82R6885 YDB-F

By: Pitts H.B. No. 2021

A BILL TO BE ENTITLED

AN ACT

relating to state agency procurement and the comptroller's procurement powers and duties.

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

SECTION 1. Section 2155.001, Government Code, is amended by amending Subdivision (2) and adding Subdivision (3) to read as follows:

(2) "Service" means the furnishing of skilled or unskilled labor or professional work, but does not include a:

(A) professional service subject to Subchapter A, Chapter 2254;

(B) service of a state agency employee;

(C) service procured by the Department of Information Resources;

(D) consulting service or service of a consultant as defined by Subchapter B, Chapter 2254; or

(E) [(D)] service of a public utility.

(3) "State agency" has the meaning assigned by Section 2151.002 unless otherwise provided by this chapter.

SECTION 2. Section 2155.002, Government Code, is amended to read as follows:

Sec. 2155.002. COMPTROLLER [COMMISSION] FOCUS ON LARGE EXPENDITURES. To the extent possible, the comptroller [commission] shall focus [its efforts under this chapter and Chapters 2156, 2157, and 2158] on purchases and contracts that involve relatively large amounts of money or that leverage state spending in the most efficient manner.

SECTION 3. Section 2155.064, Government Code, is amended to read as follows:

Sec. 2155.064. LEVERAGED [SCHEDULE AND BULK] PURCHASING. To the greatest extent possible, the comptroller shall pursue statewide contracts and attempt to leverage state spending to achieve cost savings for this state. [The commission may combine orders in a system of schedule purchasing and shall attempt to benefit from bulk purchasing.]

SECTION 4. Section 2155.068, Government Code, is amended to read as follows:

Sec. 2155.068. UNIFORM STANDARDS AND SPECIFICATIONS. (a) The comptroller [commission] may coordinate uniform standards and specifications for goods purchased by this state [the commission]. The comptroller [commission] by rule may adopt appropriate standards developed by a nationally recognized standards-making association as part of its specifications and standards program.

(b) On request of the comptroller, a state agency shall cooperate with the comptroller [The commission shall enlist the cooperation of other state agencies] in the establishment, maintenance, and revision of uniform standards and specifications.

(c) The comptroller [commission] shall review contracts administered by the comptroller [commission] to ensure that all goods and services meet contract specifications.

(d) As part of the standards and specifications program, the comptroller [commission] shall:

(1) review contracts for opportunities to recycle waste produced at state buildings;

(2) develop and update a list of equipment and appliances that meet the energy efficiency standards provided by Section 2158.301; and

(3) assist state agencies in selecting products under Section 2158.301, as appropriate.

SECTION 5. Section 2155.070, Government Code, is amended to read as follows:

Sec. 2155.070. FAILURE TO MEET SPECIFICATIONS. (a) A state agency that determines that goods or services received under a contract administered by the comptroller [commission] do not meet specifications shall promptly notify the comptroller [commission] in writing of the reasons for the determination. As soon as possible, the comptroller [The commission] shall determine [immediately make its own determination of] whether the goods and services meet specifications.

(b) For purchases exempt from the comptroller's purchasing authority, the comptroller may [The commission or a state agency, including an institution of higher education, has the authority to] determine whether the purchased [that] goods and services [exempted from the commission's purchasing authority] meet or fail to meet specifications. A state agency may also determine whether the goods and services meet or fail to meet specifications.

(c) On determining that contract specifications or conditions have not been met, the comptroller [commission] shall act against the defaulting contractor, with the assistance of the attorney general as necessary.

(d) If the comptroller [commission] receives repeated complaints against a vendor, the comptroller [commission] shall remove the vendor's name and the vendor's goods and services from the comptroller's [commission's] bidders list for not longer than one year. If complaints resume after the vendor is reinstated on the bidders list, the comptroller [commission] may bar the vendor from participating in state contracts for a period under Section 2155.077.

