Texas 2019 - 86th Regular

Texas House Bill HB216 Compare Versions

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

Old	New	Differences
1	1	86R2643 YDB-D
2	2	By: Reynolds H.B. No. 216
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.
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	comptroller [commission] or other state agency may, subject to
16	16	Subsection (c) and Section 2155.075, consider other relevant
17	17	factors, including:
18	18	(1) installation costs;
19	19	(2) life cycle costs;
20	20	(3) the quality and reliability of the goods and
21	21	services;
22	22	(4) the delivery terms;
23	23	(5) indicators of probable vendor performance under
24	24	the contract such as past vendor performance, the vendor's
25	25	financial resources and ability to perform, the vendor's experience
26	26	or demonstrated capability and responsibility, and the vendor's
27	27	ability to provide reliable maintenance agreements and support;
28	28	(6) the cost of any employee training associated with
29	29	a purchase;
30	30	(7) the effect of a purchase on agency productivity;
31	31	(8) the vendor's anticipated economic impact to the
32	32	state or a subdivision of the state, including potential tax
33	33	revenue and employment; [and]
34	34	(9) whether the vendor is a historically underutilized
35	35	business as defined by Section 2161.001; and
36	36	(10) other factors relevant to determining the best
37	37	value for the state in the context of a particular purchase.
38	38	SECTION 2. Sections 2155.444(a), (b), (c), and (e),
39	39	Government Code, are amended to read as follows:
40	40	(a) The comptroller [commission] and all state agencies
41	41	making purchases of goods, including agricultural products, shall
42	42	give preference to those produced or grown in this state or offered
43	43	by Texas bidders as follows:
44	44	(1) goods produced or offered by a Texas bidder that is
45	45	a historically underutilized business [owned by a service-disabled
46	46	veteran who is a Texas resident] shall be given a first preference
47	47	and goods produced in this state or offered by other Texas bidders
48	48	shall be given second preference, if the cost to the state and
49	49	quality are equal; and
50	50	(2) agricultural products grown in this state shall be
51	51	given first preference and agricultural products offered by Texas
52	52	bidders shall be given second preference, if the cost to the state
53	53	and quality are equal.
54	54	(b) If goods, including agricultural products, produced or
55	55	grown in this state or offered by Texas bidders exceed 105 percent
56	56	of the cost of other goods or are not equal in [cost and] quality to
57	57	other products, then goods, including agricultural products,
58	58	produced or grown in other states of the United States shall be
59	59	given preference over foreign products if the cost to the state and
60	60	quality are equal.
61	61	(c) In this section:
62	62	(1) "Agricultural products" includes textiles and
63	63	other similar products.
64	64	(2) "Historically underutilized business" has the
65	65	meaning assigned by Section 2161.001.
66	66	[(1-a) "Service-disabled veteran" means a person who
67	67	is a veteran as defined by 38 U.S.C. Section 101(2) and who has a
68	68	service-connected disability as defined by 38 U.S.C. Section
69	69	101(16).]
70	70	(3) [(2)] "Texas bidder" means a business:
71	71	(A) incorporated in this state;
72	72	(B) that has its principal place of business in
73	73	this state; or
74	74	(C) that has an established physical presence in
75	75	this state.
76	76	(e) The comptroller [commission] and all state agencies
77	77	procuring services shall give first preference to services offered
78	78	by a Texas bidder that is a historically underutilized business
79	79	[owned by a service-disabled veteran who is a Texas resident] and
80	80	shall give second preference to services offered by other Texas
81	81	bidders if:
82	82	(1) the services meet state requirements regarding the
83	83	service to be performed and expected quality; and
84	84	(2) the cost of the service does not exceed the cost of
85	85	other similar services of similar expected quality that are offered
86	86	by a bidder that is not entitled to a preference under this
87	87	subsection.
88	88	SECTION 3. Section 2161.001, Government Code, is amended by
89	89	amending Subdivision (3) and adding Subdivision (5) to read as
90	90	follows:
91	91	(3) "Economically disadvantaged person" means a
92	92	person who:
93	93	(A) is economically disadvantaged because of the
94	94	person's identification as a member of a certain group, including:
95	95	(i) Black Americans;
96	96	(ii) Hispanic Americans;
97	97	(iii) women;
98	98	(iv) Asian Pacific Americans;
99	99	(v) Native Americans; and
100	100	(vi) veterans as defined by 38 U.S.C.
101	101	Section 101(2) who have [suffered at least] a [20 percent]
102	102	service-connected disability as defined by 38 U.S.C. Section
103	103	101(16); and
104	104	(B) has suffered the effects of discriminatory
105	105	practices or other similar insidious circumstances over which the
106	106	person has no control.
107	107	(5) "Professional services" has the meaning assigned
108	108	by Section 2254.002.
109	109	SECTION 4. Section 2161.064, Government Code, is amended by
110	110	adding Subsection (f) to read as follows:
111	111	(f) A state agency may use the directory compiled under this
112	112	section to create a mailing list for soliciting bids from
113	113	historically underutilized businesses. A state agency that
114	114	determines the size of the acquisition justifies rotation may
115	115	rotate the businesses included on the mailing list by using
116	116	different portions of the directory for separate acquisitions of
117	117	goods or services. A state agency rotating the businesses included
118	118	on a solicitation mailing list shall solicit bids from:
119	119	(1) a bidder who was previously awarded the bid for the
120	120	goods or services;
121	121	(2) each business added to the directory since the
122	122	last solicitation; and
123	123	(3) each business 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 engage in 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 shared economic interests in the
152	152	venture, including proportionate control over management, interest
153	153	in capital acquired by the joint venture, and interest in earnings;
154	154	(2) be completed by all parties to the joint venture;
155	155	(3) be executed before a notary public;
156	156	(4) clearly delineate the rights and responsibilities
157	157	of each party;
158	158	(5) comply with any requirements of the comptroller as
159	159	provided in bid documents or otherwise; and
160	160	(6) provide that the joint venture continue for at
161	161	least the duration of the eligible purchase.
162	162	(d) The comptroller using available resources shall select
163	163	for review a random sampling of state agency joint venture
164	164	determinations made under Subsection (b).
165	165	(e) A state agency selected by the comptroller under
166	166	Subsection (d), the joint venture, and each party to the joint
167	167	venture shall provide the comptroller access to all records
168	168	pertaining to joint venture agreements before and after the
169	169	agency's award of a contract to the joint venture to reasonably
170	170	assess compliance with this section.
171	171	(f) A party to a joint venture who fails to comply with this
172	172	section, and whose failure to comply continues for at least 30 days
173	173	after the date of receiving written notice of the noncompliance
174	174	from the comptroller, is subject to any or all of the following
175	175	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	party 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 party is in
181	181	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, 2019, 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, 2020.
227	227	SECTION 9. This Act takes effect September 1, 2019.