Texas 2011 - 82nd Regular

Texas House Bill HB198 Compare Versions

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1	1	82R20794 MTB-F
2	2	By: Parker, Callegari, Harper-Brown, Darby, H.B. No. 198
3	3	Carter, et al.
4	4	Substitute the following for H.B. No. 198:
5	5	By: Callegari C.S.H.B. No. 198
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the use of private procurement specialists for certain
11	11	state agency contracts.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 2262.002(b), Government Code, is amended
14	14	to read as follows:
15	15	(b) Except as provided by Section 2262.152, this [This]
16	16	chapter does not apply to contracts of the Texas Department of
17	17	Transportation that:
18	18	(1) relate to highway construction or highway
19	19	engineering; or
20	20	(2) are subject to Section 201.112, Transportation
21	21	Code.
22	22	SECTION 2. Section 2262.101, Government Code, is amended to
23	23	read as follows:
24	24	Sec. 2262.101. CREATION; DUTIES. The Contract Advisory
25	25	Team is created to assist state agencies in improving contract
26	26	management practices by:
27	27	(1) [reviewing the solicitation of major contracts by
28	28	state agencies;
29	29	[(2)] reviewing any findings or recommendations made
30	30	by the state auditor, including those made under Section
31	31	2262.052(b), regarding a state agency's compliance with the
32	32	contract management guide; and
33	33	(2) [(3)] providing recommendations to the commission
34	34	regarding:
35	35	(A) the development of the contract management
36	36	guide; and
37	37	(B) the training under Section 2262.053.
38	38	SECTION 3. Chapter 2262, Government Code, is amended by
39	39	adding Subchapter D to read as follows:
40	40	SUBCHAPTER D. PRIVATE PROCUREMENT SPECIALISTS
41	41	Sec. 2262.151. DEFINITIONS. In this subchapter:
42	42	(1) "High-cost contract" means a state agency contract
43	43	that has a value of at least $10 million.
44	44	(2) "Major information resources project" has the
45	45	meaning assigned by Section 2054.003.
46	46	(3) "Solicitation" means a solicitation for bids,
47	47	offers, qualifications, proposals, or similar expressions of
48	48	interest for a high-cost contract.
49	49	Sec. 2262.152. APPLICABILITY TO CERTAIN CONTRACTS. (a)
50	50	This subchapter applies to a Texas Department of Transportation
51	51	contract only if the contract:
52	52	(1) is a high-cost contract; and
53	53	(2) is for a major information resources project.
54	54	(b) This subchapter does not apply to a contract entered
55	55	into under Chapter 2166.
56	56	Sec. 2262.153. PRIVATE PROCUREMENT SPECIALISTS. (a) A
57	57	state agency shall, when appropriate, select a private procurement
58	58	specialist as provided by this subchapter.
59	59	(b) A private procurement specialist must be a person from
60	60	the private sector who is:
61	61	(1) an expert in the subject matter of the contract for
62	62	which the private procurement specialist is selected; and
63	63	(2) proficient in the procurement laws applicable to
64	64	the contract for which the private procurement specialist is
65	65	selected.
66	66	(c) A private procurement specialist shall:
67	67	(1) review and approve actions under Section
68	68	2262.154(d); and
69	69	(2) throughout the contract formation and contract
70	70	management process, provide recommendations and assistance to the
71	71	state agency regarding the contract for which the private
72	72	procurement specialist is selected.
73	73	(d) Before the comptroller or, if applicable, the
74	74	Department of Information Resources approves the use of a private
75	75	procurement specialist under Section 2262.154, the comptroller or,
76	76	if applicable, the Department of Information Resources and the
77	77	state agency seeking to enter into the contract shall consider:
78	78	(1) potential private procurement specialists'
79	79	relative experience and knowledge on the subject matter of the
80	80	contract; and
81	81	(2) probable fees or costs associated with securing
82	82	the services of a private procurement specialist.
83	83	(e) A private procurement specialist or a business entity in
84	84	which the specialist has a substantial interest may not bid on or
85	85	otherwise make a proposal to receive a contract for which the
86	86	specialist was selected. A selected private procurement specialist
87	87	or a business entity in which the specialist has a substantial
88	88	interest may not provide services for or to a client, other than
89	89	services provided to the state agency under this subchapter, if the
90	90	provision of services:
91	91	(1) involves a matter directly related to the contract
92	92	for which the specialist was selected by the agency; or
93	93	(2) creates a conflict of interest that may directly
94	94	affect the state's interest.
95	95	(f) The prohibitions in Subsection (e) also apply to:
96	96	(1) a person that is an agent, subsidiary, or parent
97	97	company of the private procurement specialist; or
98	98	(2) a person related within the second degree by
99	99	consanguinity or affinity to the private procurement specialist.
100	100	(g) For purposes of this section, a private procurement
101	101	specialist has a substantial interest in a business entity if:
102	102	(1) the specialist or the specialist's spouse, if
103	103	applicable, owns the business entity, or the combined ownership of
104	104	the specialist and the specialist's spouse, if applicable, is at
105	105	least 10 percent of the voting stock or shares of the business
106	106	entity; or
107	107	(2) the specialist or the specialist's spouse, if
108	108	applicable, is a partner, limited partner, or officer of the
109	109	business entity.
110	110	(h) In this section, "business entity" means a sole
111	111	proprietorship, partnership, firm, corporation, holding company,
112	112	joint-stock company, receivership, trust, or other entity
113	113	recognized by law.
