Texas 2009 - 81st Regular

Texas House Bill HB4682 Compare Versions

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1	1	81R21395 MTB-F
2	2	By: Parker H.B. No. 4682
3	3	Substitute the following for H.B. No. 4682:
4	4	By: Solomons C.S.H.B. No. 4682
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the use of private procurement specialists for certain
10	10	state agency contracts.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 2262.002(b), Government Code, is amended
13	13	to read as follows:
14	14	(b) Except as provided by Section 2262.152, this [This]
15	15	chapter does not apply to contracts of the Texas Department of
16	16	Transportation that:
17	17	(1) relate to highway construction or highway
18	18	engineering; or
19	19	(2) are subject to Section 201.112, Transportation
20	20	Code.
21	21	SECTION 2. Section 2262.101, Government Code, is amended to
22	22	read as follows:
23	23	Sec. 2262.101. CREATION; DUTIES. The Contract Advisory
24	24	Team is created to assist state agencies in improving contract
25	25	management practices by:
26	26	(1) [reviewing the solicitation of major contracts by
27	27	state agencies;
28	28	[(2)] reviewing any findings or recommendations made
29	29	by the state auditor, including those made under Section
30	30	2262.052(b), regarding a state agency's compliance with the
31	31	contract management guide; and
32	32	(2) [(3)] providing recommendations to the commission
33	33	regarding:
34	34	(A) the development of the contract management
35	35	guide; and
36	36	(B) the training under Section 2262.053.
37	37	SECTION 3. Chapter 2262, Government Code, is amended by
38	38	adding Subchapter D to read as follows:
39	39	SUBCHAPTER D. PRIVATE PROCUREMENT SPECIALISTS
40	40	Sec. 2262.151. DEFINITIONS. In this subchapter:
41	41	(1) "High-cost contract" means a state agency contract
42	42	that has a value of at least $10 million.
43	43	(2) "Major information resources project" has the
44	44	meaning assigned by Section 2054.003.
45	45	(3) "Solicitation" means a solicitation for bids,
46	46	offers, qualifications, proposals, or similar expressions of
47	47	interest for a high-cost contract.
48	48	Sec. 2262.152. APPLICABILITY TO CERTAIN CONTRACTS. (a) This
49	49	subchapter applies to a Texas Department of Transportation contract
50	50	only if the contract:
51	51	(1) is a high-cost contract; and
52	52	(2) is for a major information resources project.
53	53	(b) This subchapter does not apply to a contract for
54	54	professional or consulting services under Chapter 2254.
55	55	Sec. 2262.153. PRIVATE PROCUREMENT SPECIALISTS. (a) The
56	56	comptroller shall select and assign private procurement
57	57	specialists as provided by this subchapter.
58	58	(b) A private procurement specialist must be a private
59	59	person who is:
60	60	(1) an expert in the subject matter of the assigned
61	61	contract; and
62	62	(2) proficient in the procurement laws applicable to
63	63	the assigned contract.
64	64	(c) A private procurement specialist shall:
65	65	(1) review and approve actions under Section
66	66	2262.154(d); and
67	67	(2) throughout the contract formation and contract
68	68	management process, provide recommendations and assistance to the
69	69	state agency regarding the contract to which the private
70	70	procurement specialist is assigned.
71	71	(d) Before the comptroller assigns a private procurement
72	72	specialist, the comptroller and the state agency seeking to enter
73	73	into the contract shall consider:
74	74	(1) each potential private procurement specialist's
75	75	relative experience and knowledge on the subject matter of the
76	76	contract; and
77	77	(2) any fees or costs associated with securing the
78	78	services of the private procurement specialist.
79	79	(e) A private procurement specialist may not bid on or
80	80	otherwise make a proposal to receive a contract to which the
81	81	specialist was assigned.
82	82	Sec. 2262.154. USE OF PRIVATE PROCUREMENT SPECIALIST. (a)
83	83	The comptroller shall assign a private procurement specialist for a
84	84	high-cost contract if the comptroller determines that given the
85	85	cost and nature of the proposed contract there will probably be a
86	86	net savings to the state over the life of the contract if a
87	87	specialist is assigned.
