83R28915 MTB-D
By: Zaffirini S.B. No. 1680
(Harper-Brown)
Substitute the following for S.B. No. 1680: No.
A BILL TO BE ENTITLED
AN ACT
relating to certain requirements applicable to contracts entered
into by state agencies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 2113.102, Government
Code, is amended to read as follows:
(a) A state agency may not use appropriated money to
contract with a person to audit [the financial records or accounts
of] the agency except:
(1) as provided by[:
[(1)] Subsections (b), (c), and (d); and
(2) in accordance with Section 321.020 [Chapter 466,
pertaining to the state lottery;
[(3) Chapter 2306, pertaining to the Texas Department
of Housing and Community Affairs; and
[(4) Chapter 361, Transportation Code, pertaining to
the Texas Turnpike Authority division of the Texas Department of
Transportation].
SECTION 2. Subsection (a), Section 2162.103, Government
Code, is amended to read as follows:
(a) In comparing the cost of providing a service, the
council shall consider the:
(1) cost of supervising the work of a private
contractor; [and]
(2) cost of a state agency's performance of the
service, including:
(A) the costs of the comptroller, attorney
general, and other support agencies; and
(B) other indirect costs related to the agency's
performance of the service;
(3) installation costs and any other initial costs
associated with a contract with a private contractor;
(4) other costs associated with the transition to
using a private contractor's goods or services; and
(5) cost savings to the state if a private contractor
were awarded the contract.
SECTION 3. Section 2261.002, Government Code, is amended to
read as follows:
Sec. 2261.002. DEFINITIONS. In this chapter:
(1) "Contract" includes an agreement or other written
expression of terms of agreement, including an amendment, a
modification, a renewal, or an extension, for the purchase or sale
of goods or services that is entered into or paid for, wholly or
partly, by a state agency during a fiscal year and a grant, other
than a grant made to a school district or a grant made for other
academic purposes, under which the recipient of the grant is
required to perform a specific act or service, supply a specific
type of product, or both.
(2) "Contract manager" means a person who:
(A) is employed by a state agency; and
(B) has significant contract management duties
for the state agency.
(3) "Executive director" means the administrative
head of a state agency.
(4) "General counsel" means the general counsel of a
state agency.
(5) "Major contract" means a contract, including a
renewal of a contract, that has a value of at least $1 million. The
term includes a service contract.
(6) "State agency" has the meaning assigned by Section
2151.002.
SECTION 4. Subchapter A, Chapter 2261, Government Code, is
amended by adding Sections 2261.004, 2261.005, and 2261.006 to read
as follows:
Sec. 2261.004. STATE AGENCY REPOSITORY AND RECORDS.
(a) Each state agency shall determine and use a standardized
method for maintaining all contracts for that agency.
(b) In this subsection, "contract" includes a sole-source
contract. Each state agency shall maintain accurate records of all
essential information relating to agency contracts, including
information on:
(1) a contract delay or changes to a contract in which
total expenditures under the contract increase by more than 35
percent from the original contract amount; and
(2) cost overruns, including a written explanation of
why expenditures have increased under a contract.
Sec. 2261.005. CONTRACT REPORTING. (a) In this section,
"contract" includes a construction contract.
(b) The following sections prescribe reporting requirements
for certain contracts:
(1) Section 322.020;
(2) Section 2054.008;
(3) Section 2166.2551;
(4) Section 2254.006; and
(5) Section 2254.0301.
Sec. 2261.006. PROFESSIONAL SERVICES. A state agency shall
procure professional services in accordance with Subchapter A,
Chapter 2254.
SECTION 5. Subchapter C, Chapter 2261, Government Code, is
amended by adding Sections 2261.103, 2261.104, and 2261.105 to read
as follows:
Sec. 2261.103. USE OF UNIFORM FORMS. A state agency may use
any forms developed by the comptroller as templates, guides, or
samples for contracts entered into by the agency.
