Part 5.
GENERAL SERVICES COMMISSION
Chapter 111.
EXECUTIVE ADMINISTRATION DIVISION
Subchapter B. HISTORICALLY UNDERUTILIZED BUSINESS CERTIFICATION PROGRAM
1 TAC §§111.12, 111.15, 111.16, 111.17, 111.20, 111.22, 111.23, 111.24
The General Services Commission adopts amendments to §§111.12,
111.15, 111.16, 111.17, 111.20, 111.22, 111.23, and 111.24 regarding the Historically
Underutilized Business Program (HUB) complying with the legislative requirements
of Senate Bill (SB) 178, 76th Legislative Session (1999). The amendments to §§111.12,
111.15, 111.17, 111.20, 111.22, 111.23 and 111.24 are adopted without changes
to the proposed text; and the amendments to §111.16 are adopted with
changes to the proposed text as published in the November 12, 1999, issue
of the
Texas Register
(24 TexReg 9903).
The amendments are adopted in order to clarify terminology within current
HUB rules and to implement the new requirements of SB 178 regarding the definitions
under the HUB Program, agency planning responsibilities, state agency reporting
requirements, HUB certification and recertification requirements, revocation,
the HUB Directory, graduation procedures, and program review.
Language in §111.16(c) has been revised to read as follows: "State
agencies shall maintain, and compile monthly, information relating to the
agency's and each of its operating division's use of historically underutilized
businesses, including information regarding subcontractors and suppliers.
This information shall include but is not limited to the information required
in subsections (a) and (b) of this section. On a monthly basis state agencies
shall require a contractor/vendor to whom a state agency has awarded a contract
to report to the agency the identity and amount paid to each historically
underutilized business to whom the contractor/vendor has awarded a subcontract
for the purchase of supplies, materials and equipment, provided that payment
was made to a historically underutilized business in the month to be reported.
Contractors/Vendors shall report to a state agency progress payments made
to subcontractors, professionals, consultants and suppliers certified as historically
underutilized businesses each month in which such payment is made."
The amendments will provide a streamlined method for securing more goods
and services from HUB vendors that is compliant with SB 178, 76th Legislature
(1999).
Three written comments were received from the Mexican American Legislative
Caucus, Office of the Attorney General ("OAG"), and the Texas Natural Resources
Conservation Commission ("TNRCC") regarding the adoption of amendments to
HUB rules.
Comments from the Mexican American Legislative
Caucus are as follows:
Comment on Mutual Certification Agreements. Include Minority Business Councils
in your list of entities subject to mutual certification agreements. They
represent a significant group of minority business owners who have primarily
been seeking procurement opportunities from large corporations. While I encourage
you to review the Texas-based minority business councils on a one-by one basis,
I find them to be professionally run with high standards for eligibility.
The purpose of this language was not to limit GSC to working ONLY with Government
entities--but rather to work with all viable certification entities in the
pursuit of the most complete representation of Texas minority businesses.
Response: The Commission responded to the Mexican American Legislative
Caucus on December 9, 1999, indicating that as a standard internal operating
procedure, the GSC may enter into agreements with other certification entities,
such as the Minority Business Councils, assuming that they are accepted by
local government entities (i.e., City of Houston) and meet the most critical
elements of HUB certification (minority and/or women, ownership, control,
size standards, and in-state residency requirements).
Comment on orientation packets. While the legislation delineated what should
be included in the so-called "orientation packets" going to all newly certified
HUB's, the agency rules should allow for the inclusion of any and all other
information the commission deems valuable to this target audience. The intent
of this change would be to ensure the commission has freedom to be creative
in what other information could be included in the future. Our intent was
not to be restrictive with this language.
Response: Staff agrees with comments, but no additional rules changes are
necessary. The intent of the HUB rule was to ensure that the Commission's
customers are aware of SB 178 requirements to provide useful marketing information.
Staff is complying with the minimum legislative requirements and is also providing
additional information (i.e., information regarding chambers of commerce and
other certification entities) that would benefit customers. A copy of the
GSC orientation packet was mailed with the Commission's December 9th response
to the Mexican American Legislative Caucus identifying the information GSC
provides.
Comments from the Office of the Attorney General:
Comment on Reporting Subcontracting on a Monthly Basis. In §111.16(c),
the proposed rule states that state agencies shall require a contractor/vendor
to report subcontracting on a monthly basis. Previously, the rule had required
reporting on a quarterly basis. This new rule will significantly increase
the amount of paperwork that will need to be tracked and maintained by all
state agencies. In addition, if contractors/vendors do not pay subcontractors
on a monthly basis, some agencies are faced with maintaining additional paperwork
that will merely document monthly payments of "zero." State agencies only
report subcontracting to GSC every six months. Therefore, requiring monthly
reporting by contractors/vendors will not impact the data submitted for the
HUB reports. This change will simply make the reporting less manageable for
some agencies, and considerably more burdensome for the contractors/vendors.
