TITLE administration

Part V. General Services Commission

Chapter 115. Building and Property Services Division

The General Services proposes the repeal of §§115.1, 115.2, 115.3, 115.4, 115.5, 115.6 and 115.8; §§115.31, 115.32, 115.33, 115.34, 115.35, 115.36, 115.37, 115.38, 115.39 and 115.40; and §115.50. The repeal of Chapter 115 is being proposed in order to reorganize Subchapters A, B, and C under Title 1, Part V, T.A.C into new Chapters 115, 116 and 122 that will contain language in accordance with the Texas Government Code, Chapters 2165 and 2167.

Cynthia Hill, Legal Counsel, has determined for the first five year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules.

Ms.Hill further determines that for each year of the first five-year period the amendments are in effect, the public benefit anticipated as a result of enforcing the repeal is the deletion of obsolete and cumbersome language, and the creation of more efficient rules relating to the Texas Government Code, Chapters 2165 and 2167. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal to the Texas Register .

Subchapter A. State Owned Property

1 TAC §§115.1, 115.2, 115.3, 115.4, 115.5, 115.6, 115.8

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the General Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal of Title 1, TAC, Chapter 115, is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, Sections 2152.003, 2165.001, 2165.102, 2165.104, 2165.108 and 2167.008.

The following codes are affected by these rules: Government Code, Title 10, Subtitle D, Chapters 2165 and 2167.

§115.1Definitions.

§115.2. Occupying Agency Responsibility.

§115.3. Maintenance, Repairs, and Modifications.

§115.4.Assignment of Space in State Office Buildings on Commission Inventory.

§115.5.Procedures Governing Maintenance Service and Construction Contracts.

§115.6.Building Operations.

§115.8.Applicability of National Fire Codes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Subchapter B. State Leased Property

1 TAC §§115.31, 115.32, 115.33, 115.34, 115.35, 115.36, 115.37, 115.38, 115.39, 115.40

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the General Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal of Title 1, T.A.C., Chapter 115, is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, Sections 2152.003, 2165.001, 2165.102, 2165.104, 2165.108 and 2167.008.

The following codes are affected by these rules: Government Code, Title 10, Subtitle D, Chapters 2165 and 2167.

§115.31.General.

§115.32.Definitions.

§115.33.Receipt and Processing of Requisitions for Leased Space.

§115.34.Filling Requisitions from Nonprivate Sources.

§115.35.Leasing from a Private Source.

§115.36.Negotiation with a Private Source.

§115.37.Amendment of Lease.

§115.38.Transfer by Lessor.

§115.39.Bidders List.

§115.40.Delegation of Leasing Authority.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Subchapter C. Space Allocation

1 TAC §115.50

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the General Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal of Title 1, T.A.C., Chapter 115, is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, Sections 2152.003, 2165.001, 2165.102, 2165.104, 2165.108 and 2167.008.

The following codes are affected by these rules: Government Code, Title 10, Subtitle D, Chapters 2165 and 2167.

§115.50.Space Allocation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Chapter 115. Facilities Leasing Program

Subchapter A. State Leased Property

1 TAC §§115.1-115.10

The General Services Commission proposes new §§115.1-115.10, concerning the Facilities Leasing Program. The proposed new Chapter 115 will delete obsolete language, update definitions and steamline the state leasing process.

Carlos Hodge, State Lease Officer, has determined for the first five year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules.

Carlos Hodge, State Lease Officer, further determines that for each year of the first five-year period the amendments are in effect, the public benefit anticipated as a result of enforcing these rules will be clearer language and a more efficient state leasing process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal to the Texas Register .

New Title 1, T.A.C., Chapter 115 is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.008.

The following code is affected by these rules: Government Code, Title 10, Subtitle D, Chapters 2165 and 2167.

§115.1.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

Advertisement--When required by Texas Government Code, Title 10, Subtitle D, Chapter 2167, Subchapter B, and these rules in a competitive bidding situation, advertisement shall be published in a newspaper of general circulation in the city, county, or area in which leased space is sought.

Agency employee -- The full-time equivalent (FTE) of a person performing services on site under the direction of a state agency, including hours worked by "full-time employees," "part-time employees," and "consultant and contract individuals" as defined by the state auditor; including employees paid from funds maintained outside the treasury and hours worked by volunteers performing necessary services. Requests for lease space must include all contract and volunteer employees' work-hours and functions.

Bidders list--A list of prospective bidders maintained by the leasing division which sets out the names and addresses of building owners and agents who have shown an interest in bidding to the state and from whom bids can be solicited for obtaining leased space for state use. Each prospective bidder on this list shall be asked to designate by zip codes the areas for which he is interested in receiving bids.

Commission--The General Services Commission.

Competitive bidding--When used by the commission under Texas Government Code, Title 10, Chapter 2167, Subtitle D, Subchapter B, refers to a formal process requiring sealed bids through which a lease is awarded to the lowest and best bidder meeting the advertised specifications and on the terms agreed to by the commission and the lessor.

Delegated lease--A lease contract entered into by an institution of higher education pursuant to the provisions of §115.10 of this title (relating to Delegation of Leasing Authority).

Effective annual cost--The result of dividing the total anticipated cost to the state projected over the life of the lease (excluding any effect of options to renew and/or options to purchase) by the number of years in the lease term.

Emergency lease--A lease negotiated with a private source for a term not to exceed 24 months, as determined by the commission.

Institution of higher education--A university system or an institution of higher education as defined in the Texas Education Code, §61.003, as amended, other than a public junior college.

Interior hallways--Circulation space within the area reserved for the exclusive use of the agency, clearly defined as a hallway by walls, not less than minimum width as set out in local building codes and not used by the agency for any purpose other than circulation. For the purpose of measurement, one-half of the thickness of the bordering walls shall be considered as belonging to the interior hallways.

Minor technicality--When used in the evaluation of bids, refers to a specification or procedural requirement which:

if omitted by the bidder or submitted by him in a manner different from that described in the invitation for bid, would not have the effect of disqualifying his bid; and

if waived by the commission, would not give him unfair advantage over other competitive bidders.

Net usable square feet-- For the purpose of calculating an agency's space allocation ratio, that portion of the usable square feet of an occupying agency's space other than spaces specifically exempted under Title 1, T.A.C., Chapter 122, §122.3(d), and (e) of this title (relating to Space Allocation).

Space Allocation Ratio -- The mathematical result of dividing the occupying agency's net usable square feet by the total number of agency employees per site.

State agency or agency--A board, a commission, or other authorized agency of the state government.

Unduly restrictive specifications--Specifications that unnecessarily limit competition by setting requirements unrelated to the state's actual needs, which have the effect of favoring one or more prospective bidders over all the rest.

Usable square feet -- An area within the exterior walls of a building for the exclusive use of the occupying agency, including space exempted by rule but does not include:

public hallways, restrooms, stairwells, and elevator shafts;

mechanical rooms or closets for heating, air conditioning, plumbing, janitorial, electrical, telephone, and other general building services;

interior atriums, courts, etc., for public use; and

fire tower and fire tower court

Utilities--When used in these rules and in the forms implemented for use hereunder, shall refer only to gas, electricity, and all water and water-related services supplied to the leased space, and which are under the jurisdiction of a recognized rate setting authority.

Zip code--Those codes established by the United States Postal Service for the delivery of mail.

§115.2.General.

The authority for obtaining leased space for state agencies or departments rests with the commission by virtue of Texas Government Code, Title 10, Chapter 2167, Subtitle D, Subchapters A and B. In accordance with §2165.107, Government Code, the commission shall give preference to available state-owned space under its control.

