Texas 2021 - 87th Regular

Texas House Bill HB3658 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
	1	+	87R14225 YDB-D
1	2		By: Capriglione, Shaheen, King of Parker H.B. No. 3658
2	3
3	4
4	5		A BILL TO BE ENTITLED
5	6		AN ACT
6	7		relating to state agency contracting and state employees, officers,
7	8		contractors, and other persons involved with the contracting.
8	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	10		SECTION 1. The heading to Section 572.054, Government Code,
10	11		is amended to read as follows:
11	12		Sec. 572.054. REPRESENTATION BY FORMER OFFICER OR EMPLOYEE
12	13		OR CONTRACTOR OR SUBCONTRACTOR OF REGULATORY AGENCY RESTRICTED;
13	14		CRIMINAL OFFENSE.
14	15		SECTION 2. Section 572.054, Government Code, is amended by
15	16		amending Subsections (b) and (d) and adding Subsection (i) to read
16	17		as follows:
17	18		(b) A former state officer or employee of a regulatory
18	19		agency or a person who for more than 30 days performed full-time or
19	20		part-time work for a regulatory agency under a contract or
20	21		subcontract [who ceases service or employment with that agency on
21	22		or after January 1, 1992,] may not represent any person or receive
22	23		compensation for services rendered on behalf of any person:
23	24		(1) regarding a particular matter in which the former
24	25		officer, [or] employee, contractor, or subcontractor participated
25	26		during the period of state service, [or] employment, or contract,
26	27		either through personal involvement or because the case or
27	28		proceeding was a matter within the officer's, [or] employee's,
28	29		contractor's, or subcontractor's official responsibility; and
29	30		(2) regarding any procurement that began at the
30	31		regulatory agency while the officer, employee, contractor, or
31	32		subcontractor served at, was employed by, or performed work for the
32	33		agency.
33	34		(d) Subsection (b) does not apply to a rulemaking proceeding
34	35		that was concluded more than six months before the officer's, [or]
35	36		employee's, contractor's, or subcontractor's service, [or]
36	37		employment, or contract ceased.
37	38		(i) Each regulatory agency shall include in any applicable
38	39		contract a provision that references this section and its
39	40		requirements.
40	41		SECTION 3. Section 656.052(b), Government Code, is amended
41	42		to read as follows:
42	43		(b) The training must provide the contract manager with
43	44		information regarding how to:
44	45		(1) fairly and objectively select and negotiate with
45	46		the most qualified contractor;
46	47		(2) establish prices that are cost-effective and that
47	48		reflect the cost of providing the service;
48	49		(3) include provisions in a contract that hold the
49	50		contractor accountable for results;
50	51		(4) monitor and enforce a contract;
51	52		(5) make payments consistent with the contract;
52	53		(6) comply with any requirements or goals contained in
53	54		the contract management guide;
54	55		(7) use and apply advanced sourcing strategies,
55	56		techniques, and tools;
56	57		(8) maintain required documentation for contracting
57	58		decisions, changes to a contract, and problems with a contract;
58	59		(9) create a risk evaluation and mitigation strategy;
59	60		(10) create a plan for potential problems with the
60	61		contract;
61	62		(11) develop an accurate and comprehensive statement
62	63		of work; [and]
63	64		(12) complete the contract and evaluate performance
64	65		under the contract; and
65	66		(13) determine best value for the state through the
66	67		exercise of informed business judgment based on price and non-price
67	68		factors expected to result in best value, including the factors
68	69		described by Section 2155.074.
69	70		SECTION 4. Subchapter K, Chapter 659, Government Code, is
70	71		amended by adding Section 659.2552 to read as follows:
71	72		Sec. 659.2552. SALARY INCREASE FOR CONTRACT EVALUATORS. A
72		-	state agency may establish a procedure and requirements for
73		-	providing a salary increase to an agency employee who acts as an
74		-	evaluator for an agency procurement in addition to the employee's
75		-	regularly assigned duties. The procedure and requirements
76		-	established under this section must provide for the salary increase
77		-	only if the employee meets the qualifications for employment in the
78		-	agency division overseeing the implementation of the procurement.
	73	+	state agency shall establish a procedure and requirements for
	74	+	determining the eligibility for a salary increase of an agency
	75	+	employee who acts as an evaluator of an agency procurement through a
	76	+	decision, approval, disapproval, recommendation, advice,
	77	+	investigation, or similar action from the issuance of a
	78	+	solicitation through the award of the contract.
79	79		SECTION 5. Section 2155.074, Government Code, is amended by
80	80		amending Subsection (b) and adding Subsections (b-1), (b-2), and
81	81		(b-3) to read as follows:
82	82		(b) In determining the best value for the state, the
83	83		purchase price and whether the goods or services meet
84	84		specifications are principal considerations that must be balanced
85	85		with other relevant factors, including the factors described by
86	86		this section [the most important considerations].
