87R14225 YDB-D
By: Capriglione H.B. No. 3658
A BILL TO BE ENTITLED
AN ACT
relating to state agency contracting and state employees, officers,
contractors, and other persons involved with the contracting.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 572.054, Government Code,
is amended to read as follows:
Sec. 572.054. REPRESENTATION BY FORMER OFFICER OR EMPLOYEE
OR CONTRACTOR OR SUBCONTRACTOR OF REGULATORY AGENCY RESTRICTED;
CRIMINAL OFFENSE.
SECTION 2. Section 572.054, Government Code, is amended by
amending Subsections (b) and (d) and adding Subsection (i) to read
as follows:
(b) A former state officer or employee of a regulatory
agency or a person who for more than 30 days performed full-time or
part-time work for a regulatory agency under a contract or
subcontract [who ceases service or employment with that agency on
or after January 1, 1992,] may not represent any person or receive
compensation for services rendered on behalf of any person:
(1) regarding a particular matter in which the former
officer, [or] employee, contractor, or subcontractor participated
during the period of state service, [or] employment, or contract,
either through personal involvement or because the case or
proceeding was a matter within the officer's, [or] employee's,
contractor's, or subcontractor's official responsibility; and
(2) regarding any procurement that began at the
regulatory agency while the officer, employee, contractor, or
subcontractor served at, was employed by, or performed work for the
agency.
(d) Subsection (b) does not apply to a rulemaking proceeding
that was concluded more than six months before the officer's, [or]
employee's, contractor's, or subcontractor's service, [or]
employment, or contract ceased.
(i) Each regulatory agency shall include in any applicable
contract a provision that references this section and its
requirements.
SECTION 3. Section 656.052(b), Government Code, is amended
to read as follows:
(b) The training must provide the contract manager with
information regarding how to:
(1) fairly and objectively select and negotiate with
the most qualified contractor;
(2) establish prices that are cost-effective and that
reflect the cost of providing the service;
(3) include provisions in a contract that hold the
contractor accountable for results;
(4) monitor and enforce a contract;
(5) make payments consistent with the contract;
(6) comply with any requirements or goals contained in
the contract management guide;
(7) use and apply advanced sourcing strategies,
techniques, and tools;
(8) maintain required documentation for contracting
decisions, changes to a contract, and problems with a contract;
(9) create a risk evaluation and mitigation strategy;
(10) create a plan for potential problems with the
contract;
(11) develop an accurate and comprehensive statement
of work; [and]
(12) complete the contract and evaluate performance
under the contract; and
(13) determine best value for the state through the
exercise of informed business judgment based on price and non-price
factors expected to result in best value, including the factors
described by Section 2155.074.
SECTION 4. Subchapter K, Chapter 659, Government Code, is
amended by adding Section 659.2552 to read as follows:
Sec. 659.2552. SALARY INCREASE FOR CONTRACT EVALUATORS. A
state agency shall establish a procedure and requirements for
determining the eligibility for a salary increase of an agency
employee who acts as an evaluator of an agency procurement through a
decision, approval, disapproval, recommendation, advice,
investigation, or similar action from the issuance of a
solicitation through the award of the contract.
SECTION 5. Section 2155.074, Government Code, is amended by
amending Subsection (b) and adding Subsections (b-1), (b-2), and
(b-3) to read as follows:
(b) In determining the best value for the state, the
purchase price and whether the goods or services meet
specifications are principal considerations that must be balanced
with other relevant factors, including the factors described by
this section [the most important considerations].
(b-1) For a procurement in an amount equal to $20 million or
less [However], the comptroller or other state agency may, subject
to Subsection (c) and Section 2155.075, consider other relevant
factors, including:
(1) required contract outcomes [installation costs];
(2) best quality for economic value of the contract
[life cycle costs];
(3) timely performance under the contract [the quality
and reliability of the goods and services];
(4) the impact of a purchase on the agency's
administrative resources [the delivery terms];
(5) indicators of probable vendor performance under
the contract such as past vendor performance, the vendor's
financial resources and ability to perform, the vendor's experience
or demonstrated capability and responsibility, and the vendor's
ability to provide reliable maintenance agreements and support;
(6) the impact on the agency's flexibility in
developing alternative procurement and business relationships [the
cost of any employee training associated with a purchase];
(7) the effect of a purchase on agency productivity;
(8) the vendor's anticipated economic impact to the
state or a subdivision of the state, including potential tax
revenue and employment; [and]
(9) the encouragement of continued participation by
quality contractors; and
(10) other factors relevant to determining the best
value for the state in the context of a particular purchase.