Commenter further stated that he did recognize that some agencies may need
to track subcontracting more frequently than others, depending on the type
of contracts that are in place. Commenter suggested that the rule be changed
to read, "On at least a quarterly basis, state agencies shall require a contractor/vendor
to whom a state agency has awarded a contract to report to the agency the
identity and the amount paid to each historically underutilized business to
whom the contractor/vendor has awarded a subcontract for the purchase of supplies,
materials, and equipment. State agencies may require more frequent reporting,
if necessary." This would allow agencies the flexibility to request reports
from the contractor/vendor to fit their own needs.
Response: Staff disagrees with comments, but added language to §111.16(c)
which provides flexibility for agencies to report monthly when payments are
made to subcontractors.
Comments from the Texas Natural Resource Conservation
Commission's:
Comment on §111.12(1) definition for "Applicant". The proposed rule
adds "limited liability company" to the list of business entity types that
may be considered an Applicant for HUB certification. The TNRCC assumes (because
of §111.12(11)(h)) that this list is not meant to be "all inclusive"
(i.e. other types of business entities may be applicants). If the TNRCC is
correct in this assumption, clarifying that the list of business entity types
in the definition of Applicant is not "all inclusive" would be helpful. In
the alternative, the TNRCC suggests that the definition be reworded to something
such as: "Applicant-A business entity, formed for the purpose of making a
profit, that applies to the commission as an historically underutilized business."
Response: Staff disagrees with comment. The goal of this change was to
identify all the business structures that are eligible for certification as
a HUB. Section 111.12(h) provides a definition for inclusion of all other
businesses that are not already identified by the Commission.
Comment on §111.12(9) and §111.12(14) definitions for "Forum"
and "Mentor Protege Program." In the proposed rule changes, the term "Forum"
and "Mentor Protégé Program" are defined but no other rules
relating to "Forum" or "Mentor Protégé Program" are proposed.
The TNRCC assumes that rules will be proposed by GSC at another time to address
the "Forum" and "Mentor Protégé Program" requirements as set
forth in SB 178. If this assumption is correct, the TNRCC suggests that the
proposed definitions of "Forum" and "Mentor Protégé Program"
be withdrawn from this proposed rule change and resubmitted simultaneously
with the related rule proposals in order that the definitions may be evaluated
in light of the proposed applicable rules.
Response: Staff disagrees with comment. HUB rules regarding Forums and
the Mentor Protégé Program will be considered during the January
and February 2000 Commission meetings, respectively. The proposed definitions
will not change at the date the rules are considered by the GSC Commissioners.
Comment on §111.12(19) definition of "Principal Place of Business".
The proposed rule is restrictive. The proposed definition of "Principal Place
of Business" is a more restrictive definition than is given in 1 TAC §111.2.
Why has the commission proposed this more restrictive definition? Such a restrictive
definition may drastically reduce the number of eligible HUBs. Given the lack
of legislative guidance on what is meant by "Principal Place of Business,"
the TNRCC suggests that "Principal Place of Business" for the purpose of these
proposed rules, either not be defined (As in most other Texas rules, probably
because the determination of "Principal Place of Business" is usually considered
a question of fact.) or, be defined in a less restrictive manner, such as
"Principal Place of Business-- The place in which the HUB or Applicant maintains
an office and from which a substantial part of its operations are conducted."
This definition is derived from the definition of "Principal Place of Business"
as it has been defined by the Office of the Attorney General for similar statutes
(See OAG Opinion Nos. JM-616 & JM-696).
Response: Staff disagrees with comment. SB 178 amended the definition of
HUB to include the principal place of business must be in the State of Texas.
In addition to this, applicants must also demonstrate their active participation,
control and management of the business. The proposed definition of Principal
Place of Business is to ensure that all applicants are aware that business
headquarters must be in Texas, but the applicants must be actively participating,
controlling, and managing the daily operations of the business during regular
business hours.
Comment on §111.12(19) definition of "Principal Place of Business"
and clarification of proposed rule. The proposed rule defines "Principal Place
of Business" as "a permanent business office located in Texas where the majority
of HUB owner(s) makes the decisions, controls the daily operations of the
organization, and participates in the business. The qualifying owners must
be residents of the State of Texas."
The proposed rule's phrasing, "majority of HUB owner(s)" is ambiguous.
Does this mean the majority of the HUB business entity's owners (which in
the case of a corporation with 100 owners of which 51 are economically disadvantaged
person owners, could be 2 economically disadvantaged person owners and 49
non-economically disadvantaged person owners)? Or, does it mean the majority
of the economically disadvantaged person owners (which in the case of a corporation
with 100 owners of which 51 are economically disadvantaged persons, would
mean 26 of the economically disadvantaged persons)? Or, does it mean a subset
of the business entity's owners which must be a majority of owners and consist
entirely of economically disadvantaged persons (which in the case of a corporation
with 100 owners of which 51 are economically disadvantaged persons, would
mean all 51 of the economically disadvantaged persons)?