§115.3.Receipt and Processing of Requisitions for Leased Space.

Request. Requests for allocation, relinquishment, or modification of space in state-leased and owned facilities under the commission's control shall be made in writing to the commission's director of Facilities Construction and Space Management Division by the agency head or designee of the requesting agency in accordance with Title 1, T.A.C., Chapter 122, §122.2 of this title (relating to Requests for Allocation, Modification, or Relinquishment of Space in State-Leased or Owned Facilities Under the Commission's Control). Request should be made sufficiently in advance of the desired occupancy date to allow for the procurement of required facilities.

Emergency Lease. In certain cases, the commission may advise that it may enter into an emergency lease. In making this determination and in establishing the term of the emergency lease, the commission shall consider the amount and type of space required, the market conditions of the area in which space is needed, the governmental responsibilities of the agency, and the potential impact on the public, and the best interest of the state.

Signature. All requests for leased space must be submitted by the requisitioning agency and signed by an authorized official, duly certifying to the availability of funds for the payment of such leased space.

Specifications. All requisitions must contain specifications for leased space which shall include but not be limited to information disclosing the following:

the city where the space is to be located;

the type of space required (office, warehouse, laboratory, storage space exceeding 1,000 gross square feet and a combination of those kinds of space);

the minimum number of net usable square feet of space required, setting out separately the specific requirements for work space, and an allowance for interior hallways to effectively utilize this work space. (Please refer to §115.5(d)(5), of this title, (relating to Leasing from a Private Source) for a description of the evaluation of response to this requirement);

the term of the lease up to a maximum of ten years. (Please note that Texas Government Code, Title 10, Chapter 2167, §2167.055(c) permits the consideration of an option to renew for additional terms not to exceed ten years each, as may be considered by the commission in the state's best interests; and the requisition should note, in the area provided, the length of the initial occupancy period requested by the agency); as well as number and length of renewal periods requested (to be by mutual agreement between lessee and lessor unless otherwise requested).

the commission may include in all specifications for space exceeding a two-year initial term, a provision requiring a separate bid price for utility and/or janitorial cost (if an Invitation for Bid establishes that payment for either utility costs and/or janitorial costs) and may allow an escalation clause to be included in the terms and conditions of the lease to cover periodic escalation of full rental costs of the lease, including utility and/or janitorial costs (if applicable) on account of increases in property values, tax and operating expenses, rental rates, labor or wage rates, and/or utility rates. (The rate of the allowable consumer price index escalation is based upon Lessor's responsibility to pay utility and/or janitorial cost, if any.)

if the commission considers it advisable, it may include an option for the commission to purchase the space subject to the legislature's appropriation of funds for the purchase, and such an option shall show the amount that would be accumulated by the state and credited toward the purchase at various periods during the term of the lease, if any, and the purchase price of the property at the beginning of each fiscal biennium during the term of the lease;

the requesting agency shall submit specification requirements concerning location which describe an area not less than the recognized limits of an incorporated city, town, or village, unless the requesting agency:

provides sufficient justification (as determined by the commission) in its requisition to the commission that a restricted area defined by zip code(s) is desired to carry out its responsibilities. In approving such a specification request, the commission shall consider the degree of competition within the described area and requesting agency's reasoning in justifying such a request, and may add to the requested area another zip code or codes, or parts thereof, which are contiguous to the requested area, in order to obtain adequate competition. Unless specifically permitted by the commission, all restricted areas requested must be defined by zip code(s), and in all cases, the requesting agency must provide a current applicable city map outlining the boundaries requested along with the requisition;

once a specification describing location by reference to zip codes, or parts thereof, has been approved by the commission, invitations for bid may be sent to bidders having those zip codes on file with the commission and to any additional potential bidders referenced in the agency request;

only bids for buildings lying within the area circumscribed by the specification shall be accepted for evaluation; or

provides detailed, written justification to the commission that a more restricted area than that defined in subparagraph (A) of this paragraph is necessary to the effective performance of its essential functions and purposes. In considering such a restrictive specification, the commission shall make every effort to insure that adequate competition is available whenever possible.

as required by Texas Government Code, Title 10, Subtitle D, Chapter 2167, Subchapter C, the requesting agency must certify to the availability of funds appropriated by the legislature to cover all costs of the proposed lease.

Development of needed specifications for submission to the commission should be handled by the requesting agency with the help of the commission, if possible. In no event should the requesting agency allow a prospective bidder to develop or improperly influence the written specifications. Evidence of any such cooperative effort which has the effect of eliminating effective competition and which results in the bidder receiving a lease from the state shall be grounds for seeking to void the lease, removal of the bidder from the bidders' list, and any other remedy available to the state. The commission shall alter or reject any specification it considers unduly restrictive. (See §115.1 of this chapter relating to Definitions.)

The agency shall estimate its anticipated moving costs from its present leased quarters, if any. Such an estimate shall include only the actual, out-of-pocket cost of moving, relocation of communication equipment and loss of time expenses.

§115.4.Filling Requisitions from Nonprivate Public Sources.

If such state-owned space is not available:

space may be leased from another state agency through an interagency contract;

space may be obtained through transfer of leased space from another state agency or public source;

space may be obtained from the federal government through a negotiated lease; or

space may be obtained from a political subdivision of this state, including a county, a municipality, a school district, a water or irrigation district, a council of government, or a regional planning council, through a negotiated lease. It is contemplated for the purpose of this section that the political subdivision generally will own the property to be leased to the state; however, the state may sublease from political subdivisions leasing from non-public entities if the state pays not more than market price and where:

political subdivisions occupy more than half of the primary leased space; or

political subdivisions pay at least 10% of the primary lease cost of the space occupied by the state; or

it is determined by the commission to be in the best interest of the state.

§115.5.Leasing from a Private Source.

Competitive Bidding. Leasing from a private source must be through competitive bidding whenever possible, unless determined to be not in the best interest of the state.

Solicitation of bids. Bids shall be solicited by the commission using the following methods.

Advertisement. The commission shall advertise for bids in all cases where competitive bidding is used.

Bidders' list. (Sexe §115.9 of this title (relating to Bidder's List)). The leasing program shall maintain a list of qualified bidders from which prospective bidders may receive invitations for bid or notices of invitations by mail. However, the commission need not send invitations or notices to bidders having buildings outside the location specified. Zip codes shall be a primary means for identifying location of available buildings and limiting the scope of a particular mailing.

Referenced bidders. The requesting agency may identify to the commission other prospective bidders for receipt of the invitation or notice referred to in paragraph (2) of this subsection.

Bid invitation availability. Prospective bidders not receiving an invitation, or qualified bidders receiving only a notice of the invitation, should request specific bid invitations, including specifications and plans, if any, from the commission either orally or in writing at any time prior to the bid opening. Copies of the specified bid invitation will be provided to the requestor upon reasonable notice, as determined by the commission.

Receipt and tabulation of bids.

Public bid openings. All bid openings conducted by the commission shall be open to the public.

Changing bid opening date. Bid opening dates may be changed and bid openings rescheduled provided bidders are properly notified by addendum in advance of the new opening date.

Canceling of bid opening. If the bid opening is cancelled, all bids that are being held for opening will be returned to the bidders.

Withdrawal of bid by bidder. Bidder may withdraw his bid upon his written request at any time prior to the bid opening date and hour.

Late bids. Any bid which is received at the place designated in the invitation for bid after the time and date established by the invitation is a late bid and will not be considered. Such bids will be returned.

Identification of bid envelopes.