87	87		(b-1) For a procurement in an amount equal to $20 million or
88	88		less [However], the comptroller or other state agency may, subject
89	89		to Subsection (c) and Section 2155.075, consider other relevant
90	90		factors, including:
91	91		(1) required contract outcomes [installation costs];
92	92		(2) best quality for economic value of the contract
93	93		[life cycle costs];
94	94		(3) timely performance under the contract [the quality
95	95		and reliability of the goods and services];
96	96		(4) the impact of a purchase on the agency's
97	97		administrative resources [the delivery terms];
98	98		(5) indicators of probable vendor performance under
99	99		the contract such as past vendor performance, the vendor's
100	100		financial resources and ability to perform, the vendor's experience
101	101		or demonstrated capability and responsibility, and the vendor's
102	102		ability to provide reliable maintenance agreements and support;
103	103		(6) the impact on the agency's flexibility in
104	104		developing alternative procurement and business relationships [the
105	105		cost of any employee training associated with a purchase];
106	106		(7) the effect of a purchase on agency productivity;
107	107		(8) the vendor's anticipated economic impact to the
108	108		state or a subdivision of the state, including potential tax
109	109		revenue and employment; [and]
110	110		(9) the encouragement of continued participation by
111	111		quality contractors; and
112	112		(10) other factors relevant to determining the best
113	113		value for the state in the context of a particular purchase.
114	114		(b-2) For a procurement in an amount that exceeds $20
115	115		million, the comptroller or other state agency shall, subject to
116	116		Subsection (c) and Section 2155.075, consider the factors listed in
117	117		Subsection (b-1) and the purchase price.
118	118		(b-3) Each determination of best value under this section
119	119		must include a total cost of ownership assessment that considers
120	120		the:
121	121		(1) cost of acquisition;
122	122		(2) cost of personnel;
123	123		(3) cost of operation; and
124	124		(4) total amount of money required for the purchase
125	125		during the expected performance period.
126	126		SECTION 6. Section 2155.075(a), Government Code, is amended
127	127		to read as follows:
128	128		(a) For a purchase made through competitive bidding, the
129	129		comptroller or other state agency making the purchase must specify
130	130		in the request for bids:
131	131		(1) the factors other than price that the comptroller
132	132		or agency will consider in determining which bid offers the best
133	133		value for the state; and
134	134		(2) the proposal criteria the comptroller or agency
135	135		will use when considering the factors described by Subdivision (1).
136		-	SECTION 7. Section 2155.089(c), Government Code, is amended
137		-	to read as follows:
138		-	(c) This section does not apply to:
139		-	(1) an enrollment contract described by 1 T.A.C.
140		-	Section 391.183 as that section existed on September 1, 2015;
141		-	(2) a contract of the Employees Retirement System of
142		-	Texas except for a contract with a nongovernmental entity for
143		-	claims administration of a group health benefit plan under Subtitle
144		-	H, Title 8, Insurance Code; or
145		-	(3) a contract entered into by:
146		-	(A) the comptroller under Section 2155.061; [or]
147		-	(B) the Department of Information Resources
148		-	under Section 2157.068; or
149		-	(C) a university system or an institution of
150		-	higher education, as those terms are defined by Section 61.003,
151		-	Education Code.
152		-	SECTION 8. Section 2155.144, Government Code, is amended by
	136	+	SECTION 7. Section 2155.144, Government Code, is amended by
153	137		adding Subsections (e) and (j-5) to read as follows:
154	138		(e) Each health and human services agency and the Health and
155	139		Human Services Commission shall ensure the agency's contract
156	140		managers complete the training developed under Section 656.052 and
157	141		comply with the requirements of Section 2262.058.
158	142		(j-5) The contract management handbook published under
159		-	Subsection (j) must include:
160		-	(1) instructions for ensuring that:
161		-	(A) health and human services agency employees
162		-	who are involved in implementing a specific procurement are also
163		-	involved in evaluating and scoring the responses submitted to the
164		-	solicitation for the procurement;
165		-	(B) appropriate health and human services agency
166		-	employees answer questions from vendors in a timely manner; and
167		-	(C) vendors that participate or are interested in
168		-	participating in a procurement by an agency have access to at least
169		-	two agency employees who serve as contacts for the agency;
170		-	(2) a model communications procedure for vendors and
171		-	agency employees, developed in collaboration with representatives
172		-	from vendors and state agencies, to be included in the agency's
173		-	solicitations; and
174		-	(3) procedures for:
175		-	(A) notifying other responsive vendors if an
176		-	agency employee or another vendor violates the communications
177		-	requirements for a solicitation;
178		-	(B) determining when an agency employee or vendor
179		-	has failed to comply with the communication provisions of a
180		-	solicitation; and
181		-	(C) ensuring an appropriate number of interested
182		-	vendors are granted access to a pre-bid, pre-offer, or pre-proposal
183		-	conference.
184		-	SECTION 9. Sections 2262.051(a) and (c), Government Code,
	143	+	Subsection (j) must include instructions for ensuring that health
	144	+	and human services agency employees who are involved in
	145	+	implementing a specific procurement are also involved in evaluating
	146	+	and scoring the responses submitted to the solicitation for the
	147	+	procurement.
	148	+	SECTION 8. Sections 2262.051(a) and (c), Government Code,
185	149		are amended to read as follows:
186	150		(a) In consultation with the attorney general, the
187	151		Department of Information Resources, business and industry
188	152		representatives, and the state auditor, the comptroller shall
189	153		develop or periodically update a contract management guide for use
190	154		by state agencies. Participation by the state auditor under this
191	155		subsection is subject to approval by the legislative audit
192	156		committee for inclusion in the audit plan under Section 321.013(c).
193	157		(c) The guide must provide information regarding the
194	158		primary duties of a contract manager, including how to:
195	159		(1) develop and negotiate a contract;
196	160		(2) select a contractor; [and]
197	161		(3) monitor contractor and subcontractor performance
198	162		under a contract;
199	163		(4) appoint as evaluators for procurements agency
200	164		employees who serve in agency divisions overseeing the
201		-	implementation of the procurements;
202		-	(5) ensure that:
203		-	(A) appropriate state agency employees answer
204		-	questions from vendors in a timely manner; and
205		-	(B) vendors that participate or are interested in
206		-	participating in a procurement by a state agency have access to at
207		-	least two agency employees who serve as contacts for the agency;
208		-	(6) develop a communications procedure for vendors and
209		-	agency employees to be included in the agency's solicitations; and
210		-	(7) establish procedures for:
211		-	(A) notifying other responsive vendors if an
212		-	agency employee or another vendor violates the communication
213		-	requirements for the solicitation;
214		-	(B) determining when an agency employee or vendor
215		-	has failed to comply with the communication provisions of a
216		-	solicitation;
217		-	(C) ensuring an appropriate number of interested
218		-	vendors are granted access to a pre-bid, pre-offer, or pre-proposal
219		-	conference; and
220		-	(D) ensuring that agency personnel who are
221		-	involved in implementing a specific procurement are also involved
222		-	in evaluating and scoring the responses submitted to the
223		-	solicitation for the procurement.
224		-	SECTION 10. Subchapter B, Chapter 2262, Government Code, is
	165	+	implementation of the procurements; and
	166	+	(5) ensure agency employees involved in the
	167	+	implementation of a specific procurement are also involved in the
	168	+	evaluation of vendor responses submitted to the solicitation for
	169	+	the procurement.
	170	+	SECTION 9. Subchapter B, Chapter 2262, Government Code, is
225	171		amended by adding Section 2262.058 to read as follows:
226	172		Sec. 2262.058. CERTAIN CONTRACT MANAGERS. For a contract
227	173		manager who participates in the procurement of a contract with a
228	174		value of $20 million or more, the contract manager shall:
229	175		(1) participate in additional training specific to the
230	176		category of goods or services to be procured; and
231	177		(2) develop a document to be retained with the records
232	178		for the procurement that includes:
233	179		(A) a summary of the contract manager's
234	180		qualifications, including certifications, years of experience, and
235	181		any other relevant qualifications related to the procurement; and
236	182		(B) a written statement certified by the contract
237		-	manager that the contract manager developed and implemented
238		-	appropriate control mechanisms to ensure vendor proposals or other
239		-	expressions of interest are scored as outlined in the solicitation
240		-	for the procurement.
241		-	SECTION 11. (a) As soon as practicable after the effective
	183	+	manager that the contract manager read and understands all
	184	+	submitted vendor proposals or other expressions of interest.
	185	+	SECTION 10. (a) As soon as practicable after the effective
242	186		date of this Act, the comptroller of public accounts shall adopt the
243	187		rules and update the contract management handbook and contract
244	188		management guide as necessary to implement the changes in law made
245	189		by this Act.
246	190		(b) Not later than October 1, 2021, each state agency shall
247	191		adopt the procedure and requirements as provided by Section
248	192		659.2552, Government Code, as added by this Act.
249		-	SECTION 12. (a) The changes in law made by this Act apply
	193	+	SECTION 11. (a) The changes in law made by this Act apply
250	194		only to a contract for which a state agency first advertises or
251	195		otherwise solicits offers, bids, proposals, qualifications, or
252	196		other applicable expressions of interest on or after the effective
253	197		date of this Act. A contract for which a state agency first
254	198		advertises or otherwise solicits offers, bids, proposals,
255	199		qualifications, or other applicable expressions of interest before
256	200		the effective date of this Act is governed by the law as it existed
257	201		immediately before the effective date of this Act, and that law is
258	202		continued in effect for that purpose.
259	203		(b) Notwithstanding Section 656.052, Government Code, as
260	204		amended by this Act, or Section 2262.058, Government Code, as added
261	205		by this Act, a state agency employee is not required to comply with
262	206		the training requirements under those sections before March 1,
263	207		2022.
264		-	SECTION 13. If before implementing any provision of this
	208	+	SECTION 12. If before implementing any provision of this
265	209		Act a state agency determines that a waiver or authorization from a
266	210		federal agency is necessary for implementation of that provision,
267	211		the agency affected by the provision shall request the waiver or
268	212		authorization and may delay implementing that provision until the
269	213		waiver or authorization is granted.
270		-	SECTION 14. This Act takes effect September 1, 2021.
	214	+	SECTION 13. This Act takes effect September 1, 2021.