Texas 2021 - 87th Regular

Texas House Bill HB923 Compare Versions

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

Old	New	Differences
1	1	87R3371 MWC-D
2	2	By: Reynolds H.B. No. 923
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 or other state agency may, subject to Subsection (c)
16	16	and 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 and all state agencies making purchases
40	40	of goods, including agricultural products, shall give preference to
41	41	those produced or grown in this state or offered by Texas bidders as
42	42	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 and all state agencies procuring
76	76	services shall give first preference to services offered by a Texas
77	77	bidder that is a historically underutilized business [owned by a
78	78	service-disabled veteran who is a Texas resident] and shall give
79	79	second preference to services offered by other Texas bidders if:
80	80	(1) the services meet state requirements regarding the
81	81	service to be performed and expected quality; and
82	82	(2) the cost of the service does not exceed the cost of
83	83	other similar services of similar expected quality that are offered
84	84	by a bidder that is not entitled to a preference under this
85	85	subsection.
86	86	SECTION 3. Section 2161.001, Government Code, is amended by
87	87	amending Subdivision (3) and adding Subdivision (5) to read as
88	88	follows:
89	89	(3) "Economically disadvantaged person" means a
90	90	person who:
91	91	(A) is economically disadvantaged because of the
92	92	person's identification as a member of a certain group, including:
93	93	(i) Black Americans;
94	94	(ii) Hispanic Americans;
95	95	(iii) women;
96	96	(iv) Asian Pacific Americans;
97	97	(v) Native Americans; and
98	98	(vi) veterans as defined by 38 U.S.C.
99	99	Section 101(2) who have [suffered at least] a [20 percent]
100	100	service-connected disability as defined by 38 U.S.C. Section
101	101	101(16); and
102	102	(B) has suffered the effects of discriminatory
103	103	practices or other similar insidious circumstances over which the
104	104	person has no control.
105	105	(5) "Professional services" has the meaning assigned
106	106	by Section 2254.002.
107	107	SECTION 4. Section 2161.064, Government Code, is amended by
108	108	adding Subsection (f) to read as follows:
109	109	(f) A state agency may use the directory to create a mailing
110	110	list for soliciting bids from historically underutilized
111	111	businesses. A state agency that determines the size of the
112	112	acquisition justifies rotation may rotate the businesses included
113	113	on the mailing list by using different portions of the directory for
114	114	separate acquisitions of goods or services. A state agency
115	115	rotating the businesses included on a solicitation mailing list
116	116	shall solicit bids from:
117	117	(1) a bidder who was previously awarded the bid for the
118	118	goods or services;
119	119	(2) each business added to the directory since the
120	120	last solicitation; and
121	121	(3) each business included in the portion of the
122	122	directory selected for the solicitation mailing list.
123	123	SECTION 5. Subchapter B, Chapter 2161, Government Code, is
124	124	amended by adding Section 2161.067 to read as follows:
125	125	Sec. 2161.067. JOINT VENTURES. (a) In this section:
126	126	(1) "Eligible purchase" means a purchase of goods or
127	127	services that:
128	128	(A) a state agency determines is eligible for a
129	129	joint venture based on work and market availability; and
130	130	(B) exceeds the minimum dollar value provided by
131	131	comptroller rule.
132	132	(2) "Joint venture" means an association of two or
133	133	more individuals or businesses, at least one of which is a
134	134	historically underutilized business, that is:
135	135	(A) established to engage in a single business
136	136	activity;
137	137	(B) certified as a joint venture by the
138	138	comptroller; and
139	139	(C) limited in scope and duration.
140	140	(b) Each state agency shall determine whether a purchase of
141	141	goods or services is an eligible purchase for which the agency is
142	142	required to make a good faith effort to award the contract to a
143	143	joint venture. The agency may not accept a contract bid submitted
144	144	by any bidder other than a joint venture unless the agency
145	145	determines, based on the relevant facts, documents, and
146	146	circumstances, that the agency made a good faith effort to award the