SECTION 6. Section 2155.072, Government Code, is amended to read as follows:

Sec. 2155.072. STATEWIDE OR REGIONAL SERVICES CONTRACTS; COMPTROLLER [COMMISSION] STUDIES. Each state fiscal year, the comptroller [(a) The commission annually] shall consider one or more services purchased by one or more state agencies for development into statewide contracts. The comptroller shall determine if a particular service may be leveraged for multiple state agencies at a cost savings to this state compared to the cost to this state of purchasing the service under individual state agency contracts [select for study at least one service that is purchased by one or more state agencies]. The comptroller [commission] shall consider awarding statewide contracts by region [study a selected service to determine whether the state would benefit if the service were provided to appropriate state agencies under a regional or statewide contract. The commission shall give priority to studying services for which the commission has delegated the purchasing function to many state agencies].

[(b) The commission is not required to enter into a statewide or regional contract for the provision of a service to state agencies if more than five bidders are willing to provide the service to the state under a statewide or regional contract.]

SECTION 7. Section 2155.074, Government Code, is amended to read as follows:

Sec. 2155.074. PROCUREMENT MANUAL; BEST VALUE AND SOURCING STANDARDS [STANDARD] FOR PURCHASE OF GOODS OR SERVICES. (a) The comptroller shall publish and maintain a procurement manual for state agencies to follow that incorporates the sourcing standards of this section and the best practices for procurement. Before publication, the procurement manual must be reviewed by the contract advisory team established under Chapter 2262. Each state agency shall comply with the procurement manual in its procurement activities.

(b) For a purchase of goods and services under this chapter, each state agency, including the comptroller [commission], shall purchase goods and services that provide the best value for the state.

(c) [(b)] In determining the best value for the state, the purchase price and whether the goods or services meet specifications are the most important considerations. However, the comptroller [commission] or other state agency may, subject to Subsection (d) [(c)] and Section 2155.075, consider other relevant factors, including:

(1) installation costs;

(2) life cycle costs;

(3) the quality and reliability of the goods and services;

(4) the delivery terms;

(5) indicators of probable vendor performance under the contract such as past vendor performance, the vendor's financial resources and ability to perform, the vendor's experience or demonstrated capability and responsibility, and the vendor's ability to provide reliable maintenance agreements and support;

(6) the cost of any employee training associated with a purchase;

(7) the effect of a purchase on agency productivity;

(8) the vendor's anticipated economic impact to the state or a subdivision of the state, including potential tax revenue and employment; and

(9) other factors relevant to determining the best value for the state in the context of a particular purchase.

(d) [(c)] A state agency shall consult with and receive approval from the comptroller [commission] before considering factors other than price and meeting specifications when the agency procures through competitive bidding goods or services with a value that exceeds $100,000.

(e) The comptroller shall:

(1) identify commercially available goods and services needed or used by state agencies; and

(2) analyze and determine whether the goods and services are better provided through a statewide contract.

(f) If the comptroller determines that a good or service identified under Subsection (e) is better provided through a statewide contract, the comptroller shall require state agencies to engage in any process, including competitive bidding, developed by the comptroller to develop and award one or more statewide contracts for the good or service.

(g) In performing the comptroller's duties under this chapter, the comptroller may:

(1) require a state agency to conduct a hearing, study, review, or cost estimate, including an agency in-house cost estimate or a management study, concerning any aspect of a good or service identified under Subsection (e);

(2) develop and require state agencies to use methods that accurately and fairly estimate and account for the cost of obtaining the identified good or service;

(3) require that the identified good or service be submitted to competitive bidding or another process that creates competition;

(4) prescribe, after consulting affected state agencies, the specifications and conditions of the purchase and the procedures that must be followed for the procurement of the identified good or service; and

(5) determine the terms of a contract for the identified good or service.

SECTION 8. Section 2155.078(a), Government Code, is amended to read as follows:

(a) The comptroller [commission] shall establish and administer a system of training, continuing education, and certification for state agency purchasing personnel. The comptroller [commission] may establish and offer appropriate training to vendors on a cost recovery basis. The comptroller [commission] may adopt rules to administer this section, including rules relating to:

(1) monitoring a certified purchaser's compliance with the continuing education requirements of this section; and

(2) suspending or revoking a purchaser's certification for failure to comply with this chapter or comptroller rules.