Envelopes received by the commission which do not contain adequate bid identification information on the outside of the envelopes will be opened for the purpose of ascertaining proper bid identification information and will be processed as any other bid.

If a bid has incorrect identification on the envelope, e.g., wrong opening date, which results in it not being considered in making the award, the bid will be considered an invalid bid and will not be accepted or considered.

Faxing and electronic transmission responses. Bids may be considered when submitted via fax or electronic transmission provided the response carries information sufficient to properly identify the space offered, its location, its total cost per month, and other necessary information. Electronic transmissions must be confirmed in writing on the commission's invitation for bid form and received by the commission within 48 hours after bid opening time. Postmarks on envelopes must show posting on or before opening date. Confirmation data must agree with that on the electronic response. Any confirmation not manually signed or not in full agreement with the electronic response voids the entire bid. Faxed bids must be signed.

Unsigned bids. Any bid received (other than electronic responses described in §115.5(c)(7)) of this title which is not signed, is not a valid bid, and is returned to the sender.

Legal description of property bids. Any bid received without an applicable and complete legal description of the property bid may be declared invalid.

Reading of bids. Bidders and/or representatives of state agencies may request that a specific bid be read aloud by appearing in person at the bid opening place when bids are opened and making that request. Nothing in this paragraph shall require that a bid be read aloud at any time other than during regular working hours and days.

Bid tabulation files for public inspection. Files of all bid tabulations are made available for public inspection. Tabulations may be inspected by any interested person during regular working hours at the offices of the General Services Commission. Employees of the commission are not required to give bid tabulations by telephone, fax, or electronic transmission, but may do so at their own discretion.

Oral bids. When formal bids are requested, bids may not be taken or accepted by telephone.

Addendum. If it is determined that an error was made in preparing a bid invitation or certain requirements changed prior to the opening of a bid, an addendum correcting and/or changing the specifications will be mailed (not later than seven days prior to bid opening) to all bidders originally listed on the mailing list for that bid invitation, and to all those responding to an advertisement or notice. It is mandatory that any addenda be signed and returned with a bid, and bids will be rejected for failure to return or sign any addenda.

Evaluation of bids.

The commission will evaluate all bids and make its award to the lowest and best bidder as determined by the commission, meeting the advertised specifications and on the terms agreed to by the commission and the lessor.

The commission reserves the right to accept or reject any or all bids, waive minor technicalities, and award in a manner which best serves the interests of the state.

If, in the opinion of the commission, the price quoted appears excessive and the commission is of the opinion that a lesser, more acceptable, price may be obtained through a rebid with or without changed specifications, a bid may be rejected. If obtaining a lesser, more acceptable price through a rebid appears unlikely, as determined by the commission, then a referral of excessive price may be made to the requesting agency.

No bid will be considered that offers less than the minimum amount of net usable square feet required, or that specified for workspace. Measurement for purposes of determining net usable square feet shall assume perpendicular walls and shall:

be measured from the inside surface of the exterior walls without regard to baseboards, moldings, etc., which do not interfere with the effective use of the space. For this measurement, the inside surface shall be the predominant surface of the masonry, glass, plaster, sheetrock, or other wall material; and

be to the centerline of the common wall between the net usable space, including interior hallways set apart for agency use, and areas defined in §115.1 of this title (relating to Definitions).

All bids received shall be evaluated with the understanding that all relevant construction plans requested by the commission during evaluation will have to be jointly approved by the occupying agency and the commission (and other relevant authorities) prior to execution of the formal lease or occupancy by the state. With regard to the allowance shown for interior hallways (§115.3(d)(3) of this title (relating to Receipt and Processing of Requisitions for Leased Space)), please note the following.

In no event may the area identified in the specifications as workspace, and being a part of net usable space, be reduced.

Should the area for required interior hallways be greater than the allowance, the bidder will supply the additional area at no increase in cost to the state.

If the approved plans show that interior hallways do not take up the space allowed for that purpose, the excess must be added to the work space for use by the state.

The commission will evaluate all bids that meet or exceed advertised requirements, based on the effective annual cost to the state for the initial term of the lease as advertised as well as other criteria established by the commission for determining "lowest and best". (For purposes of this paragraph, options to renew and options to purchase will not be considered.) The commission will not consider a bid in which bid prices are subject to any escalation (other than consumer price index, as allowed by the commission) during the initial advertised lease term, if the maximum amount of such escalation cannot be computed when the bid is evaluated. Such bids will be disqualified. The commission will evaluate a bid that offers a predetermined limit of escalation by considering the maximum amount of any and all escalations as the bid price for the initial term.

In evaluating bids, the commission shall give no credence to, nor make any allowances for, any comments to prospective lessors allegedly made to them by employees of the requesting agency. No statements or promises made by such employees shall be binding upon the commission in making its award, or considered to be a term or condition of the resulting lease. (See §115.3(d)(9) of this title (relating to Receipt and Processing of Requisitions for Leased Space.))

The commission may not enter into a lease if the space in question has been determined to be non-compliant with the provisions of Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.006, concerning the elimination of barriers to handicapped persons, unless approved by the Texas Department of Licensing and Regulation.

When only one bid meeting specifications is received, the commission, in addition to other actions available to it, may elect to negotiate with that bidder to obtain a satisfactory lease for the state.

Moving costs, as described in §115.3(d)(10) of this title (relating to Receipt and Processing of Requisitions for Leased Space) may not be used in the evaluation of a bid unless the full amount allowed for such an expense is advertised as a part of the specifications.

Award of a lease.

The notice of award shall be the means by which the successful bidder and the requesting agency are notified of an award. The notice of award, when served upon the successful bidder, shall be a binding lease. Service shall be complete upon deposit of the notice of award, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. The affidavit of any person showing service of the notice of award shall be prima facie evidence of the fact of service.

The original notice of award and completed lease forms shall be sent to the successful bidder, with a copy of the notice of award sent to the requesting agency.

The lessor shall execute and return the signed formal lease documents to the commission.

The State of Texas, acting through the commission, shall be the lessee under any lease entered into under the provisions of Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.055.

Negotiation of terms. The commission, when acquiring space for the State of Texas through competitive bidding from a private source, shall not negotiate with bidders to alter any of the terms and conditions advertised. Additional terms may be agreed upon between the commission and the successful bidder for addition to the lease which do not alter the original terms and conditions or specifications and which do not give special advantage to the successful bidder or result in an increased cost to the state.

§115.6.Negotiation with a Private Source.

Except as provided in subsection (b) of this section, negotiation with a private source to secure a state lease is permitted only when the commission determines that competitive bidding is not possible, not obtainable, not practical, or is disadvantageous to the State. Such cases include, but are not limited to, the following:

An emergency lease is entered into under §115.3(b) of this title (relating to Receipt and Processing of Requisitions for Leased Space) as considered appropriate for the circumstances by the commission.

Only one bid meeting specifications is received, or no bids are received, following advertisement, and the commission determines, after a review of advertised specifications, that no unduly restrictive specifications were used;

The commission determines that specifications needed by the requesting agency are so restrictive that they would effectively eliminate competition. Specifications of this restrictive nature must be justified by the requesting agency in writing to the commission and must be approved by the commission as necessary to the essential function and purpose of the agency. (See §115.3(d)(7)(B) of this title (relating to Receipt and Processing of Requisitions for Leased Space.)

Pursuant to Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.052(b) if the commission finds that competitive bidding is not possible, obtainable, or practical, or is disadvantageous to the state, it may also lease space from private sources by following the competitive sealed proposal procedures set forth in this subsection. As used in this subsection, "practical" means what can be accomplished or put into application and "disadvantageous" means a judgmental assessment of what is not in the state's best interest.

Competitive bidding is not practical unless the nature of the requisition for space permits an award of lowest and best bid to a bidder who agrees to perform without condition or reservation in accordance with the space requirements, delivery or performance schedule, and all other terms and conditions of an invitation for bids. Factors that may be considered in determining that competitive bidding is not practical include, but are not limited to, the following:

whether there is a need for oral or written discussions with potential offerors concerning technical and price aspects of their proposals; or

whether offerors may need an opportunity to revise their offers, including price; or

whether the state's failure to base an award upon an assessment of factors other than price is likely to result in a readvertisement of the requisition;, or

whether the primary consideration in determining an award may not be price.

A determination that competitive bidding is disadvantageous to the state may be based upon one or more of the following factors:

the potential for excessive or inflated bid prices;

the potential for an inadequate number or quality of bids;

the likelihood that one or more of the factors which make competitive bidding impractical, as set forth in paragraph (1) of this subsection, would also result in a lease contract that is disadvantageous to the state.

The commission shall solicit proposals by issuing a request for proposals (RFP). Public notice of the RFP shall be given by publication in the Texas Register and in a newspaper of general circulation in the county where the space to be leased is located. Notice of the RFP may also be mailed to potential offerors that are on the bidders list, in accordance with §115.5(b) of this title (relating to Leasing from a Private Source). Notice of the RFP must specify how persons who may be interested in submitting proposals may obtain a complete RFP, and must identify the time and place at which proposals will be received and opened.

At a minimum, an RFP must contain all information required in specifications by §115.3(b) of this title (relating to Receipt and Processing of Requisitions for Leased Space); criteria that will be used to evaluate proposals; a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and a statement of how and when price information should be submitted. As used in this subsection, "discussions" means negotiation, amendment, clarification, modification, or any of these.

Proposals shall be opened in a manner that does not disclose the contents of the proposals. At public opening of proposals, only the name of the proposer shall be made public. The proposals may not be made public until a lease contract is awarded.

Proposals shall be evaluated considering only the evaluation criteria set forth in the RFP, and by comparing the proposal to the stated criteria, rather than comparing one proposal to another. An evaluation team may be designated to evaluate proposals.

If discussions are to be conducted, the commission shall provide to each offeror, whose offer meets the minimum requirements set forth in the request for proposals, a reasonable opportunity for discussion and revision of its proposal. The commission shall invite a requesting agency to participate in such discussions and negotiations. During discussions, information from a competing proposal may not be revealed to another competitor. Any procedure that amounts to an auction practice is prohibited as being inconsistent with fair competition. When all discussions have been concluded, a time and place will be established for the receipt of best and final offers. A proposal may not be modified or amended in any respect after the established time for receipt of best and final offers.

An award shall be made to the offeror whose proposal is evaluated to be the most advantageous to the state, considering the evaluation factors of the RFP and price. No other factors shall be considered in evaluation. If the commission finds that no proposals are acceptable, it shall reject all proposals. When an award is made, the basis of the award shall be stated in writing and made a part of the lease file. The lease contract resulting from the RFP shall be embodied in the standard state lease contract form, which incorporates the advertised requirements and the proposal, including amendments made during discussions and the best and final offer.

An institution of higher education to whom leasing authority has been delegated pursuant to Texas Government Code, Title 10, Subtitle D, Chapter 2167, § 2167.005 and §115.10 of this title (relating to Delegation of Leasing Authority) may enter into leases through competitive sealed proposal procedures in compliance with subsection (b) of this section.

§115.7.Amendment of Lease.

Any lease entered into pursuant to the Texas Government Code, Title 10, Subtitle D, Chapter 2167, Subchapter B, and these sections may be amended during its term so long as the commission finds the amendment to be in the best interests of the state, and does not, in the case of a lease awarded under competitive bid rules, give undue advantage to the lessor.

§115.8.Transfer by Lessor.

Lessor's sale, assignment, or transfer of his right to receive payments for his obligation to perform under the lease may be provided for in the terms and conditions of the lease, but lease payments to the new lessor shall be approved by the commission only if and when the transfer is sufficiently documented in the records of the commission. The Lessor shall comply with the rules and procedures of the commission to affect the change of lessor in order that lease payments can be made.

§115.9.Bidders List.

Requirements for bidders' list. All prospective bidders may be considered for inclusion on the bidders' list.

The prospective bidder must complete and return to the commission the bidder's application form which is supplied by the commission.

All completed applications will be evaluated by the commission before the prospective bidder may be placed on the mailing list to receive invitations for bid. Evaluation shall consider, but not be limited to, the following:

the ability, capacity, and skill of the bidder to perform under a state lease;

the bidder's past performance under previous leases with the state;

the character, responsibility, integrity, reputation, and experience of the bidder;

the sufficiency of the financial resources and ability of the bidder;

compliance of specific buildings with the provisions of Texas Government Code, Title 10, Subtitle D, Chapter 2167, Subchapter B insofar as those buildings are identified by the bidder in his application.

No prospective bidder on the list will be entitled to receive notice of invitations by mail unless registered for the zip code area being advertised. (See §115.3(c)(7) of this title relating to Receipt and Processing of Requisitions for Leased Space); or unless designated as having requested notice of invitations for all zip codes within the state.

No prospective bidder shall be placed on the list to receive invitations for information purposes only.

Temporary suspension and removal from bidders' list. Use of the bidders' list facilitates the acquisition of space for use by state agencies, and it is maintained by the commission for that purpose. Inclusion on the list is a privilege extended by the state conditioned upon continued benefits realized to the state.

Removal from the bidders' list as determined by the commission may occur for one or more of the following reasons:

failure of the bidder adequately to disclose ownership of the building bid, or his authority to act;

continued submission of bids showing excessively high prices in light of prevailing area price for similar space;

termination of an existing lease for failure of bidder to perform or to perform properly under the lease, where such failure is due to the negligence or willfulness of the bidder;

Voluntarily, by bidder.

The commission shall review the bidders' list from time to time and notify those bidders who have not shown an interest in bidding on state leases in their areas during a prolonged period, of possible removal from the bidders list. Removal of the bidder from the list will be determined by the commission from the bidders response, or lack thereof.

A bidder who has been temporarily suspended may have the suspension rescinded upon prompt correction of the reasons for suspension. Failure to correct the reasons for suspension within the time set in the order of suspension will result in removal from the bidders' list.

Once a bidder has been removed, he may not be reinstated to the bidders' list except after presentation of a written request for reinstatement to the commission which results in his approval for reinstatement.

A bidder not on the bidders' list who submits an otherwise acceptable bid in response to an invitation for bid shall have his qualifications reviewed in accordance with the provisions of subsection (a)(2) of this section. No award can be made to such a bidder until the commission has approved the bidder under the same standards required of applicants to the bidders' list.

§115.10.Delegation of Leasing Authority.

The commission may delegate, to institutions of higher education, the authority to enter into leases for space that are to be paid for from funds other than general revenue appropriations.

An institution of higher education may request a delegation of leasing authority by a written request, addressed to the State Lease Officer, signed by the president of the institution or his designee.

A request for delegation must contain certifications that:

the institution will comply with the requirements of Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.005, and the rules of the commission promulgated thereunder in exercising its delegated authority;

the institution has a procedure in place to resolve disputes and protests regarding its delegated leases;

all rental payments made pursuant to leases entered into under the institution's delegated authority shall be made from funds other than appropriations from general revenue; and

the institution will provide the commission with those records described in Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.005 for all delegated leases on a quarterly basis.

If at any time during the term of a delegated lease, it is determined that funds other than general revenue appropriations are not available to cover the lease, or the institution seeks reimbursement of any previously paid rental payments from general revenue appropriations, the institution's delegated authority as to that lease shall be cancelled, and the institution shall transmit the entire lease file to the commission no later than ten days before the due date of the next rental payment. The commission shall review the delegated lease and shall make a determination that the competitive bidding requirements of Texas Government Code, Title 10, Subtitle D, Chapter 2167, subchapter B, and the rules of the commission were complied with in entering into the lease. If such a determination is made, the delegated lease shall be continued and administered by the commission as though it had been entered into by the commission. If such a determination can not be made, the commission shall as practicably as possible, cause the existing lease to be terminated and acquire space for the institution in accordance with the requirements of Texas Government Code, Title 10, Subtitle D, Chapter 2167, Subchapter B and the rules of the commission as then in effect.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Chapter 116. Building and Property Services Division

Subchapter A. State Owned Property

1 TAC §§116.1-116.7

The General Services Commission (GSC) proposed new §§116.1-116.7, concerning the Building and Property Services Division. The new chapter provides policy guidance to state agencies and vendors for occupying state owned properties. The chapter includes definitions of terms commonly used in the administration of the Building Property and Services Division; it provides guidance for maintenance, repair and modifications of state-owned property on the GSC inventory; use of energy conservation methods; requirement for compliance with the GSC Tenant Manual; and the approval process for the temporary use of state-owned property on GSC inventory.

Joe Dykes, Director of the Building Property and Services Division has determined for the first five year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules.

Mr. Dykes further determines that for each year of the first five-year period the amendments are in effect, the public benefit anticipated as a result of enforcing these rules will be the creation of more clearly defined areas of responsibility and policy guidance relating to the Texas Government Code, Title 10, Subtitle D, Chapter 2165, Subchapters A and B. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal to the Texas Register .

Title 1, T.A.C., Chapter 116, is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, §2152.003 and §2165.001.

The following code is affected by these rules: Government Code, Title 10, Subtitle D, Chapter 2165.

§116.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

Deferred Maintenance -- The aggregation of unfunded routine maintenance, preventive maintenance and repair and replacement which was not performed in a timely manner due to lack of available funding, lower priority, management decisions to utilize maintenance funds for other purposes or other recognized delaying factors.

Facility--A building, utility system, grounds or other physical entity under the inventory of the commission.

Commission -- General Services Commission.

Maintenance--Actions required to keep a facility or part of a facility in a usable condition and/or in good appearance, or to prevent deterioration once it has been placed in good condition for its type and age.

Mechanical operations--Air conditioning, heating, plumbing, ventilation, life safety, and fire warning systems required for environmental condition in buildings.

Minor Construction-- The minor addition to, or alteration, rehabilitation, or repair of an existing building, structure or appurtenant facility or utility.

Modification--A change in the facility to improve its appearance or function.

Repair--To replace or restore part of a facility to its original operating condition.

Tenant Manual - Mandatory rules and regulations governing occupying agency use of a state owned property. The Manual is promulgated by the commission in performance of its statutory duties and may be amended from time to time.

Utilities--Electricity, gas, water and wastewater services purchased for facilities.

§116.2.Occupying Agency Responsibility.

The chief executive of each occupying agency shall be responsible for the building space assigned to the agency.

The chief executive of the occupying agency may designate one of his employees to coordinate affairs between the agency and the commission. The designee should have the authority to make decisions for the occupying agency and to encumber agency funds for projects accomplished under interagency contract with the commission.

The chief executive shall be responsible for the control of interior door keys to the space assigned to the occupying agency. Only the Department of Public Safety, Capitol Police may reproduce keys, install or remove locks, or change locks in doors of the building.

The chief executive of each occupying agency is responsible for his/her agency's compliance with the General Services Commission Tenant Manual.

§116.3.Maintenance, Repairs, and Modifications.

Maintenance service requests may be made by telephone, facsimile or e-mail to the commission. Requests generally fall into the following categories: general carpentry repair, repainting (not redecorating), air conditioning and heating, electrical, plumbing, elevators, fire controls, and grounds maintenance. Requestor shall give his name, telephone number, location, nature of the maintenance service required, and assessment of the priority of the requirement, i.e., emergency, at first opportunity, or include in regular maintenance schedule.

Facilities on the commission's inventory may not be modified except by or under the control of the commission.

Requests for modifications of space in state-owned facilities under the commission's control shall be made in writing to the commission's director of Facilites Construction and Space Management Division.

Modifications or improvements to buildings carried on the commission's inventory that become attached to and considered a part of the building may not be removed by the occupying agency without the commission's approval.

Equipment that is used specifically for the occupying agency's work process is the agency's responsibility to maintain. Examples include: computer room air conditioning units; security devices for specific areas; fire extinguishers or special fire systems within an occupied area; cable television service within an occupied area; cafeteria equipment; grease traps; other.

§116.4.Procedures Governing Maintenance Service and Minor Construction Contracts.

Maintenance service contracts for buildings, grounds, and installed equipment for facilities on the commission's inventory and minor construction contracts shall be awarded in accordance with §§113.1-113.20 of this title (relating to Centralized Purchasing). Repair, rehabilitation and minor renovation projects procured as contracts for goods and services shall be processed by Internal Procurement Services (IPS) in accordance with the Texas Government Code, Title 10, Subtitle D, Chapter 2155.

§116.5.Building Operations.

The commission will coordinate energy conservation measures with occupying agencies by:

reduction of lighting in areas where lighting levels exceed those required for the task performed;

adjustment of thermostats to minimize energy consumption;

installation of occupancy sensors to turn off lights in unoccupied areas;

installation of energy management controls to reduce heating and cooling during hours when space is normally unoccupied; and

installation of water saving/conservation devices where applicable.

Occupying agencies shall cooperate in energy conservation by:

turning off unnecessary lights;

not adjusting thermostats;

eliminating unnecessary appliances;

closing blinds closed when the solar angle is such that excessive heat is gained through windows;

turning off all office equipment when not in use, unless doing so would increase overall energy consumption or diminish the use or life of the equipment;

not using space heaters; and

using Energy Star computer equipment.

§116.6.Temporary Use of Property on the Commission's Inventory.

Temporary use of parking garages and surface lots on the commission's inventory must receive prior approval by the Department of Public Safety (DPS).

The commission is the "owner" of record for all property on its inventory for purposes of permits, zoning and other proceedings before local municipal authorities.

§116.7.Applicability of National Fire Codes.

All remodeling and installations of equipment, wiring, data cable and accessories in state buildings under the commission's jurisdiction and control shall comply with the latest edition of the National Fire codes, including the National Electrical Code and the Life Safety Code.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Chapter 122. Facilities Planning

The General Services Commission (GSC) proposed new Chapter 122, §§122.1, 122.2, and 122.3 concerning Facilities Planning. The new chapter reorganizes the rules for Facilities Planning under a separate chapter and delineates the space allocation process.

Mr. Mike Lacy, Director of Facilities Planning has determined for the first five year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules.

Mr. Lacy further determines that for each year of the first five-year period the new rules are in effect, the public benefit anticipated as a result of enforcing these rules will be an improved organization and clarification of the rules concerning the space allocation process. There will be no effect on small or large businesses and/or persons.

Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas, 78711-3047. Comments must be received no later than thirty days from the date of publication of the proposal to the Texas Register .

Subchapter A. Application for State-Leased or Owned Facilities

1 TAC §122.1, §122.2

The new rules are proposed under the authority of the Texas Government Code, Title 10, Subtitle D, Sections 2152.003 and 2165.102, 2165.104 and 2165.108.

The following code is affected by this rule: Government Code, Title 10, Subtitle D, Chapter 2165

§122.1.Definitions.

The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

Agency employee--The full-time equivalent (FTE) of a person performing services on site under the direction of a state agency, including hours worked by full-time employees, part-time employees, and consultant and contract individuals as defined by the state auditor; including employees paid from funds maintained outside the treasury and hours worked by volunteers performing necessary services. Requests must include all contract and volunteer employees' work-hours and functions.

Agency head--The highest-ranking executive officer with full-time responsibility for the operations of the agency;

Agency site--A building or building complex on a single site or under a single lease contract, where agency business is transacted or services are provided;

Commission--The General Services Commission

Usable square feet--An area within the exterior walls of a building for the exclusive use of the occupying agency, including space exempted by rule but does not include:

public hallways, restrooms, stairwells, and elevator shafts;

mechanical rooms or closets for heating, air conditioning, plumbing, janitorial, electrical, telephone, and other general building services;

interior atriums, courts, or monumental spaces for public use; and

fire towers and fire tower courts.

Net usable square feet--For the purpose of calculating an agency's space allocation ratio, that portion of the usable square feet of an occupying agency's space other than spaces specifically exempted under §122.3(d) and (e) of this title (relating to Space Allocation).

Space allocation ratio--The mathematical result of dividing the occupying agency's net usable square feet by the total number of agency employees per site.

Space Use Study--A study conducted by the commission on a cost-recovery basis to determine space requirements for state agencies.

State Agency--A board, commission, department, or other authorized agency of the state.

Variance--A request for more than 153 square feet of net usable space per agency employee at a particular site.

§122.2.Requests for Allocation, Relinquishment, or Modification of Space in State-Leased or Owned Facilities Under the Commission's Control.

Requests for allocation, relinquishment, or modification of space in state-leased and owned facilities under the commission's control shall be made in writing to the commission's director of Facilities Construction and Space Management Division by the agency head or designee of the requesting agency.

Requests shall provide the following information:

Statement of justification demonstrating added staff (enumerate number of FTEs and agency unit), inadequacy of current facilities, lease expiration, or other;

Identification of action requested to include: the desire to occupy, add, relinquish, and/or modify state-owned or leased space; lease new space; modify, renew, extend, or terminate current lease contract (include lease number.); or other;

Function of occupying agency program to include: direct delivery client service or administrative office; laboratory; warehouse; storage; print shop; boat storage; parking space; or other;

Desired location, to include: current facility; different facility; city; special location factors; or other;

Term of need to include: short-term (48 months or less) or long-term (specify duration); date occupancy or action is needed; and/or other critical schedule factors;

Present occupancy status of subject agency program describing whether the unit is now housed in state-owned (name and address of facility), state-leased, or not housed; present lease number; number of current FTEs; usable square feet occupied;

Special conditions related to critical agency functions that require facility services beyond regular business hours, or other; and

Requesting agency contact and telephone and fax numbers for agency program requiring space or modification.

The commission will grant or deny a request in writing.

In allocating space in state-owned facilities, priority shall be given to agencies receiving a greater share of operating expense funds from the General Revenue Fund.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Subchapter B. Space Allocation

1 TAC §122.3

The new rule is proposed under the authority of the Texas Government Code, Title 10, Subtitle D, §§2152.003 and 2165.102, 2165.104 and 2165.108.

The following code is affected by these rules: Government Code, Title 10, Subtitle D, Chapter 2165.

§122.3.Space Allocation.

The Texas Government Code, Title 10, Subtitle D, §2165.104 requires the commission to allocate space to state agencies in the best and most efficient manner possible. In addition, the commission may not allocate space to a state agency under Articles I, II, V, VI, VII, and VIII of the General Appropriations Act, or other specified state agency that exceeds an average of 153 usable square feet of office space for each agency employee for each agency site.

For the purpose of calculating the space allocation ratio at a particular site: all offices, workstations, workspaces, storage spaces, support spaces, and circulation spaces within the agency's usable square-footage shall be included except that type of space listed in subsections (d) and (e) of this section.

This section applies to the use of state-leased and owned office facilities obtained through the commission.

This section does not apply to:

agency sites where 15 or fewer employees are located;

aircraft hangar, associated storage and administrative space;

printing and reprographic plant and associated storage and administrative space;

radio antenna space;

boat storage space;

vehicle parking space;

residential space for a Texas Department of Mental Health and Mental Retardation program;

residential space for a Texas Youth Commission program;

space to be utilized for less than one month for meetings, conferences, seminars, conventions, displays, examinations, auctions, or similar purposes;

warehouse space;

scientific, audio visual, or photographic (darkroom) laboratory space;

contiguous storage (non-office) space exceeding 1,000 usable square feet;

hearing rooms required to conduct hearings required under the Administrative Procedure Act, Texas Government Code, Chapter 2001;

law or public access library space;

records storage or archives (non-office) space; or

hospital or clinic and associated administrative space.

the following types of requested space uses will be excluded by the commission from calculation of the space allocation ratio when clearly enumerated and justified as described below:

consolidated statewide or regional space uses:

computer or telecommunication operations centers when request includes network and connectivity diagram showing service locations, agencies, and programs;

full-time training centers when request includes relevant agency programs, and corresponding state or federal mandates;

conference rooms shared by different agencies when request includes signatory acknowledgment of participant agencies;

health and human service direct delivery client service space uses:

rehabilitation workshops;

public client waiting areas;

client training classrooms when request includes relevant agency programs' corresponding state or federal mandates;

space provided to itinerant staff of another agency at client-service locations when request includes signatory acknowledgment of participant agencies;

employment resource rooms when request includes corresponding state or federal mandate;

observation rooms in clinical or protective services offices;

Sunshine or Bridge rooms in protective services offices;

medical examination rooms and clinical laboratories of the Department of Health;

storage areas for pharmaceuticals, medical supplies, or client equipment and appliances;

shared conference rooms scheduled by the commission or by commission delegated agencies;

telephone or data (LAN, local area network) closets;

trial preparation rooms and litigation file rooms at litigation offices of the attorney general;

testing areas and public waiting areas at Department of Public Safety driver license offices;

public client waiting areas; and

a pro rata share of internal circulation space associated with excluded uses at the site.

Variances or Waivers of allocation limits: Any agency request for more than 153 square feet of net usable space per agency employee at a particular site must be must be submitted to the commission demonstrating conformance with one of the criteria in subsection (g) of this section.

Each request must be signed by the agency head and the chairman of the agency's governing body (if any). This authority may not be delegated within the requesting agency.

The commission will grant or deny a request in writing.

Requests granted or denied by the commission may be provided to the Legislative Budget Board, the Governor's Budget and Planning Office, and the chairman of the House Appropriations Committee.

The commission may allocate usable office space in excess of 153 square feet per agency employee, if the commission determines that:

based upon a Space Use Study conducted by the commission, a particular type of space should be excluded;

a strict application of the standard to a given site would unavoidably and critically impair an agency's functions;

it is in the best financial interest to the state to do so;

the number of persons routinely working in a space is substantially different from the agency employee calculation;

a request is consistent with an agency's plan previously accepted by the commission for implementation of this rule;

an emergency lease is necessary to provide facilities in the best interest of the state and strict compliance would unavoidably and critically impair an agency's functions;

a negotiated lease with a political subdivision is in the best interest of the State and strict compliance would unavoidably and critically impair an agency's functions; or

a negotiated lease in the absence of competition is in the best interest of the State and strict compliance would unavoidably and critically impair an agency's functions.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 5, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Chapter 125. Travel and Transportation Division

Subchapter A. Travel Management Services

1 TAC §§125.1, 125.3, 125.29

The General Services Commission proposes amendments to Title 1, Texas Administrative Code, Chapter 125, Subchapter A-Travel Management Services, §§125.1, 125.3 and 125.29, concerning the State Travel Management Program. The proposed amendments are made in accordance with Senate Bill 204, 76th Legislature (1999) which allows county officers or employees, including the county sheriff, deputy sheriff or juvenile probation officer traveling on official county business to participate in the General Services Commission's contracts for travel services for purposes of obtaining reduced airline fares for the county.

Mr. Frank H. Mays, Director of Support Services, has determined for the first five year period the rules are in effect, there will be no adverse effect to state or local government as a result of enforcing these rules.

Mr. Mays further determines that for each year of the first five-year period the amendments are in effect, the public benefit anticipated as a result of enforcing these rules will be a potential savings of $54,878 per county annually, minus fees paid to the General Services Commission for administrative expenses. The savings will be due to the use of discounted airline fares by the county officers or employees including the county sheriff, deputy sheriff or juvenile probation officer. There will be no effect on small or large businesses and/or persons.

Comments on the proposals may be submitted to Judy Ponder, General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas, 78711-3047. Comments must be received no later than thirty days from the date of publication of the proposal to the Texas Register .

The proposed amendments are made under the authority of the Texas Government Code, Title 10, Subtitle D, §§2152.003 and 2171.002.

The following code is affected by these rules: Government Code, Title 10, Subtitle D, Chapter 2171.

§125.1.General.

The travel and transportation division of the commission administers the State Travel Management Program.

State Travel Management Program services are provided to state agencies, their employees, elected or appointed officers, and other persons entitled to reimbursement for business expenses incurred on behalf of the state, regardless of the source of funds used to pay the travel expenses.

Use of the State Travel Management Program's Contract Airline Fares is extended to a Texas county officer or employee including a county sheriff, [ ~~a Texas county sheriff or~~ ] deputy sheriff or [ a ] juvenile probation officer [ ~~who is transporting a state prisoner under a felony warrant~~ ], provided that the county has elected to participate in the program that provides this service.

It is the policy of the commission to administer the travel program to provide timely and efficient travel services to eligible entities as defined in subsections (b) and (c) of this section, and to generate savings, whenever possible.

These rules are intended to be consistent with the Travel Allowance Guide published by the Comptroller of Public Accounts.

§125.3.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

Accumulated depreciation--The total amount of vehicle depreciation recorded in the Vehicle Information Program.

Airlines Reporting Corporation (ARC)--The organization of participating airlines which provides a common method of approving authorized agency location for the sale of domestic air transportation for the account of the participating airlines.

Alternative fuel--Compressed natural gas, liquefied petroleum gas, electricity, or other alternative fuel specified in Texas Natural Resource Conservation Commission rules.

Alternative fuel vehicle--A motor vehicle capable of using alternative fuel in the original equipment manufactured engine, or in a converted traditional gasoline or diesel engine.

Assigned vehicle--A state vehicle normally driven by the same employee or small specific group of employees.

Award--The act of accepting a bid or proposal.

Board--The governing body of a county or local school district.

Book value--The capitalized value less the accumulated depreciation.

Capitalized value--The original cost of a vehicle, plus later adjustments for major additions or improvements.

Charge card--A method of payment for travel services that does not involve actual cash, but entails credit and payment processes.

City pair--A one-way airline flight between two cities, from origin to destination, regardless of stopovers or connections.

Commission--The General Services Commission.

Competitive bidding--Shall have the same meaning as this term is defined in §111.2 of this title (relating to Definitions).

Computerized Reservations System (CRS)--One of a number of interactive electronic systems linking individual travel agencies to a central airline-owned computer, allowing agents to make availability inquiries and travel reservations.

Depreciation rate--A uniform mathematical factor which reflects a vehicle's loss of market value due to wear, deterioration, or obsolescence.

Direct labor--The cost of labor associated with repairing or servicing vehicles, whether performed by a contractor or state employee.

Director--The director of the travel and transportation division of the General Services Commission.

Discount rate--A price for a travel service established by the commission.

Disposal date--The date on which a state vehicle is no longer included in an agency's property inventory.

Downtime--The total number of working hours a state vehicle, otherwise eligible for assignment, is out of service for repair or maintenance.

Driver's handbook--A reference manual or guide detailing state agency operational policy and procedure for state vehicles.

Executive director--The executive director of the General Services Commission.

Facility--A building used for meetings, conventions, conferences, and seminars.

Fleet officer--The individual designated by each state agency who is responsible for the timely and accurate submission of all required information utilized by the vehicle fleet management system.

Gross vehicle weight (GVW)--The greatest weight of vehicle and load which the manufacturer recommends that a vehicle accommodate. The GVW includes the total weight of chassis, cab, body, special equipment, oil, water, gasoline, driver, and the maximum payload.

Group/Meeting Planning Requisition--The method recognized by the commission for state agencies to request Group/Meeting Planning Services.

Indirect labor--The labor cost of vehicle fleet related employees whose time cannot be identified with repairing or servicing individual vehicles.

International Airlines Travel Agent Network (IATAN)--The organization of participating airlines which provides a common method of approving authorized agency locations for the sale of international air transportation for the account of the participating airlines.

Nonparticipating state agency--Any state agency that is not approved to utilize the services of the State Travel Management Program and/or that has not submitted a properly completed travel service requisition setting forth its desire to participate.

Nonresident bidder--Refers to a person who is not a resident bidder within the meaning of Texas Government Code, Chapter 2252.

Official business travel--The travel undertaken by state employees to conduct official state business or to represent the state in an official capacity.

Official county business--The travel undertaken by a county officer or employee, including a county sheriff, deputy sheriff or juvenile probation officer, to conduct official county business or to represent the county in an official capacity.

On-Site Location--Full-service travel agency office located on state property that sells, issues, and delivers tickets for high-volume state agencies.

Participating County--A county that has executed an interlocal agreement with the commission and paid the required fee for the county's sheriff department and juvenile probation board to use the contract airline fares.

Participating state agency--A state agency which has been approved to utilize the services of the State Travel Management Program upon submission of a properly completed travel service requisition.

Passenger Name Record (PNR)--Record that contains all travel arrangements and information for a particular trip for a specific traveler.

Pool vehicle--A vehicle normally garaged in a central location for use by any authorized employee of the agency.

Program--The State Travel Management Program.

Proposal--The response made by a bidder to provide goods or services in accordance with the terms and conditions of a previously issued request for proposal.

Proposal evaluation team--The group of individuals selected by the commission to discuss and evaluate proposals made in response to a previously issued request for proposal.

Rental car--A vehicle not owned by the State of Texas and rented from a rental car vendor.

Request for proposal--An official solicitation to receive proposals from competitive sources in accordance with delineated specification terms and conditions contained in the solicitation documents.

Resident bidder--Refers to a person whose principal place of business is in this state, including a contractor whose ultimate parent company or majority owner has its principal place of business in this State.

Revenue Sharing--A percentage of commissions received from the booking of State of Texas business travel by the contract travel agencies/agents which is remitted to the State.

Salvage value--The amount expected to be realized from the disposal of a vehicle at the conclusion of its useful life.