By stating "... where the majority of HUB owner(s) makes the decisions,
controls the daily operations of the organization, and participates in the
business..." this proposed rule seems to require that for a HUB to be considered
as having its "Principal Place of Business" in Texas, the qualifying owners
(the economically disadvantaged persons) must be actively participating in
the business' decisions and daily operations from the business "Principal
Place of Business" office. A qualifying owner who actively participates in
the business' decisions and daily operations from a location or office (even
if in Texas) other than the business' "Principal Place of Business" office
would therefore not meet the definition of "Principal Place of Business" and
would therefore no longer be eligible for HUB certification. Is this the commission's
intent?
The proposed rule requires that for a potential HUB to be considered as
having its "Principal Place of Business" in Texas, the qualifying owners must
be residents of the State of Texas. The TNRCC requests clarification on what
is meant by "residents of the State of Texas" (Will a driver's licenses or
voter's registration suffice? Is there a time of residency requirement? And/or,
must the qualifying owners be legally domiciled in Texas with an intent to
remain for the indefinite future?) In addition, this proposed rule seems to
eliminate from the definition of "Principal Place of Business" a business
entity whose articles of incorporation, business assets, office, operations,
and activity are in Texas, but whose "qualifying owners" are not residents
of the state of Texas. (i.e. A Texarkana, Texas based Texas incorporated corporation
owned entirely by an economically disadvantaged person, that conducts all
of its business in Texas, and which has all of its assets in Texas, but whose
owner resides in Texarkana, Arkansas would not have its "Principal Place of
Business" in Texas according to the proposed rule and would therefore not
meet the definition of a HUB.) Is this the commission's intent?
Response: Staff disagrees with comment that the term "the majority HUB
owner(s)" is ambiguous. It clearly identifies the economically disadvantaged
owners must own at least 51% of the business.
Staff disagrees with the comment regarding the definition for "Principal
Place of Business". It is the intent of SB 178 and GSC rules for all HUB owners
to actively participate in their office locations within Texas.
Staff disagrees with TNRCC comment requesting clarification on what is
meant by "residents of the State of Texas" in the definition for "Principal
Place of Business" . All qualifying applicants must provide documentation
to determine their legal residency (i.e., voter registration). The definition
of "Principal Place of Business" includes not only the business location,
but also defines that the majority HUB owners of that business must reside
within Texas. This is to ensure compliance with HUB eligibility requirements
of active participation, control, proportionate interest, and management.
Comment on §111.12(19) definition of "Principal Place of Business"
and effect on federally funded contracts. The requirements of SB 178 that
a HUB be an entity with its principal place of business in Texas, along with
the commission's proposed rule's definition of " Principal Place of Business"
brings uncertainty as to whether, in a contract using Federal Funds, the current
assumption of many agencies, that by complying with the Good Faith Effort
requirements, an agency also complies with the Federal MWBE requirements,
still holds true? How then, if this rule is issued as proposed, does the commission
recommend an agency simultaneously meet its Federal MWBE and state Good Faith
Effort requirements? Also, how can an agency comply with this rule, in a partly
or entirely Federally funded purchase, while simultaneously avoiding Texas-specific
preferences which may not be exercised while using Federal funds?
Response: Staff disagrees with comment. The SB 178 requirements are not
applicable to the federal Minority and Women's Business Enterprises (MWBE)
requirements. The GSC HUB Directory is utilized to assist state agencies in
meeting or exceeding their good faith effort goals in accordance with the
Texas Disparity Study and HUB rules, §111.13.
The amendments are adopted under the Texas Government Code, Title
10, Subtitle D, Chapter 2161, §2161.002, which provides the General Services
Commission with the authority to promulgate rules under this Code.
§111.16.State Agency Reporting Requirements.
(a)
The comptroller will report to the commission not later
than March 15 of each year regarding the previous six-month period, and on
September 15 of each year regarding the preceding fiscal year, the payments
made for the purchase of goods, services and public works awarded and actually
paid from treasury funds by each state agency. Subject to the capabilities
of the comptroller's USAS system, the comptroller shall identify state agencies'
purchases from state term contracts which are paid from treasury funds so
that those purchases awarded and actually paid under term contracts may be
included in the commission's report of its own purchases.
(b)
State agencies will report to the commission, not later
than March 15 of each year regarding the previous six-month period and on
September 15 of each year regarding the preceding fiscal year, the payments
made for the purchase of goods and services awarded and actually paid from
non-treasury funds by the state agency. The report shall include information
requested by the commission and shall be in a form prescribed by the commission.
State agencies' purchases from state term contracts which are paid from non-treasury
funds must be identified on the report as such so that they may be reflected
on the commission's report of its own purchases.
