88R4227 YDB-D
By: Capriglione H.B. No. 1418
A BILL TO BE ENTITLED
AN ACT
relating to state agency contracting and certain state employees
involved with the contracting.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 2. 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 may establish a procedure and requirements for
determining the eligibility for a salary increase of an agency
employee who acts as an evaluator for agency procurement in
addition to the employee's regularly assigned duties. The procedure
and requirements may authorize a salary increase only for an
employee who meets the qualifications for employment in the agency
division overseeing the implementation of the procurement.
SECTION 3. Section 2155.074, Government Code, is amended by
amending Subsections (b) and (b-1) and adding Subsection (b-2) 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.
(b-1) For a procurement in an amount equal to $20 million or
less, the [The] comptroller or other state agency may, subject to
Subsection (c) and Section 2155.075, consider other [the following]
relevant factors [under Subsection (b)], 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 encouragement of continued participation by
quality contractors [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;
(9) the impact of a purchase on the agency's
administrative resources; 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.
SECTION 4. Section 2155.144, Government Code, is amended by
adding Subsections (h-1) and (j-1) to read as follows:
(h-1) 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-1) The contract management handbook published under
Subsection (j) must include:
(1) instructions for ensuring that:
(A) 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;
(B) appropriate health and human services agency
employees answer questions from vendors in a timely manner; and
(C) vendors that participate or are interested in
participating in a state agency procurement have access to at least
two agency employees who serve as contacts for the agency;
(2) a model communications procedure for vendors and
state agency employees, developed in collaboration with
representatives from vendors and state agencies, to use in agency
solicitations; and
(3) procedures for:
(A) notifying other responsive vendors if a state
agency employee or another vendor violates the communications
requirements for a solicitation;
(B) determining when a state agency employee or
vendor has failed to comply with the communications provisions of a
solicitation; and
(C) ensuring an appropriate number of interested
vendors are granted access to a pre-bid, pre-offer, or pre-proposal
conference.
SECTION 5. 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;
(5) ensure that appropriate state agency employees
answer questions in a timely manner;
(6) develop a model communications procedure for
vendors and state agency employees to be included in the agency's
solicitations; and
(7) establish procedures for:
(A) notifying other responsive vendors if a state
agency employee or another vendor violates the communications
requirements for the solicitation;
(B) determining when a state agency employee or
vendor has failed to comply with the communications provisions of a
solicitation;
(C) ensuring an appropriate number of interested
vendors are granted access to a pre-bid, pre-offer, or pre-proposal
conference; and
(D) ensuring that state agency personnel 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 6. 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 written statement certified by
the contract manager that the contract manager developed and
implemented appropriate control mechanisms to ensure vendor
proposals or other expressions of interest were evaluated or scored
as outlined in the solicitation for the procurement.
SECTION 7. 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.
SECTION 8. (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,
2024.
SECTION 9. 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 10. This Act takes effect September 1, 2023.