Texas 2017 - 85th Regular

Texas House Bill HB1281 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R7994 YDB-D
2	2	By: Reynolds H.B. No. 1281
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to historically underutilized businesses and to goods and
8	8	services purchased by governmental entities; providing penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 2155.074(b), Government Code, is amended
11	11	to read as follows:
12	12	(b) In determining the best value for the state, the
13	13	purchase price and whether the goods or services meet
14	14	specifications are the most important considerations. However, the
15	15	commission or other state agency may, subject to Subsection (c) and
16	16	Section 2155.075, consider other relevant factors, including:
17	17	(1) installation costs;
18	18	(2) life cycle costs;
19	19	(3) the quality and reliability of the goods and
20	20	services;
21	21	(4) the delivery terms;
22	22	(5) indicators of probable vendor performance under
23	23	the contract such as past vendor performance, the vendor's
24	24	financial resources and ability to perform, the vendor's experience
25	25	or demonstrated capability and responsibility, and the vendor's
26	26	ability to provide reliable maintenance agreements and support;
27	27	(6) the cost of any employee training associated with
28	28	a purchase;
29	29	(7) the effect of a purchase on agency productivity;
30	30	(8) the vendor's anticipated economic impact to the
31	31	state or a subdivision of the state, including potential tax
32	32	revenue and employment; [and]
33	33	(9) whether the vendor is a historically underutilized
34	34	business as defined by Section 2161.001; and
35	35	(10) other factors relevant to determining the best
36	36	value for the state in the context of a particular purchase.
37	37	SECTION 2. Sections 2155.444(a), (b), (c), and (e),
38	38	Government Code, are amended to read as follows:
39	39	(a) The comptroller [commission] and all state agencies
40	40	making purchases of goods, including agricultural products, shall
41	41	give preference to those produced or grown in this state or offered
42	42	by Texas bidders as follows:
43	43	(1) goods produced or offered by a Texas bidder that is
44	44	a historically underutilized business [owned by a service-disabled
45	45	veteran who is a Texas resident] shall be given a first preference
46	46	and goods produced in this state or offered by other Texas bidders
47	47	shall be given second preference, if the cost to the state and
48	48	quality are equal; and
49	49	(2) agricultural products grown in this state shall be
50	50	given first preference and agricultural products offered by Texas
51	51	bidders shall be given second preference, if the cost to the state
52	52	and quality are equal.
53	53	(b) If goods, including agricultural products, produced or
54	54	grown in this state or offered by Texas bidders exceed 105 percent
55	55	of the cost of other goods or are not equal in [cost and] quality to
56	56	other products, then goods, including agricultural products,
57	57	produced or grown in other states of the United States shall be
58	58	given preference over foreign products if the cost to the state and
59	59	quality are equal.
60	60	(c) In this section:
61	61	(1) "Agricultural products" includes textiles and
62	62	other similar products.
63	63	(2) "Historically underutilized business" has the
64	64	meaning assigned by Section 2161.001.
65	65	[(1-a) "Service-disabled veteran" means a person who
66	66	is a veteran as defined by 38 U.S.C. Section 101(2) and who has a
67	67	service-connected disability as defined by 38 U.S.C. Section
68	68	101(16).]
69	69	(3) [(2)] "Texas bidder" means a business:
70	70	(A) incorporated in this state;
71	71	(B) that has its principal place of business in
72	72	this state; or
73	73	(C) that has an established physical presence in
74	74	this state.
75	75	(e) The comptroller [commission] and all state agencies
76	76	procuring services shall give first preference to services offered
77	77	by a Texas bidder that is a historically underutilized business
78	78	[owned by a service-disabled veteran who is a Texas resident] and
79	79	shall give second preference to services offered by other Texas
80	80	bidders if:
81	81	(1) the services meet state requirements regarding the
82	82	service to be performed and expected quality; and
83	83	(2) the cost of the service does not exceed the cost of
84	84	other similar services of similar expected quality that are offered
85	85	by a bidder that is not entitled to a preference under this
86	86	subsection.
87	87	SECTION 3. Section 2161.001, Government Code, is amended by
88	88	amending Subdivision (3) and adding Subdivision (5) to read as
89	89	follows:
90	90	(3) "Economically disadvantaged person" means a
91	91	person who:
92	92	(A) is economically disadvantaged because of the
93	93	person's identification as a member of a certain group, including:
94	94	(i) Black Americans;
95	95	(ii) Hispanic Americans;
96	96	(iii) women;
97	97	(iv) Asian Pacific Americans;
98	98	(v) Native Americans; and
99	99	(vi) veterans as defined by 38 U.S.C.
100	100	Section 101(2) who have [suffered at least] a [20 percent]
101	101	service-connected disability as defined by 38 U.S.C. Section
102	102	101(16); and
103	103	(B) has suffered the effects of discriminatory
104	104	practices or other similar insidious circumstances over which the
105	105	person has no control.
106	106	(5) "Professional services" has the meaning assigned
107	107	by Section 2254.002.
108	108	SECTION 4. Section 2161.064, Government Code, is amended by
109	109	adding Subsection (f) to read as follows:
110	110	(f) A state agency may use the directory compiled under this
111	111	section to create a mailing list for soliciting bids from
112	112	historically underutilized businesses. A state agency that
113	113	determines the size of the acquisition justifies rotation may
114	114	rotate the businesses included on the mailing list by using
115	115	different portions of the directory for separate acquisitions of
116	116	goods or services. If the state agency rotates the businesses
117	117	included on a solicitation mailing list, bids must be solicited
118	118	from:
119	119	(1) a bidder who was previously awarded the bid for the
120	120	goods or services;
121	121	(2) businesses that have been added to the directory
122	122	since the last solicitation; and
123	123	(3) businesses included in the portion of the
124	124	directory selected for the solicitation mailing list.
