By: Williams S.B. No. 1109
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. Subsection (a), Section 2155.078, 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. Subsection (n), Section 2155.083, 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 that 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. Subsection (a), Section 2155.385, 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, 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, Legislative Budget Board, and
department in performing the duties.
SECTION 19. Subsection (c), Section 2151.0041, 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. Subsection (i), Section 2166.406, 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. Subsection (i), Section 51.927, 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.