40 TAC §§189.1-189.12
The Texas Council on Purchasing from People with Disabilities
(the "Council") proposes new §§189.1-189.12 concerning the purchases
of products and services from persons with disabilities. The new sections
implement pertinent provisions to Chapter 122 of the Texas Human Resources
Code (the "Act") particularly amendments regarding ethical standards for
board members, contract requirements of the central nonprofit agencies and
the provision of legal, clerical, administrative, and other necessary support
to the Council by the General Services Commission.
Dr. Robert Swerdlow, Chairman, has determined that for the first five-years,
the proposed sections are in effect there may be positive fiscal implications
for state agencies, departments and institutions and political subdivisions
of the state in purchases of products and services as a result of clarity
regarding the Council's authority, specificity of contracting requirements
of the central nonprofit agencies and the provision of legal, clerical, administrative
and other necessary support to the Council by the General Services Commission.
Dr. Swerdlow also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated will be purchases
of higher quality, more competitively priced products and services from persons
with disabilities by state agencies, departments, and institutions and political
subdivisions of the state. There will be no effect on small business. There
is no anticipated economic cost to persons who are required to comply with
the rule as proposed.
Comments may be submitted to Rose-Michel Munguia, Legal Counsel, Texas
Council on Purchasing from People with Disabilities, P.O. Box 13047, Capitol
Station, Austin, Texas 78711-3047. Comments must be received no later than
30 days from the date of publication of the proposal in the
Texas Register
.
The new rules are proposed under Chapter 122 of the Human Resources
Code which provides the Council with the authority to promulgate rules necessary
to implement the sections.
No other statutes, articles, or codes are affected by the proposed amendments.
§189.1. General.
The Texas Council on Purchasing from People with Disabilities is responsible
for fulfilling the purpose of Chapter 122 of the Texas Human Resources Code
which is to:
(1)
further the state's policy of encouraging and assisting
persons with disabilities to achieve maximum personal independence by engaging
in useful productive employment activities; and
(2)
provide state agencies, departments, and institutions
and political subdivisions of the state with a method for achieving conformity
with requirements of nondiscrimination and affirmative action in employment
matters related to persons with disabilities.
§189.2. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings unless the context clearly indicates otherwise.
Central nonprofit agency (CNA)
-an agency designated as a central
nonprofit agency under contract with the council pursuant to §122.019
of the Texas Human Resources Code.
Chapter 122
-Chapter 122 of the Texas Human Resources Code.
Commission
-the General Services Commission.
Community rehabilitation program (CRP)
-a government or nonprofit
private program operated under criteria established by the council and under
which persons with severe disabilities produce products or perform services
for compensation.
Council
-the Texas Council on Purchasing from People with Disabilities.
Disability
-a mental or physical impairment, including blindness,
that impedes a person who is seeking, entering, or maintaining gainful employment.
§189.3. Organization.
(a)
The council is composed of nine members appointed by the
governor, with the advice and consent of the senate, to set policy and exercise
all authority and responsibility accorded the council pursuant to Chapter
122.
(b)
The presiding officer shall appoint a subcommittee, the
pricing subcommittee, composed of three council members to review the data
used to determine fair market value and make recommendations to the council
concerning fair market price for products and/or services.
(c)
The presiding officer shall appoint other subcommittees
as necessary to consider matters destined for full council attention and
recommend action.
(d)
The presiding officer shall recommend a vice-presiding
officer to the council for approval.
(e)
The council shall accept legal, clerical, administrative,
and other necessary support from the commission in accordance with legislative
appropriation.
§189.4. Ethical Standards.
(a)
The ethical standards of conduct required of appointed
officers of the State of Texas by Chapter 572 of the Texas Government Code
and the qualifications for office under Chapter 122 are standards of conduct
required of the members of the council. All members should exercise discretion
to avoid the appearance of impropriety.
(b)
CNA's and CRP's may not present an opportunity for a council
member to violate the ethical standards of conduct of Chapter 572 of the
Texas Government Code and those set forth in subsection (a) of this section.
(c)
It is a ground for removal from the council if a member:
(1)
does not have at the time of appointment the qualifications
required by §122.003(a) of Chapter 122 for appointment to the council;
(2)
does not maintain during the service on the council
the qualifications required by §122.003(a) of Chapter 122 for appointment
to the council;
(3)
violates a prohibition established by section 122.003(d)(e)
of Chapter 122;
(4)
cannot, because of illness or disability, discharge
the member's duties for a substantial part of the term for which the member
is appointed; or
(5)
is absent from more than half of the regularly scheduled
council meetings that the member is eligible to attend during a calendar
year unless the absence is excused by majority vote of the council.
(d)
The validity of an action of the council is not affected
by the fact that it was taken when a ground for removal of a member of the
council existed.
(e)
If the executive director of the commission has knowledge
that a potential ground for removal exists, the executive director shall
notify the presiding officer of the council of the potential ground. If the
presiding officer is notified under this section, or if the presiding officer
has knowledge that a potential ground for removal exists, the presiding officer
shall notify the governor and the attorney general that a potential ground
for removal exists. If the potential ground for removal involves the presiding
officer, the executive director shall notify the next highest officer of
the council, who shall notify the governor and the attorney general that
a potential ground for removal exists.
§189.5. Open Meetings; Public Testimony and Access.
(a)
A quorum of the full council or council subcommittee shall
deliberate in open meeting in accordance with Chapter 551 of the Texas Government
Code and the open meeting shall be conducted pursuant to Robert's Rules of
Order.
(b)
The public will be provided a reasonable opportunity to
appear before the council or council subcommittee in an open meeting and
present testimony pertinent to an agenda item duly posted for said open meeting
or any issue under the jurisdiction of the council.
(c)
The council shall comply with federal and state laws related
to program and facility accessibility. Each CNA shall develop, for council's
approval, a written plan that describes how a person who does not speak English
can be provided reasonable access to the council's programs and services
under its management.
(d)
The council may deliberate and take action on public testimony
regarding an agenda item at the meeting for which the agenda item was duly
posted.
(e)
If a member of the public inquires about a subject for
which notice has not been given as required by Chapter 551 of the Texas Government
Code, the notice provisions do not apply to:
(1)
a statement of specific factual information given in response
to the inquiry; or
(2)
a recitation of existing policy in response to the
inquiry.
(f)
Any deliberation of or decision about a subject of the
inquiry shall be limited to a proposal to place the subject on the agenda
for a subsequent meeting.
§189.6. Criteria for Recognition and Approval of Community Rehabilitation Programs.
The council may:
(1)
recognize a CRP that maintains accreditation by a nationally
accepted vocational rehabilitation accrediting organization; and
(2)
approve CRP services that have been approved for purchase
by a state habilitation or rehabilitation agency.
§189.7. Contracting With Central Nonprofit Agency(ies).
(a)
The council shall contract with a central nonprofit agency(ies)
to perform, at a minimum, the duties set forth in §122.019(a)(b) of
Chapter 122.
(b)
The management fee rate charged by a central nonprofit
agency(ies) for its services to the CRP(s) must be approved by the council.
The maximum management fee rate must be:
(1)
computed as a percentage of the selling price of the product;
or
(2)
the contract price of a service; and
(3)
must be included in the selling price or contract
price; and
(4)
must be paid at the time of sale.
(c)
A percentage of the management fee described in subsection
(b) of this section shall be set by the council and paid to the council in
an amount necessary to reimburse the general revenue fund for direct and
reasonable costs incurred by the commission in administering its duties under
Chapter 122.
(d)
In accordance with §122.019(c)(d) of Chapter 122,
the council shall, at least annually, review services by a central nonprofit
agency(ies) and the revenue required to accomplish the program to determine
whether performance complies with contractual specifications and accomplishes
the council's objectives.
(e)
The council shall contract with the CNA(s) for periods
of twelve months. Contracts may be extended with or without amendments for
one additional twelve month period. At any time during the twenty-four month
period, but not later than the end of the twenty-four months, the council
must enter into a new contract with the CNA(s).
(f)
Not later than the 60th day before the date the council
adopts or renews a contract, the council shall publish notice of the proposed
contract in the
Texas Register.
(g)
The CNA(s) will provide to the Council, regarding CRP(s)
which have contracted with a CNA, the following information for the period
of July 1st through June 30th of each year.
(1)
Sheltered Workshops.
(A)
the number of disabled persons employed by type of disability
at sheltered workshops managed by the CRP(s);
(B)
the amount of annual wages paid to disabled employees
in sheltered workshops;
(C)
a summary of the sale of products offered by the CRP(s);
(D)
a list of products and/or services offered by a CRP; and
(E)
the geographic distribution of CRP(s).
(2)
Individual Outplacement or Supported Employment.
(A)
the number of individuals in outplacement employed;
(B)
the hourly wage range;
(C)
the range of hours worked; and
(D)
the number of disabled persons employed by primary type
of disability.
§189.8. Product Specifications and Expectations.
(a)
A product manufactured for sale through the commission
to any office, department, institution or agency of the state shall be manufactured
or produced according to specifications developed by the commission. If the
commission has not developed specifications for a particular product, the
production shall be based on commercial or federal specifications in current
use by the industry.
(b)
Requisitions for products and/or services required by state
agencies are processed by the commission according to commission rules.
(c)
Exception from subsection (a) of this section may be made
in any case as follows:
(1)
under the rules of the commission, the product and/or service
so produced or provided does not meet the reasonable requirements of the
office, department, institution, or agency; or
(2)
the requisitions made cannot be reasonably complied
with through provision of products and/or services produced by persons with
disabilities.
(d)
An office, department, institution, or agency may not evade
purchasing products and/or services produced or provided by persons with
disabilities by requesting variations from standards adopted by the commission
when the products and/or services produced or provided by persons with disabilities,
per established standards, are reasonably adapted to the actual needs of
the office, department, institution, or agency.
(e)
The commission shall provide the council with a list of
items purchased under the exceptions provided in subsection (b) of this section
monthly, in the format adopted by the council.
§189.9. Determination of Fair Market Value.
(a)
Pursuant to §122.008 of Chapter 122 and §2155.441
of the Texas Government Code, a suitable product and/or service that meets
applicable specifications and that is available within the time specified
must be procured from a CRP at the price determined by the council to be
the fair market price.
(b)
The pricing subcommittee shall review products, services
and price revisions submitted by the CNA(s) on behalf of participating or
prospective CRP(s). Due consideration shall be given to the factors set forth
in §122.015 and other criteria which is necessary to determine the fair
market price of the products and/or services.
(c)
The pricing subcommittee shall recommend its decisions
regarding products, services and price revisions to the full council for
formal action.
§189.10. Consumer Information; Complaints and Resolution.
(a)
Complaints regarding matters under the jurisdiction of
the council shall be made in writing and addressed to the council's presiding
officer who shall refer the complaint to the appropriate subcommittee for
review and determination. The subcommittee shall then recommend action on
the complaint to the full council. The council shall maintain information
regarding each complaint.
(b)
A CRP may be removed or temporarily suspended from receiving
purchase orders from state agencies , to include but not be limited to one
or more of the following reasons:
(1)
failing to make a delivery as promised;
(2)
making unauthorized substitutions;
(3)
misrepresenting merchandise;
(4)
failing to make satisfactory adjustments when required;
and
(5)
unethical actions.
(c)
A CRP which has been temporarily suspended may be reinstated
by promptly correcting the reason(s) for suspension. A failure to make the
necessary correction promptly may result in the CRP's termination of its
contract with the CNA.
(d)
Complaints regarding a CNA shall be resolved by the a quorum
of the council and representatives of the CNA in open meeting.
§189.11. Records.
The commission is the depository for all records of the council's operations
and disclosure of records are subject to requirements of Chapter 552 of the
Texas Government Code (the "Public Information Law").
§189.12. Reports; Strategic Plan; Final Operating Plan.
(a)
On or before November 1 of each year, the council shall
file with the governor and the presiding officer of each house of the legislature
a complete and detailed written annual report which meets the reporting requirements
applicable to financial reporting provided in the General Appropriations
Act. The annual report shall include the information regarding CRP(s) which
have contracted with a CNA as set forth in 189.7 (g) of this title (relating
to Contracting with Central Nonprofit Agency(ies)).
(b)
The council shall prepare an agency strategic plan and
a final operating plan as required by Subchapter E, Chapter 2054, Government
Code.
Issued in Austin, Texas, on January 2, 1997.
TRD-9618789
Rose-Michel Munguia
General Counsel
Texas Council on Purchasing from People with Disabilities
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-6422