Texas 2013 - 83rd Regular

Texas Senate Bill SB1680 Compare Versions

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1	1	83R28915 MTB-D
2	2	By: Zaffirini S.B. No. 1680
3	3	(Harper-Brown)
4	4	Substitute the following for S.B. No. 1680: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certain requirements applicable to contracts entered
10	10	into by state agencies.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subsection (a), Section 2113.102, Government
13	13	Code, is amended to read as follows:
14	14	(a) A state agency may not use appropriated money to
15	15	contract with a person to audit [the financial records or accounts
16	16	of] the agency except:
17	17	(1) as provided by[:
18	18	[(1)] Subsections (b), (c), and (d); and
19	19	(2) in accordance with Section 321.020 [Chapter 466,
20	20	pertaining to the state lottery;
21	21	[(3) Chapter 2306, pertaining to the Texas Department
22	22	of Housing and Community Affairs; and
23	23	[(4) Chapter 361, Transportation Code, pertaining to
24	24	the Texas Turnpike Authority division of the Texas Department of
25	25	Transportation].
26	26	SECTION 2. Subsection (a), Section 2162.103, Government
27	27	Code, is amended to read as follows:
28	28	(a) In comparing the cost of providing a service, the
29	29	council shall consider the:
30	30	(1) cost of supervising the work of a private
31	31	contractor; [and]
32	32	(2) cost of a state agency's performance of the
33	33	service, including:
34	34	(A) the costs of the comptroller, attorney
35	35	general, and other support agencies; and
36	36	(B) other indirect costs related to the agency's
37	37	performance of the service;
38	38	(3) installation costs and any other initial costs
39	39	associated with a contract with a private contractor;
40	40	(4) other costs associated with the transition to
41	41	using a private contractor's goods or services; and
42	42	(5) cost savings to the state if a private contractor
43	43	were awarded the contract.
44	44	SECTION 3. Section 2261.002, Government Code, is amended to
45	45	read as follows:
46	46	Sec. 2261.002. DEFINITIONS. In this chapter:
47	47	(1) "Contract" includes an agreement or other written
48	48	expression of terms of agreement, including an amendment, a
49	49	modification, a renewal, or an extension, for the purchase or sale
50	50	of goods or services that is entered into or paid for, wholly or
51	51	partly, by a state agency during a fiscal year and a grant, other
52	52	than a grant made to a school district or a grant made for other
53	53	academic purposes, under which the recipient of the grant is
54	54	required to perform a specific act or service, supply a specific
55	55	type of product, or both.
56	56	(2) "Contract manager" means a person who:
57	57	(A) is employed by a state agency; and
58	58	(B) has significant contract management duties
59	59	for the state agency.
60	60	(3) "Executive director" means the administrative
61	61	head of a state agency.
62	62	(4) "General counsel" means the general counsel of a
63	63	state agency.
64	64	(5) "Major contract" means a contract, including a
65	65	renewal of a contract, that has a value of at least $1 million. The
66	66	term includes a service contract.
67	67	(6) "State agency" has the meaning assigned by Section
68	68	2151.002.
69	69	SECTION 4. Subchapter A, Chapter 2261, Government Code, is
70	70	amended by adding Sections 2261.004, 2261.005, and 2261.006 to read
71	71	as follows:
72	72	Sec. 2261.004. STATE AGENCY REPOSITORY AND RECORDS.
73	73	(a) Each state agency shall determine and use a standardized
74	74	method for maintaining all contracts for that agency.
75	75	(b) In this subsection, "contract" includes a sole-source
76	76	contract. Each state agency shall maintain accurate records of all
77	77	essential information relating to agency contracts, including
78	78	information on:
79	79	(1) a contract delay or changes to a contract in which
80	80	total expenditures under the contract increase by more than 35
81	81	percent from the original contract amount; and
82	82	(2) cost overruns, including a written explanation of
83	83	why expenditures have increased under a contract.
84	84	Sec. 2261.005. CONTRACT REPORTING. (a) In this section,
85	85	"contract" includes a construction contract.
86	86	(b) The following sections prescribe reporting requirements
87	87	for certain contracts:
88	88	(1) Section 322.020;
89	89	(2) Section 2054.008;
90	90	(3) Section 2166.2551;
91	91	(4) Section 2254.006; and
92	92	(5) Section 2254.0301.
93	93	Sec. 2261.006. PROFESSIONAL SERVICES. A state agency shall
94	94	procure professional services in accordance with Subchapter A,
95	95	Chapter 2254.
96	96	SECTION 5. Subchapter C, Chapter 2261, Government Code, is
97	97	amended by adding Sections 2261.103, 2261.104, and 2261.105 to read
98	98	as follows:
99	99	Sec. 2261.103. USE OF UNIFORM FORMS. A state agency may use
100	100	any forms developed by the comptroller as templates, guides, or
101	101	samples for contracts entered into by the agency.