(c)
State agencies shall maintain, and compile monthly, information
relating to the agency's and each of its operating division's use of historically
underutilized businesses, including information regarding subcontractors and
suppliers. This information shall include but is not limited to the information
required in subsections (a) and (b) of this section. On a monthly basis state
agencies shall require a contractor/vendor to whom a state agency has awarded
a contract to report to the agency the identity and amount paid to each historically
underutilized business to whom the contractor/vendor has awarded a subcontract
for the purchase of supplies, materials and equipment, provided that payment
was made to a historically underutilized business in the month to be reported.
Contractors/Vendors shall report to a state agency progress payments made
to subcontractors, professionals, consultants and suppliers certified as historically
underutilized businesses each month in which such payment is made.
(d)
State agencies will report to the commission, not later
than March 15 of each year regarding the previous six-month period and on
September 15 of each year regarding the preceding fiscal year, the total dollar
amount of historically underutilized business subcontracting participation
in all of the agencies' contracts for the purchase of goods, services and
public works payments. State agencies must include subcontracting participation
paid from Treasury and Non-Treasury funds.
(e)
State agencies that participate in a group purchasing program
under Texas Government Code §2155.134 shall include a separate report
to the commission, not later than March 15 of each year regarding the previous
six-month period and September 15 of each year regarding the preceding fiscal
year, of purchases that are made through the group purchasing program and
shall report the dollar amount of each purchase that is allocated to the reporting
agency.
(f)
The commission shall prepare a consolidated report based
on a compilation and analysis of the reports submitted by each state agency
and information provided by the comptroller in the format specified by the
commission. These reports of historically underutilized business purchasing
and contracts shall form a record of each agency's purchases in which the
agency selected the contractor/vendor. If the contractor/vendor was selected
by the commission as part of its state term contract program, the purchase
will be reflected on the commission's report of its own purchases. The commission
report will contain the following information:
(1)
the total dollar amount of payments made by each state
agency;
(2)
the total number of HUBs actually paid by each state
agency;
(3)
the total number of contracts awarded to HUBs by each
state agency;
(4)
the number of bids received from HUBs by each state
agency; and
(5)
the graduation rates of HUBs as defined in §111.23
of this title (relating to Graduation Procedures) for the following groups
as defined in §111.12 of this title (relating to Definitions) and certified
by the commission:
(A)
Black Americans;
(B)
Hispanic Americans;
(C)
American Women;
(D)
Asian Pacific Americans; and
(E)
Native Americans.
(g)
On April 15 of each year, the commission shall submit the
consolidated report regarding the previous six-month period and on October
15 of each year regarding the preceding fiscal year to the presiding officer
of each house of the legislature, the members of the legislature and the joint
select committee.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 27, 2000.
TRD-200000556
Ann Dillon
General Counsel
General Services Commission
Effective date: February 16, 2000
Proposal publication date: November 12, 1999
For further information, please call: (512) 463-3960
1 TAC §111.71
The General Services Commission (the "GSC") adopts new §111.71,
regarding informing the public of basic rights and responsibilities under
the public information law. Section 111.71 is adopted with changes to the
proposed text as published in the November 12, 1999, issue of the
Texas Register
(24 TexReg 9906).
The General Services Commission adopts §111.71 in order to implement
new §552.205, of the Texas Government Code, Chapter 552, Public Information
Act enacted by Senate Bill (SB) 1851, 76th Legislature (1999).
In §111.71(b), the words "the rights and responsibilities of requestors
and governmental bodies that are subject to Chapter 552" were changed to read
"the rights of requestors and responsibilities of governmental bodies that
are subject to Chapter 552, as well as the procedures for inspecting or obtaining
a copy of public information under said chapter."
In §111.71(c)(1) the words "and laminated to prevent alterations"
were deleted. In §111.71(c)(2) the words "15 inches by 22 inches in size"
were changed to "8 1/2 inches by 14 inches in total size, exclusive of framing."
New language has been inserted as §111.71(c)(3) to read: "The sign may
be laminated to prevent alterations."
Language in §111.71(d) has been reorganized and modified to improve
readability and to clarify procedures.
The section provides the content, size, and other physical characteristics
or the sign mandated by new §552.205 of the Texas Government Code, Chapter
552 (the "Texas Public Information Act"), as enacted by SB 1851, 76th Legislature
(1999).
Comments were received from four respondents. The comments addressed the
following: (1) lamination and size of the poster; (2) rights and responsibilities
of requestors and governmental bodies; and (3) procedures for obtaining public
information.
The commission agrees with the comment that it could become expensive to
laminate the signs. Additionally, the minimum size of the sign has been changed
to make it easier to print the sign posted by GSC on its website. The language
in adopted §111.71(c) was changed to reflect the comment.
