1 TAC §§471.3, 471.11, 471.13, 471.51
The new sections are proposed pursuant to Texas Civil Statutes,
Article 1446c-0(f) and the Government Code, Chapter 2001, which provides the
Telecommunications Infrastructure Fund Board with the authority to promulgate
rules and regulations. The new sections are also proposed pursuant to Article
9, Appropriations Act, §9-10.13, Review of Agency Rules.
No other statutes, articles or codes are affected by this proposal.
§471.3.Agency Acceptance of Gifts, Grants, and Donations.
(a)
Donations with a value of $500 or more shall be accepted
by a majority of the Board in an open meeting. The minutes of the meeting
shall reflect the name of the donor, a description of the gift, and the purpose
of the gift.
(b)
Administration and investment of funds. Donated funds shall
be deposited in the state treasury.
(c)
Approved Relationships.
(1)
The recipient of a gift, grant, or donation may, while
employed by the TIFB, serve as an officer of director of a donor.
(2)
The recipient of a gift, grant, or donation may, while
employed by the TIFB, receive compensation for services rendered to the donor.
(d)
Restricted Activities.
(1)
No officer or employee who serves as an officer or director
of a donor will vote on or otherwise participate in any measure, proposal,
or decision pending regarding the donor if that officer or employee might
reasonably be expected to have an interest in the measure, proposal, or decision.
(2)
No officer or employee will accept employment from or engage
in any business or professional activity with a donor, which might lead to
disclosure of confidential information acquired by reason of the person's
official position with the TIFB.
(3)
No officer or employee will accept employment or compensation
from a donor, which might impair one's independence of judgment in the performance
of official duties with the TIFB.
(4)
No officer or employee will make personal investments in
association with a donor, which might create a substantial conflict between
the officer or employee's private interest and the interest of the Board.
(5)
No officer or employee will accept or solicit any gift,
favor, or service from a donor, which might tend to influence the exercise
of official conduct.
(6)
No officer or employee will intentionally or knowingly
solicit, accept or agree to accept any benefit for having exercised official
powers on behalf of a donor or for having performed official duties in favor
of a donor.
(e)
Definitions. The following words and terms, when used in
this section, have the following meanings, unless the context clearly indicates
otherwise.
(1)
A donation is a gift of property, including money or services,
to the Board.
(2)
A donor is an individual, not an employee or officer of
the Board, or an organization that gives or offers to give a donation to the
Board.
(3)
An employee is a person employed by the TIFB on a full-time
or part-time basis
(4)
An officer is the Executive Director of the TIFB or appointed
member(s) of the Board.
§471.11.Procurement, Contract Dispute Resolution.
(a)
All TIFB contracts will include text related to the concerted
effort to utilize a dispute resolution process.
(b)
Contract Text. The contract text will read as follows:
(1)
"Resolution of Contract Claims-Dispute Resolution Process.
(A)
The dispute resolution process provided for in chapter
2260 of the Government Code shall be used, as further described herein by
TIFB and the Performing Agent to attempt to resolve any claim for breach of
contract made by the Performing Agent.
(B)
The Performing Agent and the Agency will use the dispute
resolution process provided in Chapter 2260 of the Government Code to attempt
to resolve any claim for breach of contract made against the Agency. To initiate
the process, the Performing Agent must submit written notice, as required
by subchapter B to the Agency's Executive Director. The notice will specifically
state that the provisions of Chapter 2260, subchapter B are being invoked.
The contested case process provided in Chapter 2260, subchapter C, of the
Government Code is the Performing Agent's sole process for seeking a remedy
for any and all alleged breaches of contract by the Agency if the parties
are unable to resolve their disputes under this paragraph. Compliance with
the contested case process provided in subchapter C is a condition precedent
to seeking consent to sue from the Legislature under Chapter 107 of the Civil
Practices and Remedies Code. Neither the execution of the contract by the
Agency nor any other conduct of any representative of the Agency relating
to the contract is considered a waiver of sovereign immunity to suit. The
submission, processing and resolution of the Performing Agent's claim is governed
by the published rules adopted by the Attorney General pursuant to Chapter
2260, as currently effective, hereafter enacted or subsequently amended. The
pendency of a claim does not constitute ground for the suspension of performance
by a party, in whole or in part.