Sec. 2261.104. ESSENTIAL CONTRACT PROVISIONS. The
following are required provisions in each contract to which the
provisions are applicable, other than a grant:
(1) legal authority;
(2) statement of work;
(3) indemnification or damage claims;
(4) consideration;
(5) specifications;
(6) funding out clause;
(7) antitrust;
(8) payment;
(9) dispute resolution;
(10) term of contract;
(11) confidential information;
(12) abandonment or default;
(13) right to audit;
(14) force majeure;
(15) independent contractor; and
(16) termination.
Sec. 2261.105. REQUIRED PROVISIONS. In any contract for
the acquisition of goods and services to which a state agency is a
party, a provision required by applicable law to be included in the
contract is considered to be a part of the executed contract without
regard to:
(1) whether the provision appears on the face of the
contract; or
(2) whether the contract includes any provision to the
contrary.
SECTION 6. The heading to Subchapter E, Chapter 2261,
Government Code, is amended to read as follows:
SUBCHAPTER E. CONTRACTING [CONTRACTOR] OVERSIGHT
SECTION 7. Section 2261.202, Government Code, is amended to
read as follows:
Sec. 2261.202. CONTRACT MONITORING RESPONSIBILITIES. (a)
As one of its contract management policies, each state agency that
makes procurements to which this chapter applies shall establish
and adopt by rule a policy that clearly defines the contract
monitoring roles and responsibilities, if any, of agency staff,
including internal audit staff and other inspection,
investigative, or audit staff.
(b) The policy must establish clear lines of
accountability, staff roles and responsibilities, and
decision-making authority for program staff, contract management
staff, and executive management staff.
SECTION 8. Subchapter E, Chapter 2261, Government Code, is
amended by adding Sections 2261.204, 2261.205, 2261.206, 2261.207,
2261.208, and 2261.209 to read as follows:
Sec. 2261.204. INFORMATION ON CONTRACTOR PERFORMANCE.
(a) After a contract is completed or otherwise terminated, each
state agency shall review the contractor's performance under the
contract.
(b) Using forms made available to the state agency, a state
agency shall report to the comptroller on the results of the review
regarding a contractor's performance under a major contract.
(c) A state agency may use any vendor performance tracking
system available to state agencies to determine whether to award a
contract to a person reviewed in the database.
Sec. 2261.205. EXCLUDING CONTRACTOR FROM SOLICITATION
PROCESS. Based on its own contractor performance reviews and on
information in any vendor performance tracking system available to
state agencies, a state agency may exclude a contractor from the
solicitation process for a contract if the agency determines the
contractor has performed poorly on a previous state contract
without regard to whether the contractor has been barred under
Section 2155.077.
Sec. 2261.206. CONTRACT MANAGERS. (a) Each state agency
that enters into contracts other than interagency contracts shall
establish a career ladder program for contract management in the
agency.
(b) An employee hired as a contract manager may participate
in procurement planning, contract solicitation, contract
formation, price establishment, and other contract activities.
(c) Each state agency shall determine, in consultation with
the state auditor, the amount and significance of contract
management duties sufficient for an employee to be considered a
contract manager under this chapter.
Sec. 2261.207. APPROVAL OF CONTRACTS. (a) Each state
agency shall establish formal guidelines:
(1) regarding who may approve a contract for the
agency;
(2) for contract planning and solicitation;
(3) for contract negotiations; and
(4) for contract management.
(b) Each state agency shall adopt a policy to establish a
monetary threshold above which agency contracts and amendments to
or extensions of agency contracts require written authorization by
the agency executive director.
(c) For state agency contracts valued in excess of $1
million, the agency executive director must authorize a contract
amendment in writing.
(d) Each state agency shall annually report to the
comptroller a list of persons authorized to approve contracts at
the agency. The list must include each person's name, position, and
supervisory responsibility, if any.
Sec. 2261.208. NEGOTIATION OF MAJOR CONTRACT BY SINGLE
EMPLOYEE PROHIBITED. A state agency may not negotiate a major
contract with only one employee engaging in the negotiation.
Sec. 2261.209. CONTRACT REVIEW. (a) A contractor's
performance must be periodically reviewed throughout the term of a
contract.