The commission agrees with the comment that certain government information
may be confidential by other statutes, constitutional law, or by judicial
decision. The language in adopted §111.71(d)(1) has been changed to reflect
the comment.
The commission agrees with the comment that a governmental body may start
work before a requestor accepts charges that exceed $40. However, the commission
believes that a requestor has a right to reject copies for which the requestor
did not agree to pay. Additionally, a governmental body that starts work on
a request before the requestor has accepted the estimated charges, assumes
the risk of wasting time and effort. Any costs incurred that were not accepted
by the requestor may not be used to calculate unpaid balances pursuant to
Government Code, Chapter 552, §552.263. Furthermore, §552.2615(d)
states in part, "the charges may not exceed: (1) the amount estimated in the
updated itemized statement, or (2) if an updated itemized statement is not
sent to the requestor, an amount that exceeds by 20 percent or more the amount
estimated in the itemized statement." Therefore, a governmental body that
continues work after realizing that the original itemized statement will be
exceeded by 20 percent or more, would have to provide all copies made to the
requestor, but only be permitted to charge the original estimated amount plus
20 percent. Neither Government Code, Chapter 552, nor rule §111.67 require
an itemized statement if the charges do not exceed $40; therefore, a governmental
body may make copies in advance if the charge is under $40. The language in
proposed §111.71(d)(2)(B) has been moved to (D), and changed to clarify
that the itemized statement applies only to charges over $40.
The commission disagrees with the comment that the language in proposed §111.71(d)(2)(C)
is confusing, or that it may lead a requestor to believe that the requestor
has the right to receive free copies. The language in proposed §111.71(d)(2)(C)
has been clarified and reorganized under adopted §111.71(d)(2)(E). The
language tracks §552.221(a) of the Act from the requestor's point of
view. The language clarifies that in most instances inspection can be made
without charges being imposed.
The commission agrees with the comment that a requestor has a right to
a copy of the governmental body's written communication to the Office of the
Attorney General ("OAG") requesting a decision, or if the written communication
discloses the requested information, a redacted copy may be provided. The
proposed language in §111.71(d)(2)(D) has been reorganized under adopted §111.71(d)(3)(F)
and changed to reflect the comment.
The commission agrees with the comment that the law does not mention "improper"
charges. The language in proposed §111.71(d)(2)(E) has been modified
and reorganized under adopted §111.71(d)(2)(H) to reflect that a requestor
may make a complaint to GSC relating to charges, and that other possible violation
complaints may be filed with the county or district attorney.
The commission agrees that a complaint against a governmental body other
than a state agency must be filed first with the district or county attorney
of the county where the governmental body is located. If the governmental
body is the district or county attorney, the complaint must be filed with
the OAG. The language in adopted §111.71(d)(2)(H) has been changed to
reflect the comment.
The commission agrees with the comment that a requestor may not realize
that failing to respond to an itemized statement within ten days as provided
by law may render the request "automatically withdrawn". Language has been
added to adopted §111.71(d)(5)(C)(i) to clarify that a response must
be made within ten days or the request will be deemed withdrawn.
The commission agrees with the comment that Government Code, Chapter 552
does not specify that a governmental body has rights. The proposed language
concerning "Rights of Governmental Bodies" has been deleted and part of the
language has been added to adopted §111.71(d)(5) and (6) concerning cost
of records, information to be released and information that may be withheld
due to an exception (Government Code §§552.225, 552.2615 and 552.303).
The commission disagrees with the comment that language relating to the
responsibilities of a governmental body found in adopted §111.71(d)(3)(C),
which reads "be informed about open records laws and educate employees on
the requirements of those laws", serves no purpose. Government Code, §552.205
requires that the public information sign contain basic information "about
the rights of a requestor, the responsibilities of a governmental body, and
the procedures for inspecting or obtaining a copy of public information...."
This is a basic responsibility of a governmental body. Therefore, the language
has not been changed.
The commission agrees with the comment that an itemized statement and subsequent
updates, are required only in cases where the estimated charges will exceed
$40, and in any changes in estimates above 20 percent of the original estimate.
The language in adopted §111.71(d)(3)(D) reflects the comment.
The commission disagrees with the comment that the law states the requestor
will pay the charges. Government Code, §552.2615(b)(1) states that "the
requestor will accept the estimated charges." However, language in adopted §111.71(d)(3)(D)
has been changed to clarify "acceptance" of the charges, rather than "agreement"
with the charges.
The commission agrees with the comment that a governmental body may assert
any of the exceptions listed in the law, and whether or not the information
may be ultimately withheld has no relevance to the request for an OAG opinion.
The language in adopted 111.71(d)(3)(F) reflects the comment.
The commission agrees with the comment that states that a governmental
body "shall make a good faith effort to notify" third parties when their proprietary
information is requested. The language in adopted §111.71(d)(3)(H) reflects
the comment.
The commission agrees with the comment that it is not clear how Government
Code §552.353(c) affects the 30-day deadline that a governmental body
has to file suit in response to an OAG opinion. Therefore, proposed §111.71(d)(5)(H)
has been deleted, and this issue will be referred to OAG for further clarification.
The commission disagrees with the comment that a governmental body has
no duty to respond in writing to all communications from the GSC or OAG. Although
the commission is not certain whether or not the OAG requires that a governmental
body respond in writing to the OAG's communications regarding violations of
the Act, GSC rule §111.68(d), relating to processing complaints of overcharges,
states that "the governmental body shall respond in writing to the questions
within 10 days from receipt of the questions." The language has been changed
and reorganized under adopted §111.71(d)(3)(I) to reflect the need for
a written response to communications from GSC. The words "in writing" have
been deleted as it refers to responses to the OAG.
The commission disagrees with the comment that the requirement for the
sign to contain an email address where the requestor may send a request for
information may result in a governmental body having to implement an electronic
process to receive requests. In order to avoid misunderstanding, the words
"if any" will be added to the proposed language which has been reorganized
under adopted §111.71(d)(7)(A). Additionally, the words "name or names
and address" will be changed to "contact information".
The commission agrees with the comment that the name of the district or
county attorney may change every four years, if not more often. The language
in proposed §111.71(d)(6)(B) has been reorganized under adopted §111.71(d)(7)(B)
and changed to read " the sign must contain contact information of the local
county or district attorney...." The commission disagrees more detail is needed
in this section, since the minimum information required has already been included.
Additionally, the commission disagrees that the GSC's Office of General Counsel
contact information needs to be included since said office does not handle
overcharge complaints.
The commission agrees with the comment that the Act emphasizes "information"
rather than "records." The language in proposed §111.71(d)(3)(B) has
been reorganized under adopted §111.71(d)(4)(B) and the words "items
requested" has been changed to "information requested."
The commission disagrees with the comment that the following language found
in proposed §111.71(d)(5)(C) and (D) is not necessary: "Inform requestors
of estimates", and "Confirm that the requestor agrees to pay the costs before
incurring the costs". The language has been reorganized under adopted §111.71(d)(3)(D).
Government Code, Chapter 552, requires updated itemized statements when the
original estimates will be exceeded by 20 percent. The lack of the updated
itemized statement limits the governmental body's recovery to the original
estimate plus 20 percent. Additionally, by "confirmation" the commission means
that a governmental body has received the requestor's written acceptance of
the charges or an amended request.
The commission agrees with the comment that duties can be summarized. Proposed §111.71(d)(5)(E)
and (F) have been reorganized in adopted §111.71(d)(3)(E). The word "establish"
has been changed to "set" to parallel the wording in the Government Code,
Chapter 552.
The commission disagrees with the comment that would specify, or give the
appearance of specifying, that compliance is achieved only by using the sign
provided by GSC. The law states that the GSC "by rule shall prescribe the
content of the sign and the size, shape, and other physical characteristics
of the sign." The sign provided by GSC on its website, by mail, or in person,
is simply an example and extended as a courtesy. It is not the intention of
the commission that the sign posted by the commission should be the only sign
that can be used. A governmental body that may use the promulgated rules to
produce its own sign.
The commission agrees with the comment that the law provides for the rights
of requestors, responsibilities of governmental bodies, and procedures for
obtaining public information. Proposed §111.71.(d)(3), relating to Responsibilities
of Requestors, has been deleted and part of the language reorganized under
adopted §111.71(d)(4) and (5) as procedures to obtain information and
information to be released.
The commission agrees with the comment that the law does not specify that
a "written" request is needed to obtain information. The word "written" has
been deleted from §111.71(d)(3)(A), now located in §111.71(d)(4)(A).
City Public Service Board, San Antonio--Against; Texas Association of School
Boards--Against; Texas Department of Human Services--Against
The new section is adopted under the Government Code, Chapter
552, Subchapter D, §552.205, (the "Public Information Act"), which provides
the General Services Commission with the authority to promulgate rules necessary
to implement the sections.
§111.71.Informing the Public of Basic Rights and Responsibilities under the Public Information Act.
(a)
Pursuant to Government Code, Chapter 552, Subchapter D, §552.205,
an officer for public information shall prominently display a sign in the
form prescribed by the General Services Commission.
(b)
The sign shall contain basic information about the rights
of requestors and responsibilities of governmental bodies that are subject
to Chapter 552, as well as the procedures for inspecting or obtaining a copy
of public information under said chapter.
(c)
The sign shall have the minimum following characteristics:
(1)
Be printed on plain paper.
(2)
Be no less than 8 1/2 inches by 14 inches in total
size, exclusive of framing.
(3)
The sign may be laminated to prevent alterations.
(d)
The sign will contain the following wording:
(1)
The Public Information Act. Texas Government Code, Chapter
552, gives you the right to access government records; and an officer for
public information and the officer's agent may not ask why you want them.
