1 TAC §§471.5, 471.13, 471.53
The Telecommunications Infrastructure Fund Board (agency)
proposes new §471.5 relating to videoconference meetings, §471.13
relating to historically underutilized businesses, and §471.53 relating
to grants and services. New §471.5 describes the circumstances under
which the Board may conduct a meeting by videoconference as authorized by
Government Code, §551.127. Section 471.13 adopts the rules of the General
Services Commission relating to the historically underutilized business program
as required by Government Code, §2161.003. Section 471.53 describes the
grant and loan process, grant application requirements, authorized grant purposes,
and grantees' financial, performance, reporting, and records retention requirements.
Frank Pennington, Director of Finance and Administration, Telecommunications
Infrastructure Fund Board, has determined that for the first five-year period
the sections are in effect there will be no fiscal implications for state
or local government as a result of enforcing the sections.
Mr. Pennington also has determined that for each year of the first five
years the sections are in effect the public benefit anticipated as a result
of enforcing the sections will be the assurance of public access to all board
meetings whether via videoconference or otherwise, more contracting opportunities
for historically underutilized businesses, and increased knowledge by grantees
of the grant process, grant application requirements, authorized grant purposes,
and financial, performance, reporting, and records retention requirements.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Michelle D. Pundt, Telecommunications
Infrastructure Fund Board, P.O. Box 12876, Austin, Texas 78711, (512) 344-4306
or email at: mpundt@tifb.state.tx.us no later than 30 days from the date that
these proposed rules are published in the
Texas Register
.
The new sections are proposed pursuant to Government Code, §551.127,
Government Code, § 2161.003, and Utilities Code , §57.045(d)(2).
The Board interprets Government Code, §551.127 as describing the circumstances
under which governmental entities may conduct videoconference meetings, Government
Code, §2161.003 as requiring it to adopt the rules of the General Services
Commission relating to historically underutilized businesses, and Utilities
Code, §57.045(d)(2) as authorizing it to adopt rules as necessary for
the administration of Utilities Code, Chapter 57, Subchapter C.
No other statutes, articles or codes are affected by this proposal.
§471.5.Videoconference Meetings.
(a)
The governing board may conduct meetings via videoconference
provided:
(1)
A quorum of the members is present in a single location.
(2)
Notice is given as for other governing board meetings and
the notice specifies as the location of the meeting, location where a quorum
of the members is physically present, and where all other members who will
participate will be physically present.
(3)
The meeting is open to the public, unless a closed session
is allowed by Chapter 551 of the Government Code.
(4)
Each open portion of the meeting is visible and audible
to the public at each location.
(5)
Each location described in subsection (a)(2) has two-way
communication with each other location during the entire meeting.
(6)
Each member, while speaking, is clearly visible and audible
to all members and to the public during open portion of the meeting.
(7)
The quality of the video and audio signals perceptible
to the public meets or exceeds the standards prescribed by the Department
of Information Resources at 1 TAC §201.16 (relating to Minimum Standards
for Meetings Held by Videoconference Call); meets or exceeds the quality of
signals perceived by the members of the governing board; and allows the public
at each location to observe the demeanor and hear the voice of each participant
in the open portion of the meeting.
(8)
Members of the public, in the chair's discretion, may participate
from each remote location.
(b)
At a minimum, the Board shall make an audio recording of
the meeting. The recording or an exact duplicate is available for public inspection
or copying.
§471.13.Historically Underutilized Business Participation.
The Telecommunications Infrastructure Fund Board adopts the rules of
the General Services Commission relating to the Historically Underutilized
Business (HUB) Program and codified at 1 Texas Administrative Code, Part V,
Subchapter B, Chapter 111, §§111.11-111.16.
§471.53.Grants and Services.
(a)
Scope of Available Funding.
(1)
Funding may be provided to any project consistent with
the Utilities Code, Chapter 57, Subchapter C.
(2)
Limitation on Grantees' Authority: All grants are contingent
upon legislative appropriations.
(b)
Filing of Applications.
(1)
Applications filed with the agency shall be on a form promulgated
by the agency. Appropriate instructions and explanatory materials will be
provided with the application.
(2)
Dates for the submission of applications shall be recommended
by the agency staff, approved by the governing board, and published if practical,
in the
Texas Register
by the agency. If funds
are available, application dates will be set not less than annually.
(3)
The deadline for receipt and consideration of an application
for funding is the close of business (5:00 p.m. Central Standard Time) on
the submission date. An application is considered filed when actually received
in the agency office(s) and time-date stamped or when postmarked showing the
application was received and accepted by the United States post office, a
common carrier or its equivalent, at least four calendar days prior to submission
date. Metered mail is not acceptable unless it also includes the United States
Postal Service postmark.
(4)
All documents relating to an application shall be filed
with the agency. Each application will be marked with the date and time received
in the offices of the agency. The envelope or other wrapper in which an application
received by mail or common carrier was enclosed shall be retained with the
application.
(5)
A copy of all applications and supporting documentation
shall be maintained at the agency's office. Applicants are advised that the
agency must comply with the Public Information Act, Texas Government Code,
Chapter 552, and therefore that the application and supporting documentation
are subject to the Public Information Act.
(6)
An application for a grant, loan, or other disbursement
of funds shall be accompanied by all supporting documentation at the time
the application is filed, except as provided in subsection (g) of this section.
(7)
Upon receipt, an application will undergo an initial compliance
review by the agency to determine whether the application is complete and
whether all proposed activities are eligible for funding.
(A)
The results of the initial review shall be provided to
the applicant.
(B)
The applicant may correct any deficiencies within 10 calendar
days of the date of the notification of such deficiencies by the agency.
(C)
Failure to correct any identified deficiencies within 10
calendar days shall be grounds for rejection of the application.
(D)
Upon determination that the application is complete, the
application shall be forwarded to the application review committee for consideration.
(8)
The agency may require a technical review of all applications.
The technical review may include investigation into the economic and technical
feasibility of the project for which funding is sought and the likelihood
that the project, if implemented, will accomplish the objectives stated in
the application or established by the agency.
(9)
An investigation of the financial circumstances, business
experience, and background of applicants, the personnel identified by the
applicant as being principally responsible for the project for which funding
is sought, and the same information concerning specific suppliers of goods
and/or services proposed to be acquired pursuant to the terms of the application
may be required by the agency.
(c)
Required Information in Applications.
(1)
All applicants, whether requesting a loan or a grant, must
provide the information described in this section.
(A)
Failure to provide the information or failure to fully
disclose any material fact concerning the subject matter of the required information
items shall be grounds for rejection of the application.
(B)
Intentional concealment of material facts related to the
required information items shall be grounds for refusal to consider any further
application submitted by the applicant for a time period determined appropriate
by the agency.
(2)
Applicants shall include a statement that the proposed
project complies with all applicable federal and state law; a description
of any federal, state, and/or local telecommunications programs in place or
planned for the area and reasonably anticipated; and a "statement of project"
including:
(A)
detailed description of relevant qualifications of the
project's key personnel,
(B)
detailed description of the applicant's past performance
and experience with similar projects;
(C)
detailed description of the applicant's quality control/assurance
or evaluation plan;
(D)
detailed description of the applicant's proposed schedule
for reporting the project's progress to the agency;
(E)
detailed project budget, including description of the specification
of all equipment, labor, and facilities;
(F)
detailed description of equipment to be used and the method
used to select the equipment;
(G)
overview of pertinent telecommunications activity;
(H)
clear identification, whenever applicable, of the entity's
proposed vendors as a historically underutilized business, individual with
low income, health care facility, minority-owned business, or women-owned
business, and whenever applicable, identification of the applicant's employment
of historically underutilized business for project-related services;
(I)
detailed discussion of other public and private funding
options available to the applicant;
(J)
identification of matching fund availability, from the
applicant's own revenue or from other sources, including signed letter of
intent;
(K)
identification of the applicant as a local political subdivision
whose other funding option would be local tax revenues or general revenue
funds;
(L)
evidence of economic feasibility of the project including
a demonstration of the ability to principally fund and sustain the project,
(3)
The award of a grant or loan is contingent on the receipt
of the following during the application process:
(A)
a Letter of Intent,
(B)
the designation of grant officials,
(C)
budget information including travel, equipment, and contractual
services,
(D)
certified assurances,
(E)
a narrative including, but not limited to:
(i)
a vision statement and introduction to the narrative,
(ii)
a needs assessment,
(iii)
project objectives and methods,
(iv)
sustainability/securing funding,
(F)
a project timeline,
(G)
an evaluation plan, and
(H)
an overall budget summary, and in the event of collaboration
an individual site budgets from the fiscal agent.
(d)
Considerations by the Governing Board.
(1)
The award of a loan, grant, or other disbursement of funds
shall be considered by the governing board at a regular governing board meeting
or other open meeting designated by the governing board.
(2)
Grants shall be allocated by vote of the governing board
at large upon the agency's staff recommendations.
(3)
Prior to the commencement of the meeting, any governing
board member may review the entire application, including all supporting documentation,
the written recommendation of the application review committee, and written
comments.
(e)
Governing Board Decision.
(1)
All decisions of the governing board shall be final upon
action by a majority of the governing board in attendance at a duly called
meeting.
(A)
Governing board action shall be reflected in the minutes
of the meeting.
(B)
Governing board action shall be deemed to have been taken
on the date of vote of the board in open meeting.
(2)
The governing board is under no legal requirement to execute
an agreement on the basis of any application for funding.
(A)
The governing board retains the right to accept or reject
any or all completed applications.
(B)
The governing board reserves the right to vary any and
all provisions of its applications at any time prior to execution of an agreement
where the governing board deems such variances to be in the interest of the
State of Texas.
(3)
Upon issuance of a final decision, the agency shall send
a copy of that decision by first class mail to each applicant or the applicant's
representative. The agency shall keep an appropriate record of that mailing.
(f)
Grant and Loan Agreements. Minimum terms and compliance
with terms are executed through a grant or loan agreement.
(1)
Entities receiving grants or loans shall be required to
execute an agreement in the form prescribed by the governing board setting
out the terms and conditions of the grant or loan as approved by the governing
board. A true and complete copy of the application made by the recipient and
all additions or amendments thereto shall be attached to the agreement and
made a part thereof.
(2)
Agreements shall be executed by the chair and by the chief
executive officer of the recipient or by such other officer authorized by
the governing body of the entity to execute the agreement. A certified copy
of a resolution of the governing body of the recipient consenting to the terms
and conditions of the agreement and authorizing the officer executing it to
do so shall be attached to the agreement.
(3)
The agreement shall contain at least the following terms
and conditions, together with all such other terms and conditions prescribed
by the agency:
(A)
performance under the grant shall strictly comply with
the proposal submitted in the application, unless specifically modified by
the agency in writing;
(B)
all equipment purchased through the grant or loan shall
be maintained and operated in compliance with manufacturer's warranty requirements,
state and federal laws. The recipient shall immediately report to the agency
all citations by regulatory authorities for violations of such provisions
to the agency;
(C)
the recipient shall assume all liability for the operation
and maintenance of equipment purchased through the grant or loan and indemnifies
the agency and the State of Texas from all liability arising there to the
extent permitted by law;
(D)
at the direction of the agency, may provide for funding
of purchases or construction, in stages, conditioned on delivery of equipment
or completion and approval by the governing board or other appropriate authority
of specified stages of construction;
(E)
provide that further funding may terminate at the discretion
of the agency for the failure of the recipient to comply with the requirement
of the grant or loan;
(F)
provide that the agreement may be terminated by mutual
agreement of the recipient and the agency, and all unexpended funds returned
to the agency, in the even of either impossibility, including unavailability
of equipment planned to be purchased with loan or grant funds, or the commercial
unfeasibility of project;
(G)
bind the recipient to refund to the agency all funds expended
by the recipient in violation of the terms of the agreement, together with
all administrative costs, attorney fees, expenses, and court costs incurred
by the agency, and
(H)
grant to the agency the right to demand and receive reports
of progress of the project at specified intervals, the right to audit the
recipient with respect to the project and the right to perform inspections
of the project at reasonable times.
(g)
Enforcement.
(1)
In the event, the general counsel determines that an applicant
is in breach of any agreement executed with the agency, all available remedies
may be pursued.
(2)
The agency may utilize the various staffs of member agencies
to pursue any such appropriate remedies.
(h)
Adoptions By Reference. The agency adopts by reference
the following governmentwide policies, statutes, and standards:
(1)
United States Office of Budget and Management Cost Principle
Circulars (which can be found at: www.whitehouse.gov/omb/circulars/index.html),
(A)
A-21, Educational Institutions
(B)
A-87, State and Local Governments
(C)
A-122, Non-Profit Organizations
(2)
United States Office of Budget and Management Administrative
Requirement Circulars (which can be found at: www.whitehouse.gov/omb/circulars/index.html),
(A)
A-102, State and Local Governments
(B)
A-110 Institutions of Higher Education, Hospitals, and
Other Non-Profit Organizations
(3)
United States Office of Budget and Management Audit Requirement
Circular A-133, States, Local Governments, and Non-Profit Organizations (which
can be found at: www.whitehouse.gov/omb/circulars/index.html),
(4)
United States General Accounting Office, Standards for
Audit of Governmental Organizations, Programs, Activities and Functions, and
(5)
State of Texas, Government Code Chapter 783 Uniform Grant
Management Standards.
(i)
Use of the Internet.
(1)
The agency may provide for submission of grant applications,
progress reports, financial reports, and other information via the Internet.
Completion and submission of a progress report of financial report via the
Internet meets the relevant requirements contained within this chapter for
submitting reports in writing.
(2)
If a grant application is submitted via the Internet, the
agency will not consider it complete until the grantee provides an Internet
Submission Form to the Board that is signed by the applicant's authorized
official and that meets all relevant deadlines for applications. This form
certifies that the information submitted via the Internet is true and correct
and that, if a grant is awarded, the grantee will abide by all relevant rules,
policies, and procedures.
(j)
Allowable Use of Grant or Loan Monies.
(1)
A public school district that receives money under the
public schools account must use the money for equipment purchases. This includes
computers, printers, computer laboratories, video equipment and intra/intercampus
wiring to use equipment.
(2)
A public school, public library, institution of higher
education, rural not-for-profit health entity or collaborative that receives
money under the qualifying entities account must use the money for any purpose
authorized in the public schools account and the following additional purchases:
wiring, materials, program development, training, installation costs, or the
development of a statewide telecommunications network.
(3)
Individual grants may not exceed the amount of award.
(k)
Grant Reimbursement Procedures.
(1)
Commencement of project work: Approved project work may
not begin before the assigned grant period begins, except for planning work
connected with development projects.
(2)
Reimbursement of allowable project expenses: All payments
of grant funds are strictly on a reimbursement basis. Reimbursements may be
made after the grant award, the beginning of the grant period and submission
of proof of incurred allowable expenses.
(3)
All payments of grant funds are only issued with appropriate
supporting documentation.
(4)
Deadline for submission of requests for reimbursement:
Grantees must ensure that the Board receives their final requests for funds
postmarked no later than the 90th calendar day after the end of the grant
period.
(A)
If this date falls on a weekend or holiday, then the agency
will honor receipt or a postmark on the next business day.
(B)
If grant funds are on hold for any reason, these funds
are forfeited and the grantee cannot recover them. Under exceptions established
by policy, the agency will make no payments to grantees that submit their
request for funds with a postmark after the 90-day deadline.
(5)
Forfeiture of grant: Failure to expend the full grant amount
by the end of the grant period or failure to submit to the agency all required
materials by the end of the grant period or other deadline as announced by
the agency will result in forfeiture of the remaining grant amount unless
otherwise approved in writing by the agency.
(l)
Completion Reports for Awarded Grants.
(1)
All awarded grant projects require interim and final financial
reporting. Financial reporting form structure is decided by the agency and
due on the dates announced at the time of a grant award.
(2)
Failure to submit the required financial report by the
due date will place the awarded entity on hold. On hold status will prevent
the entity from having any request for funds processed until the required
documentation is submitted.
(3)
The failure of grantees to submit required documentation
by the due dates may disqualify them from participating in future grants.
(m)
Performance Standards.
(1)
All awarded grant projects must conform to the performance
and technology standards outlined in the Request for Proposal.
(2)
All awarded grant projects are reviewed by the agency's
quality assurance function. Grantees are expected to comply with online surveys
and may possibly encounter a site visit by the quality assurance staff during
or after the term of the grant period.
(3)
Failure to provide the information requested by the quality
assurance staff within the specified timeline will place the awarded entity
on hold. On hold status will prevent the entity from having any request for
funds processed until the required documentation is submitted. In the event
the entity fails to submit required documentation during a post implementation
cycle, the entity may jeopardize future grant awards.
(n)
Match for Awarded Grants.
(1)
At the agency's discretion, a minimum amount of matching
funds or in-kind equivalency may be required to receive a grant.
(2)
If a matching funds requirement applies, then the grantee
must provide matching funds equal to the required matching funds percentage
multiplied by the total project expenditures funded by the agency.
(3)
A contractor may contribute toward the matching funds requirement,
but the applicant bears the ultimate responsibility for satisfying the matching
funds requirement.
(4)
Applicants may use any funds received through legal asset
forfeiture toward fulfilling the matching funds requirement.
(5)
If an applicant applies for a grant, which has a matching
funds requirement, it may be satisfied through direct funding contributions,
in-kind contributions or a combination of the two.
(6)
The sources of matching funds for the agency funded grant
projects must be current at the time of grant award and not anticipated. The
applicant must identify the funding sources in the application.
(7)
If an applicant applies for a grant under a funding source
that allows in-kind contributions to satisfy part of the matching funds requirement,
then the following rules apply:
(A)
In-kind contributions may consist of volunteer time, professional
services, travel, building space, non-expendable equipment, materials, and
supplies contributed during the grant period to the applicant by a third party.
(B)
In-kind contributions may include depreciation and use
fees for buildings or equipment acquired by the applicant before the start
of the grant period and used in the grant project. However, the applicant
may only count depreciation that will occur during the grant period as an
in-kind contribution. Use fees qualify as an in-kind contribution only if
supported by cost and depreciation records maintained by the applicant.
(8)
Applicants must maintain records of all in-kind contributions
that include at least the following:
(A)
a full description of the item or service claimed,
(B)
the area, expressed in square feet, or any donated building
space,
(C)
the name of the contributor,
(D)
the date of the contribution,
(E)
the fair market value of the contribution and how its value
was determined, and
(F)
in the case of a discount given, the contributor's signature
on an affidavit of worth stating that the donor gave the discount because
of the project's purpose.
(9)
Not more than one half of the match may be derived from
prior capital expenditures, prior in-kind match, and current in-kind match,
and not less than one half of the match must be derived from current cash
match. Prior capital expenditures and prior in-kind matches constitute credit
for the board to approve capital and planning expenditures during the application
process.
(o)
Grant Adjustments.
(1)
The person designated in the grantee acceptance notice
to request grant adjustments or an authorized official must sign all requests
for grant adjustments.
(2)
Grant adjustments consisting of the reallocation of funds
among or within budget categories are considered budget adjustments, and are
allowable only with prior agency approval. The following rules apply to budget
adjustments:
(A)
During a grant period, grantees may transfer funds among
or within the standard grant budget categories without the agency's prior
approval, as long as the amount transferred does not exceed a cumulative total
of ten percent of the total grant award during the grant period. All budget
adjustments must comply with the relevant rules in this section. The grantee
must maintain accurate records that show all budget adjustments.
(B)
Budget adjustments beyond a quantity of three, must be
approved by an agency grant administrator and considered only for extenuating
circumstances.
(C)
The agency will not approve budget adjustments requests
submitted within 30 days prior to the end of the grant period unless the executive
director approves an exception. The executive director will base exceptions
upon a substantiated request submitted by the grantee.
(D)
Requests to revise the scope, target, or focus of the project,
or alter project activities requires advance written approval from the agency.
(E)
The grantee shall notify the agency in writing of any changes
in the designated project director, financial officer, or authorized official
within five (5) days following the change. When the notice addresses a change
of financial officer, the letter must include a sample signature of the new
official. When the notice addresses a change of authorized official, the governing
body, must submit the request.
(F)
Failure to submit the signatures of current, authorized
grant officials will prevent all requests for fund reimbursements from being
paid.
(G)
A grantee may submit a written request for a grant extension.
The executive director will approve such requests only in extraordinary circumstances.
(p)
Retention of Records.
(1)
Grantees must maintain all financial records, supporting
documents, statistical records, and all other records pertinent to the award
for at least three years following the closure of the most recent audit report
or submission of the final expenditure if the audit report requirement has
been waived. Records retention is required for the purposes of state examination
and audit. Grantees may retain records in an electronic format. All records
are subject to audit or monitoring during the entire retention period.
(2)
Grantees must retain records for equipment, non-expendable
personal property, and real property for a period of three years from the
date of the item's disposition, replacement, or transfer.
(3)
If any litigation, claim, or audit is started before the
expiration of the three-year records retention period, the grantee must retain
the records under review until the resolution of all litigation, claims, or
audit findings.
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 July 23, 2001.
TRD-200104250
Robert J. "Sam" Tessen
Executive Director
Telecommunications Infrastructure Fund Board
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 344-4306