Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 81.
ELECTIONS
Subchapter C. VOTING SYSTEMS
1 TAC §81.55
The Office of the Secretary of State, Elections Division,
proposes a new rule, §81.55, concerning guidelines for political subdivisions
to adopt electronic voting systems with practical and effective means of providing
secret ballots to persons with physical disabilities as required under §122.0011
of the Texas Election Code.
Ann McGeehan, Director of Elections, has determined that for the first
five-year period that this rule is in effect, there will be no fiscal implications
to the state or local governments as a result of enforcing or administering
the rule.
Ms. McGeehan has also determined that for each year of the first five years
that the rule is in effect, the public benefit anticipated as a result of
enforcing the rule will be to ensure that voting systems are accessible and
that disabled voters have the ability to cast a secret ballot in jurisdictions
using a newly adopted electronic voting system. There will be no effect on
small businesses. There are no anticipated economic costs to persons who are
required to comply with the rule as proposed.
Comments on the proposal may be submitted to Ann McGeehan, Director of
Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas
78711-2060.
The rule is proposed under Texas Election Code, Chapter 31, Subchapter
A, §31.003, which authorizes the Office of the Secretary of State to
promulgate rules to obtain uniformity in the interpretation and application
of the Code, and Chapter 122, §122.0011 of the Code, which requires voting
systems adopted after September 1, 1999, to provide practical and effective
means of providing secret ballots to persons with physical disabilities.
Texas Election Code, Chapter 122, §122.0011 is affected by this proposed
rule.
§81.55.Adoption of Accessible Voting Systems under §122.0011 of the Texas Election Code.
Adoption of Accessible Voting System after September 1, 1999.
(1)
The requirement of §122.0011 of the Texas Election
Code (the "Code") to implement a practical and effective means of providing
a secret ballot to persons with physical disabilities is triggered when a
political subdivision acquires a new voting system by lease or purchase after
September 1, 1999.
(2)
Only the acquisition of a new voting system (or substantial
modification of an existing voting system) that will change voters' interaction
with the ballot at the polling sites triggers §122.0011 of the Code.
Any change made to a central counting station unit that does not directly
affect voters does not trigger the law.
(3)
If a political subdivision acquires a new voting system,
the system must be accessible to persons with physical disabilities and provide
the voter with a practical and effective means to cast a secret ballot.
(4)
A political subdivision may use more than one type
of voting system in a single polling place for the limited purpose of providing
a person with physical disabilities with an alternative method of casting
a secret ballot.
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 May 31, 2000.
TRD-200003854
Jeff Eubank
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: July 09, 2000
For further information, please call: (512) 463-5701
1 TAC §81.56
The Office of the Secretary of State, Elections Division,
proposes a new rule, §81.56, concerning alternative methods of providing
secret ballots to persons with physical disabilities as required under §122.0011
of the Texas Election Code.
Ann McGeehan, Director of Elections, has determined that for the first
five-year period that this rule is in effect, there will be no fiscal implications
for state government as a result of enforcing or administering the rule; however,
there may be fiscal implications for local governments due to an increase
in costs for conducting elections should they choose to adopt any of the alternative
methods of voting described below.
Ms. McGeehan has determined also that for each year of the first five years
that the rule is in effect, the public benefit anticipated as a result of
enforcing the rule will be to ensure that jurisdictions using a newly adopted
electronic voting system have guidelines for adopting alternative methods
for providing a secret ballot to voters with physical disabilities. There
will be no effect on small businesses. There are no anticipated economic costs
to persons who are required to comply with the rule as proposed.
Comments on the proposal may be submitted to Ann McGeehan, Director of
Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas
78711-2060.
The rule is proposed under Texas Election Code, Chapter 31,
Subchapter A, §31.003, which authorizes the Office of the Secretary of
State to promulgate rules to obtain uniformity in the interpretation and application
of the Code, and under Chapter 122, §122.0011 of the Code, which requires
voting systems adopted after September 1, 1999, to provide practical and effective
means of providing secret ballots to persons with physical disabilities.
Texas Election Code, Chapter 122, §122.0011 is affected by this proposed
rule.
§81.56.Authorized Alternative Methods of Providing a Secret Ballot to Persons with Physical Disabilities.
The methods of providing a secret ballot to persons with physical disabilities
are approved by the Office of the Secretary of State. Minor variations on
these methods may be made without submitting the method to this office for
approval. These methods supplement the regular voter-assistance procedures
in Texas Election Code §§64.031-64.037.
(1)
Master Ballot with Telephone System for Regular Paper or
Optical Scan Ballots
(A)
The political subdivision prints a set of regular paper
or optical scan ballots specifically for use by visually or reading-impaired
voters. Each race is listed on the ballot only by number (race 1, race 2,
etc.), and each candidate is represented only by a number and letter (1a,
1b, 1c, 1d, 2a, 2b, etc.). The ballot is not precinct-specific, but rather
has all possible races on which any voter anywhere in the political subdivision
could vote. This is the "master ballot."
(B)
When a voter with a visual or reading disability arrives
at the polling site and requests to vote under this method, the election official
must verify the voter's eligibility to vote in the usual manner. The official
then makes a telephone call to a designated telephone number. A person assigned
to read the ballot in English or Spanish (the "reader") to the voter answers
the telephone. The reader must have all ballot styles available to read, with
each race marked by the race name (e.g., Governor) and the candidate's name
(e.g., John Doe), as well as the assigned race and candidate numbers (e.g.,
race 1, candidate 1a). The voter selects a master ballot, and the election
official must then write the precinct number on the ballot. The election official
tells the reader the precinct number only; the official does not tell the
reader the name of the voter. The election official hands the voter the telephone.
Someone must assist the voter in marking the ballot. The voter must be assisted
by two election officials if voting on election day, or assisted by one election
official if voting during the early voting period, unless the voter prefers
to be assisted by one person of the voter's own choosing who is not an election
official. The reader reads the race, candidate names or propositions, and
corresponding numbers to the voter. The voter then tells the assistant the
number of the candidate of his or her choice, and the assistant marks the
master ballot accordingly. Any declared write-in candidates also must be assigned
a specific number and letter, which the reader will read if the voter wishes
to vote for a write-in candidate. The voter will inform the assistant of the
number of the write-in candidate, which the assistant will then write on the
appropriate write-in line. The assistant also should fill-in the bubble (oval,
square, or arrow) to show that the voter has selected a write-in candidate,
if using an optical scan ballot. This will allow the voter to choose a write-in
candidate without informing the assistant of the name of the person for whom
the voter is voting. When the voter has completed the ballot, the voter or
the assistant deposits it into the ballot box, and the telephone is returned
to the election official.
(C)
This alternative method may be used with a pre-recorded
audiotape for each ballot style, rather than with a telephone. The voter listens
to the tape rather than a reader and informs the assistant of his or her choices.
(D)
At the early voting ballot board meeting or at the central
counting station, as appropriate for early voting or election day, the master
ballot is duplicated onto the correct ballot stock for that precinct. The
serial number of the precinct ballot must be written on the master ballot
so that the ballots can be matched up in the event of a recount and for auditing
purposes.
(E)
This method should be used only in an election in which
there are several races, each with several candidates, as this increases the
likelihood that the voter's choices are secret.
(F)
This method will not allow a voter to vote secretly for
an undeclared write-in candidate.
(G)
The use of a master ballot system is not authorized for
use with a Precinct Ballot Counter system, as the master ballots must be duplicated
onto the regular precinct ballot stock before tabulation may occur. However,
if a political subdivision chooses to make precinct-specific blank ballots,
listing only the races and candidates on which each precinct is eligible to
vote so that the ballots would not have to be remade, then this system could
be used with a Precinct Ballot Counter system.
(H)
Using a master ballot does not violate §52.005 of
the Code, which states that the ballot for an election precinct may contain
only those offices and propositions on which the qualified voters of the precinct
are entitled to vote. The reader will read from a ballot specifically for
the disabled voter's precinct and will not read to the voter any offices or
propositions on which the voter is not entitled to vote. Thus the voter will
not be able to vote on any offices or propositions on which the voter is not
entitled to vote.
(I)
The use of a "scrambled" master ballot (also referred to
as a "rotating" ballot), on which the races or candidates, or both, are listed
in a different order from that on the regular ballot stock is expressly prohibited.
(J)
Election officials must situate the voting booths in a
manner that will ensure as much privacy and as little noise for voters as
possible.
(2)
Paper or Optical Scan Ballot with Template/Overlay
and Telephone or Audiotape System
(A)
The political subdivision creates a precinct-specific tactile
ballot cover or overlay ("template") that is used to allow visually or reading-impaired
voters to vote independently through the use of touch. The ballot template
is in the form of a folder or other overlay into which the voter's ballot
is inserted, and a binder clip or similar fastener should be attached to keep
the ballot in place. The ballot template has raised lines to guide a voter
to the appropriate voting locations on the ballot, and has holes punched to
allow the voter to mark the actual ballot. The lines may be created with velcro
strips, fabric glue, caulk, or some other substance that will provide tactile
guidance to the ballot layout. The lines should be designed to divide the
races or issues on the ballot; each race or issue may be numbered by writing
a number with the template-marking substance. The numbers may also be printed
in Braille. If a vendor provides a ballot template with holes punched to correspond
to every oval on an optical scan ballot, the authority conducting the election
must make that template precinct-specific by dividing the ballot into the
appropriate precinct races by using raised lines and covering the holes so
that the voter may not make a mark. The material used to cover the holes must
be self-adhesive and thick enough to alert the voter that a mark should not
be made in that hole.
(B)
When a voter with a visual or reading disability arrives
at the polling site and requests to vote using this method, the election official
must verify the voter's eligibility to vote; and the voter selects a ballot
from the official precinct ballot stock. The election official then inserts
the ballot into the template and hands it to the voter. One corner of the
ballot template must be cut at an angle that corresponds to a similar cut
on the ballot. This will allow the official and the voter to be sure that
the ballot is correctly aligned and facing the right way in the ballot cover.
The voter may choose to insert the ballot into the ballot cover rather than
having the election official perform this task.
(C)
If using the telephone system, the election official then
makes a telephone call to a designated telephone number. A person assigned
to read the ballot in English or Spanish (the "reader") to the voter answers
the telephone. The election official tells the reader the precinct number
only; the official does not tell the reader the name of the voter. The election
official hands the voter the telephone. The reader instructs the voter how
to read the ballot template to understand how it will allow him or her to
mark his or her own ballot. Once the reader is sure the voter understands
the procedures and the layout of the ballot template, the reader reads the
first race and candidate names or propositions. The voter then marks the ballot
through the hole in the ballot template corresponding to the candidate for
which the voter wishes to vote (or for or against the proposition). The reader
then instructs the voter to move to the next section on the ballot template
to vote on the next race or issue. The reader must have a copy of the template
that the voter is using so that the reader is sure to instruct the voter accurately
on the proper races and candidates on which the voter is eligible to vote.
The reader does not need an actual template; a carbon copy is sufficient.
Once the voter has completed the ballot, the ballot is deposited in the ballot
box, and the ballot cover is returned to the election official.
(D)
If an audiotape system is used, the precinct election official
hands the voter the appropriate audiotape, audiotape player, and a set of
headphones. The voter listens to the tape to receive instructions on how to
read the ballot template to understand how to mark the ballot. If the voter
does not understand the instructions, the voter may call the election official
over to explain the template procedures. Once the voter understands the procedures
and the layout of the ballot template, the voter continues playing the audiotape.
The voter may stop the audiotape as necessary while marking the ballot through
the hole in the ballot template corresponding to the candidate for which the
voter wishes to vote (or for or against the proposition). The voter then restarts
the tape and moves down or across the ballot, as instructed on the tape, to
vote on the next race or issue. When the voter has completed the ballot, the
ballot is deposited in the ballot box, and the ballot cover, audiotape, audiotape
player, and headphones are returned to the election official.
(E)
Telephones used with this alternative method should be
equipped with headsets rather than handsets. This will allow the voters to
have their hands free to hold their ballot and template steady, and accurately
mark the ballot through the template.
(F)
This alternative method does not enable the voter with
a physical disability to vote for a write-in candidate without assistance.
(G)
Election officials must situate the voting booths in a
manner that will ensure as much privacy and as little noise for voters as
possible.
(3)
Punch Card or Lever Machine with Audiotape or
Telephone System
(A)
Punch card and lever machine systems work similarly to
the ballot template/overlay system, as the machines used allow visually or
reading-impaired voters to vote using their sense of touch to guide them through
the ballot. These systems may use either a telephone or audiotape to inform
the voters of the procedures and the ballot contents.
(B)
If using the telephone system, the election official makes
a telephone call to a designated telephone number. A person assigned to read
the ballot in English or Spanish (the "reader") to the voter answers the telephone.
The election official tells the reader the precinct number only; the official
does not tell the reader the name of the voter. The election official hands
the voter the telephone. The reader instructs the voter on the procedures
for voting with a punch card or lever machine, as applicable. Once the reader
is sure the voter understands the procedures, the reader reads the first race
and candidate names or proposition. The voter votes, and the reader then instructs
the voter to move to the next section on the ballot to vote on the next race
or issue. When the voter has cast the ballot, the voter returns the telephone
to the election official.
(C)
If an audiotape system is used, the precinct election official
hands the voter the appropriate audiotape, audiotape player, and a set of
headphones. The voter listens to the audiotape to receive instructions on
how to vote with the punch card or lever machine. If the voter does not understand
the instructions, the voter may call the election official over to explain
the procedure. Once the voter understands the procedures, the voter continues
playing the audiotape. The voter may stop the audiotape as necessary while
marking the ballot. The voter then restarts the tape to vote on the next race
or issue. When the voter has cast the ballot, the audiotape, audiotape player,
and headphones are returned to the election official.
(D)
Telephones used with this alternative method should be
equipped with headsets rather than handsets. This will allow the voters to
have their hands free to mark their ballots.
(E)
Election officials must situate the voting booths in a
manner that will ensure as much privacy and as little noise for voters as
possible.
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 May 31, 2000.
TRD-200003853
Jeff Eubank
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: July 09, 2000
For further information, please call: (512) 463-5701
1 TAC §81.57
The Office of the Secretary of State, Elections Division,
proposes a new rule, §81.57, to establish criteria to assist this office
in determining the accessibility of voting systems to enable political subdivisions
to adopt electronic voting systems with practical and effective means of providing
secret ballots to persons with physical disabilities as required under §122.0011
of the Texas Election Code.
Ann McGeehan, Director of Elections, has determined that for the first
five-year period that this rule is in effect, there will be no fiscal implications
to the state or local governments as a result of enforcing or administering
the rule.
Ms. McGeehan has also determined that for each year of the first five years
that the rule is in effect, the public benefit anticipated as a result of
enforcing the rule will be that voting systems are accessible and that disabled
voters will have the ability to cast a secret ballot in jurisdictions using
a newly adopted electronic voting system. There will be no effect on small
businesses. There are no anticipated economic costs to persons who are required
to comply with the rule as proposed.
Comments on the proposal may be submitted to Ann McGeehan, Director of
Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas
78711-2060.
The rule is proposed under Texas Election Code, Chapter 31, Subchapter
A, §31.003, which authorizes the Office of the Secretary of State to
promulgate rules to obtain uniformity in the interpretation and application
of the Code, and Chapter 122, §122.0011 of the Code, which requires voting
systems adopted after September 1, 1999, to provide practical and effective
means of providing secret ballots to persons with physical disabilities.
Texas Election Code, Chapter 122, §122.0011 is affected by this proposed
rule.
§81.57. Requirements for Voting System Accessibility.
A voting system shall be accessible to voters with physical disabilities
including no vision, low vision (visual acuity between 20/70 and 20/200, and/or
30 degree or greater visual-field loss), no hearing, low hearing, limited
manual dexterity, limited reach, limited strength, no mobility, low mobility,
or any combination of the foregoing, by providing voters with physical disabilities
with a practical and effective means to cast an independent and secret ballot
in accordance with each of the following, assessed independently and collectively:
(1)
The voting system shall provide a tactile-input or speech-input
device, or both; and
(2)
The voting system shall provide a method by which
voters can confirm any tactile or audio input by having the capability of
audio output using synthetic or recorded human speech, which is reasonably
phonetically accurate; and
(3)
The voting system shall provide a means for a voter
to change the voter's selection prior to the voter casting the ballot; and
(4)
Any operable controls on the input device that are
needed for voters without vision shall be discernable tactilely without actuating
the keys. (Note: All the buttons on the device would not have to be discernable
tactilely, only those buttons that are actually required for the individual
to use the "operation without vision" mode.); and
(5)
Any audio and non-audio access approaches shall be
able to work both separately and simultaneously; and
(6)
If a non-audio access approach is provided, the system
shall not require color perception; the system shall use black text or graphics,
or both, on white background or white text or graphics, or both, on black
background, unless the office of the Secretary of State approves other high-contrast
color combinations that do not require color perception; and
(7)
Any voting system that requires any visual perception
shall offer the election official who programs the system, prior to its being
sent to the polling place, the capability to set the font size to a level
that can be read by voters with low vision. (Note: Although there is no standard
font size for this situation, a san-serif font of 18 points as printed on
a standard 8.5 x 11 piece of paper will allow the most universal access.);
and
(8)
The voting system shall provide audio information,
including any audio output using synthetic or recorded human speech or any
auditory feedback tones that are important for the use of the audio approach,
through at least one mode (e.g., by handset or headset) in enhanced auditory
fashion (i.e., increased amplification), and shall provide incremental volume
control with output amplification up to a level of at least 97 dB SPL, with
at least one intermediate step of 89 dB SPL; and
(9)
For transmitted voice signals, the voting system shall
provide a gain adjustable up to a minimum of 20 dB with at least one intermediate
step of 12 dB of gain; and
(10)
For the safety of others, if the voting system has
the possibility of exceeding 120 dB SPL, then a mechanism shall be included
to reset the volume automatically to a safe level after every use (e.g., when
handset is replaced) but not before; and
(11)
If sound cues and audible information, such as "beeps"
are used, there shall be simultaneous corresponding visual cues and information;
and
(12)
Any spoken text shall also be presented on screen,
with the exception that any auditory confirmation of a voter's selection as
required by Section 2 of this rule shall not be printed in text on the screen
(Note: A graphic representation of a ballot with a check, "X," etc. beside
a candidate or proposition is allowed.); and
(13)
All controls and operable mechanisms shall be operable
with one hand, including with a closed fist, and operable without tight grasping,
pinching, or twisting of the wrist; and
(14)
The force required to operate or activate the controls
shall be no greater than 5 lbf (pounds per square foot); and
(15)
If a forward approach by a person in a wheelchair
to a voting system is necessary, the maximum high-forward reach allowed shall
be 48 inches (1220 mm) and the minimum low-forward reach shall be 15 inches
(380 mm). If the high-forward reach is over an obstruction, reach and clearances
shall be as shown in Figure 1 or otherwise in accordance with the ADAAG, as
written at the time the system is certified for use in the state of Texas;
and
Figure: 1 TAC §81.57(15)
(16)
If a side or parallel approach by a person in a wheelchair
to a voting system is necessary, the maximum side reach allowed shall be 54
inches (1370 mm) and the low side reach shall be no less than 9 inches (230
mm) above the floor. If the side reach is over an obstruction, reach and clearances
shall be as shown in Figure 2 or otherwise in accordance with the ADAAG, as
written at the time the system is certified for use in the state of Texas;
and
Figure: 1 TAC §81.57(16)
(17)
The highest operable part of controls, dispensers,
receptacles, and other operable equipment shall be placed within at least
one of the reach ranges outlined in Sections 15 and 16 of this rule.
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 May 31, 2000.
TRD-200003852
Jeff Eubank
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: July 09, 2000
For further information, please call: (512) 463-5701
Chapter 113.
CENTRAL PURCHASING DIVISION
The General Services Commission proposes amendments to Chapter 113,
Subchapter A - Purchasing, §§113.2 - 113.6, §§113.8 -
113.14, and §§113.18 - 113.20; Subchapter C - Specification, §§113.33
and 113.34; Subchapter D - Inspection, §§113.51, 113.52 and 113.56;
Subchapter E - Cooperative Purchasing Program, §§113.85 and 113.87;
and Subchapter G - Buying Under a Contract Established by an Agency Other
than the General Services Commission, §113.125. The amendments concern
the Central Purchasing Division and are being proposed as a result of the
rule review process mandated by Texas Government Code, §2001.039 (relating
to Agency Review of Existing Rules). The proposed amendments will clarify
language and streamline procedures.
Mr. Paul Schlimpter, Director of Central Procurement, has determined for
the first five year period the rules are in effect, there will be no adverse
effect to state or local government as a result of enforcing these rules.
Mr. Paul Schlimper, Director of Central Procurement, further determines
that for each year of the first five-year period the amendments are in effect,
the public benefit anticipated as a result of enforcing these rules will be
deletion of obsolete language, updated statutory cites referenced within the
rules, and clarified language. There will be no effect on small or large businesses
and/or persons.
Comments on the proposals may be submitted to Ann Dillon, General Counsel,
General Services Commission, P.O. Box 13047, Austin, TX 78711-3047. Comments
must be received no later than thirty days from the date of publication of
the proposal to the
Texas Register.
Subchapter A. PURCHASING
1 TAC §§113.2 - 113.6, 113.8 - 113.14, 113.18 - 113.20
The amendments are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2155.068, 2155.077,
2155.079, 2155.080, 2155.081, 2155.132, 2155.134, 2155.267, 2155.323 2156.126,
and 2251.003; Texas Government Code, Chapter 2158; and Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Texas Government Code, Chapter 2251, and Education Code, Chapter
34, Subchapter A.
§113.2.Definitions.
The following words and terms, when used in this title, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Adopted uniform standards and specifications
- Specifications and standards developed by nationally recognized standards-making
associations that are evaluated and adopted by the specifications and standards
program.
(2)
Advisory groups - A group that advises
and assists the standards and specification program in establishing specifications.
The advisory group may include representatives from federal, state and local
governments, user groups, manufacturers, vendors and distributors, bidders,
associations, colleges, universities, testing laboratories and others with
expertise and specialization in particular product area.
(3)
[
(4)
Agent of record - An employee or official
designated by a qualified cooperative entity as the individual responsible
to represent the qualified entity in all matters relating to the program.
(5)
Approved products list - The list
is also referred to as the approved brands list or qualified products list.
It is a specification developed by evaluation brands and models of various
manufacturers and listing those determined to be acceptable to meet the minimum
level of quality. Testing is completed in advance of procurement to determine
which products comply with the specifications and standards requirements.
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
[
Bidders List-The centralized
master bidders list. ]
(11)
[
(12)
Board - The governing
body of a county or local school district.
(13)
[
(14)
[
(15)
[
(16)
Cooperative purchasing
program - A program to provide purchasing services to qualified cooperative
entities, as defined herein.
(17)
Debarment - An exclusion
from contracting or subcontracting with state agencies on the basis of any
cause set forth in §113.102 of this title (relating to Vendor Performance
and Debarment), commensurate with the seriousness of the offense, performance
failure, or inadequacy to perform.
(18)
[
(19)
Distributor purchase
- purchase of repair parts for a unit of major equipment that are needed immediately
or as maintenance contracts for laboratory/medical equipment.
(20)
[
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
Level of quality - The
ranking of an item, article, or product in regard to its properties, performance,
and purity.
(30)
[
(31)
[
(32)
[
(33)
Non-competitive purchase
-- A purchase of goods or services (also referred to as "spot purchase") that
does not exceed the amount stated in §113.11 (c) (1) of this title (relating
to Delegated Purchases).
(34)
[
(35)
[
(36)
Performance bond - A
surety bond which provides assurance of a bidder's performance of a certain
contract. The amount for the performance bond shall be based on the bidder's
annual level of potential monetary volume in the state purchasing program.
Acceptable forms of bonds are those described in the definition for "bid deposit".
(37)
[
(38)
[
(39)
[
(40)
Product specification
- A concise statement of a set of requirements to be satisfied by a product
or material, indicating whenever appropriate the procedures to determine whether
the requirements are satisfied.
(41)
[
(42)
[
(43)
[
(A)
Open market purchase order--A document issued by the commission
to accept a bid, creating an open market purchase contract.
(B)
Automated contract
[
(C)
Non-automated purchase order - A release
order issued by an agency as a non-automated term contract, and pursuant to
a requisition by the qualified ordering entity.
(44)
[
(45)
Qualified information
systems vendor catalogue proposal - A request for offers or quotations of
prices from catalogue vendors (QISV).
(46)
Qualified cooperative
entity - An entity that qualifies for participation in the cooperative purchasing
program:
(A)
A county, municipality, school district, special
district, junior college district, or other legally constituted political
subdivision of the state that is a local government.
(B)
Mental health and mental retardation community
centers in Government Code, §2155.202, that receive grants-in-aid under
the provisions of Subchapter B, Chapter 534, Health and Safety Code.
(C)
An assistance organization as defined in Government
Code, §2175.001, that receive any state funds.
(D)
A political subdivision, under Chapter 791,
Government Code.
(47)
Qualified Ordering
Entity - A state agency as the term is defined under the Texas Government
Code, Title 10, §2151.002, or an entity that qualifies for participation
in the cooperative purchasing program as defined in Local Government Code,
Subchapter D, §271.081.
(48)
[
(49)
[
(50)
[
(51)
[
(52)
[
(53)
[
(A)
Open market purchase requisition--An initiating request
from an agency describing needs and requesting the commission to purchase
goods or services to satisfy those needs.
(B)
Term contract purchase requisition--A request from
a qualified ordering entity
[
(54)
Responsible vendor
- A vendor who has the capability to perform all contract requirements in
full compliance with applicable state law, ethical standards, and applicable
commission rules.
(55)
Resolution - Document
of legal intent adopted by the governing body of a qualified cooperative entity
that evidences the qualified cooperative entity's participation in the cooperative
purchasing program.
(56)
[
(57)
[
(58)
[
(59)
[
[(44)
Spot purchase--A purchase of goods
or services that does not exceed the amount stated in §113.11 of this
title (relating to Delegated Purchases).]
(60)
Successor -in -interest
- Any business entity that has ownership similar to a business entity. For
purposes of §113.102 of this title (relating to Vendor Performance and
Debarment), it shall be presumed that a business entity that employs, or is
associated with, any partner, member, officer, director, responsible managing
officer, or responsible managing employee, of a business entity that was previously
debarred is a successor-in-interest.
(61)
[
(62)
[
(63)
Testing - an element
of inspection involving the determination, by technical means, of the properties
or elements of item (s) or component (s), including function operation.
(64)
Texas uniform standards
and specification - Standards and specifications prepared and published by
the standards and specifications program of the commission.
(65)
[
(66)
[
(67)
[
(68)
[
[
Written data--Data which
is expressly required to be submitted in writing. A bid invitation that expressly
requires the submission of written data with the bid must include the following
statement or its substantial equivalent: "Failure to provide the required
information with the bid response will automatically disqualify the bid from
consideration for award in connection with this transaction." ]
§113.3.Requisitions and Specifications; Proprietary Purchases; Lease Purchases.
(a)
Requisitions.
(1)
A purchase is initiated by an agency's submission of a
requisition containing desired specifications and conditions
of the purchase
on a form provided or approved by the commission. The requisition must
also include the agency's certification that funds are available for the purchase.
(2)
Requisitions
shall
[
(3)
The agency is responsible for determining its need
for a purchase, and the commission will not question the agency's determination
of need.
However, the commission may require clarification of the specifications
to foster open competition.
If the agency's specifications unreasonably
limit competition, [
(b)
Specifications.
(1)
The commission develops standard specifications for a number
of commodities purchased by the state and provides agencies with a list of
the commodities covered by the standard specifications. If an agency submits
a requisition with non-standard specifications when an applicable standard
specification exists, it must include an explanation as to why the standard
specification is not being used.
(2)
If an agency submits a requisition for the purchase
of a product on the open market when an equivalent product is available for
purchase under a term contract, it must include an acceptable explanation
as to why the contract product is not satisfactory.
(3)
The commission will review the specifications and
conditions of purchase submitted by an agency. The commission will not significantly
change specifications or conditions of purchase without written approval from
the agency, but it may correct typographical errors if doing so will not significantly
change the specifications. Incorrect, inadequate, or incomplete requisitions
may be returned to the agency, with a written explanation for the return
and the requirements for acceptable re-submission
.
(4)
The commission will normally specify delivery times
that are standard in the industry. If an agency requires shorter than standard
delivery times, it must state the requirement in its requisition. If the delivery
requirement can only be met by one vendor, written justification will be required.
If an agency does not require early delivery but wishes to take advantage
of it if available, the commission will state in the bid invitation that the
ability to make early delivery may be a factor in making the award. In such
cases, when it is to the state's advantage, the commission may accept a bid
other than the lowest after consulting with the agency. If the bid invitation
contains no statement regarding early delivery, the commission may not consider
early delivery in making an award.
(c)
Proprietary purchases.
(1)
When the commission finds that an agency has submitted
specifications or conditions of purchase which are proprietary to one vendor
and do not permit an equivalent product to be supplied, it shall require written
justification before processing the requisition. Within 10 days after the
commission received the requisition, it will notify the agency of the need
for a written justification. An agency may submit a written justification
along with its requisition if it chooses to do so.
(2)
A written justification for the use of proprietary
specifications or conditions must:
(A)
contain an explanation of the need for the specifications
or conditions;
(B)
state the reasons why any competing or equivalent products
identified by the commission are not satisfactory, addressing each such product
individually;
(C)
contain any other information requested by the commission;
and
(D)
be signed by the agency head, the chairman of its governing
body, or a person to whom such signature authority has been properly delegated,
or in the case of an institution of higher
education
[
(3)
When an agency submits a written justification
meeting the above requirements, the commission shall make the requested purchase.
[
(4)
When the commission reviews specifications or conditions
and finds that they limit competition but are not proprietary to one vendor,
it shall not return the requisition to the agency for that reason alone. However,
a commission purchaser shall discuss with the agency purchaser the limiting
effect, and the possible economic effect, of the specification or condition.
(d)
Lease-purchase contracts.
(1)
An agency may acquire capital equipment by lease-purchase
if it is cost effective.
(2)
If a proposed lease purchase is for information technologies
resources, as defined in the
Texas Government Code, Title 10, Suchapter
A, Chapter 2054
[
(A)
anticipated interest charges over the life of the contract;
(B)
anticipated cost savings which would result from outright
purchase;
(C)
an affirmative statement that the agency reasonably expects
to be able to make payments beyond the current biennium without requiring
an increase in appropriations;
(D)
any information requested by the commission; and
(E)
any other information the agency considers relevant.
§113.4.Centralized Master Bidders List.
(a)
The commission maintains the Centralized Master Bidders
List (CMBL) of the names and addresses of vendors which have applied and been
accepted for inclusion on the CMBL. The CMBL is maintained for the state's
use in obtaining competitive bids for purchases and for registering vendors
who wish to be designated as qualified information systems vendors. No vendor
will be placed on the CMBL to receive bid invitations for information purposes
only. Bid invitations and requests for proposals are
transmitted
[
(b)
To be considered for inclusion on the CMBL, a vendor must:
(1)
complete the application form provided by the commission
which includes certification that the vendor has access to the class and item
codes and is aware of the requirements and procedures regarding the provision
of goods, services and other
transactions with
[
(2)
remit a check or money order in the amount of $100,
which is the biennial maintenance fee assessed to cover the commission's costs
for maintaining the bidders list and
transmission of
[
(c)
The commission will review and evaluate the CMBL application,
and may reject an application that is not satisfactorily completed.
(d)
A vendor may be
administratively
removed from
the CMBL for one or more of the following reasons:
(1)
failing to pay or unnecessarily delaying payment of damages
assessed by the commission;
(2)
failing to submit bids in response to bid invitations
on either:
(A)
four consecutive open market invitations concerning the
affected class or item; or
(B)
one or more contract or schedule invitations concerning
the affected class;
(3)
failing to remit the biennial CMBL maintenance
fee; or
(4)
any factor set forth in Government Code, Chapter 2155, §§
2155.070 and 2155.077.
(e)
A vendor which has been removed from the CMBL shall not
be reinstated until expiration of
the
period for which the vendor
was removed and approval is granted by the
director
[
(f)
An error in addressing a bid invitation or request for
proposal or a failure of the post office to deliver the solicitation will
not be sufficient reason to require the commission to reject all other bids
or proposals.
(g)
State agencies
[
[
The commission may authorize
an agency to maintain and use its own bidders lists for specialized needs
only by approval of the commissioners in open meeting. Requests for such approval
should be made in writing to the executive director and signed by the chief
executive officer of the requesting agency. All such requests should clearly
set out the reasons and justifications for the request. ]
§113.5.Bid Submission, Bid Opening, and Tabulation.
(a)
Bid submission.
(1)
Prospective bidders may request specific bid invitations
from the commission at any time prior to the bid opening. [
(2)
A bidder may withdraw its bid by written request at
any time prior to the bid opening date and hour.
(3)
A bid received after the time and date established
by the bid invitation is a late bid and will not be considered.
(4)
A bid received which does not contain adequate bid
identification information on the outside of the envelope will be opened to
obtain such information[
(5)
Bids may be submitted by telefacsimile (fax). The
telephone number for fax bid submission will be identified in the solicitation;
no other number may be used for bid submission. The commission's receipt of
bids by fax is solely for the convenience of bidders and is permitted on a
cost recovery basis, subject to change without notice. Bids submitted by fax
need not be confirmed in writing, but must comply with all legal requirements
applicable to formal bids. If all or any portion of a bid submitted by fax
is received late, is illegible, or is otherwise rendered nonresponsive due
to equipment failure or operator error, the bid or the applicable portion
of the bid will not be considered. The commission shall not be liable for
equipment failure or operator error, nor will such failure or error require
other bids to be rejected or the bid invitation to be readvertised.
(6)
Bids by telegram are not allowed.
[
(7)
An unsigned bid is not valid and will be disqualified.
(8)
A bidder or an agency may request, in person at the
bid opening, that bids be read aloud. No bid shall be required to be read
aloud at any time other than during regular working hours and days.
(9)
When formal bids are required, bids may not be taken
or accepted by telephone.
[
Return mail bids do
not have a bid opening date. ]
(10)
[
(11)
[
[
A bid submitted by a
corporation must contain a certification that the corporation is not delinquent
in its Texas franchise tax payments, or that it is exempt from, or not subject
to, such tax. A false statement concerning the corporation's Texas franchise
tax status constitutes grounds for cancellation of any resulting contract
at the sole option of the state. ]
(b)
Bid opening and tabulation.
(1)
All bid openings conducted by the commission shall be open
to the public.
(2)
Bid opening dates may be changed and bid openings
rescheduled if bidders are properly notified in advance of the new opening
date.
(3)
If a bid opening is canceled, all bids which are being
held for opening will be returned to the bidders.
(4)
All bid tabulation files are available for public
inspection. Bid tabulations may be reviewed by any interested person during
regular working hours at the offices of the commission. Employees of the commission
are not required to give bid tabulation information by telephone.
§113.6.Bid Evaluation and Award.
(a)
Bid evaluation.
(1)
The commission may accept or reject any bid or any part
of a bid or waive minor technicalities in a bid, if doing so would be in the
state's best interest.
(2)
A bid price may not be altered or amended after bids
are opened except to correct mathematical errors in extension.
(3)
No increase in price will be considered after a bid
is opened. A bidder may reduce its price provided it is the lowest and best
bidder and is otherwise entitled to the award.
(4)
Bid prices are considered firm for acceptance for
30 days from the bid opening date for open market
purchases
[
(5)
A bid containing a self-evident error may be withdrawn
by the bidder
prior to an award.
(6)
Bid prices which are subject to unlimited escalation
will not be considered. A bidder may offer a predetermined limit of escalation
in his bid and the bid will be evaluated on the basis of the full amount of
the escalation.
(7)
A bid containing a material failure to comply with
the advertised specifications shall be rejected.
(8)
All bids must be based on "F.O.B. destination" delivery
terms unless otherwise specified.
(9)
If requested in the invitation for bids, samples must
be submitted or the bid will be rejected. The commission will require samples
only when essential to the assessment of product quality during bid evaluation.
Samples
for non-winning bids shall
[
(10)
When brand names are specified, bids on alternate
brands will be considered if they otherwise meet specification requirements.
(11)
Cash discounts are acceptable but are not considered
in making an award. All cash discounts offered will be taken if they are earned
by the agency.
(12)
No electrical item may be purchased unless the item
meets applicable safety standards of the federal Occupational Safety and Health
Administration (OSHA).
(b)
Award.
(1)
All awards shall be made to the bidder
complying with
the best value criteria used in the bid and
[
(2)
An open market purchase contract is awarded and created
when the director of purchasing or his designee
authorizes
[
(3)
In case of tie bids which cannot be resolved by application
of one or more preferences described in §113.8 of this title (relating
to Preferences), an award shall be made by drawing lots.
§113.8.Preferences.
(a)
Claiming a preference. To claim a preference, a bidder
shall mark the appropriate box on the face of the bid invitation. If the appropriate
box is not marked, a preference will not be granted unless other documents
included in the bid show a right to the preference.
(b)
Preferences.
(1)
Texas resident bidders.
(A)
A Texas resident bidder shall be given preference over
a nonresident bidder when the cost, and quality of the goods or services are
equal.
(B)
The commission may award a contract to a nonresident bidder
only if its bid is lower than the lowest bid submitted by a responsible Texas
resident bidder by the same amount that a Texas resident bidder would be required
to underbid the nonresident bidder to obtain a comparable contract in the
state where the nonresident's principal place of business is located. In evaluating
a bid of a nonresident bidder, an amount will be added equal to the amount
a Texas resident bidder would be required to underbid a nonresident bidder
to obtain a comparable contract in the state where the nonresident bidder's
principal place of business is located
, otherwise known as reciprocal
preference
. After the amount is added, an award may be made to the nonresident
bidder if it is determined to have the lowest price and best bid. The amount
added is for evaluation purposes only; in no event shall an amount be awarded
in excess of the amount actually bid.
(2)
Texas and United States products.
(A)
Supplies, materials, or equipment produced in Texas shall
be given preference over comparable goods produced outside Texas when the
cost and quality of the goods are equal. Supplies, materials, and equipment
are considered to be produced in Texas if they are manufactured in Texas;
"manufactured" does not include the work of packaging or repackaging.
(B)
Agricultural products grown in Texas shall be given preference
over comparable products grown outside Texas when the cost and quality of
the goods are equal. Agricultural products are considered grown in Texas if
they contain any amount grown in Texas. In case of tie bids between agricultural
products claiming the preference, the bidder whose product contains the greatest
percentage of the product grown in Texas will prevail. For purposes of this
preference, agricultural products include, among other things, textiles and
fiber products, processed and unprocessed foods, feed, lumber and forestry
products, live animals, plants, flowers, and nursery stock.
(C)
Supplies, materials, equipment, or agricultural products
produced or grown in the United States shall be given preference over foreign
products when the cost and quality are equal, if comparable goods of equal
cost and quality produced or grown in Texas or offered by Texas bidders are
not available.
[
Historically Underutilized
Business. A preference shall be given to historically underutilized business
(HUB) which are certified as HUBs by the commission when the cost and quality
of goods or services are equal. ]
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
§113.9.Contract Administration.
(a)
Inspection of merchandise.
(1)
Qualified ordering entities
[
(2)
If unlisted shortages are discovered, the vendor and
the commission must be notified immediately. Unless shipments are checked
immediately upon arrival and such shortage reports are made within 15 days,
the contractor cannot be held responsible for shortages.
(3)
A contractor may be required to pick up any merchandise
not conforming to specifications and replace the merchandise immediately.
(b)
Substitutions. Substitution of items called for in a contract
is not permitted without the commission's prior approval. No such approval
will be granted unless substituted items are of equal quality and are offered
at the same or lower price.
(c)
Cancellations.
(1)
Cancellations
on orders issued by the commission
,
either on the part of the vendor or
a qualified ordering entity
[
(2)
Orders may be canceled without the contractor's consent
due to unsatisfactory performance or nonperformance by the contractor.
(3)
Orders may not be canceled without first obtaining
the consent of the contractor if the reason for cancellation is not the fault
of the contractor.
(4)
A contract or a portion of a contract may be canceled
on request of the contractor if the contractor is unable to perform due to
circumstances beyond its control. In these instances, the commission will
consider such requests when presented in writing with proper documentation.
[
The state may pay a restocking
charge or other similar charge as a result of a canceled order, if the commission
determines that the charge is justifiable under the circumstances. ]
(d)
Damages for failure to perform.
(1)
A vendor who fails to perform as required under a contract
shall be liable for actual damages and costs incurred by the state.
(2)
If any merchandise delivered under a contract has
been used or consumed by an agency and on testing is found not to comply with
specifications, no payment may be approved by the commission for such merchandise
until the amount of actual damages incurred has been determined.
(3)
A vendor who fails to pay damages assessed by the
state may not be awarded additional contracts until such damages have been
paid or the matter has been otherwise resolved.
(4)
The commission shall seek to collect damages by following
the procedures established by the Office of the Attorney General for the collection
of delinquent obligations.
§113.10.Term Contracts.
[
The commission enters into term contracts
for the purchase or lease of items used in large quantities by several state
agencies. The term of the contract is determined by the commission; usually,
the term is 12 months.
(1)
Bid invitations.
(A)
The commission maintains records of the quantities and/or
dollar volumes purchased under term contracts during the previous year and
includes this information in bid invitations. Term contracts are established
for estimated quantities only, however, and do not guarantee that the state
will order any given amount during the contract period.
(B)
Term contracts may be either firm price or
firm fixed
price contracts with escalation and de-escalation
[
(2)
Bidding instructions.
(A)
Firm fixed price contracts with escalation/de-escalation
[
[
Term contract awards for publications
(commodity class 715) or approval programs are based on a quoted discount,
but bidders are not required to furnish a price list with their bids, nor
are they required to furnish a new price list in the event of price changes.]
[
Telegraphic bids are not acceptable
for non-automated discount-from-list contracts identified as such in the bid
invitation, because the necessary price lists are required to be in the commission's
office prior to the bid opening date and hour.]
(B)
[
(3)
Awards.
(A)
The commission will notify a successful bidder of the acceptance
of its bid by issuing a notice of award. The successful bidder must review
the notice of award and notify the General Services Commission
in writing
within 10 days of any error requiring correction.
(B)
Performance bonds may be required for each award exceeding
$100,000.
(4)
Delivery requirements.
(A)
All items shipped by a vendor must be new
(unless
otherwise specified in a purchase document)
and received by the agency
in first-class condition within the specified time.
(B)
All merchandise shipped against the contract order during
the term of the contract must be as the vendor originally quoted. If items
become unavailable during the term of a contract, the commission may require
the vendor to furnish acceptable substitutes.
[
Studies of statewide or regional
services contracts. ]
[
The commission shall select and study at least
one service annually to determine the benefit to the state of providing the
service through statewide or regional contracts. The study will focus on the
possible benefits from contracting on either a statewide or regional basis.
If economic benefits may be realized from statewide or regional contracts,
the commission shall use such contracts.]
[
If the commission determines that more
than five bidders are willing to provide a specific service, a statewide or
regional term contract is not mandatory. However, if the commission determines
it is in the state's best interest, it may establish contracts with one or
more vendors to provide the service. ]
§113.11.Delegated Purchases.
(a)
General delegation. The following purchasing functions
are delegated to agencies:
(1)
commodity purchases of goods that do not exceed $25,000;
(2)
emergency purchases [
(3)
purchases of perishable items;
(4)
purchases of services the estimated cost of which
does not exceed $100,000;
(5)
purchases of publications directly from the publisher;
(6)
fuel, oil, and grease purchases; and
(7)
distributor purchases.
(b)
Adherence to ethical standards. Employees of agencies who
perform purchasing functions under delegated authority shall adhere to the
same ethical standards required of commission employees, and shall avoid all
conflict of interest in their purchasing activities.
(c)
Provisions generally applicable to delegated purchases.
(1)
Competitive bidding is not required for purchases of $2,000
or less.
(2)
All bids must be obtained from sources which normally
offer for sale the merchandise being purchased.
(3)
Items purchased under delegated authority may not
include scheduled items, items available under a term contract (unless purchased
in quantities less than minimum ordering quantities shown in contract), or
any item required by law to be purchased from a particular source.
(4)
The commission must solicit formal bids from all eligible
vendors on the centralized master bidders list (CMBL) when making purchases
in excess of $25,000. The commission waives the requirement for state agencies
to solicit bids from all eligible vendors on the list when making purchases
under subsection (e) of this section. State agencies must solicit from all
eligible vendors on the CMBL when making service purchases in excess of $100,000
that the commission has
delegated to an
[
[
Large purchases may not
be broken down into small purchases in order to meet dollar limits specified
in these rules. The commission may not require unrelated purchases to be combined
into one purchase order to exceed dollar limits specified in these rules.
]
[
For purchases over $100,000,
agencies shall consult with and receive approval of the commission for use
of factors for bid evaluation other than price and meeting specifications.
]
(d)
Withdrawal of delegated purchase authority. The commission
will verify compliance with established procedures
for delegated purchases
and
may
[
(e)
Provisions applicable to particular delegated purchases.
(1)
Commodity purchases. Commodity purchases may be made in
accordance with the following provisions:
(A)
Agencies must attempt to obtain at least three informal
bids, including a minimum of two bids from historically underutilized businesses
(including at least one bid each from a minority-owned business and a woman-owned
business), on all commodity purchases in excess of $2,000 and not over $10,000.
Agencies must meet competitive bidding requirements and may supplement the
list of bidders obtained from the CMBL and Historically Underutilized Business
(HUB) Directory with non-CMBL bidders if the purchase price does not exceed
$5,000. Agencies must attempt to obtain at least three formal bids, including
a minimum of two bids from HUBs (including at least one bid each from a minority-owned
business and a woman-owned business), on all commodity purchases in excess
of $10,000 and not over $25,000. Agencies may refer to the commission's HUB
Directory, which is maintained and accessible electronically, to locate historically
underutilized businesses. If an agency is unable to locate a minority-owned
business and/or a woman-owned business from the commission's HUB Directory
or other available sources, the agency must make a written notation in the
purchase file of all reference sources used.
(B)
Agencies must attempt to provide
a copy of the bid to the last vendor who held the contract in addition to
the informal bid requirement.
[
All information required by
the commission must be furnished on the approved commodity purchase form.]
(2)
Emergency purchases. The commission will approve
payment for emergency purchases in accordance with the following provisions.
(A)
At least three informal bids must be obtained whenever
possible on all purchases in excess of $10,000.
(B)
For an emergency purchase of goods or services exceeding
$25,000, an agency must send a full written explanation of the emergency along
with other documentation required by the commission for prepayment approval.
(C)
The agency may contact the commission for advice and assistance
in the handling of emergency purchases. The commission may not approve an
invoice for an emergency purchase unless the agency has complied with the
foregoing requirements. This rule does not apply to purchases made in accordance
with the Texas Government Code, Chapter 418
(Texas Disaster Act of 1975)
.
(3)
Perishable items. Purchases made under this authority
must be obtained through competitive bids, and appropriate documentation must
be forwarded to the commission for approval.
(4)
Services. Purchases of services estimated to cost
no more than $100,000 per year per contract are delegated and must be obtained
through
a
competitive
selection process
[
(A)
An agency is required to submit documentation
to the commission for proprietary purchases of services over $25,000 and for
purchases expected to cost more than $25,000 per year.
(B)
Agencies must attempt to obtain at least three
informal bids, including a minimum of two bids from HUBs (including at least
one bid each from a minority-owned business and a woman-owned business), on
all service purchases in excess of $2,000 and not over $10,000.
(C)
Agencies must meet competitive bidding requirements
and may supplement the list of bidders obtained from the CMBL and Historically
Underutilized Business (HUB) Directory with non-CMBL bidders if the purchase
price does not exceed $5,000.
(D)
Agencies must attempt to obtain at least three
formal bids, including a minimum of two bids from HUBs (including at least
one bid each from a minority-owned business and a woman-owned business), on
all service purchases in excess of $10,000 and not over $25,000. Agencies
may refer to the commission's HUB Directory, which is maintained and accessible
electronically, to locate historically underutilized businesses. If an agency
is unable to locate a minority-owned business and/or a woman-owned business
from the commission's HUB Directory or other available sources, the agency
must make a written notation in the purchase file of all reference sources
used. For purchases of services estimated up to $25,000, state agencies shall
solicit a minimum of three bids (two must be HUBs, one minority and one woman-owned
business) from CMBL and HUB Directory Vendors located in the agencies' geographic
region.
(E)
For purchases of services estimated more than
$25,000 and less than $100,000, state agencies shall, as a minimum, solicit
bids from all CMBL and HUB Directory Vendors located in the agencies' geographic
region.
(F)
For purchases of services estimated to cost
more than $100,000 per year, the commission must review any proposed specifications
or statements of work and determine whether the commission or the agency should
make the advertisement and award. The commission may determine that the service
should be advertised to the
entire CMBL rather than to only those vendors
in the agency's geographical area.
[
(5)
Publications. An agency may purchase publications
directly from the publisher when such publications are not available through
statewide contract or through competitive bidding. Direct publication orders
shall be made by following guidelines
established
[
(A)
foreign publications;
(B)
out-of-print or rare publications;
(C)
back issues of magazines, journals, and newspapers;
(D)
publications of professional societies;
(E)
prepared films, tapes, and discs (audio, visual, or both);
(F)
computer software;
(G)
collections of any of the foregoing items, and microfilm
or microfiche copies of any of the foregoing items; and
(H)
Library of Congress cards.
(6)
Fuel, oil, and grease. An agency may make fuel,
oil, and grease purchases at service stations or in bulk. Fuel, oil, and grease
purchases shall be made by following guidelines suggested by the commission.
Non-competitive
[
(7)
Distributor purchases. An agency may make distributor
purchases by following guidelines
established
[
(f)
Specific delegations. The authority to grant specific delegations
resides with the director. The application method, review process, delegation
finding, and appeal process will be set forth by policy statement of the director.
[
(1)
procurement audit standards set forth in § 113.18
of this title (relating to Auditing of Purchase Documents and Payment Vouchers);
(2)
minimum training and certification standards established
in the State Procurement Manual; and
(3)
approved processes and procedures for the specific
type of delegation being requested. All processes and procedures are subject
to the prior review, revision and approval of the director.
(g)
Protest Procedures. State agencies shall adopt protest
procedures and submit a copy to the commission during the post-payment audit
of the agency's purchasing documents or upon request by the commission.
(h)
Procurement Plan. State agencies shall formulate an agency
procurement plan that identifies an agency's management controls and purchasing
oversight authority in accordance with the policy guidance contained in the
Commission's Procurement Manual. An agency must submit a copy of the procurement
plan during the commission's audit of the agency's purchasing documents or
upon request by the commission.
(i)
Debarred Vendors. State agencies shall ensure that debarred
vendors do not participate in state contracting and will establish procedures
to ensure awards are not made to debarred vendors.
(j)
Reporting Purchasing Activity under Delegated Authority.
State agencies will report to the commission, not later than May 1 of each
year regarding the previous six-month period and on November 1 of each year
regarding the preceding fiscal year, information related to delegated purchasing
activity for goods and services in the form prescribed by the commission.
[
Contingency Plan for Y2K.
The Director of Central Procurement is authorized to assign special delegated
purchasing authority temporarily to state agencies in the event Y2K problems
occur with the General Services Commission's automated information systems.
Upon notification from the Director of Information Services of the automated
purchasing systems failure:]
[
The Director of Central Procurement will issue
a letter to affected agencies permitting limited delegated purchasing authority.]
[
Special delegated purchasing authority
will be rescinded by letter from the Director of Central Procurement after
notice has been received from the Director of Information Services that problems
have been resolved with the automated purchasing system.]
[
State agencies granted special delegated
purchasing authority shall meet the criteria set forth in §113.18 of
this title (relating to Auditing of Purchase Documents and Payment Vouchers).]
[
This subsection shall expire April 1,
2000.]
§113.12.Research in Higher Education.
(a)
At the request of an institution or other agency of higher
education (institution), the commission shall delegate authority to purchase
supplies, materials, services, or equipment for research projects. The commission
will not delegate its responsibility to review proprietary purchases or any
other responsibility which may not be delegated by law.
(b)
An institution acting under this delegated authority shall
adhere to the same ethical standards required of commission employees, and
shall avoid conflicts of interest in its purchasing activities.
(c)
An institution acting under this delegated authority shall
comply with all applicable rules of the commission.
(d)
Purchases made under this authority shall be based on
a
competitive
solicitation process
[
(e)
The institution may consider factors such as quality, reliability,
expected life span, compatibility with existing equipment and any other factors
which may be legally considered when making a purchase under this authority.
Bid invitations
or requests for proposals
must include an evaluation
plan describing the exact manner in which the factors will be evaluated. The
evaluation plan must apply equally and impartially to each bid
or proposal
. An award may not be based on factors or criteria not specifically
included in the bid invitation
or request for proposal
or otherwise
permitted under the Act or these rules.
[
An institution acting under
this authority is required to use the centralized bidders list for purchases
in excess of $15,000. ]
§113.13.Texas Department of Criminal Justice Purchases.
(a)
Pursuant to Government Code, §2155.065, the
[
(b)
Agencies must purchase such items from TDCJ unless
a written waiver has been secured from TDCJ.
[
[
the agency submits acceptable
written evidence that a TDCJ-produced item will not adequately serve its needs;]
[(2)
TDCJ determines that it is unable
to fill a requisition for the item; or]
[(3)
the agency determines that it can
purchase the item elsewhere at a lower price, and the commission so certifies
by accepting and processing the requisition or by approving payment. ]
(c)
Orders for such items will be placed with TDCJ in
a
[
§113.14.Purchases for School Districts.
(a)
The commission purchases motor vehicles used for transporting
school children, including buses, bus chassis, bus bodies, tires, and tubes,
for school districts participating in the Foundation School Program, in accordance
with the provisions of the Texas Education Code, Chapter
34
[
(b)
A school district initiates a purchase by submitting a
requisition to the commission. Requisitions for school buses are forwarded
to the Texas Education Agency for approval. All purchases are based on competitive
bids whenever possible and must comply with:
(1)
the alternative fuels requirements of the Texas Education
Code, Chapter
34
[
(2)
§§113.23
[
(3)
§125.3 of this title
(relating to Definitions for alternative fuel and alternative fuel vehicles);
and
(4)
[
(c)
If a school district wishes to dispose of a used school
bus, it should so advise the commission. The commission will then determine
whether the bus should be transferred to another school district or to an
agency. If the commission determines that the bus should not be transferred
to another school district or an agency, the school district may sell the
bus through the competitive bidding process. When selling a bus by competitive
bidding, the school district must:
(1)
contact all bidders on the list described in subsection
(d) of this section;
(2)
properly advertise the sale in a local newspaper;
(3)
award to the bidder submitting the highest bid;
(4)
furnish the commission a copy of the newspaper advertisement
and a tabulation of all bids received, indicating to whom the bus was sold.
(d)
The commission maintains a list of bidders interested in
bidding on used school buses, and furnishes the list to school districts that
are permitted to sell used school buses. To be considered for inclusion on
the list, an individual or firm should submit a completed application to the
commission. Applications are available from the commission on request. No
individual or firm will be placed on the bidders list for information purposes
or to receive bids at more than one address.
(e)
An individual or firm may be deleted from the
bidders
[
§113.18.Auditing of Purchase Documents and Payment Vouchers.
(a)
General. The commission audits payment vouchers and the
associated purchasing documents which established the basis for the claim
for payment from state appropriated funds in accordance with
Government
Code, Title 10, Subtitle D, §2155.324
[
(b)
Auditing procedure. The commission audits purchasing data
for compliance with applicable statutes and rules of the commission. The commission
may audit either 100% of State of Texas purchase vouchers and associated purchase
documentation of any agency,
a sampling of all documents,
or may
audit only specific types of purchases. [
(c)
Auditing parameters.
(1)
For 100% audits, delegated and non-delegated
purchases
, the results must be at or above the 90% compliance level for each
agency.
(2)
For the random sample audits, delegated and non-delegated
purchases
, the results must be within the following parameters:
(A)
minimum confidence level--90%;
(B)
maximum error level--10%;
(C)
minimum sample size--10 per agency and 10 per Purchase
Category Code;
(D)
period of time--monthly, quarterly, semiannual, annual,
or biennial; and
(E)
selection of sample--may be by table of random numbers
or any other interval method.
(d)
Agency notification. The commission will send results of
these audits to the agency head, agency's directors of purchasing, and fiscal
and/or business manager. If the results are not within the established parameters,
the agency will be offered support and assistance to maintain an acceptable
level of compliance. Agencies will be given a period of six months to bring
their purchasing compliance within the established parameters. If the results
of
a
[
Qualification of Information Systems
Vendors
[
(a)
Upon registration on the commission's Centralized Master
Bidders List (CMBL), a vendor wishing to sell or lease automated information
systems to governmental entities in accordance with this rule shall apply
to the commission for designation as a qualified information systems vendor
(QISV) by completing and submitting an application and catalogue.
(b)
In this section a governmental entity is a state agency
subject to the Information Resources Act (Texas Government Code, Title 10,
Subtitle B, Chapter 2054) or a local government entity that participates in
the Cooperative Purchasing Program under the Texas Local Government Code,
Title 8, Subtitle C, Subchapter D.
(c)
An application must include the following:
[
the vendor's maintenance,
repair and support plan for all eligible products and services;]
[
proof of the vendor's
financial resources and ability to perform;]
[
a guarantee that the
vendor will make available repair and replacement parts as well as technical
information required for repair of products sold for at least three years
from the date of a product's discontinuance; ]
(1)
[
[
a statement certifying
that: ]
[
the vendor has reviewed the rules promulgated
by the Department of Information Resources (DIR) and that all products and
services offered in the vendor's catalogue conform and comply with all applicable
standards adopted by the DIR; ]
[
the vendor has not given, offered to give,
nor intends to give at any time hereafter any economic opportunity, future
employment, gift, loan, gratuity, special discount, trip, favor, or service
to a public servant in connection with catalogue purchase transactions; ]
[
the vendor is not currently delinquent in the
payment of any franchise tax owed the State of Texas under the Texas Tax Code,
Title 2, Subtitle F, Chapter 171; ]
[
the vendor assigns to purchaser any and all
claims for overcharges associated with any catalogue transaction which arise
under the antitrust laws of the United States or the State of Texas; and ]
[
the vendor will protect governmental entities
from claims involving infringement of patents or copyrights; ]
(2)
[
[
the name, address, telephone
number and point of contact for three customer references;]
[
the signature of the
vendor's authorized representative; ]
[
the date the application
was signed; and]
[
the vendor's catalogue's
universal resource locator (URL) in accordance with subsection (o) of this
section.]
(d)
Upon receipt of a properly completed application, the
director
[
[
the technical adequacy and
reliability of the vendor's products as demonstrated by conformity to all
state and federal requirements, including but not limited to ANSI, FCC, NEMA,
OSHA and UL standards; ]
(1)
[
(2)
[
[
the ability of the vendor,
as determined by the commission in its sole discretion, to provide adequate
and reliable support and maintenance, currently and in the future, for all
products and services detailed in the vendor's catalogue for the geographic
area in Texas to which the vendor desires to market products and services.
]
(e)
An application that is incomplete or that contains inaccurate
information will not be approved, and the vendor will be notified of corrections
needed.
(f)
Each vendor's catalogue shall:
(1)
Conform to requirements set
forth in Texas Government Code, §2157.066 and any other requirements
established by the commission.
[
describe all products
or services eligible for purchase; ]
[
include the list price
of each product or service; ]
[
show the discounted price
to the state for each product or service; ]
[
include an effective
date; ]
[
provide necessary ordering
information (vendor name, ordering address, points of contact, phone numbers,
etc.); ]
[
contain the statement:
"This is a true and accurate copy of the catalogue approved through the General
Services Commission;" and]
(2)
[
(g)
A vendor designated as a QISV shall be notified of the
designation by the commission. Once designated as a QISV, the vendor shall
maintain a catalogue listing all products and services available for purchase
and shall make the same available to qualified ordering entities upon request
at no cost
. [
(h)
The director shall promulgate
guidelines for the revision process of a vendor's catalogue.
[
The vendor shall update its
catalogue as needed to reflect changes in price and the availability of products
or services offered. Updates may be in the form of amendments to the current
catalogue or issuance of supplemental catalogues in compliance with subsection
(g) of this section and in a manner required by the commission. It shall be
the responsibility of the individual purchaser/governmental entity and the
vendor to ensure that QISV catalogues are current and include all updates.]
[
The vendor must provide the
commission an annual report to maintain its qualification status. The report,
due by the 15th of September, shall include the following information for
the preceding year (ending August 31st): ]
[
each governmental entity's identity;]
[
the purchaser's requisition or purchase
order number and its date;]
[
the value of the order; and]
[
total value of all orders.]
(i)
[
(j)
[
(k)
[
(l)
[
(1)
use, produce, or provide products that contain recycled
or remanufactured content, are environmentally sensitive, or possess energy
saving features;
(2)
identify recycled or remanufactured products and if
possible, include the percentage of the total product that is recycled or
remanufactured and/or the percentage of the total post-consumer recycled material
content in its product literature or other representations; and
(3)
use recycled/recyclable paper if printing a catalogue.
(m)
[
(n)
[
§113.20.Group Purchasing Programs.
(a)
An institution of higher education, as defined by Education
Code, §61.003, or a state agency may purchase materials, supplies, or
equipment through group purchasing programs in accordance with this section.
(b)
Before making a particular purchase through a group purchasing
program that costs more than $100,000, an institution or state agency must
notify the commission in writing that the purchase is being considered. The
notification must be signed by the chief purchasing officer for the institution
or state agency. The notification must include a complete description of the
purchase, the vendor's name, quantity and price information, the terms and
conditions of the contract, and any other information required by the commission.
(c)
If the commission determines that a better value is available
through the commission, it will so inform the requesting institution or state
agency within ten working days after receipt of the notification. Upon receipt
of information that a better value is available, the institution or state
agency shall utilize established purchasing procedures for the purchase
including good faith effort compliance §§111.11-111.28 of this title
(relating to Historically Underutilized Businesses)
. If the institution
or state agency does not receive such notification within ten working days,
it may proceed with the purchase.
[
An institution or state agency
that participates in a group purchasing program must maintain, and compile
monthly, information relating to the institution's or state agency's use,
and the use by each operating division of the institution or state agency,
of historically underutilized businesses, including information regarding
subcontractors and suppliers. Institutions or state agencies shall require
a contractor or supplier to whom a contract has been awarded to report to
the institution or state agency the identity and the amount paid to each historically
underutilized business to whom the contractor or supplier has awarded a subcontract
for the purchase of supplies, materials, or equipment. ]
[
An institution or state agency
that participates in group purchasing programs must submit a 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 from historically underutilized businesses that are made through
the group purchasing programs. ]
(d)
[
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 May 24, 2000.
TRD-200003705
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.33, §113.34
The amendments are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2155.068, 2155.077,
2155.079, 2155.080, 2155.081, 2155.132, 2155.134, 2155.267, 2155.323 2156.126,
and 2251.003; Texas Government Code, Chapter 2158; and Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Texas Government Code, Chapter 2251, and Education Code, Chapter
34, Subchapter A. List any other statute that may be affected.
§113.33.Selection of Items for Development of Texas Uniform Standards and Specifications.
Items are selected for specification development by or through one
or more of the following
methods.
(1)
Required by statute.
(A)
School buses. Pursuant to the Texas Education Code,
Subtitle F, Chapter 34, the Central Procurement Division
[
(B)
Prison-made products and raw materials. Pursuant to
Texas Government Code, Subtitle G, Subchapter B, §497.027, an article
or product produced under Subchapter B must meet specifications established
by the commission that are in effect when the article or product is produced.
[
(2)
Requests from using agencies. If a using agency
finds that it is having difficulty in obtaining a certain item to meet a particular
requirement, then the agency can communicate this need to the
standards
and specifications section of the Central Procurement Division
[
(3)
Requests from purchasers. If a state purchaser is
having difficulty in securing bids on a particular item in the absence of
adequate
uniform standards and
specifications, he may request the
standards and specification section
[
(4)
Requests from vendors and/or bidders.
Bidders
may
[
§113.34.Development of Texas Uniform Standards and Specifications.
(a)
Preparation of Texas
uniform standards and
specifications.
(1)
The procedure used in developing
uniform standards
and
specifications includes consultation, research, collection, and
evaluation of data, and preparation of the specification. The
standards
and specification section
[
(2)
Uniform standards
[
(3)
A proposed specification is then prepared by stipulating
minimum requirements necessary to provide products of the level of quality
required by [
(4)
This
draft
[
(5)
Comments and suggestions received are reviewed, analyzed,
and evaluated, and the proposed specification modified accordingly.
(6)
If, as a result of this analysis and evaluation, major
changes in the proposed specification are made, then a second proposed specification
is prepared and distributed
and the process outlined in paragraphs (4)
and (5) of this subsection is followed
[
(7)
If no major change in the proposed specification is
made, then the
uniform standard and
specification is finalized
and distributed.
(8)
Comments and suggestions received from the distribution
of a second proposed specification are reviewed, analyzed, [
(9)
This process is continued until a
uniform standard
and
specification is developed that will provide the level of quality
required by the state and that will provide competitive bidding.
(10)
The agency user advisory groups provide the
standards and specifications section
[
(b)
Distribution of Texas
uniform standards and
specifications. The initial distribution of newly adopted or prepared
uniform standards and
specifications is to
state agencies, vendors/distributors
and manufacturers
[
[
state agencies;]
[
vendors/distributors;
and]
[
manufacturers. ]
[
Use of Texas specifications.
All agencies and public school districts which purchase through the State
Purchasing and General Services Commission are required to use Texas specifications,
unless documentation is presented giving justifiable reasons acceptable to
the commission for deviation from the Texas specifications.]
(c)
[
(1)
A manufacturer, vendor, or distributor may submit a product
for inclusion in an established approved product list to the
standards
and specifications section the Central Procurement Division
[
(2)
A product can be removed from the approved products
list if:
(A)
the quality of a given product is decreased; or
(B)
the minimum level of quality for the approved products
list is increased in order to provide the quality of products required by
state agencies.
[
The Central Purchasing
Division uses the approved products list in lieu of a Texas specification;
the purchaser solicits bids from the manufacturers whose products are on the
list.]
[
New procedures and specifications.
In developing new procedures and specifications, the commission shall encourage
the use of recycled, remanufactured or environmentally sensitive products
and products that may be recycled or reused.]
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 May 24, 2000.
TRD-200003706
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §§113.51, 113.52, 113.56
The amendments are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2155.068, 2155.077,
2155.079, 2155.080, 2155.081, 2155.132, 2155.134, 2155.267, 2155.323 2156.126,
and 2251.003; Texas Government Code, Chapter 2158; and Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Texas Government Code, Chapter 2251, and Education Code, Chapter
34, Subchapter A. List any other statute that may be affected.
§113.51.General.
Pursuant to Texas
Government Code, Title 10, Subtitle D, §2155.069
[
§113.52.[
(a) Items are selected for inspection and/or testing under the following
conditions
:
[
(1)
Notice from
a
using
qualified ordering
entity
[
(2)
Notice from purchaser. The various purchasers within
the Central
Procurement
[
(3)
Previous experience with products and/or vendors.
The
GSC inspector
[
(4)
Items selected at random. The
GSC inspector
[
(5)
Request from vendor. A vendor may request the inspection
of items purchased prior to
or after
delivery of the items to the
qualified ordering entity
[
(6)
Certificate and/or test report from independent testing
laboratory. When deemed necessary,
the Central Procurement Division
[
(7)
In-plant inspection. When approved by the director
of the Central Procurement Division
[
(b)
Qualified ordering entities
[
(c)
In addition to random inspections, the
Vendor Relations Program
[
[
As a part of the standards
and specifications program, the commission staff shall review existing contracts
in effect on and after September 1, 1991, for recycling waste produced at
state buildings under the control of the Commission. Such review shall be
made to ensure that all contracted recycling services meet contract specifications.]
(d)
Reports of findings on inspections
and/or tests of materials, supplies, services, and equipment are filed with
the Vendor Relations Program for recording and/or proper action to eliminate
the problem.
§113.56. Assessing and Collecting Damages and Testing Costs.
(a)
The Central
Procurement
[
[
Damages and/or testing costs
may be deducted from any payments owed the supplier by the state.]
(b)
[
(c)
[
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 May 24, 2000.
TRD-200003708
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.85, §113.87
The amendment are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2155.068, 2155.077,
2155.079, 2155.080, 2155.081, 2155.132, 2155.134, 2155.267, 2155.323 2156.126,
and 2251.003; Texas Government Code, Chapter 2158; and Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Texas Government Code, Chapter 2251, and Education Code, Chapter
34, Subchapter A. List any other statute that may be affected.
§113.85.Participation in Cooperative Purchasing.
(a)
Qualified
ordering
entity participation in the
cooperative purchasing program is on a voluntary basis and to the extent the
commission deems feasible. The director [
(b)
Enrollment in the program will be in effect from the day
of
approval by the director
[
(c)
Requests for purchase on the open market or
on a
schedule may be made in writing to the director [
§113.87.Responsibilities of Qualified Ordering Entities.
(a)
A qualified
ordering
entity participating in
the cooperative purchasing program must:
(1)
submit a resolution evidencing its intent to participate
in the cooperative purchasing program and pay costs associated therewith;
(2)
transmit information as follows:
(A)
send automated term contract and schedule requisition to
the commission for processing; send a copy of all non-automated contract purchase
orders to the commission for data collection; or
(B)
using a system approved by the commission, electronically
send purchase orders directly to vendors and electronically send reports of
actual purchases made through this program to the commission;
(3)
pay the vendor under each contract directly;
and
(4)
be responsible for the vendor's compliance with all
terms and conditions of performance under the contract.
(b)
A qualified entity that purchases an item from a state
contract satisfies any state law requiring the qualified entity to seek competitive
bids for the purchase.
(c)
A qualified entity that utilizes the catalogue purchase
procedure satisfies any requirements of
Government Code, §2155.067
[
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 May 24, 2000.
TRD-200003709
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.125
The amendment is proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2155.068, 2155.077,
2155.079, 2155.080, 2155.081, 2155.132, 2155.134, 2155.267, 2155.323 2156.126,
and 2251.003; Texas Government Code, Chapter 2158; and Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Texas Government Code, Chapter 2251, and Education Code, Chapter
34, Subchapter A. List any other statute that may be affected.
§113.125.Buying Under Contract Established By An Agency Other Than Commission.
(a)
A state agency may purchase goods or services under a contract
made by another state agency other than the commission by complying with this
rule.
(b)
A state agency, including the commission, must state
a justification on how using the existing contract will be more advantageous
than creating another contract. Circumstances for this would include reduced
administrative costs and aggregate purchasing power.
Before making a
particular purchase, the requesting state agency must notify the commission
in writing that the purchase is being considered. [
(c)
The authority to authorize a purchase under a contract
made by another state agency other than the commission resides with the director.
If the
director
[
(d)
When a contract created by another
agency fulfills an unmet need for more than one agency, the director may endorse
the contract of the other agency as a GSC contract, and make it generally
available to state agencies and other qualified ordering entities as appropriate.
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 May 25, 2000.
TRD-200003710
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
The General Services Commission proposes the repeal of Title 1, T.A.C.,
Chapter 113, Subchapter A - Purchasing, §113.17; Subchapter B - Purchase
of Alternative Fuel Vehicles, §113.21; Subchapter C - Specification, §113.31
and §113.32; Subchapter D - Inspection, §113.53; Subchapter E -
Cooperative Purchasing Program, §113.83 and §113.88; and Subchapter
F - Vendor Performance and Debarment Program, §113.100. The proposed
repeal is concerning the Central Purchasing Division and is a result of the
rule review process mandated by Texas Government Code, §2001.039 (relating
to Agency Review of Existing Rules). The proposed repeal will delete obsolete
language and will improve the readability of Chapter 113.
Mr. Paul Schlimper, Director of Central Procurement, has determined for
the first five year period the rules are in effect, there will be no adverse
effect to state or local government as a result of enforcing these rules.
Mr. Paul Schlimper, Director of Central Procurement, further determines
that for each year of the first five-year period the repeals are in effect,
the public benefit anticipated as a result of enforcing these rules will be
the deletion of cumbersome and outdated language. There will be no effect
on small or large businesses and/or persons.
Comments on the proposals may be submitted to Ann Dillon, General Counsel,
General Services Commission, P.O. Box 13047, Austin, TX 78711-3047. Comments
must be received no later than 30 days from the date of publication of the
proposal to the
Texas Register
.
Subchapter A. PURCHASING
1 TAC §113.17
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.17.Unsolicited Offers.
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 May 25, 2000.
TRD-200003711
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.21
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.21.Definitions.
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 May 25, 2000.
TRD-200003712
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.31, §113.32
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.31.General.
§113.32.Definitions.
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 May 25, 2000.
TRD-200003713
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.53
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.53.Reports of Inspections and Tests.
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 May 25, 2000.
TRD-200003714
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.83, §113.88
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.83.Definitions
§113.88.Electronic Purchasing Systems.
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 May 25, 2000.
TRD-200003716
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
1 TAC §113.100
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the General Services Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of the
Texas Government Code, Title 10, Subtitle D, §§2152.003, 2155,068,
2155.069, 2155,077, 2155.134, 2177.001 and the Texas Education Code, §34.001
which provides the General Services Commission with the authority to promulgate
rules necessary to implement the sections.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, and Education Code, Chapter 34.
§113.100.Definitions.
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 May 25, 2000.
TRD-200003715
Ann Dillon
General Counsel
General Services Commission
Earliest possible date of adoption: July 9, 2000
For further information, please call: (512) 463-3960
Chapter 355.
MEDICAID REIMBURSEMENT RATES
Subchapter A. COST DETERMINATION PROCESS
Part 5.
GENERAL SERVICES COMMISSION
(1)
] Agency --
A
[
The chief executive officer of a
] state agency as the term [
"state agency"
] is defined under the Texas Government Code, Title 10, §2151.002.
(2)
] Award--The act of accepting
a bid, thereby forming a contract between the state and a bidder.
(3)
] Bid--An offer to contract
with the state, submitted in response to a bid invitation issued by the commission.
(4)
] Bid deposit - A deposit
required of bidders to protect the state in the event a low bidder attempts
to withdraw its bid or otherwise fails to enter into a contract with the state.
Acceptable forms of bid deposits are limited to: cashier's check, certified
check, or irrevocable letter of credit issued by a financial institution subject
to the laws of Texas and entered on the United States Department of the Treasury's
listing of approved sureties; a surety or blanket bond from a company chartered
or authorized to do business in Texas [
; United States treasury bond;
or certificate of deposit
].
(5)
] Bid sample--A sample
required to be furnished as part of a bid, for evaluating the quality of the
product offered.
(6)
] Bidder--An individual
or entity that submits a bid. The term includes anyone acting on behalf of
the individual or other entity that submits a bid, such as agents, employees,
and representatives.
(7)
(8)
] Blanket bond--A
surety
[
performance
] bond which
provides assurance of
[
insures
] a bidder's performance on two or more contracts
in lieu of separate bonds for each contract. The amount for a blanket bond
shall be established by the commission based on the bidder's annual level
of participation in the state purchasing program. [
Acceptable forms of
blanket bonds are those described in the definition of "bid deposit."
]
(9)
] Brand name--A trade
name or product name which identifies a product as having been made by a particular
manufacturer.
(10)
] Centralized master
bidders list
(CMBL)
--A list maintained by the commission containing
the names and addresses of prospective bidders and qualified information systems
vendors.
(11)
] Consumable procurement
budget--That portion of an agency's budget as identified by the comptroller's
expenditure codes attributable to consumable supplies, materials, and equipment.
(12)
] Director--The director
of the commission's purchasing division.
(13)
] Emergency purchase--A
purchase of goods or services so badly needed that an agency will suffer financial
or operational damage unless
the purchase is conducted
[
they
are secured
] immediately.
(14)
] Environmentally sensitive
products--Products that protect or enhance the environment, or that damage
the environment less than traditionally available products.
(15)
] Equivalent product--A
product that is comparable in performance and quality to the specified product.
(16)
] Escalation clause--A
clause in a bid providing for a price increase under certain specified circumstances.
(17)
] Formal bid--A written
bid submitted in a sealed envelope in accordance with a prescribed format,
or an electronic data interchange transmitted to the commission in accordance
with procedures established by the commission.
(18)
] Group purchasing program--A
purchasing program that offers discount prices to two or more
state agencies
or
institutions of higher education
, which is formed as a result
of interagency or interlocal cooperation and follows all applicable statutory
standards for purchases
.
(19)
] Informal bid--An unsealed,
competitive bid submitted by letter, telephone, telegram, or other means.
(20)
] Invitation for bids
(or IFB)--A written request for submission of a bid; also referred to as a
bid invitation.
(21)
] Late bid--A bid that
is received at the place designated in the bid invitation after the time set
for bid opening.
(22)
] List of approved equipment--A
list of items available under term contracts for purchase by school districts
through the commission pursuant to the Texas Education Code, §21.901.
(23)
] Manufacturer's price
list--A price list published in some form by the manufacturer and available
to and recognized by the trade. The term does not include a price list prepared
especially for a given bid.
(24)
] Multiple award contract
procedure--A purchasing procedure by which the commission establishes one
or more levels of quality and performance and makes more than one award at
each level.
(25)
] Notice of award--A letter
signed by the director or his designee which awards and creates a term contract.
(26)
] Open market purchase--A
purchase of goods, usually of a specified quantity, made by buying from any
available source in response to an open market requisition.
(27)
] Perishable goods--Goods
that are subject to spoilage within a relatively short time and that may be
purchased by agencies under delegated authority.
(28)
] Post-consumer materials--Finished
products, packages, or materials generated by a business entity or consumer
that have served their intended end uses, and that have been recovered or
otherwise diverted from the waste stream for the purpose of recycling.
(29)
] Pre-consumer materials--Materials
or by-products that have not reached a business entity or consumer for an
intended end use, including industrial scrap material, and overstock or obsolete
inventories from distributors, wholesalers, and other companies. The term
does not include materials and by-products generated from, and commonly reused
within, an original manufacturing process or separate operation within the
same or a parent company.
(30)
] Proprietary--Products
or services manufactured or offered under exclusive rights of ownership, including
rights under patent, copyright, or trade secret law. A product or service
is proprietary if it has a distinctive feature or characteristic which is
not shared or provided by competing or similar products or services.
(31)
] Public bid opening--The
opening of bids at the time and place advertised in the bid invitation, in
the presence of anyone who wishes to attend. On request of any person in attendance,
bids will be read aloud.
(32)
] Purchase orders--
Contract
] purchase
order--A release order issued by the commission under an existing term contract,
and pursuant to a requisition from
a qualified ordering entity
[
an agency
].
(33)
] Purchasing functions--The
development of specifications, receipt and processing of requisitions, review
of specifications, advertising for bids, bid evaluation, award of contracts,
and inspection of merchandise received. The term does not include invoice,
audit, or contract administration functions.
(34)
] Recycled material content--The
portion of a product made with recycled materials consisting of pre-consumer
materials (waste), post-consumer materials (waste), or both.
(35)
] Recycled materials--Materials,
goods, or products that contain recyclable material, industrial waste, or
hazardous waste that may be used in place of raw or virgin materials in manufacturing
a new product.
(36)
] Recycled product--A
product that meets the requirements for recycled material content as prescribed
by the rules established by the Texas Natural Resource Conservation Commission
in consultation with the General Services Commission.
(37)
] Remanufactured product--A
product that has been repaired, rebuilt, or otherwise restored to meet or
exceed the original equipment manufacturer's (OEM) performance specifications;
provided, however, the warranty period for a remanufactured product may differ
from the OEM warranty period.
(38)
] Request for proposal--A
written request for offers concerning goods or services the state intends
to acquire by means of the competitive sealed proposal procedure.
(39)
] Requisition--
an agency
] for delivery of goods
under an existing term contract.
(40)
] Scheduled purchase--A
purchase with a prescheduled bid opening date, allowing the commission to
combine orders for goods.
(41)
] Sealed bid--A formal
written
bid.
(42)
] Solicitation--An invitation
for bids or a request for proposals.
(43)
]
Standard specification
[
Specification
]--A description of what the purchaser requires
and what a bidder or proposer must offer.
(45)
] Tabulation of bids--The
recording of bids and bidding data for purposes of bid evaluation and recordkeeping.
(46)
] Term contract purchase--A
purchase by
a qualified ordering entity
[
an agency
]
under a term contract, which established a source of supply for particular
goods at a given price for a specified period of time.
(47)
] Total expenditures on
products with recycled material content, remanufactured products, and environmentally
sensitive products--The total direct acquisition costs (vendor selling price
plus delivery costs) of all such products.
(48)
] Unit price--The price
of a selected unit of a good or service, e.g., price per ton, per labor hour,
or per foot.
(49)
] Using agency--An agency
of government that requisitions goods or services through the commission.
(50)
] Vendor--A supplier of
goods or services to the state.
(51)
should
]
be submitted to the commission far enough in advance to allow sufficient time
for preparing and advertising bid invitations, receiving and evaluating bids,
awarding contracts, and permitting a normal delivery schedule.
however,
] the commission may require
an additional
written
explanation
[
justification
].
learning
], by a person properly designated as a purchasing officer for the institution.
If, after considering all factors, the commission takes exception to
the agency's written justification, it shall prepare a written report of the
reasons for its exceptions. Copies of the report will be sent by certified
mail, return receipt requested, to board members, commission members, the
agency head or chairman of its governing body, and elected officials of the
respective agency. Copies of the report will also be provided to the state
auditor, the Legislative Budget Board, and the governor.
]
Information Resources Management Act, Texas Civil
Statutes, Article 4413(32j)
], the requisition must include written evidence
that the Department of Information Resources [
(DIR)
] has approved
the
agency's biennial operating plan
[
acquisition
].
For other items, the commission will determine the cost effectiveness of a
lease purchase. To establish cost effectiveness, the requisitioning agency
should submit the following information:
mailed
] to vendors on the CMBL for the solicited commodity and/or
service for open market, term contracts, competitive sealed proposal acquisitions
and delegated purchases
in excess of the non-competitive bid limit. For
all non-competitive purchases, the director shall establish minimum use requirements
for delegated purchases. The entire CMBL listings under a particular class
and item of purchases shall be used for procurements in excess of the delegated
purchase amount
[
below and above $15,000 made by the commission
and state agencies/universities
].
acquisitions
to
] the state and its
qualified ordering
[
eligible
]
entities;
mailing
] bids or proposals. This fee, less
a reasonable handling fee approved
by the director
[
$15 for handling
], will be refunded if the
applicant is not accepted for inclusion on the CMBL.
commission's
Director, Central Procurement Services
].
State agencies/universities
] shall use the CMBL to select bidders for competitive bids or proposals
and to the fullest extent possible for purchases exempt from the commission's
purchasing authority.
This requirement does not apply to the Texas Department
of Transportation or to an institution of higher education as defined by §61.003,
Education Code, but an institution of higher education should use the CMBL
when possible.
(h)
A copy of
the bid invitation will be handed or mailed to the requestor.
]
,
] and will then be processed as any other
bid. If the incorrect information on the envelope causes the bid not to be
considered in making an award, the bid will be considered invalid and
rejected
[
not acceptable
].
Bids may be submitted by telegram, except for bids on non-automated discount-from-list
term contracts, if the telegram identifies the merchandise offered and provides
requisition number, price, delivery terms, and other necessary information.
Telegrams must be confirmed in writing and either postmarked on or before
the bid opening date or received by the commission within 48 hours after bid
opening time. The confirmation must be consistent with the telegram and must
be signed. An inconsistent or unsigned confirmation will void the entire bid.
]
(10)
(11)
] If an error is discovered
in a bid invitation, or agency requirements change prior to the opening of
a bid, the commission will
transmit
[
mail
] an addendum
correcting or changing the specifications to all bidders originally listed
on the
transmission
[
mailing
] list for that bid invitation.
Bids will not be rejected for failure to return the addendum with the bid,
if the change is noted on the bid or the
product or service specification
[
bid
] would not be changed by the addendum.
(12)
] By signing and submitting
a bid to the commission or to an agency acting under delegated purchasing
authority, a bidder affirms that it has not given or offered any economic
opportunity, employment, gift, loan, gratuity, special discount, trip, favor,
or service to a public servant in connection with the bid, and that it does
not intend to give or offer any of the foregoing in the future. Signing a
bid with a false statement shall void the bid and any resulting contract,
and the bidder shall be removed from all bidders lists at the commission or
at the agency acting under delegated purchasing authority.
(13)
purchase
] and 60 days for term contracts, unless otherwise specified
in
[
by the bidder or
] the invitation for bids.
should
] be returned
to a bidder whenever practicable, at the bidder's expense. Otherwise, samples
will be disposed of in the same manner as surplus or salvage property.
submitting the lowest
and best bid
] conforming to the advertised
product or service
specifications. In determining
which bidder is offering the best value
[
who is the lowest and best bidder
], in addition to price,
the commission shall consider and evaluate the factors set out in
Government
Code, Title 10, Subtitle D, Subchapter A, §2156.007 and all other factors
comprising the best value criteria as may be set forth in the bid
[
Texas Civil Statutes, Article 60lb, §3.11(e)
].
signs
] an open market purchase order. A term contract is awarded and
created when the director of purchasing or his designee signs a notice of
award.
(3)
(4)
] Products of persons with
mental or physical disabilities. A preference shall be given to manufactured
products of workshops, organizations, or corporations whose primary purpose
is training and employing persons with mental or physical disabilities, if
the products meet state specifications as to quantity, quality, and price.
Competitive bids are not required for purchases of blind-made goods or services
offered as a result of efforts by the Texas Council on Purchasing from People
with Disabilities, if the goods or services meet state specifications as to
quantity, quality, price, delivery, life cycle costs, and costs no more than
the fair market price of similar items.
(5)
] Recycled, remanufactured
or environmentally sensitive products. A preference shall be given to recycled,
remanufactured or environmentally sensitive products if the products meet
state specifications as to quantity and quality
and defined best value
factors.
[
and the bid price does not exceed the bid price of products
that accomplish the same purpose as recycled, remanufactured or environmentally
sensitive products.
]
(6)
] Energy efficient products.
A preference shall be given to energy efficient products if they meet state
requirements as to quantity and quality, and are equal to or less than the
cost of other products offered. This preference shall be applied by evaluating
the energy use of the products offered and considering the costs of such energy
use over the expected life of the equipment. The methodology for evaluating
energy use and costs shall be included in the bid invitation.
(7)
] Rubberized asphalt paving
material. A preference shall be given to rubberized asphalt paving material
made from scrap tires by a facility in this state if the cost, as determined
by life-cycle cost benefit analysis, does not exceed the bid cost of alternative
paving materials by more than 15%.
(8)
]Recycled motor oil and
lubricants. A preference shall be given to motor oils and lubricants that
contain at least 25% recycled oil if the quality is comparable and the cost
is equal to or less than new oil and lubricants.
Agencies
]
must inspect all shipments received against orders and report any discrepancies
to the commission immediately.
an agency
], are not permitted without the commission's prior written
approval.
(5)
(a)
]
discount-from-list
contracts
].
Discount-from-list contracts
] provide for discounts from
(or add on to) a manufacturer's price list, which must
be included in
the bid file
[
accompany the bid
]. Price changes are acceptable
under
specified
[
approved
] conditions. Requests for
price increases must be documented with a new price list from the manufacturer
covering the items in question. New net unit prices will be computed at the
same percentage as reflected in the original bid and price list. For automated
contracts identified as such in the bid invitation, the commission may consider
bids which fail to include a manufacturer's price list or include a price
list that fails to meet other requirements of the bid invitation, and the
commission may award a contract to a vendor submitting such a bid; however,
if an award is made, the vendor will not be entitled to a price increase during
the term of the contract. The state shall be granted any decreases in price
if there are price reductions in the trade.
Indices other than a manufacturers
price list such as a consumer price index may also be used on the price basis.
(B)
(C)
(D)
]
When bids are solicited
by
[
A bidder may bid all
] zones of the state, as described
in the general instructions to bidders accompanying the bid invitation,
a bidder
[
or it
] may bid one or more selected zones[
,
] but it must bid for an entire zone. Any exception that requires
bidding the entire state will be stated in the invitation for bids.
(b)
(1)
(2)
(purchases of goods or services
so badly needed that an agency will suffer financial or operational damage
unless they are secured immediately)
];
determined should
be advertised and awarded by the
] agency.
(5)
(6)
will
] withdraw delegated purchase authority
in whole or part
from an agency for continued violations after giving
adequate warning. The commission will report to the governor, lieutenant governor,
speaker of the house of representatives, and Legislative Budget Board the
findings that a state agency has not followed the commission's rules or the
laws related to the delegated purchases.
(B)
bids
],
and appropriate documentation must be forwarded to the commission for approval.
commission's bidders lists,
in which case the commission will make the award in accordance with normal
open market procedures.
] If no competitive advantage would be obtained
by having the commission make the advertisement and award, the commission
may permit the agency to do so
as a delegated purchase
.
suggested
] by the commission. Examples of direct publications include, but are
not limited to:
Spot
] and emergency purchase procedures
apply to purchases at service stations.
suggested
]
by the commission. An agency may not purchase any of the following on a distributor
purchase basis: consumable items; labor of any kind (see "service"); "will
fit" parts (non-OEM); parts for stock; contract items; electrical parts for
electric motors; electrical switch panel boards; electrical accessories.
Between the effective date of this rule and January 31, 1999, all existing
specific delegations will be reviewed for renewal or recision.
] At a
minimum, state agencies granted specific delegations shall meet the following
criteria:
(k)
(1)
(2)
(3)
(4)
bids whenever possible
].
When an institution oversees the competitive sealed proposal
procedure, it must follow the statutory standards of Subchapter C, Chapter
2156, Government Code and the processes suggested in the Procurement Manual.
If product competition is not available, the transaction must be justified
as proprietary.
(f)
The
] commission
is authorized to make
[
enters
into
] contracts for the purchase of
goods and services from
[
supplies, materials, or equipment produced by
] the Texas Department
of Criminal Justice (TDCJ) for use by other
qualified ordering entities
[
agencies
]. The commission
may notify
[
notifies
] agencies of the availability of TDCJ-produced
goods and
services
[
supplies, materials, or equipment
] by issuing catalog
pages listing the approved items
in a manner suited to the product available
for purchase
.
:
]
(1)
the same
] manner
mutually agreed upon
[
as other contract orders are handled
]. For purchases
within an
agency's delegated authority, items not on contract
[
of $10,000
or less agencies
] may
be ordered
[
order items not included
in an established contract
] directly from TDCJ based on formal or informal
quotations
as appropriate for the value of the purchase
.
21
], Subchapter
A
[
F
].
21
], Subchapter
A
[
F
];
§§113.21,
113.23,
] and 113.25 of this title (relating to Purchase of Alternative
Fuel Vehicles); [
and
]
(3)
] §125.65 of this
title (relating to Reduction and/or Waiver of Required Fleet Percentages).
mailing
] list for failure to bid,
or
failure
to make payment. [
, or failure to promptly remove a purchased bus from
public property.
] A bidder that has been removed from the bidders list
may not be reinstated unless the bidder submits a written request for reinstatement
and the
Director of Business Services
[
director
] approves
the request.
Texas Civil Statutes,
Article 601b, §3
].
or a combination of agencies
and specific purchases.
] The commission may determine the extent and
method of audits to be performed. The commission may perform audits at the
100% level or may use a statistical random sample and the samples may be stratified.
The sampling selection process may be stratified by dollar amounts or other
parameters. These random sample audits may be performed prior to (pre-payment
audits) or after (post-payment audits) the vouchers are paid by the Comptroller
of Public Accounts. Each agency will be audited at least once in each state
fiscal biennium. Agencies will be required to furnish copies of purchase documents
to the commission for these audits
as needed
. Audits may be performed
at the agency site or
remotely
[
by mail
].
the
] second
(follow-up) audit
[
(re-audit)
] still do not
meet
[
fall within
] the
parameters, then delegation of authority for some or all purchase categories
may be suspended.
Catalogue Purchase Procedure for Automated Information
Systems
]
(1)
(2)
(3)
(4)
] a statement detailing
the geographic area in Texas to which the vendor desires to market catalogue
products and services;
(5)
(A)
(B)
(C)
(D)
(E)
(6)
] a statement acknowledging
that any terms and conditions in the vendor's catalogue that conflict with
the Constitution or laws of the State of Texas shall not be enforceable and,
therefore, will not be binding;
(7)
(8)
(9)
(10)
Director of Central Procurement Services Division
]
or the director's designee shall give consideration to the following standards
and criteria when deciding to designate a vendor as a QISV
:
[
.
]
(1)
(2)
] the [
award
]
criteria set forth in the Texas Government Code,
§§2157.06
and 2157.065
[
§2156.007
];
(3)
] the vendor's
history
of performance under Texas Government Code, §2155.077.
[
past
and current status on the commission's CMBL and any unresolved complaints
on record; and
]
(4)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
] be maintained on a website
in accordance with subsection
(l)
[
(o)
] of this section
and include indexing and keywords consistent with the commission's web catalogue
guidelines. The vendor's catalogue maintained on the website and in compliance
with this rule shall be the official version of the catalogue.
The QISV shall provide catalogues to all governmental
entities upon request.
]
(h)
(i)
(1)
(2)
(3)
(4)
(j)
] Failure of a vendor [
to provide the required annual reports,
] to remain active on the CMBL,
or failure to conform to any other commission rules may result in suspension
or removal of QISV status. A vendor that has been suspended or removed may
not market or sell products or services from
its
[
their
]
QISV catalogue to the state until the cause of the suspension or removal has
been resolved.
(k)
] The vendor shall retain all
records related to any business transaction under the catalogue purchase procedure
for automated information systems for five years from the date of the purchase
order. The records shall be provided upon request to the commission or the
actual purchaser.
(l)
] Preference shall be given to
QISV's who sell or lease products
in Texas in accordance with provisions
of
[
or services pursuant to
] the Texas Government Code,
§2155.4441
[
§2155.441
].
(m)
] The
QISV
vendor
is encouraged to:
(n)
] The State of Texas is committed
to assisting historically underutilized businesses (HUBs) to receive a portion
of the total value of all contracts that an agency will award. If the vendor
qualifies as a HUB, but is not certified by the State of Texas as such, the
vendor should contact the commission to obtain a HUB certification application.
Upon the request of a governmental entity, the vendor will be required to
detail the amount of expenditures that have been made to material suppliers
and subcontractors that are Texas certified HUBs. A vendor that has demonstrated
past HUB participation is still expected to provide documentation using the
reporting forms provided by a governmental entity to show its good faith effort
in meeting or exceeding the state's procurement utilization goals identified
in GSC's HUB Rules (1 TAC §111.14).
(o)
] Once the process for utilizing
URL's has been established and is operational, the GSC will create deadlines
whereby all QISV's must provide
and maintain
[
the GSC with
] their URL.
(d)
(e)
(f)
] An institution or state agency
participating in group purchasing programs shall adhere to the same ethical
standards required of commission employees as set forth in §111.4 of
this title (relating to Ethical Standards).
Subchapter C. SPECIFICATION
§11.12,
the State Purchasing and General Services Commission
] has the responsibility
to "coordinate and correlate all specification data, finalize and issue the
uniform standards and specifications,
[
specification
] so
adopted."
Texas Civil Statutes, Article 6203c, 9(d): "Any product or article
manufactured by the Texas Department of Corrections shall be manufactured
and/or produced only upon state specifications developed by and through the
state."
]
Specification Section, State Purchasing and General Services Commission
].
Specification Section
]
to investigate the feasibility of developing a
uniform standard and
specification to cover the purchase of this item.
If a bidder finds that he is bidding against his competition
on a variety of quality levels of a given product, then he may
] petition
the
standards and specification section
[
Specification Section
] to ascertain the feasibility of developing a specification on
an
[
the
] article
bid by agencies
.
Specification Section
] consults
with knowledgeable people in various state agencies, user advisory groups,
purchasers, vendors, manufacturers, distributors, bidders, governmental and
trade associations, colleges and universities, testing laboratories, and other
experts.
Standards
]
and specifications from federal, state, and local governments and standards
agencies, such as ASTM, SAE, and others, and product literature from manufacturers,
distributors, etc., are obtained, studied, and their contents evaluated.
the
] various state agencies.
tentative
] specification
is then distributed to the individuals and groups initially contacted as well
as other interested parties for their review, comments, and suggestions.
as before
].
and
]
evaluated
, and the process outlined in paragraphs (5) and (7) of this
subsection is followed
[
as before
].
Specifications Section
]
with their individual requirements and otherwise assist in the preparation
and development of specifications.
those individuals and organizations (including
bidders, known vendors, and distributors)
] contacted during the development
phase of the
uniform standard and
specification and subsequently
to others upon request. [
The former group includes:
]
(1)
(2)
(3)
(c)
(d)
] Approved products list.
Specification
Section, State Purchasing and General Services Commission
], along with
technical literature and product specifications. The product may then be tested
and the results evaluated and compared with the minimum level of quality for
the approved products list.
(3)
(e)
Subchapter D. INSPECTION
Civil Statutes, Article 601b, §3.17
], the General Services
Commission has established and maintains a program of testing and inspecting
purchases made by the commission at the request of state agencies to insure
that the materials, supplies, services, and equipment meet specifications.
The responsibility for the inspection and testing program has been delegated
to the
Vendor Relations Program
[
Inspection Section
]
of the Central
Procurement
[
Purchasing
] Division. The
commission shall provide for the inspecting and testing of all costly purchases
as required
.
Selection of Items for ] Inspection and/or Testing.
.
]
agency
]. If a using
qualified ordering entity
[
agency
] determines that any supplies, materials, services,
or equipment received do not meet specifications, it is the responsibility
of the
qualified ordering entity
[
agency
] to notify
the Central
Procurement
[
Purchasing
] Division in writing
detailing the reasons why the item received does not meet the specifications
of the contract.
Purchasing
] Division may "flag"
purchase orders at time of issue with a request for inspection and/or testing
of the items purchased after their arrival at the receiving
qualified
ordering entity
[
agency
].
chief of the Inspection Section
]
may direct inspections and/or testing of products based on previous experience
of deficiency of the products or of vendors delivering products other than
those specified on the purchase order.
chief of the Inspection Section
] may direct inspections and/or
testing of items selected from purchase orders at random for spot checking.
agency
]. Such inspections are
made only upon the approval of the [
assistant
] director [
for purchasing
].
the State Purchasing and General Services Commission
] may require
the bidder and/or the vendor to supply a certificate and/or a test report
from an independent testing laboratory showing that the product offered or
delivered meets or exceeds the requirements of the specification and/or contract.
for purchasing
], certain
items may be inspected by
GSC Vendor Relations
[
Inspection
Section
] personnel or the commission's designated agent in the plant
of the manufacturer during the process of manufacture. Examples of the type
of items so inspected include school buses, paint, retreading rubber for tires,
etc. Products not meeting specifications may be rejected prior to shipment.
State agencies
] shall be responsible for the initial inspection and testing of all
[
costly
] purchases. Inspection and testing will be done in accordance
with instructions issued by the
Central Procurement Division
[
Specifications and Inspection Section of the General Services Commission
].
Appropriate forms may be devised
[
The Specifications and Inspection
Section may devise appropriate form(s) as necessary
] to assist the
qualified ordering entities
[
agencies
] in carrying out this
duty.
Specification and Inspection Section
] may conduct follow-up inspections of purchases which fail initial
agency inspections to verify if specifications are met. The
Vendor Relations
Program
[
Specifications and Inspection Section
] will coordinate
with the [
assigned
] purchaser as required to carry out these duties.
(c)
Purchasing
]
Division [
of the commission
] shall assess all damages and shall
collect damages and recover testing costs on behalf of the using
qualified
ordering entity
[
agency
].
(b)
(c)
] Failure on the part of the
supplier to pay an assessed damage or testing cost may be cause for
suspension
[
removal
] from the state bid list.
(d)
] If the
vendor relations
program director
[
chief of specifications and inspections
]
identifies repeated complaints on any vendor, that vendor may be removed by
the director [
for purchasing
] from the commission's bid lists
through the debarment process as set forth in 113.102 of this title (relating
to Vendor Performance and Debarment).
[
for a period not to exceed
one year.
]
Subchapter E. COOPERATIVE PURCHASING PROGRAM
for purchasing
] shall
determine the feasibility of participation based on availability of resources
to perform the required purchasing services. A qualified
ordering
entity may be enrolled in the program only after submission of a resolution
approved by the entity's governing body
. The resolution must specify
the agent of record,
acknowledge an
[
acknowledgment of
]
obligation to pay participation fees established by the commission, and be
signed by the
person(s) with authority to legally act on behalf
[
chairman
] of the
qualified ordering entity
[
governing
body
].
receipt by the commission of
a complete resolution
], until notification is received from the qualified
ordering
entity to discontinue its participation in the cooperative
purchasing program
or the entity is otherwise terminated by the director
for cause
. Any change in the resolution [
of a jurisdiction or
participation status
] must be made in writing by
a person(s) with
the authority to legally act on behalf of the governing body
[
the agent of record or chairman of the governing body
].
for purchasing
].
The director [
for purchasing
] or his designee will determine the
feasibility of accomplishing the purchase on a case-by-case basis [
,
] and will advise the qualified
ordering
entity of the determination
within a reasonable period of time.
Texas Civil Statutes, Article 601b, §3.081, and §113.19
of this title (relating to Catalogue Purchase Procedure for Automated Information
Systems)
].
Subchapter G. BUYING UNDER CONTRACT ESTABLISHED BY AN AGENCY OTHER THAN THE GENERAL SERVICES COMMISSION
The agency must state
in the request why it is advantageous for the Commission to allow other agencies
to purchase goods or services from another state agency other than the commission.
] The notification must be signed by the chief purchasing officer for
the agency.
commission
] determines that
a lower price is available through the commission or the goods or services
are already available through a contract administered by the commission, it
will so inform the requesting agency after receipt of the notification.
Upon approval to use the other contract,
[
Upon receipt of information
that a lower price is not available
], the
requesting
agency
shall utilize established purchasing procedures for the procurement.
Chapter 113.
CENTRAL PURCHASING DIVISION
Subchapter B. PURCHASE OF ALTERNATIVE FUEL VEHICLES
Subchapter C. SPECIFICATION
Subchapter D. INSPECTION
Subchapter E. COOPERATIVE PURCHASING PROGRAM
Subchapter F. VENDOR PERFORMANCE AND DEBARMENT PROGRAM
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION