Texas 2009 - 81st Regular

Texas House Bill HB581 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R3841 JJT-F
2	2	By: Dukes H.B. No. 581
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to outsourcing a service performed by a state agency to a
8	8	private commercial contractor.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 2162.103, Government Code, is amended
11	11	to read as follows:
12	12	Sec. 2162.103. COST COMPARISON AND CONTRACT
13	13	CONSIDERATIONS. (a) In comparing the cost of providing a service,
14	14	the council shall conduct and consider the conclusions of
15	15	cost-benefit analyses that compare the costs and benefits of
16	16	[consider the]:
17	17	(1) a private contractor's performance of the service,
18	18	including considering the cost of supervising the work of a private
19	19	contractor; [and]
20	20	(2) [cost of] a state agency's performance of the
21	21	service, including considering the cost of:
22	22	(A) services provided by [the costs of] the
23	23	comptroller, attorney general, and other support agencies; and
24	24	(B) other indirect expenses [costs] related to
25	25	the agency's performance of the service; and
26	26	(3) improving the state agency's performance by:
27	27	(A) developing and implementing a most efficient
28	28	organization model or a similar model developed by the council;
29	29	(B) implementing recommendations of state
30	30	oversight agencies such as the Legislative Budget Board, the state
31	31	auditor, and the Sunset Advisory Commission; and
32	32	(C) implementing the recommendations of the
33	33	agency's governing body intended to improve the agency's provision
34	34	of a service the council identifies under Section 2162.102(a).
35	35	(b) The state agency may submit a proposal to the council
36	36	describing a reorganized service delivery method to compete
37	37	directly with the performance of a private commercial contractor.
38	38	(c) In comparing the cost of providing a service, the
39	39	council in conjunction with the state agency shall prepare and
40	40	consider an estimate of the costs of returning the performance of
41	41	the service from the contractor to the state agency in the event
42	42	that it proves necessary to do so. The estimate must include a
43	43	reasonable proposed timetable for actions necessary to return the
44	44	service to the state agency.
45	45	(d) [(b)] A bid or contract must include an analysis of
46	46	health care benefits, retirement, and workers' compensation
47	47	insurance for a contractor's employees that are reasonably
48	48	comparable to the health care benefits, retirement, and workers'
49	49	compensation insurance of the state.
50	50	(e) Cost-benefit analyses used for an evaluation under
51	51	Subsection (a) must include a short-term analysis covering a period
52	52	of not more than six months and a long-term analysis covering a
53	53	period of at least one and not more than five years.
54	54	SECTION 2. Chapter 2162, Government Code, is amended by
55	55	adding Subchapter D to read as follows:
56	56	SUBCHAPTER D. OUTSOURCING MAJOR FUNCTIONS
57	57	Sec. 2162.151. APPLICABILITY. This subchapter applies in
58	58	relation to a contract, contract amendment, or contract extension
59	59	made or proposed to be made between a state agency and a private
60	60	commercial contractor only if:
61	61	(1) a service performed by the agency at the time the
62	62	contract is awarded, amended, or extended will be outsourced under
63	63	the contract, contract amendment, or contract extension; and
64	64	(2) the contract, contract amendment, or contract
65	65	extension, as applicable:
66	66	(A) will lead to the loss of 100 or more state
67	67	employee positions; or
68	68	(B) has a value of $10 million or more.
69	69	Sec. 2162.152. DETERMINATION BY COUNCIL REQUIRED. (a) In
70	70	circumstances under which this subchapter applies, a state agency
71	71	may not award a contract to, amend a contract with, or extend a
72	72	contract with a private commercial contractor unless the council
73	73	determines that the service that will be outsourced under the
74	74	contract, contract amendment, or contract extension is a service
75	75	that may be better provided by selecting the provider of the service
76	76	through competition with other state agencies and private
77	77	commercial contractors that can provide the service.
78	78	(b) A state agency may not award a new contract to which this
79	79	subchapter applies unless the council has made the determination
80	80	required by Subsection (a) and the provider of the service under the
81	81	contract is selected through competition with other state agencies
82	82	and private commercial contractors. A state agency may amend or
83	83	extend an existing contract under circumstances in which this
84	84	subchapter applies after the council makes the determination
85	85	required by Subsection (a).