125	125	SECTION 5. Subchapter B, Chapter 2161, Government Code, is
126	126	amended by adding Section 2161.067 to read as follows:
127	127	Sec. 2161.067. JOINT VENTURES. (a) In this section:
128	128	(1) "Eligible purchase" means a purchase of goods or
129	129	services that:
130	130	(A) a state agency determines is eligible for a
131	131	joint venture based on work and market availability; and
132	132	(B) exceeds the minimum dollar value provided by
133	133	comptroller rule.
134	134	(2) "Joint venture" means an association of two or
135	135	more individuals or businesses, at least one of which is a
136	136	historically underutilized business, that is:
137	137	(A) established to carry on a single business
138	138	activity;
139	139	(B) certified as a joint venture by the
140	140	comptroller; and
141	141	(C) limited in scope and duration.
142	142	(b) Each state agency shall determine whether a purchase of
143	143	goods or services is an eligible purchase for which the agency is
144	144	required to make a good faith effort to award the contract to a
145	145	joint venture. The agency may not accept a contract bid submitted
146	146	by any bidder other than a joint venture unless the agency
147	147	determines, based on the relevant facts, documents, and
148	148	circumstances, that the agency made a good faith effort to award the
149	149	contract to a joint venture.
150	150	(c) A contract for a joint venture must be in writing and:
151	151	(1) be based on the sharing of real economic interest
152	152	in the venture that includes proportionate control over management,
153	153	interest in capital acquired by the joint venture, and interest in
154	154	earnings;
155	155	(2) be completed by all parties to the joint venture;
156	156	(3) be executed before a notary public;
157	157	(4) clearly delineate the rights and responsibilities
158	158	of each member;
159	159	(5) comply with any requirements of the comptroller as
160	160	provided in bid documents or otherwise; and
161	161	(6) provide that the joint venture continue for at
162	162	least the duration of the eligible purchase.
163	163	(d) The comptroller using available resources shall select
164	164	for review a random sampling of state agency joint venture
165	165	determinations made under Subsection (b).
166	166	(e) A state agency selected by the comptroller under
167	167	Subsection (d), the joint venture, and each member of the joint
168	168	venture shall provide the comptroller access to review all records
169	169	pertaining to joint venture agreements before and after the award
170	170	of a contract to the joint venture by the agency in order to
171	171	reasonably assess compliance with this section.
172	172	(f) A member of a joint venture who fails to comply with this
173	173	section, and whose failure to comply continues for at least 30 days
174	174	after receiving written notice of the noncompliance from the
175	175	comptroller, is subject to any or all of the following penalties:
176	176	(1) withholding of 10 percent of all future payments
177	177	for the eligible purchase until the comptroller determines the
178	178	member of the joint venture is in compliance with this section;
179	179	(2) withholding of all future payments under the
180	180	eligible purchase until the comptroller determines the member of
181	181	the joint venture is in compliance with this section;
182	182	(3) cancellation of the eligible purchase; and
183	183	(4) ineligibility for future contracts or
184	184	subcontracts with this state for one to five years from the date on
185	185	which the penalty is imposed.
186	186	SECTION 6. Section 2161.252, Government Code, is amended by
187	187	adding Subsection (c) to read as follows:
188	188	(c) A subcontracting plan must require the contractor to
189	189	accept bids, proposals, offers, or other applicable expressions
190	190	from historically underutilized businesses for not less than 10
191	191	working days after the date the contractor notifies the business of
192	192	the subcontracting opportunity. This subsection does not apply to
193	193	a professional services contract.
194	194	SECTION 7. Section 2254.002(2), Government Code, is amended
195	195	to read as follows:
196	196	(2) "Professional services" means services:
197	197	(A) within the scope of the practice, as defined
198	198	by state law, of:
199	199	(i) accounting;
200	200	(ii) architecture;
201	201	(iii) landscape architecture;
202	202	(iv) land surveying;
203	203	(v) medicine;
204	204	(vi) optometry;
205	205	(vii) professional engineering;
206	206	(viii) real estate appraising; or
207	207	(ix) professional nursing; or
208	208	(B) provided in connection with the professional
209	209	employment or practice of a person who is licensed or registered as:
210	210	(i) a certified public accountant;
211	211	(ii) an architect;
212	212	(iii) a landscape architect;
213	213	(iv) a land surveyor;
214	214	(v) a physician, including a surgeon;
215	215	(vi) an optometrist;
216	216	(vii) a professional engineer;
217	217	(viii) a state certified or state licensed
218	218	real estate appraiser; [or]
219	219	(ix) a registered nurse; or
220	220	(x) an attorney.
221	221	SECTION 8. (a) Not later than December 1, 2017, the
222	222	comptroller of public accounts shall adopt the rules required to
223	223	implement the changes in law made by this Act.
224	224	(b) Chapters 2155 and 2161, Government Code, as amended by
225	225	this Act, apply only to a purchase of goods or services or a
226	226	contract entered into on or after January 1, 2018.
227	227	SECTION 9. This Act takes effect September 1, 2017.