102	102	Sec. 2261.104. ESSENTIAL CONTRACT PROVISIONS. The
103	103	following are required provisions in each contract to which the
104	104	provisions are applicable, other than a grant:
105	105	(1) legal authority;
106	106	(2) statement of work;
107	107	(3) indemnification or damage claims;
108	108	(4) consideration;
109	109	(5) specifications;
110	110	(6) funding out clause;
111	111	(7) antitrust;
112	112	(8) payment;
113	113	(9) dispute resolution;
114	114	(10) term of contract;
115	115	(11) confidential information;
116	116	(12) abandonment or default;
117	117	(13) right to audit;
118	118	(14) force majeure;
119	119	(15) independent contractor; and
120	120	(16) termination.
121	121	Sec. 2261.105. REQUIRED PROVISIONS. In any contract for
122	122	the acquisition of goods and services to which a state agency is a
123	123	party, a provision required by applicable law to be included in the
124	124	contract is considered to be a part of the executed contract without
125	125	regard to:
126	126	(1) whether the provision appears on the face of the
127	127	contract; or
128	128	(2) whether the contract includes any provision to the
129	129	contrary.
130	130	SECTION 6. The heading to Subchapter E, Chapter 2261,
131	131	Government Code, is amended to read as follows:
132	132	SUBCHAPTER E. CONTRACTING [CONTRACTOR] OVERSIGHT
133	133	SECTION 7. Section 2261.202, Government Code, is amended to
134	134	read as follows:
135	135	Sec. 2261.202. CONTRACT MONITORING RESPONSIBILITIES. (a)
136	136	As one of its contract management policies, each state agency that
137	137	makes procurements to which this chapter applies shall establish
138	138	and adopt by rule a policy that clearly defines the contract
139	139	monitoring roles and responsibilities, if any, of agency staff,
140	140	including internal audit staff and other inspection,
141	141	investigative, or audit staff.
142	142	(b) The policy must establish clear lines of
143	143	accountability, staff roles and responsibilities, and
144	144	decision-making authority for program staff, contract management
145	145	staff, and executive management staff.
146	146	SECTION 8. Subchapter E, Chapter 2261, Government Code, is
147	147	amended by adding Sections 2261.204, 2261.205, 2261.206, 2261.207,
148	148	2261.208, and 2261.209 to read as follows:
149	149	Sec. 2261.204. INFORMATION ON CONTRACTOR PERFORMANCE.
150	150	(a) After a contract is completed or otherwise terminated, each
151	151	state agency shall review the contractor's performance under the
152	152	contract.
153	153	(b) Using forms made available to the state agency, a state
154	154	agency shall report to the comptroller on the results of the review
155	155	regarding a contractor's performance under a major contract.
156	156	(c) A state agency may use any vendor performance tracking
157	157	system available to state agencies to determine whether to award a
158	158	contract to a person reviewed in the database.
159	159	Sec. 2261.205. EXCLUDING CONTRACTOR FROM SOLICITATION
160	160	PROCESS. Based on its own contractor performance reviews and on
161	161	information in any vendor performance tracking system available to
162	162	state agencies, a state agency may exclude a contractor from the
163	163	solicitation process for a contract if the agency determines the
164	164	contractor has performed poorly on a previous state contract
165	165	without regard to whether the contractor has been barred under
166	166	Section 2155.077.
167	167	Sec. 2261.206. CONTRACT MANAGERS. (a) Each state agency
168	168	that enters into contracts other than interagency contracts shall
169	169	establish a career ladder program for contract management in the
170	170	agency.
171	171	(b) An employee hired as a contract manager may participate
172	172	in procurement planning, contract solicitation, contract
173	173	formation, price establishment, and other contract activities.
174	174	(c) Each state agency shall determine, in consultation with
175	175	the state auditor, the amount and significance of contract
176	176	management duties sufficient for an employee to be considered a
177	177	contract manager under this chapter.
178	178	Sec. 2261.207. APPROVAL OF CONTRACTS. (a) Each state
179	179	agency shall establish formal guidelines:
180	180	(1) regarding who may approve a contract for the
181	181	agency;
182	182	(2) for contract planning and solicitation;
183	183	(3) for contract negotiations; and
184	184	(4) for contract management.
185	185	(b) Each state agency shall adopt a policy to establish a
186	186	monetary threshold above which agency contracts and amendments to
187	187	or extensions of agency contracts require written authorization by
188	188	the agency executive director.
189	189	(c) For state agency contracts valued in excess of $1
190	190	million, the agency executive director must authorize a contract
191	191	amendment in writing.
192	192	(d) Each state agency shall annually report to the
193	193	comptroller a list of persons authorized to approve contracts at
194	194	the agency. The list must include each person's name, position, and
195	195	supervisory responsibility, if any.
196	196	Sec. 2261.208. NEGOTIATION OF MAJOR CONTRACT BY SINGLE
197	197	EMPLOYEE PROHIBITED. A state agency may not negotiate a major
198	198	contract with only one employee engaging in the negotiation.
199	199	Sec. 2261.209. CONTRACT REVIEW. (a) A contractor's
200	200	performance must be periodically reviewed throughout the term of a
201	201	contract.