88	88	(b) A state agency may request that the comptroller assign a
89	89	private procurement specialist for a proposed contract if the
90	90	agency determines that given the cost and nature of the contract
91	91	there will probably be a net savings to the state over the life of
92	92	the contract if a specialist is assigned.
93	93	(c) A state agency seeking to enter into a high-cost
94	94	contract must send to the comptroller the information necessary to
95	95	make a determination under Subsection (a).
96	96	(d) During the contract formation and contract management
97	97	process with respect to a high-cost contract to which a private
98	98	procurement specialist is assigned, a state agency shall
99	99	collaborate with and, except as provided by Subsection (f), obtain
100	100	the approval of the private procurement specialist before taking
101	101	any of the following actions in relation to the contract:
102	102	(1) publicly releasing solicitation documents;
103	103	(2) executing a final contract; and
104	104	(3) making a payment or a series of payments that equal
105	105	half of the contract value.
106	106	(e) In determining whether to approve an action described by
107	107	Subsection (d), the assigned private procurement specialist and the
108	108	comptroller shall review related documentation to ensure that
109	109	potential risks related to the high-cost contract have been
110	110	identified and mitigated.
111	111	(f) If a state agency disagrees with a determination of a
112	112	private procurement specialist regarding an action described by
113	113	Subsection (d), the agency may take the action without the approval
114	114	of the specialist if the administrative head of the agency and the
115	115	comptroller approve the action.
116	116	Sec. 2262.155. SOLICITATION AND CONTRACT CANCELLATION. (a)
117	117	After review of and comment on the matter by the Legislative Budget
118	118	Board and the governor, the assigned private procurement specialist
119	119	may recommend the cancellation of a solicitation or a contract
120	120	under Section 2262.154(d) if:
121	121	(1) a proposed solicitation is not in the best
122	122	interest of the state;
123	123	(2) a proposed contract would place the state at an
124	124	unacceptable risk if executed; or
125	125	(3) an executed contract is experiencing performance
126	126	failure or payment irregularities.
127	127	(b) Each high-cost contract is subject to cancellation in
128	128	accordance with this section and Section 2262.154(d).
129	129	Sec. 2262.156. PAYMENT OF PRIVATE PROCUREMENT SPECIALIST
130	130	SERVICES. (a) The state agency seeking to enter into a contract for
131	131	which a private procurement specialist is assigned shall enter into
132	132	an agreement with the specialist to compensate the specialist using
133	133	either:
134	134	(1) a flat fee agreement; or
135	135	(2) a pay-for-performance agreement described by
136	136	Subsection (b).
137	137	(b) If a pay-for-performance agreement is used, the state
138	138	agency shall develop a pro forma budget for the contract based on
139	139	the agency's expected cost of entering into and managing the
140	140	contract if the agency were to enter into and manage the contract
141	141	using ordinary procurement procedures but without using the
142	142	services of a private procurement specialist. The
143	143	pay-for-performance agreement must provide that the private
144	144	procurement specialist will be paid a percentage of the savings
145	145	realized by the agency as a result of employing the private
146	146	procurement specialist, compared with the agency's pro forma budget
147	147	for the contract.
148	148	Sec. 2262.157. REPORT. Not later than January 1 of each
149	149	year, each state agency that has used the services of a private
150	150	procurement specialist during the preceding year shall report to
151	151	the comptroller the savings realized by the agency as a result of
152	152	using the private procurement specialist's services.
153	153	Sec. 2262.158. RULES; WAIVER. The comptroller shall adopt
154	154	rules to implement and administer this subchapter, including rules
155	155	for waiving the approval of a private procurement specialist under
156	156	Section 2262.154(d).
157	157	SECTION 4. Section 2262.051(f), Government Code, is
158	158	repealed.
159	159	SECTION 5. Subchapter D, Chapter 2262, Government Code, as
160	160	added by this Act, applies only in relation to a contract:
161	161	(1) for which the solicitation of bids, offers,
162	162	qualifications, proposals, or similar expressions of interest is
163	163	published on or after September 1, 2009;
164	164	(2) that is extended or modified on or after September
165	165	1, 2009; or
166	166	(3) for which a change order is submitted on or after
167	167	September 1, 2009.
168	168	SECTION 6. This Act takes effect September 1, 2009.