SECTION 9. Section 2155.082, Government Code, is amended to read as follows:

Sec. 2155.082. PROVIDING CERTAIN PURCHASING SERVICES ON FEE-FOR-SERVICE BASIS OR THROUGH BENEFIT FUNDING. (a) The comptroller [commission] may provide open market purchasing services on a fee-for-service basis for state agency purchases that are delegated to an agency under Section 2155.131, 2155.132, [2155.133,] or 2157.121 or that are exempted from the purchasing authority of the comptroller [commission]. The comptroller [commission] shall set the fees in an amount that recovers the comptroller's [commission's] costs in providing the services.

(b) The comptroller [commission] shall publish a schedule of [its] fees for services that are subject to this section. The schedule must include the comptroller's [commission's] fees for:

(1) reviewing bid and contract documents for clarity, completeness, and compliance with laws and rules;

(2) developing and transmitting invitations to bid;

(3) receiving and tabulating bids;

(4) evaluating and determining which bidder offers the best value to the state;

(5) creating and transmitting purchase orders; and

(6) participating in agencies' request for proposal processes.

(c) The comptroller may engage a consultant to assist with a particular procurement on behalf of a state agency and pay the consultant from the cost savings realized by the state agency.

SECTION 10. Section 2155.083(n), Government Code, is amended to read as follows:

(n) Notwithstanding any other provision of this section, a state agency that conducts covert law enforcement operations is not required to post the specifications for covert equipment in the state business daily. [This section does not apply to a state agency to which Section 51.9335 or 73.115, Education Code, applies.]

SECTION 11. Section 2155.085, Government Code, is amended to read as follows:

Sec. 2155.085. REVERSE AUCTION PROCEDURE. [(a)] The comptroller may [commission shall]:

(1) purchase goods or services using the reverse auction procedure whenever:

(A) the procedure provides the best value to the state; or

(B) all purchasing methods provide equal value to the state;

(2) offer historically underutilized businesses assistance and training relating to the reverse auction procedure; and

(3) advise historically underutilized businesses on contracts available using the reverse auction procedure.

[(b) The commission shall set a goal of purchasing at least 20 percent of the dollar value of goods or services purchased by the commission using the reverse auction procedure.]

SECTION 12. Subchapter B, Chapter 2155, Government Code, is amended by adding Section 2155.088 to read as follows:

Sec. 2155.088. PROCUREMENT PLANS FOR GOODS AND SERVICES. (a) Not later than June 1 of each odd-numbered year, each state agency shall provide a procurement plan to the comptroller that identifies the major goods and services the agency plans to purchase during the next fiscal biennium.

(b) The comptroller shall use the procurement plans to schedule solicitations for proposals for goods and services used by multiple state agencies.

(c) A state agency that makes a substantive change to its procurement plan shall submit a revised copy of the plan to the comptroller not later than the 30th day after the date of the change.

(d) The comptroller may adopt rules to administer this section.

SECTION 13. Section 2155.131, Government Code, is amended to read as follows:

Sec. 2155.131. DELEGATION OF AUTHORITY TO STATE AGENCIES. (a) The comptroller [commission] may delegate purchasing functions to a state agency.

(b) In delegating purchasing authority under this section or Section 2155.132, the comptroller shall consider factors relevant to a state agency's ability to perform purchasing functions, including:

(1) the purchasing capabilities of the agency's purchasing personnel and the existence of automated purchasing tools at the agency;

(2) the certification levels held by the agency's purchasing personnel;

(3) the results of the comptroller's procurement review audits of an agency's purchasing practices; and

(4) whether the agency has adopted and published as part of its purchasing rules protest procedures consistent with the comptroller's protest procedures.

(c) The comptroller shall monitor the purchasing practices of each state agency that the comptroller delegates purchasing authority to under Subsection (b) or Section 2155.132 to ensure that the certification levels of the agency's purchasing personnel and the quality of the agency's purchasing practices continue to warrant the delegated purchasing authority. The comptroller may revoke for any cause, including the agency's failure to comply with Section 2155.074, all or part of the delegated purchasing authority. The comptroller shall adopt rules to administer this subsection.

(d) The comptroller by rule shall prescribe:

(1) the procedures a state agency must follow in making a delegated purchase; and

(2) the procedures by which a state agency may use the comptroller's services for delegated purchases under Section 2155.082.