202	202	(b) A state agency shall ensure ongoing communication
203	203	between executive management staff, contract management staff, and
204	204	program staff of the results of the reviews performed under
205	205	Subsection (a) with specific attention to:
206	206	(1) contracts that are anticipated to be completed
207	207	later than originally estimated; or
208	208	(2) contracts that are expected to cost more than the
209	209	amount that was originally budgeted.
210	210	SECTION 9. Chapter 2261, Government Code, is amended by
211	211	adding Subchapters F and G to read as follows:
212	212	SUBCHAPTER F. CHANGES TO CONTRACTS
213	213	Sec. 2261.251. CONTRACT AMENDMENTS, EXTENSIONS, AND CHANGE
214	214	ORDERS. (a) An extension of or amendment to a state agency
215	215	contract, including a change order, is subject to the same agency
216	216	approval processes as the original contract.
217	217	(b) A state agency may not extend or amend a contract unless
218	218	the agency complies with the same agency approval processes for the
219	219	extension or amendment as required for the original contract and
220	220	the agency states in writing why the extension or amendment is
221	221	necessary or advantageous to the state.
222	222	(c) This section does not affect whether a state agency is
223	223	required to undertake a new solicitation process in the manner
224	224	required for a new contract in order to extend or amend a contract.
225	225	Sec. 2261.252. LARGE CHANGE IN CONTRACT VALUE; COST
226	226	OVERRUNS. (a) If a proposed contract amendment or extension
227	227	changes the monetary value of a major contract by at least 35
228	228	percent or $1 million, the state agency must submit the amendment or
229	229	extension for review to the Contract Advisory Team and the agency's
230	230	executive director before the agency amends or extends the
231	231	contract.
232	232	(b) Subsection (a) does not apply to a proposed contract
233	233	amendment required by a state or federal statute.
234	234	(c) The executive director shall be timely notified of any
235	235	unanticipated contract cost overrun.
236	236	Sec. 2261.253. CERTAIN CONTRACT EXTENSIONS. This
237	237	subchapter does not apply to contract extensions that are
238	238	specifically established as a component of the original
239	239	procurement.
240	240	SUBCHAPTER G. TRAINING
241	241	Sec. 2261.301. TRAINING FOR CONTRACT MANAGERS. (a) A
242	242	state agency shall require a contract manager to be trained under
243	243	Section 2262.053.
244	244	(b) A state agency shall maintain a list of contract
245	245	managers who have completed the contract management training.
246	246	(c) A state agency may develop qualified contract manager
247	247	training to supplement the training required under this section.
248	248	Sec. 2261.302. TRAINING FOR GOVERNING BODIES. All members
249	249	of the governing body of a state agency shall complete at least one
250	250	course of abbreviated training provided under Section 2262.053.
251	251	This section does not apply to a state agency that does not enter
252	252	into any contracts.
253	253	SECTION 10. Section 2262.003, Government Code, is
254	254	transferred to Subchapter C, Chapter 2261, Government Code,
255	255	redesignated as Section 2261.106, Government Code, and amended to
256	256	read as follows:
257	257	Sec. 2261.106 [2262.003]. REQUIRED [CONTRACT] PROVISION
258	258	RELATING TO AUDITING. (a) Each state agency shall include in each
259	259	of its contracts a term that provides that:
260	260	(1) the state auditor may conduct an audit or
261	261	investigation of any entity receiving funds from the state directly
262	262	under the contract or indirectly through a subcontract under the
263	263	contract;
264	264	(2) acceptance of funds directly under the contract or
265	265	indirectly through a subcontract under the contract acts as
266	266	acceptance of the authority of the state auditor, under the
267	267	direction of the legislative audit committee, to conduct an audit
268	268	or investigation in connection with those funds; and
269	269	(3) under the direction of the legislative audit
270	270	committee, an entity that is the subject of an audit or
271	271	investigation by the state auditor must provide the state auditor
272	272	with access to any information the state auditor considers relevant
273	273	to the investigation or audit.
274	274	(b) The state auditor shall provide assistance to a state
275	275	agency in developing the contract provisions.
276	276	SECTION 11. Sections 2261.104, 2261.105, and 2261.208,
277	277	Government Code, as added by this Act, apply only to a contract for
278	278	which a state agency first advertises or otherwise solicits bids,
279	279	proposals, offers, or qualifications on or after the effective date
280	280	of this Act.
281	281	SECTION 12. A contract manager is not required to complete
282	282	the training required under Section 2261.301, Government Code, as
283	283	added by this Act, until September 1, 2015.
284	284	SECTION 13. A member of a governing body of a state agency
285	285	is not required to complete the training required under Section
286	286	2261.302, Government Code, as added by this Act, until September 1,
287	287	2015.
288	288	SECTION 14. A state agency is not required to comply with
289	289	Section 2261.202, Government Code, as amended by this Act, and
290	290	Section 2261.004 and Sections 2261.204 through 2261.209,
291	291	Government Code, as added by this Act, until September 1, 2015.
292	292	SECTION 15. This Act takes effect November 1, 2013.