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.