All government information is presumed to be available to the public. Certain
exceptions may apply to the disclosure of the information. Governmental bodies
shall promptly release requested information that is not confidential by law,
either constitutional, statutory, or by judicial decision, or information
for which an exception to disclosure has not been sought.
(2)
Rights of Requestors. You have the right to:
(A)
Prompt access to information that is not confidential or
otherwise protected;
(B)
Receive treatment equal to all other requestors, including
accommodation in accordance with the Americans with Disabilities Act (ADA)
requirements;
(C)
Receive certain kinds of information without exceptions,
like the voting record of public officials, and other information;
(D)
Receive a written itemized statement of estimated charges,
when charges will exceed $40, in advance of work being started and opportunity
to modify the request in response to the itemized statement;
(E)
Choose whether to inspect the requested information (most
often at no charge), receive copies of the information, or both;
(F)
A waiver or reduction of charges if the governmental body
determines that access to the information primarily benefits the general public;
(G)
Receive a copy of the communication from the governmental
body asking the Office of the Attorney General for a ruling on whether the
information can be withheld under one of the accepted exceptions, or if the
communication discloses the requested information, a redacted copy;
(H)
Lodge a written complaint about overcharges for public
information with the General Services Commission. Complaints of other possible
violations may be filed with the county or district attorney of the county
where the governmental body, other than a state agency, is located. If the
complaint is against the county or district attorney, the complaint must be
filed with the Office of the Attorney General.
(3)
Responsibilities of Governmental Bodies. All
governmental bodies responding to information requests have the responsibility
to:
(A)
Establish reasonable procedures for inspecting or copying
public information and inform requestors of these procedures;
(B)
Treat all requestors uniformly and shall give to the requestor
all reasonable comfort and facility, including accommodation in accordance
with ADA requirements;
(C)
Be informed about open records laws and educate employees
on the requirements of those laws;
(D)
Inform requestors of estimated charges greater than $40
and any changes in the estimates above 20 percent of the original estimate,
and confirm that the requestor accepts the charges, or has amended the request,
in writing before finalizing the request;
(E)
Inform requestor if the information cannot be provided
promptly and set a date and time to provide it within a reasonable time;
(F)
Request a ruling from the Office of the Attorney General
regarding any information the governmental body wishes to withhold, and send
a copy of the request for ruling, or a redacted copy, to the requestor;
(G)
Segregate public information from information that may
be withheld and provide that public information promptly;
(H)
Make a good faith attempt to inform third parties when
their proprietary information is being requested from the governmental body;
(I)
Respond in writing to all written communications from the
General Services Commission regarding charges for the information. Respond
to the Office of the Attorney General regarding complaints about violations
of the Act.
(4)
Procedures to Obtain Information.
(A)
Submit a request by mail, fax, email or in person, according
to a governmental body's reasonable procedures.
(B)
Include enough description and detail about the information
requested to enable the governmental body to accurately identify and locate
the information requested.
(C)
Cooperate with the governmental body's reasonable efforts
to clarify the type or amount of information requested.
(5)
Information to be released.
(A)
You may review it promptly, and if it cannot be produced
within 10 working days the public information office will notify you in writing
of the reasonable date and time when it will be available;
(B)
Keep all appointments to inspect records and to pick up
copies. Failure to keep appointments may result in losing the opportunity
to inspect the information at the time requested;
(C)
Cost of Records.
(i)
You must respond to any written estimate of charges within
10 days of the date the governmental body sent it or the request is considered
to be automatically withdrawn;
(ii)
If estimated costs exceed $100.00 (or $50.00 if a governmental
body has fewer than 16 full time employees) the governmental body may require
a bond, prepayment or deposit;
(iii)
You may ask the governmental body to determine whether
providing the information primarily benefits the general public, resulting
in a waiver or reduction of charges;
(iv)
Make timely payment for all mutually agreed charges. A
governmental body can demand payment of overdue balances exceeding $100.00,
or obtain a security deposit, before processing additional requests from you.
(6)
Information that may be withheld due to
an exception.
(A)
By the 10th business day after a governmental body receives
your written request, a governmental body must:
(i)
Request an Attorney General Opinion and state which exceptions
apply;
(ii)
Notify the requestor of the referral to the Attorney General;
and
(iii)
Notify third parties if the request involves their proprietary
information;
(B)
Failure to request an Attorney General opinion and to notify
the requestor within 10 business days will result in a presumption that the
information is open unless there is a compelling reason to withhold it.
(C)
Requestors may send a letter to the Attorney General arguing
for release, and may review arguments made by the governmental body. If the
arguments disclose the requested information, the requestor may obtain a redacted
copy.
(D)
The Attorney General must render a decision no later than
the 45th working day after the attorney general received the request for a
decision. The attorney general may request an additional 10 working days extension.