Satellite Ticket Printer (STP) Location--Location whose sole function is the printing of travel documents by means of a ticket printing device.

Special purpose vehicle (SPV)--A motor vehicle commercially designed to be used primarily for purposes other than to provide transportation service for personnel, supplies, or equipment.

Standard labor rate (SLR)--A rate computed to approximate the total hourly cost of salaries and related fringe benefits.

any department, commission, board, office, council, or other agency in the executive branch of state government created by the constitution or by a statute of this state;

the Supreme Court of Texas, the Court of Criminal Appeals of Texas, a court of civil appeals, or the Texas Civil Judicial Council;

a university system or an institution of higher education as defined in the Texas Education Code, §61.003, other than a public junior college.

State employee--A person employed by a state agency, elected state officials, and appointed state officials.

State vehicle--Any state-owned vehicle which is propelled by a self-contained engine and is licensed to operate on public highways.

Texas state travel directory--The directory published by the travel and transportation division, at least annually, which lists travel vendors and applicable current rates.

Transfer date--The date a vehicle is transferred from one agency to another.

Transition--Designated period of time that a terminated contracted travel agency or travel agent provides travel services until a successor has been selected that can adequately service the State's contract.

Travel agent--Any individual, corporation, association, partnership, company, or firm designated as an appointed airline industry agent by the Airlines Reporting Corporation or the International Airlines Travel Agent Network, an airline, or a company, corporation, association, partnership, or firm owned by an airline or group of airlines which provides travel reservations and ticketing services.

Travel Agent Services Contract--Contracting process used by the commission's central travel office to ensure travel agencies meet certain reasonable requirements to provide travel services for the State of Texas.

Travel service requisition--The method recognized by the commission for state agencies to request services provided by the State Travel Management Program.

Travel vendor--A provider of any travel or transportation service.

Traveler--A person who under §125.1 of this title (relating to General) is eligible to use the contract services or rates.

Vehicle fleet management system--A computerized data retrieval system to assist each state agency in the management of its vehicle fleet.

Vehicle inventory--A list of agency vehicles by type and class which is utilized to determine their average cost of operation.

§125.29.Texas Counties Use of Contract Airline Fares.

A Texas county officer or employee, including a county sheriff, [ ~~A Texas county sheriff or~~ ] deputy sheriff or juvenile probation officer traveling on official county business [ ~~who is transporting a State of Texas prisoner under a felony warrant~~ ] may use the program's contract airline fares for purposes of obtaining reduced airline fares [ ~~for the law enforcement or probation officer and the prisoner~~ ].

A Texas county seeking to participate in the program to use the contract airline fares shall complete and submit an interlocal agreement as prescribed by the commission. The interlocal agreement shall include, but is not limited to the following provisions:

Participation fee;

Participation dates;

Use of contract airline fares;

Reporting requirements; and

Contract termination.

The commission will charge Texas counties a participation fee to recover the commission's cost incurred in administering this program for counties.

Texas counties participating in this program must comply with all rules and procedures as outlined in the airline contract between the commission and the airlines.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on August 6, 1999.

General Counsel

General Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 463-3960

Part XV. Texas Health and Human Services Commission

Chapter 351. Coordinated Planning and Delivery of Health and Human Services

1 TAC §351.15

The Texas Health and Human Services Commission proposes new §351.15, concerning the obligation of each health and human services agency to inform a patient or client of the agency about community-based long-term care options and long-term support options prior to placement of the patient or client in a care setting and to annually report to the Health and Human Services Commission the number of community-based service placements made by the agency.

Don Green, Chief Financial Officer, has determined that for the first five years the rule shall be in effect minimal fiscal implications for state or local government are anticipated from the enforcement or administration of the rule.

Mr. Green has also determined that for each year of the first five years this rule is in effect the public benefit anticipated from the enforcement of this rule is greater public awareness of the availability of community-based alternatives to institutional care and more effective placement of eligible patients and clients in such alternative forms of care. There is no anticipated economic cost to persons required to comply with the proposed rule. This rule will have no local employment impact. There will be no effect on small businesses.

Questions or comments by members of the public on the proposed rule are solicited. Written comments on the proposal should be mailed or delivered to Kathy Kramer, Texas Health and Human Services Commission, P.O. Box 13247, Austin, Texas 78711, or by facsimile (FAX) to (512) 424-6587.

This new rule is proposed under Texas Government Code section 531.033, which authorizes the commissioner of health and human services to adopt rules necessary to carry out the commission's duties under chapter 531, and under section 531.042, which governs the delivery of information about community-based services to patients or clients of health and human services agencies.

This new rule affects section 531.042, Texas Government Code.

§351.15.Information Regarding Community-based Services.

Applicability. This section applies to the following state health and human services agencies: Texas Department on Aging (TDoA); Texas Department of Human Services (DHS); Texas Department of Health (TDH); Texas Department of Mental Health and Mental Retardation (TDMHMR); Texas Department of Protective and Regulatory Services (DPRS); Texas Rehabilitation Commission (TRC).

Information to be provided to long-term care clients. A state health and human services agency that delivers long-term care services must provide each long-term care client information about long-term care services appropriate to the client's needs that are currently available within the client's service area without a lengthy waiting list. The information must be provided to the client before a care decision is made. The information must include options available through other agencies and providers and must be easily understood by the client or the client's guardian, if one has been appointed. The agency must obtain a signed statement from the client or the client's guardian that confirms that the client was informed about community-based care and support options. The agency must retain a copy of each statement in the client's records.

Programs affected. The requirements of subsection (b) of this section apply to the following agencies and programs:

DHS-Nursing Facility Care; Hospice Program; Swing Bed Program; Program of All-inclusive Care for the Elderly (PACE Waiver Program); Adult Foster Care; Client-Managed Attendant Services; Home Delivered Meals; Day Activity and Health Services; Emergency Response; In-Home Family Support Program; Primary Home Care; Residential Care; Respite Care; Special Services to Persons with Disabilities; Special Services to Persons with Disabilities 24-Hour Attendant Care, Community Based Alternatives Waiver Program; Community Living Assistance and Support Services Waiver Program;

TDH-Texas Health Steps; Texas Health Steps-Comprehensive Care Program (CCP); Chronically III and Disabled Children's Services Program (CIDC); TDH-administered Medicaid; Medically Dependent Children's Program (MDCP); Respite Grant Programs; Acute Hospital (before discharge);

TDMHMR-Community-based Services, Mental Illness-Supported Employment, Supported Housing, Assertive Community Treatment, Psychosocial Rehabilitation, Children's Services; State Hospital Program; State School Program; Mental Retardation-Personal and Family Assistance; Residential Services (community); Vocational Services; Training Services; and Community-Based Intermediate Care Facilities for the Mentally Retarded (ICF/MR);

TRC-Deaf-Blind Multi-Handicapped Waiver Program; Personal Attendant Services.

Reporting. By November 1 of each year, agencies that operate the programs listed in subsection (c) of this section must report to the Health and Human Services Commission the number of clients served in community-based settings and the number of clients served in residential-care settings in the programs during the previous fiscal year. By November 1 of each year, DPRS must report to the Health and Human Services Commission the number of Adult Protective Services clients placed in community-based and nursing home services and the number of Child Protective Services children by type of placement. By November 1 of each year, TDOA must report to the Health and Human Services Commission the number of clients served in the Options for Independent Living program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 2, 1999.

Marina S. Henderson

Executive Deputy Commissioner

Texas Health and Human Services Commission

Earliest possible date of adoption: September 19, 1999

For further information, please call: (512) 424-6576