(2)
Neither the occurrence of an event nor the pendency of
a claim constitute grounds for the suspension of performance by the Performing
Agent, in whole or in part."
(c)
Responsibilities.
(1)
The Executive Director and the Director of Finance and
Administration will be notified of any contract disputes within one working
day following receipt of such notice. The employee receiving such notice of
dispute will document such notice through submission of an Activity Report.
(2)
The Executive Director or the Director's designee will
notify counsel of all claims against the agency and will notify the State
Office of Administrative Hearings of the need for a hearing.
(d)
Definitions.
(1)
A contract is a written agreement executed between a state
agency or institution of higher education and a contractor for goods and services.
(2)
A contractor is an independent person(s) or firm, not including
subcontractors, who enters into a contract directly with a state agency or
institution of higher education.
§471.13.Historically Underutilized Business Participation.
(a)
Goal. The Telecommunications Infrastructure Fund Board
will promote equitable business opportunities in the State of Texas through
its daily operations and grant awards to its constituency. TIFB will strive
to assist Historically Underutilized Businesses at a rate not less than 30
percent of the total value of all contract awards for the purchase of goods
or services during each fiscal year.
(b)
Objective. The Telecommunications Infrastructure Fund Board
will strive to meet the Historically Underutilized Business goals related
to the daily operation of awarding grant opportunities in the State of Texas,
which are:
(1)
Commodities--12.6 percent,
(2)
Professional Services--20 percent, and
(3)
Other Services--33 percent.
(c)
Strategy.
(1)
The Telecommunications Infrastructure Fund Board will make
a good faith effort to utilize HUB vendors to procure goods and services through
a review and contact of the vendors found on the Central Master Bidders List
and Qualified Information System Vendor Program list.
(2)
Also, the Telecommunications Infrastructure Fund Board's
guidelines mandate grantees to follow an open procurement process for approval
of encumbering or expending grant funds.
(A)
Grantees not using the purchasing services of the General
Services Commission's Cooperative Purchasing Program or other approved purchasing
cooperative must submit the bid documentation to TIFB for equipment and services
costs result in expenditures of $15,000 and greater.
(B)
As mandated by Article 601b, Texas Civil Statutes, grantees
must make a good-faith effort to encourage Historically Underutilized Businesses
to bid on services for grant-funded projects, and report the amount of the
dollars contractually awarded to HUBs.
(d)
Assessment. The Telecommunications Infrastructure Fund
Board will for the purpose of Strategic Planning, report its operating expenditures
related to Historically Underutilized Business performance figures. Also,
the Telecommunications Infrastructure Fund Board will document and monitor
the performance in an on-going manner to its Director of Finance and Administration.
The Director of Finance and Administration is responsible for circulating
this information to the Executive Director.
§471.51.Proposal Award, Award Decision Appeal.
(a)
Applicants and/or grantees may formally appeal funding
decisions if TIFB:
(1)
Denies an application for funding, in part or whole
(2)
Terminates a grant project, or
(3)
Imposes sanction upon an active grantee
(4)
If an applicant and/or grantee wishes to appeal a decision
made by TIFB, that applicant must submit an appeal, in writing to the Executive
Director within 20 business days from the date of notification of a denial,
grant termination, or grantee sanction. Applicant and/or grantee appeals must
include the basis for the appeal, including all supporting documentation,
and must be signed by the authorized official for the grant application or
project.
(5)
An applicant and/or grantee must base an appeal upon a
verifiable error made during the prioritization and/or review process. An
applicant and/or grantee must show that TIFB error caused the actual denial
of a grant application, in part or in whole, the termination of a grant project,
and/or the imposition of a sanction upon an active grantee.
(6)
The Executive Director will issue a final decision, in
writing, within 60 days of the receipt of an appeal letter. If the Executive
Director has rendered no decision within the 60-day period following the receipt
of the appeal, the original decision will stand and the appeal will therefore
be considered denied.
(b)
Responsibilities. The Executive Director will make all
determinations for written appeals.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on March 26, 2001.
TRD-200101773
Robert J. "Sam" Tessen
Executive Director
Telecommunications Infrastructure Fund Board
Earliest possible date of adoption: May 6, 2001
For further information, please call: (512) 344-4306