to ensure that potential risks related |
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to the high-cost contract have been identified and mitigated. |
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(f) If a state agency disagrees with a determination of a |
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private procurement specialist regarding an action described by |
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Subsection (d), the agency may take the action without the approval |
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of the specialist if the administrative head of the agency and the |
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comptroller or, if applicable, the Department of Information |
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Resources approve the action. |
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Sec. 2262.155. SOLICITATION AND CONTRACT CANCELLATION. (a) |
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After review of and comment on the matter by the Legislative Budget |
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Board and the governor, the selected private procurement specialist |
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may recommend the cancellation of a solicitation or a contract |
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under Section 2262.154(d) if: |
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(1) a proposed solicitation is not in the best |
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interest of the state; |
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(2) a proposed contract would place the state at an |
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unacceptable risk if executed; or |
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(3) with regard to an executed contract, an agency is |
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experiencing performance failure or payment irregularities. |
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(b) Each high-cost contract is subject to cancellation in |
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accordance with this section and Section 2262.154(d). |
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(c) A state agency shall include in each of its high-cost |
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contracts a term that provides that the state agency may |
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immediately terminate the contract without further obligation to |
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the contractor if there is performance failure or there are payment |
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irregularities with regard to the contract. |
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Sec. 2262.156. PAYMENT OF PRIVATE PROCUREMENT SPECIALIST |
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SERVICES. (a) In this section, "ordinary procurement procedures" |
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means procedures related to the contract formation and contract |
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management process ordinarily performed by state agency |
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procurement personnel, including planning, determination of the |
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procurement method, solicitation, evaluation and award, inspection |
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and acceptance, contract administration, and payment. |
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(b) The state agency seeking to enter into a contract for |
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which a private procurement specialist is selected shall enter into |
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an agreement with the specialist to compensate the specialist using |
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either: |
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(1) a flat fee agreement; or |
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(2) a pay-for-performance agreement described by |
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Subsection (c). |
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(c) If a pay-for-performance agreement is used, the state |
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agency shall develop a projected budget for the contract based on |
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the agency's expected cost of entering into and managing the |
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contract if the agency were to enter into and manage the contract |
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using ordinary procurement procedures but without using the |
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services of a private procurement specialist. The |
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pay-for-performance agreement must provide that the private |
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procurement specialist will be paid a percentage of the savings |
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realized by the agency as a result of using the private procurement |
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specialist, compared with the agency's projected budget for the |
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contract. |
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Sec. 2262.157. REPORT. Not later than January 1 of each |
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year, each state agency that has used the services of a private |
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procurement specialist during the preceding year shall report to |
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the comptroller the savings realized by the agency as a result of |
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using the private procurement specialist's services. A state |
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agency shall base the determination of savings realized on the |
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agency's projected costs or budget for the contract compared to the |
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actual costs for the contract. |
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Sec. 2262.158. RULES; WAIVER. The comptroller and the |
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Department of Information Resources shall adopt rules to implement |
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and administer this subchapter, including rules for waiving |
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approval of the use of a private procurement specialist under |
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Section 2262.154. |
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SECTION 4. Section 2262.051(f), Government Code, is |
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repealed. |
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SECTION 5. Subchapter D, Chapter 2262, Government Code, as |
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added by this Act, applies only to a contract for which the |
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solicitation of bids, offers, qualifications, proposals, or |
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similar expressions of interest is published on or after September |
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1, 2011. |
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SECTION 6. This Act takes effect September 1, 2011. |