86	86	Sec. 2162.153. CONTINUATION OF OUTSOURCING CONTRACT;
87	87	COMPLIANCE AUDIT. (a) The state auditor shall conduct a
88	88	compliance audit with regard to the outsourced service not later
89	89	than the end of the sixth month after the month the service was
90	90	outsourced under the contract, contract amendment, or contract
91	91	extension. The contractor shall pay the costs of the audit. In
92	92	conducting the audit, the state auditor shall:
93	93	(1) determine whether the contractor has:
94	94	(A) met the conditions of the contract with
95	95	regard to the outsourced service; and
96	96	(B) cooperated with the audit as required by
97	97	Subsection (c);
98	98	(2) assess whether the contractor has provided a level
99	99	of service delivery comparable to that provided by the state agency
100	100	that most recently provided the service before the service was
101	101	performed by the contractor; and
102	102	(3) assess whether the cost savings presented in the
103	103	contractor's contract bid or proposal with regard to the outsourced
104	104	service are being realized.
105	105	(b) Subject to Subsection (e), the contractor may continue
106	106	to perform under the contract until the state auditor completes a
107	107	second compliance audit. The state auditor shall conduct the
108	108	second audit beginning not earlier than the end of the sixth month
109	109	after the month in which the first audit is completed under this
110	110	section and not later than the 18th month after the month in which
111	111	the first audit is completed.
112	112	(c) The private commercial contractor shall cooperate with
113	113	an audit conducted by the state auditor under this subchapter or
114	114	Chapter 321.
115	115	(d) After the initial and second audits conducted under this
116	116	section, the state auditor shall issue an audit report to the
117	117	contractor, the state agency, the governor, the lieutenant
118	118	governor, the speaker of the house of representatives, and the
119	119	presiding officer of each standing committee of the legislature
120	120	with jurisdiction over the state agency and the subject matter of
121	121	the contract. The report must explain the auditor's conclusions
122	122	regarding whether the contractor:
123	123	(1) cooperated satisfactorily with the audit; and
124	124	(2) performed satisfactorily under the contract.
125	125	(e) If the governing body of the state agency, after
126	126	reviewing the auditor's report and any response by the contractor,
127	127	concludes that the contractor did not cooperate with the audit or
128	128	did not perform satisfactorily under the contract, the governing
129	129	body shall terminate the contract as soon as practicable.
130	130	(f) A state agency that enters into a contract or agrees to a
131	131	contract amendment or extension that is subject to this subchapter
132	132	shall notify the state auditor of the existence of the contract not
133	133	later than the date the contract, contract amendment, or contract
134	134	extension takes effect.
135	135	Sec. 2162.154. ACTIONS FOLLOWING RETURN OF SERVICE. If a
136	136	service obligation is returned to the state agency after a contract
137	137	is terminated under Section 2162.153(e):
138	138	(1) the state agency immediately shall complete a
139	139	performance evaluation to design a program to improve the delivery
140	140	of the service and implement the program designed; and
141	141	(2) until the end of the sixth month after the month
142	142	the contract is terminated under Section 2162.153(e), with respect
143	143	to the service, the council may not:
144	144	(A) require the service to be submitted to
145	145	competitive bidding; or
146	146	(B) make a determination regarding the service
147	147	under Section 2162.102(b).
148	148	Sec. 2162.155. RECOVERY AUDIT. If, in the performance of a
149	149	compliance audit under this subchapter, the state auditor notes an
150	150	irregularity that may indicate that the state has overpaid the
151	151	contractor or has made a payment for a service not performed, the
152	152	state auditor shall conduct a recovery audit designed to identify
153	153	any amounts overpaid or amounts paid for unperformed services. The
154	154	state auditor shall report the results of the recovery audit to the
155	155	attorney general and the affected state agency. The attorney
156	156	general and affected state agency shall cooperate in taking action
157	157	to recover the amounts owed to the state.
158	158	SECTION 3. The changes in law made by this Act apply only
159	159	to:
160	160	(1) the activities of the State Council on Competitive
161	161	Government or a state agency concerning a proposal to contract with
162	162	a commercial source to provide services being performed by a state
163	163	agency, on or after the effective date of this Act; and
164	164	(2) the evaluation of the services performed by a
165	165	contractor under a contract, contract amendment, or contract
166	166	extension made on or after the effective date of this Act.
167	167	SECTION 4. This Act takes effect September 1, 2009.