(E)
Governmental bodies may not ask the Attorney General to
"reconsider" an opinion.
(7)
Additional Information on Sign.
(A)
The sign must contain contact information of the governmental
body's officer for public information, or the officer's agent, as well as
the mailing address, phone and fax numbers, and email address, if any, where
requestors may send a request for information to the officer or the officer's
agent. The sign must also contain the physical address at which requestors
may request information in person.
(B)
The sign must contact information of the local county attorney
or district attorney where requestors may submit a complaint of alleged violations
of the Act, as well as the contact information for the Office of the Attorney
General and the General Services Commission.
(C)
The sign must also contain contact information of the person
or persons with whom a requestor may make special arrangements for accommodation
pursuant to the American with Disabilities Act.
(e)
A governmental body may comply with Section 552.205 and
this rule by posting the sign provided by the General Services Commission.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 27, 2000.
TRD-200000584
Ann Dillon
General Counsel
General Services Commission
Effective date: February 16, 2000
Proposal publication date: November 12, 1999
For further information, please call: (512) 463-3960
Subchapter A. EMPLOYEE TRAINING AND DEVELOPMENT PROGRAM
1 TAC §§112.1, 112.3, 112.5, 112.7
The General Services Commission adopts new Chapter 112, §§112.1,
112.3, 112.5 and 112.7, concerning the Employee Training and Development Program.
Chapter 112 is adopted without changes to the proposed text as published in
the December 17, 1999, issue of the
Texas Register
(24 TexReg 11203). The text will not be republished.
The General Services Commission adopts new Chapter 112 in order to provide
policy guidelines to employees of the General Services Commission who pursue
personal and professional improvement through training and education.
The new Chapter 112 clearly defines procedures and guidelines in accordance
with the Government Code, Chapter 656, Subchapter C - The State Employee Training
Act and S.B. 223, 76th Leg. (1999).
No comments were received regarding the adoption of new Chapter 112 - Employee
Training and Development Program.
New Chapter 112 is adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, Section 2152.105 and Government Code, §656.048
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 26, 2000.
TRD-200000514
Ann Dillon
General Counsel
General Services Commission
Effective date: February 15, 2000
Proposal publication date: December 17, 1999
For further information, please call: (512) 463-3960
General Services Commission adopts amendments to Chapter 113, Subchapter
A, §§113.8, 113.19 and new §113.15; and adopts amendments to
Subchapter C, §113.34 relating to recycled, remanufactured or environmentally
sensitive commodities or services pursuant to S.B. 1127, 76th Leg. (1999).
The rules are adopted without changes to the proposed text as noticed in the
December 17, 1999, publication of the
Texas Register
(24 TexReg 11205). The text will not be republished.
Amendments and new rules to Chapter 113, Subchapter A and Subchapter C,
are adopted to update terminology and clarify language to be in accordance
with S.B. 1127, 76th Leg. (1999) which amended Texas Government Code §§2155.445
and 2155.448 relating to purchasing preferences.
The amendments and new rule to Chapter 113, Subchapter A and Subchapter
C will provide for the commission, in coordination with the Recycling Market
Development Board (RMDB), to annually consider recommendations of the RMDB
when updating the list of identified commodities or services and purchasing
goals for procurements by state agencies.
No comments were received concerning the proposed amendments to Chapter
113, Subchapter A, §§113.8, 113.19 and new §113.15; and proposed
amendments to Subchapter C, §113.34.
Subchapter A. PURCHASING
1 TAC §§113.8, 113.15, 113.19
The amendments and new rule are adopted under the authority
of the Texas Government Code, Title 10, Subtitle D., Chapter 2152, Subchapter
A, §2152.003 and Chapter 2155, §2155.068, 2155.445 and 2155.448
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 26, 2000.
TRD-200000515
Ann Dillon
General Counsel
General Services Commission
Effective date: February 15, 2000
Proposal publication date: December 17, 1999
For further information, please call: (512) 463-3960
1 TAC §113.34
The amendments are adopted under the authority of the Texas
Government Code, Title 10, Subtitle D., Chapter 2152, Subchapter A, §2152.003
and Chapter 2155, §2155.068, 2155.445 and 2155.448 which provides the
General Services Commission with the authority to promulgate rules necessary
to implement the sections.
Filed
with the Office of the Secretary of State on January 26, 2000.
TRD-200000516
Ann Dillon
General Counsel
General Services Commission
Effective date: February 15, 2000
Proposal publication date: December 17, 1999
For further information, please call: (512) 463-3960
Chapter 361.
CHILDREN'S HEALTH INSURANCE PROGRAM
Subchapter C. COST OF COPIES OF PUBLIC INFORMATION
Chapter 112.
HUMAN RESOURCES PROGRAM
Chapter 113.
CENTRAL PURCHASING DIVISION
Subchapter C. SPECIFICATION
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION