TITLE 1.ADMINISTRATION

Part 18. TELECOMMUNICATIONS INFRASTRUCTURE FUND BOARD

Chapter 471. OPERATING RULES OF THE TELECOMMUNICATIONS INFRASTRUCTURE FUND BOARD

The Telecommunications Infrastructure Fund Board (TIFB) proposes the repeal of §§471.3, 471.5, 471.7, 471.9, 471.11, 471.13, 471.15, 471.17, 471.19, 471.30 - 471.33, 471.50, 471.60, 471.70, 471.80, 471.90 - 471.92, 471.100 and new §§471.3, 471.11, 471.13 and 471.51, concerning Operating Rules of the Telecommunications Infrastructure Fund Board.

The purpose of the repeal and replacement is to update the TIFB rules in order to provide clarity of operations for entities working with the TIFB.

The Telecommunications Infrastructure Fund Board previously published the repeal and replacement of Chapter 471 in the December 1, 2000, issue of the Texas Register (25 TexReg 11781). That version has been withdrawn elsewhere in this issue of the Texas Register .

Elsewhere in this issue of the Texas Register , the Telecommunication Infrastructure Fund Board contemporaneously proposes the review of Chapter 471, concerning Operating Rules of the Telecommunications Infrastructure Fund Board. The rule review is pursuant to the requirements of the Appropriations Act of 1997, House Bill 1, Article IX, §167.

Frank Pennington, Director of Finance and Administration, Telecommunications Infrastructure Fund Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing the sections.

Mr. Pennington also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be updated regulations as a result of the rule review process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed.

Comments on the proposal may be submitted to Michelle Pundt, Telecommunications Infrastructure Fund Board, P.O. Box 12876, Austin, Texas 78711, (512) 344-4306 or email at: mpundt@tifb.state.tx.us.

1 TAC §§471.3, 471.5, 471.7, 471.9, 471.11, 471.13, 471.15, 471.17, 471.19, 471.30 - 471.33, 471.50, 471.60, 471.70, 471.80, 471.90 - 471.92, 471.100

(Editor's note: The text of the following sections proposed for repeal will not be published.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 Telecommunications Infrastructure Fund Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed pursuant to Texas Civil Statutes, Article 1446c-0(f) and the Government Code, Chapter 2001, which provides the Telecommunications Infrastructure Fund Board with the authority to promulgate rules and regulations. The repeals are also proposed pursuant to Article 9, Appropriations Act, §9-10.13, Review of Agency Rules.

No other statutes, articles or codes are affected by this proposal.

§471.3.Number, Terms of Office and Qualifications.

§471.5.Chairman.

§471.7.Vice-Chairman.

§471.9.Compensation of Board Members.

§471.11.Place of TIF Board Meetings.

§471.13.Regular Meetings.

§471.15.Emergency Meetings.

§471.17.Executive Sessions.

§471.19.Quorum, Manner of Acting and Adjournment.

§471.30.Finance and Audit Committee.

§471.31.Other Committees.

§471.32.Advisory Committees.

§471.33.Committee Procedure.

§471.50.Contracts and Appointments of Agents.

§471.60.Rules Governing Acceptance of Gifts, Grants and Donations.

§471.70.Standard of Conduct and Conflict of Interest Provisions.

§471.80.Private Interest in Measure or Decision.

§471.90.Fiscal Year.

§471.91.Books and Records.

§471.92.Effective Date of Rules.

§471.100.Amendments to the Rules.

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 March 26, 2001.

TRD-200101772

Robert J. "Sam" Tessen

Executive Director

Telecommunications Infrastructure Fund Board

Earliest possible date of adoption: May 6, 2001

For further information, please call: (512) 344-4306


1 TAC §§471.3, 471.11, 471.13, 471.51

The new sections are proposed pursuant to Texas Civil Statutes, Article 1446c-0(f) and the Government Code, Chapter 2001, which provides the Telecommunications Infrastructure Fund Board with the authority to promulgate rules and regulations. The new sections are also proposed pursuant to Article 9, Appropriations Act, §9-10.13, Review of Agency Rules.

No other statutes, articles or codes are affected by this proposal.

§471.3.Agency Acceptance of Gifts, Grants, and Donations.

(a)

Donations with a value of $500 or more shall be accepted by a majority of the Board in an open meeting. The minutes of the meeting shall reflect the name of the donor, a description of the gift, and the purpose of the gift.

(b)

Administration and investment of funds. Donated funds shall be deposited in the state treasury.

(c)

Approved Relationships.

(1)

The recipient of a gift, grant, or donation may, while employed by the TIFB, serve as an officer of director of a donor.

(2)

The recipient of a gift, grant, or donation may, while employed by the TIFB, receive compensation for services rendered to the donor.

(d)

Restricted Activities.

(1)

No officer or employee who serves as an officer or director of a donor will vote on or otherwise participate in any measure, proposal, or decision pending regarding the donor if that officer or employee might reasonably be expected to have an interest in the measure, proposal, or decision.

(2)

No officer or employee will accept employment from or engage in any business or professional activity with a donor, which might lead to disclosure of confidential information acquired by reason of the person's official position with the TIFB.

(3)

No officer or employee will accept employment or compensation from a donor, which might impair one's independence of judgment in the performance of official duties with the TIFB.

(4)

No officer or employee will make personal investments in association with a donor, which might create a substantial conflict between the officer or employee's private interest and the interest of the Board.

(5)

No officer or employee will accept or solicit any gift, favor, or service from a donor, which might tend to influence the exercise of official conduct.

(6)

No officer or employee will intentionally or knowingly solicit, accept or agree to accept any benefit for having exercised official powers on behalf of a donor or for having performed official duties in favor of a donor.

(e)

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

(1)

A donation is a gift of property, including money or services, to the Board.

(2)

A donor is an individual, not an employee or officer of the Board, or an organization that gives or offers to give a donation to the Board.

(3)

An employee is a person employed by the TIFB on a full-time or part-time basis

(4)

An officer is the Executive Director of the TIFB or appointed member(s) of the Board.

§471.11.Procurement, Contract Dispute Resolution.

(a)

All TIFB contracts will include text related to the concerted effort to utilize a dispute resolution process.

(b)

Contract Text. The contract text will read as follows:

(1)

"Resolution of Contract Claims-Dispute Resolution Process.

(A)

The dispute resolution process provided for in chapter 2260 of the Government Code shall be used, as further described herein by TIFB and the Performing Agent to attempt to resolve any claim for breach of contract made by the Performing Agent.

(B)

The Performing Agent and the Agency will use the dispute resolution process provided in Chapter 2260 of the Government Code to attempt to resolve any claim for breach of contract made against the Agency. To initiate the process, the Performing Agent must submit written notice, as required by subchapter B to the Agency's Executive Director. The notice will specifically state that the provisions of Chapter 2260, subchapter B are being invoked. The contested case process provided in Chapter 2260, subchapter C, of the Government Code is the Performing Agent's sole process for seeking a remedy for any and all alleged breaches of contract by the Agency if the parties are unable to resolve their disputes under this paragraph. Compliance with the contested case process provided in subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of the contract by the Agency nor any other conduct of any representative of the Agency relating to the contract is considered a waiver of sovereign immunity to suit. The submission, processing and resolution of the Performing Agent's claim is governed by the published rules adopted by the Attorney General pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended. The pendency of a claim does not constitute ground for the suspension of performance by a party, in whole or in part.

(2)

Neither the occurrence of an event nor the pendency of a claim constitute grounds for the suspension of performance by the Performing Agent, in whole or in part."

(c)

Responsibilities.

(1)

The Executive Director and the Director of Finance and Administration will be notified of any contract disputes within one working day following receipt of such notice. The employee receiving such notice of dispute will document such notice through submission of an Activity Report.

(2)

The Executive Director or the Director's designee will notify counsel of all claims against the agency and will notify the State Office of Administrative Hearings of the need for a hearing.

(d)

Definitions.

(1)

A contract is a written agreement executed between a state agency or institution of higher education and a contractor for goods and services.

(2)

A contractor is an independent person(s) or firm, not including subcontractors, who enters into a contract directly with a state agency or institution of higher education.

§471.13.Historically Underutilized Business Participation.

(a)

Goal. The Telecommunications Infrastructure Fund Board will promote equitable business opportunities in the State of Texas through its daily operations and grant awards to its constituency. TIFB will strive to assist Historically Underutilized Businesses at a rate not less than 30 percent of the total value of all contract awards for the purchase of goods or services during each fiscal year.

(b)

Objective. The Telecommunications Infrastructure Fund Board will strive to meet the Historically Underutilized Business goals related to the daily operation of awarding grant opportunities in the State of Texas, which are:

(1)

Commodities--12.6 percent,

(2)

Professional Services--20 percent, and

(3)

Other Services--33 percent.

(c)

Strategy.

(1)

The Telecommunications Infrastructure Fund Board will make a good faith effort to utilize HUB vendors to procure goods and services through a review and contact of the vendors found on the Central Master Bidders List and Qualified Information System Vendor Program list.

(2)

Also, the Telecommunications Infrastructure Fund Board's guidelines mandate grantees to follow an open procurement process for approval of encumbering or expending grant funds.

(A)

Grantees not using the purchasing services of the General Services Commission's Cooperative Purchasing Program or other approved purchasing cooperative must submit the bid documentation to TIFB for equipment and services costs result in expenditures of $15,000 and greater.

(B)

As mandated by Article 601b, Texas Civil Statutes, grantees must make a good-faith effort to encourage Historically Underutilized Businesses to bid on services for grant-funded projects, and report the amount of the dollars contractually awarded to HUBs.

(d)

Assessment. The Telecommunications Infrastructure Fund Board will for the purpose of Strategic Planning, report its operating expenditures related to Historically Underutilized Business performance figures. Also, the Telecommunications Infrastructure Fund Board will document and monitor the performance in an on-going manner to its Director of Finance and Administration. The Director of Finance and Administration is responsible for circulating this information to the Executive Director.

§471.51.Proposal Award, Award Decision Appeal.

(a)

Applicants and/or grantees may formally appeal funding decisions if TIFB:

(1)

Denies an application for funding, in part or whole

(2)

Terminates a grant project, or

(3)

Imposes sanction upon an active grantee

(4)

If an applicant and/or grantee wishes to appeal a decision made by TIFB, that applicant must submit an appeal, in writing to the Executive Director within 20 business days from the date of notification of a denial, grant termination, or grantee sanction. Applicant and/or grantee appeals must include the basis for the appeal, including all supporting documentation, and must be signed by the authorized official for the grant application or project.

(5)

An applicant and/or grantee must base an appeal upon a verifiable error made during the prioritization and/or review process. An applicant and/or grantee must show that TIFB error caused the actual denial of a grant application, in part or in whole, the termination of a grant project, and/or the imposition of a sanction upon an active grantee.

(6)

The Executive Director will issue a final decision, in writing, within 60 days of the receipt of an appeal letter. If the Executive Director has rendered no decision within the 60-day period following the receipt of the appeal, the original decision will stand and the appeal will therefore be considered denied.

(b)

Responsibilities. The Executive Director will make all determinations for written appeals.

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 March 26, 2001.

TRD-200101773

Robert J. "Sam" Tessen

Executive Director

Telecommunications Infrastructure Fund Board

Earliest possible date of adoption: May 6, 2001

For further information, please call: (512) 344-4306