By: Birdwell, et al. S.B. No. 212
(In the Senate - Filed March 4, 2015; March 9, 2015, read
first time and referred to Committee on Health and Human Services;
April 8, 2015, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; April 8, 2015,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 212 By: Schwertner
A BILL TO BE ENTITLED
AN ACT
relating to the abolishment of the Texas Council on Purchasing from
People with Disabilities and the transfer of its functions to the
comptroller of public accounts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 2155.138(a) and (b), Government Code,
are amended to read as follows:
(a) The competitive bidding provisions of this chapter do
not apply to a state purchase of goods or services that:
(1) are made or provided by blind or visually impaired
persons;
(2) are offered for sale to a state agency through
efforts made under Chapter 122, Human Resources Code [law by the
Texas Council on Purchasing from People with Disabilities];
(3) meet state specifications for quantity, quality,
delivery, and life cycle costs; and
(4) cost not more than the fair market price of similar
items.
(b) The comptroller [council] shall test the goods and
services to the extent necessary to ensure quality. The
comptroller [council] may enter into a contract with a private or
public entity to assist with testing.
SECTION 2. The heading to Chapter 122, Human Resources
Code, is amended to read as follows:
CHAPTER 122. [TEXAS COUNCIL ON] PURCHASING FROM PEOPLE WITH
DISABILITIES
SECTION 3. Section 122.0057, Human Resources Code, is
amended to read as follows:
Sec. 122.0057. ADVISORY COMMITTEE. (a) The comptroller
shall [council may] establish an advisory committee to assist the
comptroller in establishing:
(1) performance goals for the program administered
under this chapter; and
(2) criteria for certifying a community
rehabilitation program for participation in the program
administered under this chapter [if the council considers the
committee necessary. The membership of the committee is determined
by the council].
(b) The advisory committee consists of nine members
appointed by the comptroller as follows:
(1) two representatives from community rehabilitation
programs that participate in the program administered under this
chapter;
(2) three representatives from organizations that
advocate for persons with disabilities;
(3) one representative from a state agency that
provides vocational rehabilitation services to persons with
disabilities; and
(4) three persons with disabilities, one of whom is
employed by a community rehabilitation program that participates in
the program administered under this chapter [The council shall
specify the purpose and duties of the advisory committee, which
must include:
[(1) reviewing the effectiveness of the program
administered under this chapter; and
[(2) recommending procedures to create higher skilled
and higher paying employment opportunities].
(c) Members of the [an] advisory committee serve at the will
of the comptroller [council. The council may dissolve an advisory
committee when appropriate].
(d) The comptroller shall appoint a presiding officer from
among the advisory committee members [The council shall make
reasonable attempts to have balanced representation on all advisory
committees, including attempting to seek representation from:
[(1) the Lighthouse for the Blind and Visually
Impaired community rehabilitation programs;
[(2) the Goodwill community rehabilitation programs;
[(3) other community rehabilitation programs;
[(4) representatives from central nonprofit agencies;
[(5) representatives of disability advocacy groups;
[(6) government purchasing agents with knowledge of
this chapter;
[(7) private industry representatives with knowledge
of this chapter; and
[(8) private citizens with disabilities who have
knowledge of the sale of products and services].
(e) The members of the advisory committee serve staggered
four-year terms, with the terms of either four or five members
expiring February 1 of each odd-numbered year. A member may not
serve more than two terms.
(f) A vacancy on the committee shall be filled in the same
manner as the original appointment for that position.
(g) The advisory committee shall meet at the call of the
presiding officer.
(h) The advisory committee shall:
(1) establish specific objectives for the program
administered under this chapter that are appropriate given the
program's status as one of several employment-related services this
state offers to persons with disabilities;
(2) develop performance measures that may be used by
the comptroller to evaluate whether the program is meeting the
objectives established under Subdivision (1); and
(3) recommend criteria for certifying community
rehabilitation programs for participation in the program.
(i) In developing the performance measures under Subsection
(h), the advisory committee must consider the following factors as
applicable to the program administered under this chapter:
(1) the percentage of total sales revenue attributable
to the program:
(A) paid in wages to persons with disabilities;
and
(B) spent on direct training and professional
development services for persons with disabilities;
(2) the average hourly wage earned by a person
participating in the program;
(3) the average annual salary earned by a person
participating in the program;
(4) the number of persons with disabilities
participating in the program paid less than minimum wage;
(5) the average number of hours worked each week by a
person with a disability who participates in the program;
(6) the percentage of persons with disabilities who
participate in the program and who are placed into competitive
positions, including competitive management or administrative
positions within community rehabilitation programs; and
(7) the percentage of work performed by persons with
disabilities who participate in the program that is purely
repackaging labor.
(j) The advisory committee shall meet at the call of the
presiding officer at least once each fiscal year to review and, if
necessary, recommend changes to program objectives, performance
measures, and criteria established under Subsection (h).
(k) The advisory committee shall provide input to the
comptroller in adopting rules applicable to the program
administered under this chapter relating to the employment-first
policies described by Sections 531.02447 and 531.02448, Government
Code.
(l) The advisory committee may request administrative
support from the comptroller. The comptroller shall provide the
requested assistance.
(m) The advisory committee is not subject to Chapter 2110,
Government Code.
SECTION 4. Chapter 122, Human Resources Code, is amended by
adding Section 122.0058 to read as follows:
Sec. 122.0058. APPLICATION OF OPEN MEETINGS LAW, OPEN
RECORDS LAW, AND ADMINISTRATIVE PROCEDURE LAW TO ADVISORY
COMMITTEE. The advisory committee established under Section
122.0057 is subject to the requirements of the open meetings law,
Chapter 551, Government Code, the open records law, Chapter 552,
Government Code, and Chapter 2001, Government Code.
SECTION 5. Sections 122.007(a), (c), and (d), Human
Resources Code, are amended to read as follows:
(a) The comptroller [council] shall determine the fair
market price of all products and services manufactured or provided
by persons with disabilities and offered for sale to the various
agencies and departments of the state and its political
subdivisions by a community rehabilitation program participating
in the program administered under this chapter. The comptroller
[council] shall ensure that the products and services offered for
sale offer the best value for the state or a political subdivision.
(c) The comptroller [council] shall revise the prices
periodically to reflect changing market conditions.
(d) Before offering for sale products and services
manufactured or provided by persons with disabilities to state
agencies and political subdivisions, the comptroller [council]
shall test the goods and services in accordance with Section
2155.069, Government Code, to the extent necessary to ensure
quality. The comptroller [council] may enter into a contract with a
private or public entity to assist with testing. The comptroller
shall make awards under this section based on proposed goods and
services meeting formal state specifications developed by the
comptroller or meeting commercial specifications approved by the
comptroller.
SECTION 6. Section 122.008, Human Resources Code, is
amended to read as follows:
Sec. 122.008. PROCUREMENT AT DETERMINED PRICE. A suitable
product or service that meets applicable specifications
established by the state or its political subdivisions and that is
available within the time specified must be procured from a
community rehabilitation program at the price determined by the
comptroller [council] to be the fair market price under Section
122.007.
SECTION 7. Sections 122.009(a) and (b), Human Resources
Code, are amended to read as follows:
(a) The records of the comptroller [council] and of a
central nonprofit agency shall, to the extent that the records
pertain specifically to state purchases of the products and
services of persons with disabilities, be made available upon
request to the inspection of representatives of the state auditor,
the governor's budget office, or the Legislative Budget Board. The
inspection of the records shall be conducted with due regard to the
privacy rights of persons with disabilities. A document that is
available for inspection under this subsection is an open record
for purposes of Chapter 552, Government Code.
(b) The comptroller shall maintain [is the depository for]
all records concerning the comptroller's [council's] operations
under this chapter.
SECTION 8. Sections 122.0095(a) and (e), Human Resources
Code, are amended to read as follows:
(a) Each state agency that purchases products or services
through a program under this chapter shall:
(1) designate an agency employee to ensure that the
agency complies with this chapter; and
(2) report to the comptroller [and the council] the
purchase of products or services available from a central nonprofit
agency or community rehabilitation program under this chapter, but
purchased from another business that is not a central nonprofit
agency or community rehabilitation program under this chapter.
(e) The comptroller [council] shall review and analyze the
information contained in the reports under this section and
Sections 122.012 and 122.016[. The comptroller shall assist the
council in reviewing and analyzing the reports] in order to improve
state agency compliance with this chapter.
SECTION 9. Section 122.010, Human Resources Code, is
amended to read as follows:
Sec. 122.010. COOPERATION WITH DEPARTMENT OF CRIMINAL
JUSTICE. The comptroller [council] may cooperate with the Texas
Department of Criminal Justice to accomplish the purposes of this
chapter and to contribute to the economy of state government. The
comptroller [council] and the department may enter into contractual
agreements, cooperative working relationships, or other
arrangements necessary for effective coordination and the
realization of the objectives of both entities.
SECTION 10. Section 122.011, Human Resources Code, is
amended to read as follows:
Sec. 122.011. CORRELATION WITH RELATED FEDERAL PROGRAMS.
The comptroller [council] may adopt procedures, practices, and
standards used for federal programs similar to the state program
established in this chapter.
SECTION 11. Sections 122.012(a), (b), and (e), Human
Resources Code, are amended to read as follows:
(a) The comptroller shall perform the comptroller's duties
under this chapter with assistance from the advisory committee
established under Section 122.0057 [provide legal and other
necessary support to the council] in accordance with legislative
appropriation[. The comptroller shall assign an upper-level
management employee to ensure that the comptroller meets the
requirements of this chapter].
(b) State agencies responsible for the provision of
rehabilitation and related services to persons with disabilities
shall cooperate with the comptroller [council] in the operation of
the program. The Department of Assistive and Rehabilitative
Services and other state human services agencies responsible for
assisting persons with disabilities may, through written
agreements or interagency contracts, provide space, storage,
logistical support, consultation, expert services, communications
services, or financial assistance with respect to any function or
responsibility of the comptroller under this chapter [council].
(e) After any audit or review the comptroller conducts with
regard to state agency compliance with purchasing laws and
procedures, the comptroller shall assist [report to the council] a
state agency that is not complying with this chapter to comply with
this chapter.
SECTION 12. Sections 122.013(a) and (c), Human Resources
Code, are amended to read as follows:
(a) The comptroller [council] shall adopt rules for the
implementation, extension, administration, or improvement of the
program authorized by this chapter in accordance with Chapter 2001,
Government Code.
(c) The comptroller [council] shall adopt rules to:
(1) address possible conflicts of interest for central
nonprofit agencies and community rehabilitation programs;
(2) establish a process for the certification of
community rehabilitation programs;
(3) establish a minimum percentage of disabled labor
an organization must employ to be considered a community
rehabilitation program under this chapter; and
(4) define the terms "value-added" and "direct labor"
for products manufactured and services provided that are offered
for sale under this chapter.
SECTION 13. Section 122.015(a), Human Resources Code, is
amended to read as follows:
(a) In determining the fair market value of products or
services offered for sale under this chapter, the comptroller
[subcommittee established under Section 122.007(b) and the
council] shall give due consideration to the following type of
factors:
(1) to the extent applicable, the amounts being paid
for similar articles in similar quantities by federal agencies
purchasing the products or services under the authorized federal
program of like effect to the state program authorized by this
chapter;
(2) the amounts which private business would pay for
similar products or services in similar quantities if purchasing
from a reputable corporation engaged in the business of selling
similar products or services;
(3) to the extent applicable, the amount paid by the
state in any recent purchases of similar products or services in
similar quantities, making due allowance for general inflationary
or deflationary trends;
(4) the actual cost of manufacturing the product or
performing a service at a community rehabilitation program offering
employment services on or off premises to persons with
disabilities, with adequate weight to be given to legal and moral
imperatives to pay workers with disabilities equitable wages; and
(5) the usual, customary, and reasonable costs of
manufacturing, marketing, and distribution.
SECTION 14. Section 122.016(b), Human Resources Code, is
amended to read as follows:
(b) Each month, the comptroller shall prepare [provide the
council with] a list of all items purchased under the exception
provided by Subsection (a). The comptroller [council] shall adopt
the form in which the list is to be provided and may include in
[require] the list [to include] the date of requisition, the type of
product or service requested, the reason for purchase under the
exception, and any other information that the comptroller [council]
considers relevant to a determination of why the product or service
was not purchased in accordance with Section 122.014.
SECTION 15. Section 122.019, Human Resources Code, is
amended to read as follows:
Sec. 122.019. CENTRAL NONPROFIT AGENCY. (a) The
comptroller [council] may select and contract with one or more
central nonprofit agencies through a request for proposals for a
period not to exceed five years. Once the selection process is
completed, the comptroller [council] shall contract with a central
nonprofit agency to:
(1) recruit and assist community rehabilitation
programs in developing and submitting applications for the
selection of suitable products and services;
(2) facilitate the distribution of orders among
community rehabilitation programs;
(3) manage and coordinate the day-to-day operation of
the program, including the general administration of contracts with
community rehabilitation programs;
(4) promote increased supported employment
opportunities for persons with disabilities; and
(5) recruit and assist qualified nonprofit
organizations that are managed by members of racial minorities,
women, or persons with disabilities and that are in the process of
qualifying as community rehabilitation programs.
(b) The services of a central nonprofit agency may include
marketing and marketing support services, such as:
(1) assistance to community rehabilitation programs
regarding solicitation and negotiation of contracts;
(2) direct marketing of products and services to
consumers;
(3) research and development of products and services;
(4) public relations activities to promote the
program;
(5) customer relations;
(6) education and training;
(7) accounting services related to purchase orders,
invoices, and payments to community rehabilitation programs; and
(8) other duties designated by the comptroller
[council].
(c) Each year, the comptroller [council] shall review
services provided by a central nonprofit agency and the revenues
required to accomplish the program to determine whether each
agency's performance complies with contractual specifications.
Not later than the 60th day before the review, the comptroller
[council] shall publish in the Texas Register a request for comment
on the services of a central nonprofit agency that participates in
community rehabilitation programs.
(d) At least once during each five-year period, the
comptroller [council] may review and renegotiate the contract with
a central nonprofit agency. Not later than the 60th day before the
date the comptroller [council] adopts or renews a contract, the
comptroller [council] shall publish notice of the proposed contract
in the Texas Register.
(e) The comptroller shall determine the best method to
structure the maximum management fee rate charged by a central
nonprofit agency for its services [must be computed as a percentage
of the selling price of the product or the contract price of a
service, must be included in the selling price or contract price,
and must be paid at the time of sale]. The management fee rate must
be [approved by the council and must be] reviewed on an annual
basis.
(f) A percentage of the management fee described by
Subsection (e) shall be paid to the comptroller [council] and is
subject to Section 122.023. The percentage shall be set by the
comptroller [council] in the amount necessary to reimburse the
general revenue fund for direct and reasonable costs incurred by
the comptroller[, the council, and the council staff] in
administering the comptroller's [council's] duties under this
chapter, including any costs associated with providing support to
the advisory committee.
(g) The comptroller [council] may terminate a contract with
a central nonprofit agency if:
(1) the comptroller [council] finds substantial
evidence of the central nonprofit agency's noncompliance with
contractual obligations; and
(2) the comptroller [council] has provided at least 30
days' notice to the central nonprofit agency of the termination of
the contract.
(h) The comptroller [council] may request an audit by the
state auditor of:
(1) the management fee set by a central nonprofit
agency; or
(2) the financial condition of a central nonprofit
agency.
(i) A person may not operate a community rehabilitation
program and at the same time contract with the comptroller
[council] as a central nonprofit agency.
SECTION 16. Section 122.020, Human Resources Code, is
amended to read as follows:
Sec. 122.020. CONSUMER INFORMATION; COMPLAINTS. (a) The
comptroller [council] shall prepare information of consumer
interest describing the activities of the comptroller under this
chapter [council] and describing the comptroller's [council's]
procedures by which consumer complaints are filed with and resolved
by the comptroller under this chapter [council]. The comptroller
[council] shall make the information available to the general
public and appropriate state agencies.
(b) The comptroller [council] shall keep an information
file about each complaint filed with the comptroller [council].
The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
comptroller [council];
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the comptroller [council] closed the file without taking action
other than to investigate the complaint.
(c) If a written complaint is filed with the comptroller
[council], the comptroller [council], at least as frequently as
quarterly and until final disposition of the complaint, shall
notify the parties to the complaint of the status of the complaint
unless the notice would jeopardize an undercover investigation.
(d) The comptroller [council] shall provide to the person
filing the complaint and to each person who is a subject of the
complaint a copy of the comptroller's [council's] policies and
procedures relating to complaint investigation and resolution.
SECTION 17. Sections 122.0205(a) and (c), Human Resources
Code, are amended to read as follows:
(a) A dispute between the comptroller [council] and a
central nonprofit agency or a community rehabilitation program
shall first be submitted to alternative dispute resolution.
(c) This section does not limit the comptroller's
[council's] ability to request opinions from the attorney general.
SECTION 18. Section 122.0215, Human Resources Code, is
amended to read as follows:
Sec. 122.0215. ACCESS TO INFORMATION AND RECORDS;
INSPECTION. (a) The comptroller [council] and the comptroller's
[council's] staff may access financial or other information and
records from a central nonprofit agency or a community
rehabilitation program if the comptroller [council] determines the
information and records are necessary for the effective
administration of this chapter and rules adopted under this
chapter.
(b) Information and records must be obtained under
Subsection (a) in recognition of the privacy interest of persons
employed by central nonprofit agencies or community rehabilitation
programs. The information and records may not be released or made
public on subpoena or otherwise, except that release may be made:
(1) for statistical purposes, but only if a person is
not identified;
(2) with the consent of each person identified in the
information released; or
(3) regarding a compensation package of any central
nonprofit agency employee or subcontractor if determined by the
comptroller [council] to be relevant to the administration of this
chapter.
(c) The comptroller [council] shall adopt rules
establishing procedures to ensure that the information and records
maintained by the comptroller [council] under this chapter are kept
confidential and protected from release to unauthorized persons.
(d) The comptroller [council] or a central nonprofit agency
at the comptroller's [council's] direction may inspect a community
rehabilitation program for compliance with certification criteria
established under Section [Sections 122.003(j) and] 122.013(c).
[The committee designated under Section 122.003(j) shall review the
inspection results and recommend appropriate action to the
council.]
SECTION 19. Section 122.022, Human Resources Code, is
amended to read as follows:
Sec. 122.022. REPORTS. (a) On or before November 1 of each
year, the comptroller [council] shall prepare an annual financial
report in the form prescribed by Section 2101.011, Government Code,
relating to the comptroller's activities under this chapter and
file the report with the governor and the presiding officer of each
house of the legislature [a copy of the annual financial report
prepared by the council under Section 2101.011, Government Code].
(b) As part of the report filed under Subsection (a), the
comptroller [council] shall provide:
(1) the number of persons with disabilities, according
to their type of disability, who are employed in community
rehabilitation programs participating in the programs established
by this chapter or who are employed by businesses or workshops that
receive supportive employment from community rehabilitation
programs;
(2) the amount of annual wages paid to a person
participating in the program;
(3) a summary of the sale of products offered by a
community rehabilitation program;
(4) a list of products and services offered by a
community rehabilitation program;
(5) the geographic distribution of the community
rehabilitation programs;
(6) the number of workers without disabilities who are
employed in community rehabilitation programs under this chapter;
and
(7) the average and range of weekly earnings for
workers with disabilities and workers without disabilities who are
employed in community rehabilitation programs under this chapter.
SECTION 20. Section 122.023, Human Resources Code, is
amended to read as follows:
Sec. 122.023. COMPTROLLER [COUNCIL] FUNDS. All money paid
to the comptroller [council] under this chapter is subject to
Subchapter F, Chapter 404, Government Code.
SECTION 21. Section 122.024, Human Resources Code, is
amended to read as follows:
Sec. 122.024. STRATEGIC PLAN; FINAL OPERATING PLAN. The
comptroller [council] shall prepare a [an agency] strategic plan
and a final operating plan relating to the comptroller's activities
under this chapter as required by Subchapter E, Chapter 2054,
Government Code.
SECTION 22. Section 122.028, Human Resources Code, is
amended to read as follows:
Sec. 122.028. PROGRAM PROMOTION. The comptroller [council]
shall establish procedures for the promotion of the program
administered under this chapter.
SECTION 23. Section 122.029, Human Resources Code, is
amended to read as follows:
Sec. 122.029. DUTIES OF STATE AUDITOR. (a) As part of an
audit of a state agency authorized under Section 2161.123,
Government Code, the state auditor shall:
(1) conduct an audit of a state agency for compliance
with this chapter; and
(2) report to the comptroller [council] a state agency
that is not complying with this chapter.
(b) If the state auditor reports to the comptroller
[council] that a state agency is not complying with this chapter,
the comptroller [council] shall assist the agency in complying.
SECTION 24. Section 122.030, Human Resources Code, is
amended to read as follows:
Sec. 122.030. MANAGEMENT FEE RATE; REVIEW PROCESS.
(a) The comptroller [council] shall develop a formal review
process for the annual review conducted under Section 122.019(e).
The review process must include:
(1) notice to affected parties, including community
rehabilitation programs;
(2) solicitation of public comment; and
(3) documentation provided by a central nonprofit
agency in support of a proposed management fee rate change.
(b) Before making a decision relating to the management fee
rate, the comptroller [council] shall consider:
(1) any public comment received;
(2) documentation provided by a central nonprofit
agency; and
(3) any documentation provided by a community
rehabilitation program or the public.
(c) The comptroller [council] shall adopt rules to
implement this section.
SECTION 25. The following provisions of the Human Resources
Code are repealed:
(1) Section 122.002(4);
(2) Section 122.003;
(3) Section 122.004;
(4) Section 122.005;
(5) Section 122.0055;
(6) Section 122.006;
(7) Section 122.007(b);
(8) Section 122.009(c);
(9) Section 122.013(b);
(10) Section 122.0206;
(11) Section 122.021;
(12) Section 122.025; and
(13) Section 122.027.
SECTION 26. (a) The Texas Council on Purchasing from People
with Disabilities is abolished.
(b) The validity of an action taken by or in connection with
the authority of the Texas Council on Purchasing from People with
Disabilities before it is abolished is not affected by the
abolition.
SECTION 27. (a) All powers and duties of the Texas Council
on Purchasing from People with Disabilities are transferred to the
comptroller of public accounts.
(b) A rule, form, policy, procedure, or decision of the
Texas Council on Purchasing from People with Disabilities continues
in effect as a rule, form, policy, procedure, or decision of the
comptroller of public accounts until superseded by an act of the
comptroller of public accounts or the comptroller of public
accounts' staff.
(c) A reference in law to the Texas Council on Purchasing
from People with Disabilities means the comptroller of public
accounts.
(d) Any action or proceeding before the Texas Council on
Purchasing from People with Disabilities is transferred without
change in status to the comptroller of public accounts, and the
comptroller of public accounts assumes, without a change in status,
the position of the Texas Council on Purchasing from People with
Disabilities in any action or proceeding to which the Texas Council
on Purchasing from People with Disabilities is a party.
(e) All money, contracts, leases, rights, bonds, and
obligations of the Texas Council on Purchasing from People with
Disabilities are transferred to the comptroller of public accounts.
(f) All personal property, including records, in the
custody of the Texas Council on Purchasing from People with
Disabilities becomes the property of the comptroller of public
accounts.
(g) All funds appropriated by the legislature to the Texas
Council on Purchasing from People with Disabilities are transferred
to the comptroller of public accounts.
SECTION 28. The terms of the current members of the advisory
committee amended by this Act expire on the effective date of this
Act. On that date or as soon as possible after that date, the
comptroller shall appoint new members to the advisory committee in
accordance with the requirements of Section 122.0057, Human
Resources Code, as amended by this Act. The comptroller shall
designate the four members of the committee whose terms expire on
February 1, 2017, and the five members of the committee whose terms
expire on February 1, 2019.
SECTION 29. This Act takes effect September 1, 2015.
* * * * *