147	147	contract to a joint venture.
148	148	(c) A contract for a joint venture must be in writing and:
149	149	(1) be based on shared economic interests in the
150	150	venture, including proportionate control over management, interest
151	151	in capital acquired by the joint venture, and interest in earnings;
152	152	(2) be completed by all parties to the joint venture;
153	153	(3) be executed before a notary public;
154	154	(4) clearly delineate the rights and responsibilities
155	155	of each party;
156	156	(5) comply with any requirements of the comptroller as
157	157	provided in bid documents or otherwise; and
158	158	(6) provide that the joint venture continue for at
159	159	least the duration of the eligible purchase.
160	160	(d) The comptroller using available resources shall select
161	161	for review a random sampling of state agency joint venture
162	162	determinations made under Subsection (b).
163	163	(e) A state agency selected by the comptroller under
164	164	Subsection (d), the joint venture, and each party to the joint
165	165	venture shall provide the comptroller access to all records
166	166	pertaining to joint venture agreements before and after the
167	167	agency's award of a contract to the joint venture to reasonably
168	168	assess compliance with this section.
169	169	(f) A party to a joint venture who fails to comply with this
170	170	section, and whose failure to comply continues for at least 30 days
171	171	after the date the party receives written notice of the
172	172	noncompliance from the comptroller, is subject to any or all of the
173	173	following penalties:
174	174	(1) withholding of 10 percent of all future payments
175	175	for the eligible purchase until the comptroller determines the
176	176	party is in compliance with this section;
177	177	(2) withholding of all future payments under the
178	178	eligible purchase until the comptroller determines the party is in
179	179	compliance with this section;
180	180	(3) cancellation of the eligible purchase; and
181	181	(4) ineligibility for future contracts or
182	182	subcontracts with this state for one to five years after the date on
183	183	which the penalty is imposed.
184	184	SECTION 6. Section 2161.252, Government Code, is amended by
185	185	adding Subsection (c) to read as follows:
186	186	(c) A historically underutilized business subcontracting
187	187	plan must require the contractor to accept bids, proposals, offers,
188	188	or other applicable expressions from historically underutilized
189	189	businesses for not less than 10 working days after the date the
190	190	contractor notifies the businesses of the subcontracting
191	191	opportunity. This subsection does not apply to a professional
192	192	services contract.
193	193	SECTION 7. Section 2254.002(2), Government Code, is amended
194	194	to read as follows:
195	195	(2) "Professional services" means services:
196	196	(A) within the scope of the practice, as defined
197	197	by state law, of:
198	198	(i) accounting;
199	199	(ii) architecture;
200	200	(iii) landscape architecture;
201	201	(iv) land surveying;
202	202	(v) medicine;
203	203	(vi) optometry;
204	204	(vii) professional engineering;
205	205	(viii) real estate appraising; or
206	206	(ix) professional nursing;
207	207	(B) provided in connection with the professional
208	208	employment or practice of a person who is licensed or registered as:
209	209	(i) a certified public accountant;
210	210	(ii) an architect;
211	211	(iii) a landscape architect;
212	212	(iv) a land surveyor;
213	213	(v) a physician, including a surgeon;
214	214	(vi) an optometrist;
215	215	(vii) a professional engineer;
216	216	(viii) a state certified or state licensed
217	217	real estate appraiser; [or]
218	218	(ix) a registered nurse; or
219	219	(x) an attorney; or
220	220	(C) provided by a person lawfully engaged in
221	221	interior design, regardless of whether the person is registered as
222	222	an interior designer under Chapter 1053, Occupations Code.
223	223	SECTION 8. Section 2254.154, Government Code, is repealed.
224	224	SECTION 9. (a) Not later than December 1, 2021, the
225	225	comptroller of public accounts shall adopt the rules required to
226	226	implement the changes in law made by this Act.
227	227	(b) Chapters 2155 and 2161, Government Code, as amended by
228	228	this Act, apply only to a purchase of goods or services or a
229	229	contract entered into on or after January 1, 2022.
230	230	SECTION 10. This Act takes effect September 1, 2021.