114	114	Sec. 2262.154. USE OF PRIVATE PROCUREMENT SPECIALIST. (a)
115	115	With the approval of the comptroller or, if applicable, the
116	116	Department of Information Resources, a state agency shall use a
117	117	private procurement specialist for a high-cost contract if the
118	118	agency determines that given the cost and nature of the proposed
119	119	contract there will probably be a net savings to the state over the
120	120	life of the contract if a specialist is selected.
121	121	(b) The approval of the Department of Information Resources
122	122	is required, rather than the comptroller's approval, in order to
123	123	use a private procurement specialist under Subsection (a) for a
124	124	high-cost contract that is for a major information resources
125	125	project.
126	126	(c) A state agency seeking to enter into a high-cost
127	127	contract must send to the comptroller or, if applicable, to the
128	128	Department of Information Resources the information necessary to
129	129	approve the use of a private procurement specialist under this
130	130	section. At a minimum, the information must include the state
131	131	agency's draft solicitation for the contract.
132	132	(d) During the contract formation and contract management
133	133	process with respect to a high-cost contract for which a private
134	134	procurement specialist is approved, a state agency shall
135	135	collaborate with and, except as provided by Subsection (f), obtain
136	136	the approval of the private procurement specialist before taking
137	137	any of the following actions in relation to the contract:
138	138	(1) publicly releasing solicitation documents;
139	139	(2) executing a final contract; and
140	140	(3) making a payment or a series of payments that equal
141	141	half of the contract value.
142	142	(e) In determining whether to approve an action described by
143	143	Subsection (d), the selected private procurement specialist shall
144	144	review related documentation to ensure that potential risks related
145	145	to the high-cost contract have been identified and mitigated.
146	146	(f) If a state agency disagrees with a determination of a
147	147	private procurement specialist regarding an action described by
148	148	Subsection (d), the agency may take the action without the approval
149	149	of the specialist if the administrative head of the agency and the
150	150	comptroller or, if applicable, the Department of Information
151	151	Resources approve the action.
152	152	Sec. 2262.155. SOLICITATION AND CONTRACT CANCELLATION. (a)
153	153	After review of and comment on the matter by the Legislative Budget
154	154	Board and the governor, the selected private procurement specialist
155	155	may recommend the cancellation of a solicitation or a contract
156	156	under Section 2262.154(d) if:
157	157	(1) a proposed solicitation is not in the best
158	158	interest of the state;
159	159	(2) a proposed contract would place the state at an
160	160	unacceptable risk if executed; or
161	161	(3) with regard to an executed contract, an agency is
162	162	experiencing performance failure or payment irregularities.
163	163	(b) Each high-cost contract is subject to cancellation in
164	164	accordance with this section and Section 2262.154(d).
165	165	(c) A state agency shall include in each of its high-cost
166	166	contracts a term that provides that the state agency may
167	167	immediately terminate the contract without further obligation to
168	168	the contractor if there is performance failure or there are payment
169	169	irregularities with regard to the contract.
170	170	Sec. 2262.156. PAYMENT OF PRIVATE PROCUREMENT SPECIALIST
171	171	SERVICES. (a) In this section, "ordinary procurement procedures"
172	172	means procedures related to the contract formation and contract
173	173	management process ordinarily performed by state agency
174	174	procurement personnel, including planning, determination of the
175	175	procurement method, solicitation, evaluation and award, inspection
176	176	and acceptance, contract administration, and payment.
177	177	(b) The state agency seeking to enter into a contract for
178	178	which a private procurement specialist is selected shall enter into
179	179	an agreement with the specialist to compensate the specialist using
180	180	either:
181	181	(1) a flat fee agreement; or
182	182	(2) a pay-for-performance agreement described by
183	183	Subsection (c).
184	184	(c) If a pay-for-performance agreement is used, the state
185	185	agency shall develop a projected budget for the contract based on
186	186	the agency's expected cost of entering into and managing the
187	187	contract if the agency were to enter into and manage the contract
188	188	using ordinary procurement procedures but without using the
189	189	services of a private procurement specialist. The
190	190	pay-for-performance agreement must provide that the private
191	191	procurement specialist will be paid a percentage of the savings
192	192	realized by the agency as a result of using the private procurement
193	193	specialist, compared with the agency's projected budget for the
194	194	contract.
195	195	Sec. 2262.157. REPORT. Not later than January 1 of each
196	196	year, each state agency that has used the services of a private
197	197	procurement specialist during the preceding year shall report to
198	198	the comptroller the savings realized by the agency as a result of
199	199	using the private procurement specialist's services. A state
200	200	agency shall base the determination of savings realized on the
201	201	agency's projected costs or budget for the contract compared to the
202	202	actual costs for the contract.
203	203	Sec. 2262.158. RULES; WAIVER. The comptroller and the
204	204	Department of Information Resources shall adopt rules to implement
205	205	and administer this subchapter, including rules for waiving
206	206	approval of the use of a private procurement specialist under
207	207	Section 2262.154.
208	208	SECTION 4. Section 2262.051(f), Government Code, is
209	209	repealed.
210	210	SECTION 5. Subchapter D, Chapter 2262, Government Code, as
211	211	added by this Act, applies only to a contract for which the
212	212	solicitation of bids, offers, qualifications, proposals, or
213	213	similar expressions of interest is published on or after September
214	214	1, 2011.
215	215	SECTION 6. This Act takes effect September 1, 2011.