(b-2) For a procurement in an amount that exceeds $20
million, the comptroller or other state agency shall, subject to
Subsection (c) and Section 2155.075, consider the factors listed in
Subsection (b-1) and the purchase price.
(b-3) Each determination of best value under this section
must include a total cost of ownership assessment that considers
the:
(1) cost of acquisition;
(2) cost of personnel;
(3) cost of operation; and
(4) total amount of money required for the purchase
during the expected performance period.
SECTION 6. Section 2155.075(a), Government Code, is amended
to read as follows:
(a) For a purchase made through competitive bidding, the
comptroller or other state agency making the purchase must specify
in the request for bids:
(1) the factors other than price that the comptroller
or agency will consider in determining which bid offers the best
value for the state; and
(2) the proposal criteria the comptroller or agency
will use when considering the factors described by Subdivision (1).
SECTION 7. Section 2155.144, Government Code, is amended by
adding Subsections (e) and (j-5) to read as follows:
(e) Each health and human services agency and the Health and
Human Services Commission shall ensure the agency's contract
managers complete the training developed under Section 656.052 and
comply with the requirements of Section 2262.058.
(j-5) The contract management handbook published under
Subsection (j) must include instructions for ensuring that health
and human services agency employees who are involved in
implementing a specific procurement are also involved in evaluating
and scoring the responses submitted to the solicitation for the
procurement.
SECTION 8. Sections 2262.051(a) and (c), Government Code,
are amended to read as follows:
(a) In consultation with the attorney general, the
Department of Information Resources, business and industry
representatives, and the state auditor, the comptroller shall
develop or periodically update a contract management guide for use
by state agencies. Participation by the state auditor under this
subsection is subject to approval by the legislative audit
committee for inclusion in the audit plan under Section 321.013(c).
(c) The guide must provide information regarding the
primary duties of a contract manager, including how to:
(1) develop and negotiate a contract;
(2) select a contractor; [and]
(3) monitor contractor and subcontractor performance
under a contract;
(4) appoint as evaluators for procurements agency
employees who serve in agency divisions overseeing the
implementation of the procurements; and
(5) ensure agency employees involved in the
implementation of a specific procurement are also involved in the
evaluation of vendor responses submitted to the solicitation for
the procurement.
SECTION 9. Subchapter B, Chapter 2262, Government Code, is
amended by adding Section 2262.058 to read as follows:
Sec. 2262.058. CERTAIN CONTRACT MANAGERS. For a contract
manager who participates in the procurement of a contract with a
value of $20 million or more, the contract manager shall:
(1) participate in additional training specific to the
category of goods or services to be procured; and
(2) develop a document to be retained with the records
for the procurement that includes:
(A) a summary of the contract manager's
qualifications, including certifications, years of experience, and
any other relevant qualifications related to the procurement; and
(B) a written statement certified by the contract
manager that the contract manager read and understands all
submitted vendor proposals or other expressions of interest.
SECTION 10. (a) As soon as practicable after the effective
date of this Act, the comptroller of public accounts shall adopt the
rules and update the contract management handbook and contract
management guide as necessary to implement the changes in law made
by this Act.
(b) Not later than October 1, 2021, each state agency shall
adopt the procedure and requirements as provided by Section
659.2552, Government Code, as added by this Act.
SECTION 11. (a) The changes in law made by this Act apply
only to a contract for which a state agency first advertises or
otherwise solicits offers, bids, proposals, qualifications, or
other applicable expressions of interest on or after the effective
date of this Act. A contract for which a state agency first
advertises or otherwise solicits offers, bids, proposals,
qualifications, or other applicable expressions of interest before
the effective date of this Act is governed by the law as it existed
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
(b) Notwithstanding Section 656.052, Government Code, as
amended by this Act, or Section 2262.058, Government Code, as added
by this Act, a state agency employee is not required to comply with
the training requirements under those sections before March 1,
2022.
SECTION 12. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 13. This Act takes effect September 1, 2021.