(b) A state agency shall ensure ongoing communication
between executive management staff, contract management staff, and
program staff of the results of the reviews performed under
Subsection (a) with specific attention to:
(1) contracts that are anticipated to be completed
later than originally estimated; or
(2) contracts that are expected to cost more than the
amount that was originally budgeted.
SECTION 9. Chapter 2261, Government Code, is amended by
adding Subchapters F and G to read as follows:
SUBCHAPTER F. CHANGES TO CONTRACTS
Sec. 2261.251. CONTRACT AMENDMENTS, EXTENSIONS, AND CHANGE
ORDERS. (a) An extension of or amendment to a state agency
contract, including a change order, is subject to the same agency
approval processes as the original contract.
(b) A state agency may not extend or amend a contract unless
the agency complies with the same agency approval processes for the
extension or amendment as required for the original contract and
the agency states in writing why the extension or amendment is
necessary or advantageous to the state.
(c) This section does not affect whether a state agency is
required to undertake a new solicitation process in the manner
required for a new contract in order to extend or amend a contract.
Sec. 2261.252. LARGE CHANGE IN CONTRACT VALUE; COST
OVERRUNS. (a) If a proposed contract amendment or extension
changes the monetary value of a major contract by at least 35
percent or $1 million, the state agency must submit the amendment or
extension for review to the Contract Advisory Team and the agency's
executive director before the agency amends or extends the
contract.
(b) Subsection (a) does not apply to a proposed contract
amendment required by a state or federal statute.
(c) The executive director shall be timely notified of any
unanticipated contract cost overrun.
Sec. 2261.253. CERTAIN CONTRACT EXTENSIONS. This
subchapter does not apply to contract extensions that are
specifically established as a component of the original
procurement.
SUBCHAPTER G. TRAINING
Sec. 2261.301. TRAINING FOR CONTRACT MANAGERS. (a) A
state agency shall require a contract manager to be trained under
Section 2262.053.
(b) A state agency shall maintain a list of contract
managers who have completed the contract management training.
(c) A state agency may develop qualified contract manager
training to supplement the training required under this section.
Sec. 2261.302. TRAINING FOR GOVERNING BODIES. All members
of the governing body of a state agency shall complete at least one
course of abbreviated training provided under Section 2262.053.
This section does not apply to a state agency that does not enter
into any contracts.
SECTION 10. Section 2262.003, Government Code, is
transferred to Subchapter C, Chapter 2261, Government Code,
redesignated as Section 2261.106, Government Code, and amended to
read as follows:
Sec. 2261.106 [2262.003]. REQUIRED [CONTRACT] PROVISION
RELATING TO AUDITING. (a) Each state agency shall include in each
of its contracts a term that provides that:
(1) the state auditor may conduct an audit or
investigation of any entity receiving funds from the state directly
under the contract or indirectly through a subcontract under the
contract;
(2) acceptance of funds directly under the contract or
indirectly through a subcontract under the contract acts as
acceptance of the authority of the state auditor, under the
direction of the legislative audit committee, to conduct an audit
or investigation in connection with those funds; and
(3) under the direction of the legislative audit
committee, an entity that is the subject of an audit or
investigation by the state auditor must provide the state auditor
with access to any information the state auditor considers relevant
to the investigation or audit.
(b) The state auditor shall provide assistance to a state
agency in developing the contract provisions.
SECTION 11. Sections 2261.104, 2261.105, and 2261.208,
Government Code, as added by this Act, apply only to a contract for
which a state agency first advertises or otherwise solicits bids,
proposals, offers, or qualifications on or after the effective date
of this Act.
SECTION 12. A contract manager is not required to complete
the training required under Section 2261.301, Government Code, as
added by this Act, until September 1, 2015.
SECTION 13. A member of a governing body of a state agency
is not required to complete the training required under Section
2261.302, Government Code, as added by this Act, until September 1,
2015.
SECTION 14. A state agency is not required to comply with
Section 2261.202, Government Code, as amended by this Act, and
Section 2261.004 and Sections 2261.204 through 2261.209,
Government Code, as added by this Act, until September 1, 2015.
SECTION 15. This Act takes effect November 1, 2013.