SECTION 14. Section 2155.132, Government Code, is amended to read as follows:

Sec. 2155.132. PURCHASES LESS THAN SPECIFIED MONETARY AMOUNT. (a) A state agency is delegated the authority to purchase goods and services if the purchase does not exceed $15,000. If the comptroller [commission] determines that a state agency has not followed the comptroller's [commission's] rules or the laws related to the delegated purchases, the comptroller [commission] shall report the comptroller's [its] determination to the members of the state agency's governing body and to the governor, lieutenant governor, speaker of the house of representatives, and Legislative Budget Board.

(b) The comptroller [commission] by rule may delegate to a state agency the authority to purchase goods and services if the purchase exceeds $15,000. [In delegating purchasing authority under this subsection or Section 2155.131, the commission shall consider factors relevant to a state agency's ability to perform purchasing functions, including:

[(1) the capabilities of the agency's purchasing staff and the existence of automated purchasing tools at the agency;

[(2) the certification levels held by the agency's purchasing personnel;

[(3) the results of the commission's procurement review audits of an agency's purchasing practices; and

[(4) whether the agency has adopted and published protest procedures consistent with those of the commission as part of its purchasing rules.]

(c) [The commission shall monitor the purchasing practices of state agencies that are making delegated purchases under Subsection (b) or Section 2155.131 to ensure that the certification levels of the agency's purchasing personnel and the quality of the agency's purchasing practices continue to warrant the amount of delegated authority provided by the commission to the agency. The commission may revoke for cause all or part of the purchasing authority that the commission delegated to a state agency. The commission shall adopt rules to administer this subsection.

[(d) The commission by rule:

[(1) shall prescribe procedures for a delegated purchase; and

[(2) shall prescribe procedures by which agencies may use the commission's services for delegated purchases, in accordance with Section 2155.082.

[(e)] Competitive bidding, whether formal or informal, is required for a purchase by a state agency if the purchase:

(1) exceeds $5,000; and

(2) is made under a written contract.

(d) [(f)] Goods purchased under this section may not include:

(1) an item for which a statewide contract has been awarded by the comptroller [under the contract purchase procedure], unless the quantity purchased is less than any [the] minimum quantity specified in the contract;

(2) an item required by statute to be purchased from a particular source, including through the program administered under Chapter 122, Human Resources Code, or from the Texas Correctional Industries under Chapter 497; or

(3) a scheduled item that has been designated for purchase by the comptroller [commission].

(e) [(g)] A large purchase may not be divided into small lot purchases to circumvent [meet] the dollar limits prescribed by this section. The comptroller [commission] may not require that unrelated purchases be combined into one purchase order to exceed the dollar limits prescribed by this section.

(f) [(h)] A state agency making a purchase under this section for which competitive bidding is required shall [must]:

(1) [attempt to] obtain at least three competitive bids from:

(A) sources listed on the master bidders list that normally offer for sale the goods being purchased; or

(B) if three vendors are not available on the master bidders list, vendors in the applicable industry; and

(2) comply with Subchapter E.

SECTION 15. Subchapter C, Chapter 2155, Government Code, is amended by adding Section 2155.1325 to read as follows:

Sec. 2155.1325. STANDARDS FOR DELEGATED PURCHASES. (a) A state agency that is preparing a solicitation for proposals for a purchase of goods or services with a purchase price that exceeds $100,000 that is delegated under this chapter or other law shall submit to the comptroller a copy of the draft solicitation with a statement of the procurement strategy for the purchase.

(b) The comptroller may review the draft solicitation and procurement strategy to determine whether the state agency is following the best value and sourcing standards of Section 2155.074 to the greatest extent possible. The comptroller may:

(1) recommend changes to the draft solicitation or procurement strategy, provided the written recommended changes are submitted to the state agency not later than the 30th day after the date the comptroller receives the draft solicitation and procurement strategy from the state agency;

(2) partner with the state agency to ensure the standards of this chapter are followed;

(3) partner with the state agency to award a statewide contract that results from the solicitation; or

(4) require the state agency to engage a consultant to assist with the solicitation to be paid from the cost savings realized under the contract, as authorized by Section 2155.082.

(c) A state agency that receives the comptroller's recommended changes under Subsection (b)(1) shall:

(1) accept the recommended changes; or

(2) submit alternative suggestions to the comptroller for review in accordance with this section.

(d) The comptroller may adopt rules to administer this section.

SECTION 16. Subchapter D, Chapter 2155, Government Code, is amended by adding Section 2155.205 to read as follows:

Sec. 2155.205. ACCESS BY OTHER GOVERNMENTAL ENTITIES. The comptroller may allow a governmental entity of another state to access the comptroller's statewide contracts.

SECTION 17. Section 2155.385(a), Government Code, is amended to read as follows:

(a) The comptroller [If authorized by rule adopted by the comptroller under Section 403.023, the commission] may contract with one or more credit card issuers for state agencies to use credit cards to pay for purchases. [The commission may not enter into a contract that conflicts with the comptroller's rules.]

SECTION 18. Section 2054.158, Government Code, is amended to read as follows:

Sec. 2054.158. QUALITY ASSURANCE TEAM. The state auditor, comptroller, attorney general, Legislative Budget Board, and department shall:

(1) create a quality assurance team to perform the duties specified in this chapter and other law; and

(2) specify in writing the responsibilities of the state auditor, comptroller, attorney general, Legislative Budget Board, and department in performing the duties.

SECTION 19. Section 2151.0041(c), Government Code, is amended to read as follows:

(c) Unless otherwise provided by the legislature by law, on September 1, 2013:

(1) the powers and duties transferred to the comptroller under Section 2151.004(d) and under House Bill 3560, Acts of the 80th Legislature, Regular Session, 2007, are transferred to the Texas Facilities Commission;

(2) a reference in law to the comptroller relating to a power or duty transferred under this subsection means the Texas Facilities Commission;

(3) a rule or form adopted by the comptroller relating to a power or duty transferred under this subsection is a rule or form of the Texas Facilities Commission and remains in effect until altered by the commission;

(4) all obligations, contracts, proceedings, cases, negotiations, funds, and employees of the comptroller relating to a power or duty transferred under this subsection are transferred to the Texas Facilities Commission;

(5) all property and records in the custody of the comptroller relating to a power or duty transferred under this subsection and all funds appropriated by the legislature for purposes related to a power or duty transferred under this subsection are transferred to the Texas Facilities Commission; and

(6) Section 122.0011, Human Resources Code, and the following provisions of the Government Code expire:

(A) Sections 2151.004(c) and (d);

(B) Section 2155.0011;

(C) [Section 2155.086;

[(D) Section 2155.087;

[(E)] Section 2156.0011;

(D) [(F)] Section 2157.0011;

(E) [(G)] Section 2158.0011;

(F) [(H)] Section 2161.0011;

(G) [(I)] Section 2163.0011;

(H) [(J)] Section 2170.0011;

(I) [(K)] Section 2171.0011;

(J) [(L)] Section 2172.0011;

(K) [(M)] Section 2176.0011; and

(L) [(N)] Section 2262.0011.

SECTION 20. Section 2166.406(i), Government Code, is amended to read as follows:

(i) An energy savings performance contract shall be let according to the procedures established for procuring certain professional services by Section 2254.004. [Notice of the request for qualifications shall be given in the manner provided by Section 2156.002.] The State Energy Conservation Office shall establish guidelines and an approval process for awarding energy savings performance contracts. The guidelines adopted under this subsection must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract. In conducting the review, the engineer shall focus primarily on the proposed improvements from an engineering perspective, the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. An energy savings performance contract may not be entered into unless the contract has been approved by the State Energy Conservation Office. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 21. Section 51.927(i), Education Code, is amended to read as follows:

(i) An energy savings performance contract shall be let according to the procedures established for procuring certain professional services by Section 2254.004, Government Code. [Notice of the request for qualifications shall be given in the manner provided by Section 2156.002, Government Code.] The Texas Higher Education Coordinating Board, in consultation with the State Energy Conservation Office with regard to energy and water conservation measures, shall establish guidelines and an approval process for awarding energy savings performance contracts. The guidelines must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract. In conducting the review, the engineer shall focus primarily on the proposed improvements from an engineering perspective, the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. A contract is not required to be reviewed or approved by the State Energy Conservation Office. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 22. The following sections of the Government Code are repealed:

(1) Section 2155.086;

(2) Section 2155.087;

(3) Section 2155.138;

(4) Section 2155.141; and

(5) Section 2156.002.

SECTION 23. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.