Part V.
General Services Commission
Chapter 115.
Building and Property Services Division
Subchapter A. State Owned Property
1 TAC §115.7
(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repeal will not be published.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 General Services Commission proposes the repeal
of Title 1, Texas Administrative Code (TAC), §115.7, concerning burial
in the Texas State Cemetery in order to delete obsolete language that resulted
from the creation of the Texas State Cemetery Committee ("Committee") by Senate
Bill 973, 75th Legislature (1997). The Committee has proposed for adoption
new rules under Title XIII, (TAC), Chapter 71, for the administration of the
Texas State Cemetery that will go into effect in the latter part of November.
The Committee's rulemaking authority is located under the Texas Government
Code, Sections 2165.256(i) and 2165.2561(m).
Jerry Williams, Associate Deputy Director, has determined that for the
first five-year period there will be no fiscal impact to state or local government
as a result of repealing rule §115.7.
Jerry Williams, Associate Deputy Director, also has determined that for
each of the first five years the repeal is in effect the public benefit anticipated
as a result of enforcing the repeal of rule §115.7 will be the deletion
of obsolete language. There will be no effect on small businesses. There is
no anticipated economic cost to persons who are required to comply with the
repeal 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 thirty days from the date of publication of
the proposal to the
Texas Register
.
The repeal of rule §115.7 is proposed under the Texas Government
Code, Title 10, Subtitle D, Section 2152.003, which provides the General Services
Commission with the authority to promulgate rules consistent with Subtitle
D.
The Texas Government Code, Chapter 2165, Sections 2165.256 and 2165.2561
are affected by the proposed repeal of rule §115.7.
§115.7. Burial in the State Cemetery.
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
November 16, 1998.
TRD-9817604
Judy Ponder
General Counsel
General Services Commission
Earliest possible date of adoption: January 3, 1999
For further information, please call: (512) 463-3960
Chapter 401.
Administration
The State Council on Competitive Government proposes amendments to
Title 1, Texas Administrative Code, Part XVI, Chapter 401 under Subchapter
A - Sections 401.1 - 401.4; Subchapter B - 401.21 - 401.28; Subchapter
C - 401.42 - 401.49; Subchapter D - 401.61 and 401.62; Subchapter E
- 401.81 and 401.82; and Subchapter F - 401.102 - 401.104 relating to
Administration. The amendments are being proposed to clarify existing language
and to update the title of the statute. The council also proposes under Subchapter
F. Monitoring of Services, a new §401.105 relating to Contract Modification
Notification by Contracting Agency to the Council. This new section is being
proposed to clarify an executing agency's responsibilities regarding a contract.
Tom Treadway, Clerk of the Council on Competitive Government, has determined
that for the first five years the proposed amendments and the new section
are in effect, there will be no fiscal implications for state or local government
as a result of administering the proposed changes.
Tom Treadway, Clerk of the Council on Competitive Government, has determined
that for each year of the first five years the sections are in effect, the
public benefit anticipated will be improved efficiency due to clarification
of language. There will be no cost to small or large businesses and/or individuals.
Comments on the proposed sections may be submitted to Michelle, Director,
State Council on Competitive Government, 1711 San Jacinto, Room 201-E, Austin,
Texas 78711. Comments must be received no later than 30 days from the date
of publication of the proposed sections in the
Texas
Register
.
Subchapter A. General Rules
1 TAC §§401.1-401.4
The amended sections are proposed under Government Code, Title
10, Subtitle D, Chapter 2162, Subchapter B, Section 2162.101 (General Powers)
which provide the State Council on Competitive Government with the authority
to adopt a rule governing any aspect of the Council's duties or responsibilities.
The following code is affected by the proposed amendments: Government Code,
Title, Subtitle D, Chapter 2162.
§401.1.General Statement of Purpose.
Pursuant to
Government Code, Chapter 2162
[
§401.2.Definitions.
The following words, terms, and phrases, when used in this chapter,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Agency in-house cost estimate--A state agency
report
containing
[
(2)
Clerk--The executive director of the commission,
who shall serve as the clerk of the council pursuant to §401.21(b) of
this title (relating to Council Officers) as follows.
[
(3)
Commercially available service--A service
performed or provided by at least two private service providers within the
state.
(4)
Commission--The General Services
Commission.
(5)
Competitive process--Any procedure approved
by the council [
(6)
Comptroller--The Comptroller of Public
Accounts.
(7)
Council--The State Council on Competitive
Government.
(8)
Council-approved cost methodology--A methodology
developed or approved by the council, designed to accurately identify all
direct and indirect costs incurred by a state agency in providing a particular
service, for use by state agencies in preparing agency in-house cost estimates
or similar reports to the council, and for other purposes specified in this
chapter.
(9)
Designees--Individuals designated by council
members to act on their behalf pursuant to §401.22 of this title (relating
to Designees) as follows.
[
[
[
have suffered the effects
of discriminatory practices or similar insidious circumstances over which
they have no control, including African Americans, Hispanic Americans, women,
Asian Americans, and Native Americans; and]
[
[
[
a partnership formed for the
purpose of making a profit in which at least 51% of the assets and interest
in the partnership is owned by one or more persons who:]
[
are described by subparagraph (A)(i) of this
definition; and]
[
have a proportionate interest and demonstrate
active participation in the control, operation, and management of the partnership
affairs;]
[
[
(10)
Identified state service--A service
provided by the state that the council
identifies
[
(11)
Management study--A state agency analysis
of an activity conducted by that agency
used
[
(12)
Person--Any individual, corporation, partnership,
joint venture, or other legal entity, including an agency or office of state
or local government.
(13)
Proposal--An offer to perform an identified state
service, made within guidelines prescribed by the council.
(14)
Proposer--Any person who submits a proposal to
the council.
(15)
Salvage property--Any personal property which through
use, time, or accident is so depleted, worn out, damaged, used, or consumed
that it has no value for the purpose for which it was originally intended.
(16)
Service provider--A public or private entity performing
an identified state service.
(17)
State agency--
(A)
any department, commission, board, office, or other agency
in the executive branch of state government created by the constitution or
a statute [
(B)
the
supreme court
[
(C)
a university system or an institution of higher education
as defined in the Education Code, §61.003, as amended, other than a public
community/junior
[
(18)
Suggestion--A solicited or unsolicited letter,
memorandum, or other document submitted to the council or a state agency pursuant
to §401.42 of this title (relating to Submission and Receipt of Suggestions),
recommending that the council consider designating a particular state service
as an identified state service.
(19)
Surplus property--Any personal property
exceeding
[
§401.3.Exemption from State Purchasing Laws.
Contracts
awarded
[
§401.4.Reporting Cost Savings.
The council periodically may develop or collect information
on
[
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
November 19, 1998.
TRD-9817702
Chester Beattie
Legal Counsel
State Council on Competitive Government
Earliest possible date of adoption: January 3, 1999
For further information, please call: (512) 463-3960
1 TAC §§401.21-401.28
The amended sections are proposed under Government Code, Title
10, Subtitle D, Chapter 2162, Subchapter B, Section 2162.101 (General Powers)
which provide the State Council on Competitive Government with the authority
to adopt a rule governing any aspect of the Council's duties or responsibilities.
The following code is affected by the proposed amendments: Government Code,
Title, Subtitle D, Chapter 2162.
§401.21.Council Officers.
(a)
(No change.)
(b)
The executive director of the commission is designated
as the clerk of the council and shall perform the duties
contained in
this title
[
(c)
Notices, suggestions, correspondence, or other documents
to be delivered to the council shall be delivered to the clerk for distribution
to the members of the council.
Information
[
§401.22.Designees.
(a)
(No change.)
(b)
Designees have full power and authority to act on behalf
of the members of the council whom they represent, including all power and
authority vested under
Government Code, Chapter 2162
[
(c)
The council may assign staff to [
§401.23.Meetings.
(a)
The council shall meet
subject to
[
(b)
The council shall maintain a written plan
describing
[
(c)
The clerk shall
file
[
(d)
(No change.)
§401.24.Agenda for Council Meetings.
(a) - (c)
(No change.)
(d)
If the presiding officer finds that an emergency exists
requiring immediate council action, additional items may be added to the agenda
in accordance with [
§401.25.Record of Meetings.
The clerk shall keep a complete record of
council
[
§401.26.Voting Procedures.
The council may
act
[
§401.27.Public Comment.
(a)
The council shall develop and implement reasonable policies
providing
[
(b)
Public comments shall be heard subject to limitations imposed
at the discretion of the presiding officer, including time limits and other
constraints [
(c)
(No change.)
§401.28.Public Hearings.
The council may periodically hold public hearings to obtain input regarding
[
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
November 19, 1998.
TRD-9817704
Chester Beattie
Legal Counsel
State Council on Competitive Government
Earliest possible date of adoption: January 3, 1999
For further information, please call: (512) 463-3960
1 TAC §§401.42-401.49
The amended sections are proposed under Government Code, Title
10, Subtitle D, Chapter 2162, Subchapter B, Section 2162.101 (General Powers)
which provide the State Council on Competitive Government with the authority
to adopt a rule governing any aspect of the Council's duties or responsibilities.
The following code is affected by the proposed amendments: Government Code,
Title, Subtitle D, Chapter 2162.
§401.42.Submission and Receipt of Suggestions.
(a)
Any person may submit written suggestions to the council.
Such suggestions
must
[
(b)
(No change.)
(c)
A state agency
receiving
[
Agency Information for Identification
of Services
[
(a)
The council may require a state agency to provide information
regarding any service it provides, to assist the council in identifying state
services that are commercially available and could be provided through competition
with commercial sources and/or other service providers. A state agency [
(b)
The written analysis must include the following:
(1)
a detailed description of the service that conforms
to all applicable council guidelines and instructions
[
(2) - (3)
(No change.)
(4)
a detailed statement and itemization of all direct
and indirect costs incurred in providing the service (including costs incurred
by other agencies,
e.g.,
[
(5)
a detailed statement of the number
and salary
levels
of full-time employees (or full-time employee equivalents) [
[
(6)
[
(7)
[
(8)
[
§401.44.Designation of Identified State Services.
(a)
After
reviewing
[
(b)
Alternatively, after
reviewing
[
(c)
For purposes of this section
,
[
For Review of Identified State Services
[
(a)
The council may require a state agency to prepare a written
analysis of one or more identified state services. The council may require
the
[
(b)
The council may request information from any source, public
or private, in connection with its review of an identified state service.
The council may consider:
(1)
(No change.)
(2)
[
(3) - (4)
(No change.)
§401.46.Determination To Subject an Identified State Service to
Competition. The council may determine that an identified state service
may [
§401.47.Requirement that [
(a)
The council may at any time require a state agency to engage
in any competitive process developed or described by the council to subject
an identified state service to competition with private commercial sources,
with other state agency service providers, or both. A state agency [
(b)
(No change.)
§401.48.Development of Competitive Process.
(a)
The council may establish procedures, issue guidelines
or instructions, and take any other
action
[
(b)
The council may require an agency to engage in any competitive
process reasonably calculated to ensure competition among service providers,
including, but not limited to:
(1) - (2)
(No change.)
(3)
a two-step selection process such as that described
in the Professional Services Procurement Act,
Government Code, Chapter
2254, Subchapter A
[
(4)
(No change.)
§401.49.Conflict of Interest.
(a)
No person may participate in
specification
[
(b)
A
[
(1) - (3)
(No change.)
(c)
[
(1)
"immediate family" means a person related in the first
degree of consanguinity or affinity to a person that has a significant financial
interest in the proposed contract
or an arrangement concerning prospective
employment from the proposed contract
;
(2)
"significant financial interest" refers to [
(A)
receiving
[
(B)
[
(C)
holding more than 10% of the outstanding
debt of a person directly involved in the proposed or resulting contract;
or
(D)
owning substantial stock, or other interest
in a business. "Substantial" in this context shall not include token ownership
or ownership which would not normally be able to influence the decisions of
the business.
[
[
(d)
This section does not preclude a state agency or employees
of a state agency from competing to provide an identified state service already
being provided by that agency, if the agency or employees do not participate
directly in the evaluation of proposals relating to the council's submission
of such service to a competitive process.
(e)
A
[
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
November 19, 1998.
TRD-9817701
Chester Beattie
Legal Counsel
State Council on Competitive Government
Earliest possible date of adoption: January 3, 1999
For further information, please call: (512) 463-3960
1 TAC §401.61, §401.62
The amended sections are proposed under Government Code, Title
10, Subtitle D, Chapter 2162, Subchapter B, Section 2162.101 (General Powers)
which provide the State Council on Competitive Government with the authority
to adopt a rule governing any aspect of the Council's duties or responsibilities.
The following code is affected by the proposed amendments: Government Code,
Title, Subtitle D, Chapter 2162.
§401.61.Minimum Requirements for Proposals.
Proposals must include:
(1)
price;
(2)
a detailed statement of the number
and salary
of individuals [
(A)
employees, independent contractors or subcontractors,
and others; and
(B)
any contractors or subcontractors qualifying
as historically underutilized businesses, as defined by Government Code, Chapter
2161, and further clarified by Chapter 111 of this title (relating to Executive
Administration Division), and listed in the directory published by the commission
in compliance with Government Code, §2161.064.
[
(3)
a detailed description of health care benefits
to be provided for [
(4)
a detailed description of retirement benefits to be
provided for [
(5)
a detailed description of workers' compensation insurance
to be provided for [
(6)
(No change.)
(7)
a detailed description of all charges filed against
the proposer, or any person or entity affiliated with the proposer, alleging
discrimination or unfair labor practices with any state or federal agency
or state or federal court in the five years preceding the submission of the
proposal
[
(8)
a detailed statement certifying that the overall package
of salaries and benefits to be provided to employees performing the identified
state service under the proposer's contract will be reasonably comparable
to the overall package of salaries and benefits of those state employees currently
performing functions similar to those performed by the proposer's employees
on
[
(9)
(No change.)
(10)
a detailed statement explaining how the proposer
will satisfy the specifications for the contract
to be awarded
[
(11)
(No change.)
§401.62.Evaluation.
(a)
Upon receipt of a proposal, the council may evaluate a
proposal by considering the following [
(1)-(3)
(No change.)
(b)
The council may provide
additional
[
(c)
Following its evaluation of a proposal[
(1)
(No change.)
(2)
enter into negotiations, within the time period prescribed
by the council, with the proposer
to reach
[
(d)
After all proposals are evaluated and the
council determines under subsection (c) of this section the course of action
to be taken with respect to a proposal, the council shall provide to any party
on request a brief written statement of the results of the evaluation.
(e)
[
(f)
[
[
(g)
Any actual bidder, offeror, proposer, or contractor, or
any affected
state
agency, or any affected state employee who is
aggrieved in connection with the award of a contract under this chapter may
formally protest to the council. The council may consolidate claims by affected
state employees
raising
[
(h)
A protest must contain:
(1) - (3)
(No change.)
(4)
a statement that copies of the protest
were
[
(5)
(No change.)
(i)
If the protest is not withdrawn or resolved by mutual agreement,
the clerk shall issue a written recommendation regarding [
(j)
The clerk's recommendation may be approved, rejected, or
modified by the council. The council's disposition of the protest shall be
made in open meeting of the council. The council's decision shall be the final
administrative action of the council relating to
the
[
(k)
Unless the council finds good cause exists for a delay
or the council determines that a protest [
(l)
In this section an:
(1)
"interested party" is a person
submitting
[
(2)
"affected state agency" is an agency
providing
[
(3)
"affected state employee" is a state employee whose
job is [
(m)
If the
commission submits
[
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
November 19, 1998.
TRD-9817700
Chester Beattie
Legal Counsel
State Council on Competitive Government
Earliest possible date of adoption: January 3, 1999
For further information, please call: (512) 463-3960
Part XVI.
State Council on Competitive Government
Texas Civil
Statutes, Article 601b, Article 15
], the State Council on Competitive
Government
shall
[
is responsible for developing a program
to
] encourage competition, innovation, and creativity in providing state
services in order to improve the quality and cost-effectiveness of those services.
These rules are promulgated to inform the public and provide an orderly procedure
to accomplish the responsibilities provided by law.
that contains
] the agency's computation
of the estimated cost to the agency
of producing
[
to produce
] or
delivering
[
deliver
] a desired quality and
quantity of an identified state service using agency personnel and facilities
and
[
,which computation must be made using
] the council-approved
cost methodology.
Commission--The General Services Commission.
]
that is
] designed to provide identified state services
in competition with [
private
] service providers[
or other
state agency providers
].
Historically underutilized business--
]
(A)
a corporation formed to make for the purpose
of making a profit in which at least 51% of all classes of the shares of stock
or other equitable securities are owned by one or more persons who:
]
(i)
(ii)
have a proportionate interest and demonstrate
active participation in the control, operation, and management of the corporation's
affairs;
]
(B)
a sole proprietorship created for the
purpose of making a profit that is 100% owned, operated, and controlled by
a person described by subparagraph (A)(i) of this definition;
]
(C)
(i)
(ii)
(D)
a joint venture in which each entity in
the joint venture is a historically underutilized business under this section;
or
]
(E)
a supplier contract between a historically
underutilized business under this section and a prime contractor under which
the historically underutilized business is directly involved in the manufacture
or distribution of the supplies or materials or otherwise warehouses and ships
the supplies.
]
has identified
] as a commercially available service and is
reviewed
[
brought under study
] by the council to determine whether the service
may [
better
] be provided
more effectively
through competition
with private service providers and/or state agencies other than the agency
currently providing the service.
that is made
] to determine the essential elements of an activity, [
the
]
quality and quantity of the services delivered, and the method used by the
agency to provide those services.
of this state, except the Texas High-Speed Rail Authority
];
Supreme Court of Texas
], the
court of criminal appeals
[
Court of Criminal
Appeals of Texas
], a court of [
civil
] appeals, or the Texas
[
Civil
] Judicial Council; or
junior
] college.
which is in excess of
] the needs of any state
agency and which is not required for its foreseeable needs.
The term
'surplus property' includes
[
Surplus property may be
] used
or new
property that retains
[
but possesses
] some usefulness
for the purpose
for
[
of
] which it was intended or for
another
[
some other
] purpose.
made
] by the council, decisions
regarding whether a state agency must engage in a competitive process, the
designation of services as identified state services, and all other
related
actions taken by the council [
in connection therewith
]
are exempt from all state laws regulating or limiting state purchasing and
purchasing decisions. [
This exemption applies to all decisions and actions
of the council directly or indirectly relating to the competitive process.
]
regarding
] cost savings and enhanced revenue realized by
the state [
and
] resulting from identified state services [
that have been
] subjected to competition by the council.
The
[
In connection therewith, the
] council periodically may require
state agencies to identify and report to the council cost savings and enhanced
revenue realized [
by such agencies and resulting
] from services
provided by
the
[
such
] agencies which
were
[
have been
] subjected to competition by the council. The council
may take appropriate steps to verify the information received from [
state
] agencies. The council may report its findings to the governor
or the Legislative Budget Board for consideration under
budget execution
[
the
] provisions of the Government Code, Chapter 317.
Subchapter B. Council Meeting Guidelines and Requirements
prescribed herein
] and [
such
] other
duties
determined
[
as may be prescribed
] by the council.
Such information
] shall be delivered to the clerk
of the
[
at
]
Council on Competitive Government, General Services Commission, 1711 San Jacinto,
P.O. Box 13047, Austin, Texas 78711-3047,
(512) 463-2169, facsimile (512)
463-3310
[
(512)463-3446
].
Texas
Civil Statutes, Article 601b, Article 15
], and under this chapter.
review, evaluate,
] consider[
,
] or analyze any suggestions, proposals, or other
information on the council's behalf. The assigned staff
shall
[
may
] perform any function deemed necessary by the council.
Results
[
The results
] of any
analysis
[
reviews or
evaluations
] may be made in writing and submitted to the clerk for distribution
to council members. The council may consider the written recommendations,
but shall not be bound by such recommendations.
at least
once quarterly and at other times at the
] call of the presiding officer
or upon the written request of three or more members of the council.
Written
[
Any written
] requests must be filed with the clerk.
All meetings shall comply with [
the
] open meetings provisions in
the Government Code,
Chapters
[
Chapter
] 551 and
2162
[
;Texas Civil Statutes, Article 601b, Article 15;
] and
this chapter.
that describes
] how a person who does not speak English,
or who has a physical, mental, or developmental
impairment
[
handicap
] may be provided with reasonable access to council meetings.
be responsible for
filing
] notice of meetings as required by law. The clerk shall also
give notice of the meetings to council members.
the
] provisions of
Government Code, Chapter
551
[
the Texas Open Meetings Act
].
the
] meetings [
of the council
] and shall prepare written
summaries or minutes reflecting actions taken by [
the
] council
members present as required by the Government Code, Chapter 551.
take action
] upon a majority
vote of [
the
] members eligible to vote on that action. A council
member is not eligible to vote on the award of a contract by the council if
that council member has a conflict of interest under §401.49 of this
title (relating to Conflict of Interest), or is otherwise precluded from voting
by §401.49 of this title.
that provide
] the public with an opportunity to
appear before the council and speak on issues within the scope of the council's
jurisdiction.
as
] necessary for efficient and fair consideration
of agenda items.
the
] policies and operations of the council, issues before the
council, and to solicit suggestions and ideas from interested members of the
public.
Subchapter C. Identification and Review of State Services
should
] be submitted to the council
through the clerk, by means of facsimile transmission, hand delivery, or private
or public mail. The clerk will promptly distribute copies of all suggestions
to council members.
that receives
] a suggestion or proposal shall forward a copy to the clerk within
30 calendar
[
10
] days
from
[
of the
]
receipt of the
suggestion
[
same
] by the state agency.
Council Mandated Information
].
that has been
] required by the council to provide information regarding
a service must provide a written analysis of the service, within the time
prescribed by the council.
a brief
overview and a description of the service
], including [
the
]
technical requirements or specifications of the service
to allow the
council to get price data from qualified service providers
;
such as the
] comptroller,
retirement systems
[
treasurer
], and attorney general), based
on
[
upon
] the council-approved cost methodology and conforming
to all applicable council guidelines and instructions
to
[
that will
] enable the council to make meaningful and accurate cost comparisons
with other potential service providers;
, and their salary levels,
] used to provide the service;
(6)
a detailed description of the service
that conforms to all applicable council guidelines and instructions, containing
sufficient information, as determined by the council, to allow the council
to obtain adequate price information from other qualified service providers;
]
(7)
] a detailed description
of existing contractual obligations, related to all or any portion of the
service, incurred by the agency within the last three calendar years;
(8)
]
a
detailed
description of the agency's level of satisfaction with the service provider
and the performance records of the service providers hired as a result of
the contracts described under paragraph
(6)
[
(7)
] of
this subsection; and
(9)
] any other information
requested by the council.
it has reviewed
]
a state service pursuant to §401.43 of this title (relating to
Agency Information for Identification of Services
[
Council Mandated
Information
]), the council may designate the service as an identified
state service. The designation shall be
written
[
in writing,
] and [
copies shall be
] provided to the clerk and all affected
state agencies.
it has
reviewed
] a state service pursuant to §401.43 of this title (relating
to
Agency Information for Identification of Services
[
Council
Mandated Information
]), the council may defer a decision regarding designation
of that service as an identified state service pending further study of the
service. Upon completion of
additional
[
such further
]
study, the council may [
then
] designate the service as an identified
state service[
, which designation shall be
] in writing[
,
]
with copies provided to the clerk and all affected state agencies.
and
]
§401.46 of this title (relating to Determination To Subject an Identified
State Service to Competition),
and §401.81 of this title (relating
to Duties of Affected State Agencies),
an "affected state agency" is
an agency
providing
[
that provides
] all or a portion
of the state service designated by the council as an identified state service.
Information Required for Council's Study].
that any such
] written analysis
to
include
[
the
] information set forth in §401.43(b) of this title (relating
to
Agency Information for Identification of Services
[
Council
Mandated Information
])[
,
] and any other information deemed
pertinent by the council.
the
] availability of potential service
providers;
better
] be provided
better
through competition
with private commercial sources, other state agency service providers,
or consolidation of similar state services or any combination thereof
[
or both
]. The council's determination shall be
written
[
in writing
] and [
shall
] contain a brief statement of
the reasons for the determination. A copy of the council's written determination
shall be provided to
the clerk and
all affected state agencies.
That ] State Agencies Engage in a Competitive Process.
that is
] required to engage in such a process shall comply fully with
all requirements and instructions of the council.
steps
] to
describe and identify the competitive process to be followed by a state agency
in submitting an identified state service to competition. The written description
of the competitive process may incorporate by reference any process or portion
of a process described in another commonly available source. Such sources
may include, but shall not be limited to, federal, state, and local statutes,
rules, regulations, ordinances, procedures, and guidelines, as well as private
commercial publications.
Texas Civil Statutes, Article 664-4
];
and
the
] preparation [
of specifications
],
proposal
evaluation [
of proposals
], or any significant administrative function
related to the competitive process, if the person has or may have a conflict
of interest in the proposed or resulting contract.
Without limiting the foregoing, a
]
conflict of interest may be determined by the council to exist if a person
participates directly or indirectly in
specification
[
the
] preparation [
of specifications
],
proposal
evaluation
[
of proposals
], or any significant administrative function related
to the competitive process knowing that:
(d)
] In this section:
either
]:
a personal receipt,
] or
right to receive, money or other valuable property or benefits under the actual
or proposed contract;
the
] holding of a position in a business such
as a principal, officer, director, trustee, partner, employee, or the like,
or holding any position of management;
(C)
the ownership of substantial stock, or
other interest in a business. Substantial in this context shall not include
token ownership or ownership which would not normally be able to influence
the decisions of the business; or
]
(D)
holding more than 10% of the outstanding
debt of a person directly involved in the proposed or resulting contract
].
Without limiting the foregoing, a
]
council member is not eligible to vote on
awarding
[
the award
of
] a contract if the agency represented by that council member [
has
] submitted a proposal to the council seeking
the
[
such
] contract or if the council member has a conflict of interest with
respect to
the
[
such
] contract, as defined in this section.
Subchapter D. Evaluation of Proposals
and the salary levels of those individuals
]
connected with the performance of the work, including:
employees,
independent contractors or subcontractors, and others, including detailed
information regarding any contractors or subcontractors who qualify as historically
underutilized businesses and are listed in the directory published by the
commission in compliance with Texas Civil Statutes, Article 601b, §1.03;
]
the
] individuals
receiving
[
who will receive
] compensation in connection with the performance of
the work, and the cost to the proposer of providing
the
[
such
] benefits;
the
] individuals
receiving
[
who will
receive
] compensation in connection with the performance of the work,
and the cost to the proposer of providing
the
[
such
]
benefits;
the
] individuals
receiving
[
who will receive
] compensation in connection with the performance of
the work, and the cost to the proposer of providing such benefits;
bid
], together with a description of the resolution,
if any, of each charge;
with respect to
] the identified state service, provided
that [
the
] certification shall be based on the overall character
of the salaries and benefits package and not on the presence, absence, or
level of one particular benefit or on a specific salary level;
established
] by the council, and how the proposer's performance
will be measured; and
factors
]:
further
] guidelines or procedures for evaluating proposals[
,
] and
may include
these
[
such
] guidelines or procedures in
[
the
] specifications for a
solicitation document
[
particular contract
] or in any related written document [
as
]
the council deems necessary [
or advisable
].
,
] the
council may either reject the proposal or direct a state agency to:
aimed at reaching
] a contractual agreement to provide the identified state service[
,
] on terms consistent with the proposal and the council's actions
on the proposal
[
in connection therewith
].
(d)
] A contract executed by a state
agency pursuant to subsection (c) of this section must be approved by the
council before
it is
[
such contract shall be
] effective,
and
[
which
] approval must be evidenced by the signature of
the presiding officer
[
an authorized member
] of the council.
(e)
] The council shall have the
authority to negotiate contractual terms
, require a state agency to execute
a contract or execute
[
or enter into
] a contract on behalf
of a state agency, or both, if the council determines that the state agency
has not made a good faith effort to comply with the council's instructions
under subsection (c) of this section.
(f)
After all proposals have been evaluated
fully and the council has made its determination under subsection (c) of this
section regarding the course of action to be taken with respect to a proposal,
the council shall provide to any party on request a brief written statement
of the results of the evaluation.
]
that raise
] substantially similar
issues. Protests must be in writing and received in the office of the clerk
within
ten business
[
five working
] days after the aggrieved
person knows or should have known of the award of the contract. Copies of
the protest must be mailed or delivered by the protesting party to the affected
state
agency or agencies and all other interested parties.
have been
] mailed or delivered to the affected
state
agency or agencies and all other interested parties; and
the
]
disposition of the protest within
ten business
[
five
]
days of receipt of the protest[
, which recommendation shall be distributed
] to members of the council. The recommendation shall suggest that the
protest be sustained or denied[
,
] and [
shall
] set forth
[
the
] reasons for the recommendation. The recommendation may also
specify appropriate remedial action including, but not limited to, entry of
an order declaring the contract void. In addition to members of the council,
the clerk shall provide a copy of the recommendation to the protesting party,
[
the
] affected
state
agency or agencies, and all other
interested parties.
such
] protest.
on appeal
] raises issues
significant to procurement practices or procedures, a protest [
or appeal
] that is not filed
within the proper time period
[
timely
] will not be considered.
who has submitted
] a proposal for the contract involved; and
that provides
] all or
part
[
a portion
]
of the state service that is the subject of the proposal; and
performed as
] part of an identified state service subject
to a contract awarded by the council.
clerk's agency
has submitted
] a proposal for the contract involved, the presiding officer
shall appoint
a
[
another
] council member who is disinterested
in the transaction to perform the review and make the recommendations required
of the clerk under this section.
Subchapter E. Duties of Affected Agencies