Part 5.
GENERAL SERVICES COMMISSION
Chapter 111.
EXECUTIVE ADMINISTRATION DIVISION
Subchapter B. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM
1 TAC §§111.14, 111.17, 111.28
The General Services Commission proposes amendments to Title
1, TAC, Chapter 111, Subchapter B, §111.14, relating to subcontracts, §111.17,
relating to Certification Process; and §111.28, relating to the Mentor
Protégé Program. The amendments are proposed due to the enactment
of Senate Bill 311 (SB 311), Article 13, 77th Leg. (2001) which amended the
statutory language of §§2161.061 and 2161.253, Texas Government
Code. The amended statutory language found in §13.01, SB 311 relates
to the Commission's approval of local governments or nonprofit organizations
certification programs for businesses that substantially fall under the same
definition for Historically Underutilized Business found in §2161.001,
Texas Government Code. Amended statutory language in §13.02, SB 311 determines
that a contractor has made a good faith effort if a contractor participates
in a Mentor-Protégé Program and submits a Protégé
as a subcontractor in the contractor's historically underutilized business
subcontracting plan.
Henry Johnson, Program Director for Historically Underutilized Business,
determined for the first five year period the rules are in effect, there will
be no fiscal implication for the state or local governments as a result of
enforcing or administering these proposed rules.
Mr. Johnson 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 compliance with law enacted in SB 311, Article
13, 77th Leg (2001) relating to the Historically Underutilized Business Certification
Program and the Mentor Protege Program. There will be no effect on large,
small or micro-businesses. There is no anticipated economic cost to persons
who are required to comply with these rules and there is no impact on local
employment.
Comments on the proposals may be submitted to Mr. Wm. J. Philbin, Legal
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047.
Comments must be received no later than thirty days from the date of publication
of the proposal to the
Texas Register
.
The amendments are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2161.002, 2161.061,
and 2161.253 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, Chapter 2161.
§111.14.Subcontracts.
(a)
Requirement for HUB subcontracting plans. In accordance
with the Texas Government Code, Chapter 2161, Subchapter F, each state agency
that considers entering into a contract with an expected value of $100,000
or more shall, before the agency solicits bids, proposals, offers, or other
applicable expressions of interest, determine whether subcontracting opportunities
are probable under the contract.
(1)
State agencies shall use the following steps in making
the determination of whether subcontracting opportunities are probable under
the contract:
(A)
Use the HUB participation goals in §111.13 of this
title (relating to Annual Procurement Utilization Goals);
(B)
Research the Centralized Master Bidders List, the HUB Directory,
the Internet, and other directories, identified by the commission, for HUBs
that may be available to perform the contract work;
(C)
Additionally, determination of subcontracting opportunities
may include, but is not limited to, the following:
(i)
contacting other state and local agencies and institutions
of higher education to obtain information regarding similar contracting and
subcontracting opportunities; and
(ii)
reviewing the history of similar agency purchasing transactions.
(2)
If subcontracting opportunities are probable, each agency's
invitation for bids or other purchase solicitation documents for construction,
professional services, other services, and commodities for $100,000 or more
shall state that probability and require a HUB subcontracting plan. Accordingly,
potential contractor/vendor responses that do not include a completed HUB
subcontracting plan shall be rejected as a material failure to comply with
advertised specifications in accordance with §113.6 (a) of this title
(relating to Bid Evaluation and Award). The plan shall include goals established
pursuant to §111.13 of this title (relating to Annual Procurement Utilization
Goals).
(b)
Development and evaluation of HUB subcontracting plans.
A state agency shall require a potential contractor vendor to state whether
it is a Texas certified HUB. Potential contractors/vendors shall follow, but
are not limited to, procedures in subsection (b)(1) of this section when developing
the HUB subcontracting plan. The HUB subcontracting plan shall include the
form provided by the agency identifying the subcontractors that will be used
during the course of the contract, the expected percentage of work to be subcontracted,
and the approximate dollar value of that percentage of work. The potential
contractor/vendor shall provide all additional information required by the
agency.
(1)
Evidence of good faith effort in developing a HUB subcontracting
plan includes, but is not limited to, the following procedures:
(A)
Divide the contract work into reasonable lots or portions
to the extent consistent with prudent industry practices.
(B)
Notify HUBs of the work that the potential contractor/vendor
intends to subcontract. The preferable method of notification shall be in
writing. The notice shall, in all instances, include the scope of the work,
information regarding the location to review plans and specifications, information
about bonding and insurance requirements, and identify a contact person. The
notice shall be provided to potential HUB subcontractors prior to submission
of the contractor's/vendor's bid. The potential contractor/vendor shall provide
potential HUB subcontractors reasonable time to respond to the potential contractor's/vendor's
notice. "Reasonable time to respond" in this context is no less than five
working days from receipt of notice, unless circumstances require a different
time period, which is determined by the agency and documented in the contract
file. The potential contractor/vendor shall effectively use the commission's
Centralized Master Bidders List, the HUB Directory, Internet resources, and
other directories as identified by the commission or agency when searching
for HUB subcontractors. Contractors/Vendors may rely upon the services of
minority, women, and community organizations contractor groups, local, state,
and federal business assistance offices, and other organizations that provide
assistance in identifying qualified applicants for the HUB program who are
able to perform all or select elements of the HUB subcontracting plan. The
potential contractor/vendor shall provide the notice described in this subsection
to three or more HUBs that perform the type of work required. Upon request,
the potential contractor/vendor shall provide official written documentation
(i.e. phone logs, fax transmittals, etc.) to demonstrate compliance with the
notice required in this subsection.
(C)
Provide written justification of the selection process,
if a non HUB subcontractor is selected through means other than competitive
bidding, or a HUB bid is the best value responsive bidder to a competitive
bid invitation, but is not selected.
(D)
Advertise HUB subcontracting opportunities in general circulation,
trade association, and/or minority/woman focus media concerning subcontracting
opportunities.
(E)
Encourage a selected noncertified minority or woman owned
business subcontractor to apply for certification by the commission in accordance
with the procedures set forth in §111.17 of this title (relating to Certification
Process).
(2)
If the contract is a lease contract, the lessor shall comply
with the requirements of this section from and after the occupancy date provided
in the lease, or such other time as may be specified in the invitation for
bid for the lease contract.
(3)
In making a determination whether a good faith effort has
been made in the development of the required HUB subcontracting plan, a state
agency shall require the potential contractor/vendor to submit supporting
documentation explaining in what ways the potential contractor/vendor has
made a good faith effort according to each criterion listed in subsection
(b)(1) of this section. The documentation shall include at least the following:
(A)
Whether the potential contractor/vendor divided the contract
work into reasonable lots or portions consistent with prudent industry practices.
(B)
Whether the potential contractor/vendor notices contain
adequate information about bonding, insurance, the availability of plans,
the specifications, scope of work, and other requirements of the contract
to three or more qualified HUBs allowing reasonable time for HUBs to participate
effectively.
(C)
Whether the potential contractor/vendor negotiated in good
faith with qualified HUBs, not rejecting qualified HUBs who were also the
best value responsive bidder.
(D)
Whether the potential contractor/vendor documented reasons
for rejection of a HUB or met with the rejected HUB to discuss the rejection.
(E)
Whether the potential contractor/vendor advertised in general
circulation, trade association, and/or minority/women focus media concerning
subcontracting opportunities.
(F)
Whether the potential contractor/vendor assisted non-certified
HUBs to become certified.
(G)
Whether the contractor has entered into
a fully executed agreement and the same has been registered with the commission
prior to submitting the plan.
(i)
The sub-contracting plan can only be in the scope of work
as described in the Mentor/Protégé Agreement and signed by both
parties to satisfy the subcontracting plan requirement.
(ii)
The potential contractor/vendor should indicate the use
of a Protégé HUB firm to satisfy this requirement of the subcontracting
plan. The Protégé must be approved for participation in the
Mentor/Protege Program as prescribed in §111.28 of this title (relating
to the Mentor Protégé Program). The Protégé firm
should have the ability to perform the scope of work indicated in the subcontracting
plan and the signed agreement.
(iii)
A contractor's participation in a mentor-Protégé
program under Texas Government Code, §2161.065 and submission of a Protégé
as a subcontractor in the HUB subcontracting plan constitutes a good faith
effort for the particular area of the plan including the protege.
(4)
The HUB subcontracting plan shall be reviewed and evaluated
prior to contract award and, if accepted, shall become a provision of the
agency's contract. No changes shall be made to an accepted subcontracting
plan prior to its incorporation into the contract. State agencies shall review
the supporting documentation submitted by the potential contractor/vendor
to determine if a good faith effort has been made in accordance with this
section and the bid specifications. If the agency determines that a submitted
HUB subcontracting plan was not developed in good faith, the agency shall
treat the lack of good faith as a material failure to comply with advertised
specifications, and the subject bid or other response shall be rejected. The
reasons for rejection shall be recorded in the procurement file.
(5)
If the potential contractor/vendor can perform all the
subcontracting opportunities identified by the agency, a statement of the
potential contractor's/vendor's intent to complete the work with its employees
and resources without any subcontractors will be submitted with the potential
contractor's/vendor's bid, proposal, offer, or other expression of interest.
If the potential contractor/vendor is selected and decides to subcontract
any part of the contract after the award, as a provision of the contract,
the contractor/vendor must comply with provisions of this section relating
to developing and submitting a subcontracting plan before any modifications
or performance in the awarded contract involving subcontracting can be authorized
by the state agency. If the selected contractor/vendor subcontracts any of
the work without prior authorization and without complying with this section,
the contractor/vendor would be deemed to have breached the contract and be
subject to any remedial actions provided by Texas Government Code, Chapter
2161, state law and this section. Agencies may report non-performance relative
to its contracts to the commission in accordance with Chapter 113, Subchapter
F of this title (relating to the Vendor Performance and Debarment Program).
(c)
Submission, review and determination of changes to an approved
subcontracting plan during contract performance. If at any time during the
term of the contract, a contractor/vendor desires to make changes to the approved
subcontracting plan, such proposed changes must be received for prior review
and approval by the state agency before changes will be effective under the
contract. The contractor/vendor must comply with provisions of subsection
(b) of this section relating to developing and submitting a subcontracting
plan for substitution of work or of a subcontractor, prior to any alternatives
being approved under the subcontracting plan. The state agency shall approve
changes by amending the contract or by another form of written agency approval.
The reasons for amendments or other written approval shall be recorded in
the procurement file.
(d)
Determining contractor/vendor contract compliance. The
contractor/vendor shall maintain business records documenting its compliance
with the HUB subcontracting plan and shall submit a compliance report to the
contracting agency periodically and in the format required by the contract
documents. During the term of the contract, the state agency shall determine
whether the value of the subcontracts to HUBs meets or exceeds the HUB subcontracting
provisions specified in the contract. Accordingly, state agencies shall audit
and require a contractor/vendor to whom a contract has been awarded to report
to the agency the identity and the amount paid to its subcontractors in accordance
with 111.16(c) of this title (relating to State Agency Reporting Requirements).
If the contractor/vendor is meeting or exceeding the provisions, the state
agency shall maintain documentation of the contractor's/vendor's efforts in
the contract file. If the contractor/vendor fails to meet the HUB subcontracting
provisions specified in the contract, the state agency shall notify the contractor
of any deficiencies. The state agency shall give the contractor/vendor an
opportunity to submit documentation and explain to the state agency why the
failure to fulfill the HUB subcontracting plan should not be attributed to
a lack of good faith effort by the contractor/vendor.
(1)
In determining whether the contractor/vendor made the required
good faith effort, the agency may not consider the success or failure of the
contractor/vendor to subcontract with HUBs in any specific quantity. The agency's
determination is restricted to considering factors indicating good faith effort
including, but not limited to, the following:
(A)
Whether the contractor gave timely notice to the subcontractor
regarding the time and place of the subcontracted work.
(B)
Whether the contractor facilitated access to the work site,
electrical power, and other necessary utilities.
(C)
Whether documentation or information was provided that
included potential changes in the scope of contract work.
(2)
If a determination is made that the contractor/vendor failed
to implement the HUB subcontracting plan in good faith, the agency, in addition
to any other remedies, may report nonperformance to the commission in accordance
with Chapter 113, Subchapter F of this title (relating to Vendor Performance
and Debarment Program).
(3)
State agencies shall review their procurement procedures
to ensure compliance with this section. In accordance with § 111.26 of
this title (relating to HUB coordinator responsibilities) the agency's HUB
coordinator and contract administrators should facilitate institutional compliance
with this section.
§111.17.Certification Process.
(a)
A business seeking certification as an historically underutilized
business must submit an application to the commission on a form prescribed
by the commission, affirming under penalty of perjury that the business qualifies
as an historically underutilized business.
(b)
If requested by the commission, the applicant must provide
any and all materials and information necessary to demonstrate active participation
in the control, operation, and management of the historically underutilized
business.
(c)
Texas Government Code, §2161.231, provides that a
person commits a felony of the third degree if the person intentionally applies
as an historically underutilized business for an award of a purchasing contract
or public works contract and the person knowingly does not meet the definition
of an historically underutilized business.
(d)
The commission shall certify the applicant as an historically
underutilized business or provide the applicant with written justification
of its denial of certification within 60 days after the date the commission
receives a satisfactorily completed application from the applicant.
(e)
The commission reviews and evaluates applications, and
may reject an application based on one or more of the following:
(1)
the application is not satisfactorily completed;
(2)
the applicant does not meet the requirements of the definition
of historically underutilized business;
(3)
the application contains false information;
(4)
the applicant does not provide required information in
connection with the certification review conducted by the commission; or
(5)
the applicant's record of performance of any prior contracts
with the state.
(f)
The Commission may approve the existing
Certification Program of one or more local governments or non-profit organizations
in this state that certify historically underutilized businesses, minority
business enterprises, women's business enterprises, disadvantaged business
enterprises that substantially fall under the same definition, to the extent
applicable for Historically Underutilized Business found in §2161.001,
Texas Government, and maintain them on the Commission's Historically Underutilized
Businesses list, if
(1)
the local government or non-profit organization meets or
exceeds the standards established by the Commission as set out in Chapter
111, Subchapter B of this title (relating to the Historically Underutilized
Business Program).
(2)
agrees to the terms and conditions as required by statue
relative to the agreement between the local government and/or non-profits
for the purpose of certification of Historically Underutilized Businesses.
(g)
The agreement in subsection (f) of this
section must take effect immediately and contain conditions as follows:
(1)
allow for automatic certification of business certified
by the local government or non-profit organization (Program) as prescribed
by the commission;
(2)
provide for the efficient updating of the commission database
containing information about historically underutilized businesses and potential
historically underutilized businesses as prescribed by the commission;
(3)
provide for a method by which the commission may efficiently
communicate with businesses certified by the local government or non-profit
organization;
(4)
provide those businesses with information about the state's
Historically Underutilized Business Program; and
(5)
require that a local government or non-profit organization
that enters into an agreement under subsection (f) of this section, complete
the certification of an applicant with written justification of its certification
denial within the period established by the commission in its rules for certification.
(h)
The commission will not accept the certification
of a local government or non-profit organization that charges for the certification
of businesses to be listed on the Historically Underutilized Business list
maintained by the commission.
(i)
The commission may terminate an agreement
made under this section if a local government or non-profit organization fails
to meet the standards established by the commission for certifying Historically
Underutilized Businesses. In the event of the termination of an agreement,
those HUB's that were certified as a result of the agreement will maintain
their HUB status during the fiscal year in which the agreement was in effect.
Those HUB's who are removed from the HUB list as a result of the termination
of an agreement with a local government or non-profit organization may apply
directly to the commission for certification as a Historically Underutilized
Business.
[(f)
The commission will develop agreements
with local governments to identify historically underutilized businesses and
assist these businesses in obtaining state certification through the commission.]
(j)
[
§111.28.Mentor Protégé Program.
(a)
In accordance with the Texas Government Code, Section 2161.065,
the commission shall design a Mentor Protégé Program to foster
long-term relationships between contractors/vendors and Historically Underutilized
Businesses (HUBs) and to increase the ability of HUBs to contract with the
state or to receive subcontracts under a state contract. The objective of
the Mentor Protégé Program is to provide professional guidance
and support to the Protégé to facilitate their development and
growth. All participation is voluntary and program features should remain
flexible so as to maximize participation. Each state agency with a biennial
appropriation that exceeds $10 million shall implement a Mentor Protégé
Program.
(b)
In efforts to design a Mentor Protégé Program,
each agency, because of its unique mission and resources, is encouraged to
implement a Mentor Protégé Program that considers;
(1)
the needs of Protégé businesses requesting
to be mentored;
(2)
the availability of mentors who possess unique skills,
talents, and experience related to the mission of the agency's Program; and
(3)
the agency's staff and resources.
(c)
Agencies may elect to implement Mentor Protégé
Programs individually or cooperatively with other agencies, and/or other public
entities and private organizations, with skills, resources and experience
in Mentor Protégé Programs. Agencies are encouraged to implement
a Mentor Protégé Program to address the needs of its Protégé
businesses in the following critical areas of the state's procurements:
(1)
construction,
(2)
commodities, and/or
(3)
services.
(d)
State agencies may consider, but are not limited to, the
following factors in developing their Mentor Protégé Program:
(1)
Develop and implement internal procedures, including an
application process, regarding the Mentor Protégé Program which
identifies the eligibility criteria and the selection criteria for mentors
and potential HUB Protégé businesses;
(2)
Recruit contractor/vendor mentors and proteges to voluntarily
participate in the Program;
(3)
Establish a Mentor Protégé Program objective
identifying both the roles and expectations of the agency, mentor and the
protege;
(4)
Monitor the progress of the mentor Protégé
relationship;
(5)
Identify key agency resources including senior managers
and procurement personnel to assist with the implementation of the Program;
and
(6)
Encourage partnerships with local governmental and nonprofit
entities to implement a community based Mentor Protégé Program.
(e)
An agency's Mentor Protégé Program must include
mentor eligibility and selection criteria. In determining the eligibility
and selection of a mentor, state agencies may consider the following criteria:
(1)
Whether the mentor is a registered bidder on the commission's
Centralized Master Bidders List (CMBL);
(2)
Whether the mentor has extensive work experience and can
provide developmental guidance in areas that meet the needs of the protege,
including but not limited to, business, financial, and personnel management;
technical matters such as production, inventory control and quality assurance;
marketing; insurance; equipment and facilities; and/or other related resources.
(3)
Whether the mentor is in "good standing" with the State
of Texas and is not in violation of any state statutes, rules or governing
policies;
(4)
Whether the mentor has mentoring experience; and
(5)
Whether the mentor has a successful past work history with
the agency.
(f)
An agency's Mentor Protégé Program must include
Protégé eligibility and selection criteria. In determining the
eligibility and selection of HUB protege, state agencies may use the following
criteria:
(1)
Whether the Protégé is eligible and willing
to become certified as a HUB;
(2)
Whether the Protégé's business has been operational
for at least one year;
(3)
Whether the Protégé is willing to participate
with a mentoring firm and will identify the type of guidance that is needed
for its development;
(4)
Whether the Protégé is in "good standing"
with the State of Texas and is not in violation of any state statutes, rules
or governing policies; and
(5)
Whether the Protégé is involved in a mentoring
relationship with another contractor/vendor.
(g)
The mentor and the protégé should agree on
the nature of their involvement under the agency's mentor/protégé
initiative. Each agency will monitor the process of the relationship. The
mentor and Protégé relationship should be reduced to writing
and that agreement may include, but is not limited to, the following:
(1)
Identification of the developmental areas in which the
Protégé needs guidance ;
(2)
The time period which the developmental guidance will be
provided by the mentor;
(3)
Name, address, phone and fax numbers, and the points of
contact that will oversee the agreement of the mentor and protege;
(4)
Procedure for a mentor firm to notify the protégé
in advance if it intends to voluntarily withdraw from the program or terminate
the mentor Protégé relationship;
(5)
Procedure for a protégé firm to notify the
mentor in advance if it intends to terminate the mentor protégé
relationship;
(6)
A mutually agreed upon timeline to report the progress
of the mentor Protégé relationship to the state agency.
(h)
Each agency must notify its mentors and proteges that participation
is voluntary. The notice must include written documentation that participation
in the agency's Mentor Protégé Program is neither a guarantee
for a contract opportunity nor a promise of business; but the Program's intent
is to foster positive long-term business relationships.
(i)
State agencies may demonstrate their good faith under this
section by submitting a supplemental letter with documentation to the commission
with their HUB Report or legislative appropriations request identifying the
progress and testimonials of mentors and proteges that participate in the
agency's Program. In accordance with §111.26 of this title (relating
to HUB Coordinator Responsibilities) the agency's HUB Coordinator shall facilitate
compliance by its agency.
(j)
Each State Agency that sponsors a Mentor/Protégé
Program must report that information to the commission upon completion of
a signed agreement of both parties. A copy of the signed agreement of both
parties should be forwarded to the commission, to be maintained on the approved
list of Mentor/Protege. When an agency approves a Mentor/Protégé
Agreement, that agreement is valid for all state agencies in the agreed upon
scope of work for that Mentor/Protege Agreement.
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 November 16, 2001.
TRD-200107090
William J. Philbin
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
Subchapter A. STATE LEASED PROPERTY
1 TAC §§115.1 - 115.10
(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 General Services Commission proposes the repeal
of Title 1, TAC, Chapter 115, Subchapter A--State Leased Property, §§115.1
- 115.10. The repeal of Chapter 115 is being proposed in order to delete obsolete
language as a result of the enactment of Senate Bill 311 (SB 311), Article
10, 77th Legislature (2001), The repeal of Chapter 115 will also allow for
new rules to be proposed and published simultaneously in this publication
of the
Texas Register
.
John Davenport, Director of Facilities Construction and Space Management,
has determined for the first five year period the repeals are in effect. There
will be no fiscal implication for the state or local governments as a result
of enforcing or administering the repeals.
Mr. Davenport 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 the repeals is the deletion of obsolete and cumbersome language,
and the creation of more efficient rules relating to Facilities Leasing Program
under the Texas Government Code, Chapter 2167 and SB 311, Article 10, 77th
Legislature (2001). There will be no effect on small businesses. There is
no anticipated economic cost to persons who are required to comply with the
repeal as proposed.
Comments on the proposal may be submitted to Juliet U. King, General Counsel,
General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments
must be received no later than 30 days from the date of publication of the
proposal in the
Texas Register
.
The repeal of Title 1, TAC, Chapter 115, is proposed under the
authority of the Texas Government Code, Title 10, Subtitle D, §§2152.003,
2165.004, 2165.108 and 2167.008 which provides the General Services Commission
with the authority to promulgate rules necessary to implement the sections.
The following codes are affected by these rules: Government Code, Title
10, Subtitle D, Chapters 2165, §2165.004 ; and Subchapter E, §§2165.201
- 2165.215; and Chapter 2167; and SB 311, Article 10, 77th Legislature. (2001).
§115.1.Definitions.
§115.2.General.
§115.3.Receipt and Processing of Requisitions for Leased Space.
§115.4.Filling Requisitions from Nonprivate Public Sources.
§115.5.Leasing from a Private Source.
§115.6.Negotiation with a Private Source.
§115.7.Amendment of Lease.
§115.8.Transfer by Lessor.
§115.9.Bidders List.
§115.10.Delegation of Leasing Authority.
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 November 16, 2001.
TRD-200107109
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §§115.1 - 115.11
The General Services Commission proposes new Title 1, TAC,
Chapter 115, Subchapter A--State Leased Property, §§115.1 - 115.11,
concerning the Facilities Leasing Program. The new rules are proposed in accordance
with Senate Bill 311 (SB 311), Article 10, 77th Legislature (2001) which added
language concerning the best value standard for lease space; use of private
firms to obtain space; and reporting requirement on state agencies noncompliant
with leasing requirements. The proposed new rules will also replace obsolete
language found in the proposed repealed rules for Title 1, TAC, Chapter 115, §§115.1
- 115.10 that are being published simultaneously in this publication of the
John Davenport, Director of Facilities Construction and Space Management,
has determined for the first five year period the new rules are in effect,
there will be no fiscal implication for the state or local governments as
a result of enforcing or administering these new rules.
Mr. Davenport has further determined that for each year of the first five-year
period the new rules are in effect, the public benefit anticipated as a result
of enforcing these rules will be reduced life cycle costs for leased space
and on time delivery of space, which should also result in lower costs for
space. There will be no effect on large, small or micro-businesses. There
is no anticipated economic costs to persons who are required to comply with
these rules and there is no impact on local employment.
Comments on the proposal may be submitted to Juliet U. King, Acting General
Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047.
Comments must be received no later than 30 days from the date of publication
of the proposal in the
Texas Register
.
New Title 1, Part 5, TAC, Chapter 115 is proposed under the authority
of the Texas Government Code, Title 10, Subtitle D, §§2152.003,
2165.004, 2167.004 (amended by SB 311, §10.04, 77th Legislature (2001)),
2167.008, 2167.052 (amended by SB 311, §10.05, 77th Legislature (2001)),
2167.0541 (new by SB 311, §10.08, 77th Legislature (2001)), and 2167.105
(new by SB 311, §10.10, 77th Legislature (2001)) 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, Chapters 2165, §2165.004; and Subchapter E, §§2165.201
- 2165.215; and Chapter 2167; and SB 311, Article 10, 77th Legislature (2001)
§115.1.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Potential lessor list--A list of prospective potential
lessors maintained by the Commission which sets out the names and addresses
of building owners and agents who have shown an interest in leasing space
to the state and from whom bids or proposals can be solicited for obtaining
leased space for state use.
(2)
Commission--The General Services Commission, or its successor
agency, the Texas Building and Procurement Commission.
(3)
Emergency Lease - A lease negotiated with a private source
for a term not to exceed 24 months, as determined by the commission.
(4)
State agency or agency--A board, a commission, or other
authorized agency of the state government.
(5)
Unduly restrictive specifications--Specifications that
unnecessarily limit competition by setting requirements unrelated to the state's
actual needs, which have the effect of favoring one or more prospective bidders
over all the rest.
§115.2.General.
(a)
The authority for obtaining leased space for state agencies
or departments rests with the commission by virtue of Texas Government Code,
Title 10, Subtitle D, Chapter 2167. In accordance with §2165.107, Government
Code, the commission shall give preference to available state-owned space
under its control.
(b)
The commission shall lease space on the basis of determining
the best value for the state. In determining the best value, the commission
may consider:
(1)
the cost of the lease contract;
(2)
the condition and location of the lease space;
(3)
utility costs;
(4)
access to public transportation;
(5)
parking availability;
(6)
security;
(7)
telephone service availability;
(8)
indicators of probable lessor performance under the contract,
such as the lessor's financial resources and the lessor's experience;
(9)
compliance with the architectural barriers law, Article
9102, Revised Statutes; and
(10)
other factors deemed relevant by the commission.
§115.3.Receipt and Processing of Requisitions for Leased Space.
(a)
Requests for allocation, relinquishment, or modification
of space in state-leased and owned facilities under the commission's control
shall be made in writing to the commission's director of Facilities Construction
and Space Management Division by the agency head or designee of the requesting
agency in accordance with §122.2 of this title (relating to Requests
for Allocation, Relinquishment, or Modification of Space in State-Leased or
Owned Facilities Under the Commission's Control). Facilities Leasing will
develop operating procedures defining all requirements related to requests
for state space.
(b)
In certain cases, the commission may enter into an emergency
lease. In making this determination and in establishing a term of the emergency
lease not to exceed 24 months, the commission shall consider the amount and
type of space required, the market conditions of the area in which space is
needed, the governmental responsibilities of the agency, and the potential
impact on the public, and the best interest of the state.
(c)
All requests for leased space must be submitted by the
requisitioning agency and signed by the agency head or an authorized official,
duly certifying the availability of funds for the payment of such leased space,
and compliance with the square footage requirements based on the number of
FTEs authorized for the agency.
(d)
All requests for space must be submitted on a completed
commission approved application and contain specifications for leased space
which shall conform to the following:
(1)
The term of the lease may not exceed a maximum of 10 years.
(Please note that Texas Government Code, Title 10, Chapter 2167, §2167.055(c))
permits the consideration of an option to renew for additional terms not to
exceed 10 years each, as may be considered by the commission in the state's
best interests; and the requisition should note, in the area provided, the
length of the initial occupancy period requested by the agency); as well as
number and length of renewal periods requested (to be by mutual agreement
between lessee and lessor unless otherwise requested).
(2)
The commission may include in all specifications for space
exceeding a two-year initial term, a provision requiring a separate bid price
for utility and/or janitorial cost (if an Invitation for Bid establishes that
payment for either utility costs and/or janitorial costs) and may allow an
escalation clause to be included in the terms and conditions of the lease
to cover periodic escalation of full rental costs of the lease, including
utility and/or janitorial costs (if applicable) on account of increases in
property values, tax and operating expenses, rental rates, labor or wage rates,
and / or utility rates. (The rate of the allowable consumer price index escalation
is based upon Lessor's responsibility to pay utility and/or janitorial cost,
if any.); and
(3)
If the commission considers it advisable, it may include
an option for the commission to purchase the space subject to the legislature's
appropriation of funds for the purchase, and such an option shall show the
amount that would be accumulated by the state and credited toward the purchase
at various periods during the term of the lease, if any, and the purchase
price of the property at the beginning of each fiscal biennium during the
term of the lease.
(4)
Development of needed specifications for submission to
the commission should be completed by the requesting agency with the guidance
of the commission. In no event should the requesting agency allow a prospective
bidder to develop or improperly influence the written specifications. Evidence
of any such cooperative effort which has the effect of eliminating effective
competition and which results in the bidder receiving a lease from the state
shall be grounds for seeking to void the lease, removal of the bidder from
the bidders' list, and any other remedy available to the state. The commission
shall alter or reject any specification it considers unduly restrictive. (See §115.1
of this chapter (relating to Definitions).)
(5)
The requesting agency shall estimate its anticipated moving
costs from its present leased quarters, if any. Such an estimate shall include
only the actual, out-of-pocket cost of moving, relocation of communication
equipment and loss of time expenses.
§115.4.Filling Lease Space Requests from Nonprivate Public Sources.
If such state-owned space is not available,
(1)
space may be leased from another state agency through an
interagency contract;
(2)
space may be obtained through transfer of leased space
from another state agency or public source;
(3)
space may be obtained from the federal government through
a negotiated lease; or
(4)
space may be obtained from a political subdivision of this
state, including a county, a municipality, a school district, a water or irrigation
district, a council of government, or a regional planning council, through
a negotiated lease. It is contemplated for the purpose of this section that
the political subdivision generally will own the property to be leased to
the state; however, the state may sublease from political subdivisions leasing
from non-public entities if the state pays not more than market price and
where:
(A)
political subdivisions occupy more than half of the primary
leased space; or
(B)
political subdivisions pay at least 10% of the primary
lease cost of the space occupied by the state; or
(C)
it is determined by the commission to be in the best interest
of the state.
§115.5.Leasing from a Private Source.
(a)
Space may be leased from a private source that provides
the best value for the state through the following methods:
(1)
Competitive Bidding;
(2)
Competitive Sealed Proposals; and
(3)
Direct Negotiations.
(b)
The Facilities Leasing Program shall develop operating
procedures to implement these rules and shall document best value determinations.
(c)
When formal bids or offers are requested, bids or offers
may not be taken or accepted by telephone or word of mouth. In evaluating
bids, the commission shall give no credence to, nor make any allowances for,
any comments to prospective lessors allegedly made to them by employees of
the requesting agency. No statements or promises made by such employees shall
be binding upon the commission in making its award, or considered to be a
term or condition of the resulting lease. (See §115.3(d)(9) of this chapter
(relating to Receipt and Processing of Requisitions for Leased Space.) )
(d)
The commission may not enter into a lease if the space
in question has been determined to be noncompliant with the provisions of
Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.006,
concerning the elimination of barriers to handicapped persons, unless approved
by the Texas Department of Licensing and Regulation.
(e)
A Notice of Award shall be the means by which the successful
bidder or offeror and the requesting agency are notified of the commission's
determination of award of a lease contract. Notice of Award will be made in
writing. The Notice of Award shall be a binding lease contract when served
upon the successful bidder or offeror. Service shall be complete upon deposit
of the Notice of Award, enclosed in a postpaid, properly addressed wrapper,
in a post office or official depository under the care and custody of the
United States Postal Service. The affidavit of any person showing service
of the Notice of Award shall be prima facie evidence of the fact of service.
§115.6.Amendment of Lease.
Any lease entered into pursuant to the Texas Government Code, Title
10, Subtitle D, Chapter 2167, Subchapter B, and these sections may be amended
during its term so long as the commission finds the amendment to be in the
best interests of the state.
§115.7.Transfer by Lessor.
Lessor's sale, assignment, or transfer of lessor's right to receive
payments for lessor's obligation to perform under the lease may be provided
for in the terms and conditions of the lease, but lease payments to the new
lessor shall be approved by the commission only if and when the transfer is
sufficiently documented in the records of the commission. The Lessor shall
comply with the rules and procedures of the commission to affect the change
of lessor in order that lease payments can be made.
§115.8.Potential Lessors' List.
The Facilities Leasing Program shall develop operating procedures to
ensure all prospective offerors may be considered for inclusion on any relevant
solicitations by maintaining an offerors' list.
§115.9.Delegation of Leasing Authority.
The Facilities Leasing Program shall develop operating procedures to
delegate the authority to enter into lease contracts for space to state agencies,
including institutions of higher-education. The Facilities Leasing Program
shall develop operating procedures to produce an annual report to the Commission
regarding opportunities for delegating leasing authority to state agencies
with statewide operations.
§115.10.Use of Private Firms to Obtain Space.
The Facilities Leasing Program shall develop operating procedures to
solicit and manage private brokerage or real estate firms as consultants to
assist in obtaining lease space on behalf of the Commission.
§115.11.Report on Noncompliance.
The Facilities Leasing Program shall develop operating procedures to
determine and annually report to members of the state agency's governing body
and to the governor, lieutenant governor, and speaker of the house of representatives
the agencies' noncompliance with commission rules or other state laws related
to leasing requirements. The report is to contain an estimate of the fiscal
impact resulting from noncompliance.
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 November 16, 2001.
TRD-200107108
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
The General Services Commission proposes the repeal of Title 1, T.A.C.,
Chapter 123, Subchapter A - General Matters,§123.1 and §123.2; Subchapter
B - Real Property Acquisition,§123.12 and §123.13; Subchapter C
- Construction Project Administration,§§123.23 through 123.33; and
Subchapter D - Wage Rates, §123.43 and §123.44. The repeal is proposed
in order to allow for the adoption of more efficient and streamlined new rules
under Title 1, T.A.C., Chapter 123 that are being published simultaneously
in this publication of the
Texas Register
.
The new rules will also be compliant with the legislative requirements of
S.B. 311, Art. 9, §14.05 and S.B. 1268, 77th Leg. (2001).
John Davenport, Director of Facilities Construction and Space Management,
has determined for the first five year period the rules are in effect, there
will be no will be no fiscal implication for the state or local governments
as a result of enforcing or administering these new rules.
John Davenport, Director of Facilities Construction and Space Management,
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 the deletion of cumbersome and obsolete language. There will
be no effect on large, small or micro-businesses. There is no anticipated
economic costs to persons who are required to comply with these rules and
there is no impact on local employment.
Comments on the proposals may be submitted to Juliet King, Acting 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. GENERAL MATTERS
1 TAC §123.1, §123.2
(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 proposed repeal of Title 1, T.A.C., Chapter 123
is made under the Texas Government Code, Title 10, Subtitle D, §§2152.003,
2166.062, and 2166.202 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, Chapter 2166.
§123.1.Definitions.
§123.2.Delegation of Authority.
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 November 16, 2001.
TRD-200107104
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §123.12, §123.13
(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 proposed repeal of Title 1, T.A.C., Chapter 123
is made under the Texas Government Code, Title 10, Subtitle D, §§
2152.003, 2166.062, and 2166.202 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, Chapter 2166.
§123.12.Land and Real Property Acquisition, Negotiated.
§123.13.Land and Real Property Acquisition, Condemnation.
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 November 16, 2001.
TRD-200107105
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §§123.23 - 123.33
(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 proposed repeal of Title 1, T.A.C., Chapter 123
is made under the Texas Government Code, Title 10, Subtitle D,§§2152.003,
2166.062, and 2166.202 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, Chapter 2166.
§123.23.General Project Responsibility.
§123.24.Project Analysis Process.
§123.25.Construction Project Process.
§123.26.Exclusions from Commission Authority.
§123.27.Selection of Design Professionals for Construction Projects.
§123.28.Contractor Qualifications.
§123.29.Bidding Procedures.
§123.30.Construction Contract Award.
§123.31.Emergency Bidding and Award Procedures.
§123.32.Construction Contract Administration.
§123.33.Small Contractor Participation Assistance Program.
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 November 16, 2001.
TRD-200107106
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §123.43, §123.44
(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 proposed repeal of Title 1, T.A.C., Chapter 123
is made under the Texas Government Code, Title 10, Subtitle D, §§2152.003,
2166.062, and 2166.202 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, Chapter 2166.
§123.43.Wage Rate Surveys.
§123.44.Withholding of Penalties.
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 November 16, 2001.
TRD-200107107
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
The General Services Commission proposes new Title 1, T.A.C., Chapter
123, Subchapter A - General Matters, §123.1 and §123.2; Subchapter
B - Real Property Acquisition, §123.12 and §123.13; Subchapter C
- Construction Project Administration, §§123.23 through 123.33;
and Subchapter D - §123.43 and §123.44. The new rules are proposed
due to the enactment of S.B. 311, Art. 9 and §14.05, 77th Leg. (2001)
and S.B. 1268, 77th Leg. (2001) which contains new language relating to lowest
and best bid method for awarding a contract, including design-build; the construction
manager-at-risk and competitive sealed proposal methods for a project; surety
technical assistance services for the benefit of small and historically underutilized
businesses ; determination of the prevailing wage rate in counties bordering
the United Mexican States, or a county adjacent to a county bordering the
United Mexican States; and requirements that the commission establish procedures
for the process to acquire property, for implementing the exclusion process
from the commission's authority, for the selection of design professionals,
and procedures for the management of the construction process. The proposed
new rules will also replace obsolete and cumbersome language found in the
proposed repeal for Title 1, T.A.C, Chapter 123 that is being published simultaneously
in this publication of the Texas Register.
John Davenport, Director of Facilities Construction and Space Management,
has determined for the first five year period the rules are in effect, there
will be no fiscal implication for the state or local governments as a result
of enforcing or administering these new rules
John Davenport, Director of Facilities Construction and Space Management,
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 lower project costs and on time delivery of projects. The new
rules will also be compliant with the requirements of S.B. 311, Art. 9 and §14.05,
77th Leg. (2001) and S.B. 1268, 77th Leg. (2001) There will be no effect on
large, small or micro-businesses. There is no anticipated economic costs to
persons who are required to comply with these rules and there is no impact
on local employment.
Comments on the proposals may be submitted to Ms. Juliet King, Acting 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. GENERAL MATTERS
1 TAC §123.1, §123.2
The new rules are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2166.062, 2166.202,
2166.2525 (new by S.B. 311, §9.02, 77th Leg. (2001)), 2166.2526 (new
by S.B. 311, §9.03, 77th Leg. (2001)) 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, Chapter 2166 and S.B. 311, Art. 9, 77th Leg. (2001)
§123.1. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Commission -- The six member board of the General Services
Commission of the State of Texas, or its successor organization, the seven
member board of the Texas Building and Procurement Commission.
(2)
Contractor's Qualification Form -- The TBPC provided document
which contractors must complete and return to TBPC in order to be considered
for a construction contract award.
(3)
Cost of Services -- The costs incurred by TBPC in providing
construction project administration services, including project management,
professional inspection, staff time, prior project analysis cost, travel expense,
the estimated cost of minor and incidental materials used in pursuit of a
project, and may include an overhead rate to cover employee benefit costs.
(4)
Design Professional -- Persons licensed by the State of
Texas to practice architecture in accordance with Texas Civil Statutes, Article
249a (relating to Architects) or engineering in accordance with Texas Civil
Statutes, Article 3271a (relating to the Texas Engineering Practice Act).
(5)
Facilities Construction and Space Management Division (FCSMD)
-- The TBPC division responsible for administration of construction projects
under the commission's jurisdiction, and such other projects that the commission
has agreed to manage.
(6)
TBPC -- The General Services Commission. or its successor
agency, the Texas Building and Procurement Commission (herein referred to
collectively as "TBPC"), for the State of Texas.
(7)
Notice to Proceed -- A TBPC written order issued to a general
contractor under contract on a project which establishes the start and completion
dates for the contract and the project schedule.
(8)
Planning Fund -- A fund administered by FCSMD from which
authorized planning expenditures are initially paid.
(9)
Project Analysis -- A study done before the legislative
appropriation process for a project to develop a reliable estimate of the
cost of the project to be used in the appropriations process, and as authorized
by Texas Government Code, Title 10, Subtitle D, Chapter 2166, Subchapter D.
(10)
Project -- A building construction project as defined
in Texas Government Code, §2166.001(4) that is financed wholly or partly
by a specific appropriation, a bond issue or federal money. The term includes
the construction of:
(A)
a building, structure or appurtenant facility or utility,
including the acquisition and installation or original equipment and original
furnishings; and
(B)
an addition to, alteration, rehabilitation or repair of,
an existing building, structure, or appurtenant facility or utility.
(11)
Project Request Forms -- The TBPC provided document which
using agencies must complete and return to TBPC in order to initiate a project
for construction.
(12)
Using Agency -- An instrumentality of the state that occupies
and uses a state-owned or state-leased building, or the commission, with respect
to a state-owned building maintained by the commission.
(13)
Uniform General Conditions (UGC) -- The terms and conditions
for state construction projects promulgated in accordance with Texas Government
Code, Title 10, Subtitle D, Chapter 2166, Subchapter G.
(14)
Wage Rates -- The schedule of the hourly rate of pay plus
payments made to or on behalf of employees for benefits such as health insurance,
pension plans, death benefits and vacation pay.
§123.2. Delegation of Authority.
(a)
The commission may act to exercise any power or authority
set out in Chapter 123 of this title (relating to the Facilities Construction
and Space Management Division), or it may delegate such authority to the executive
director. The executive director, in exercising delegated authority, may further
delegate his authority to another member of the FCSMD staff.
(b)
Operating Procedures for Chapter 123 of this title may
be found in FCSMD's Internal Procedures Manual.
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 November 16, 2001.
TRD-200107100
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §123.12, §123.13
The new rules are proposed under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.03, 2166.062, 2166.202,
2166.2525 (new by S.B. 311, §9.02, 77th Leg. (2001)), 2166.2526 (new
by S.B. 311, §9.03, 77th Leg. (2001)) 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, Chapter 2166 and S.B. 311, Art. 9, 77th Leg. (2001)
§123.12.Land and Real Property Acquisition, Negotiated.
(a)
FCSMD shall establish procedures for the process to acquire
property, per appropriate direction in legislation.
(b)
Written responses to the Request for Offers to sell from
property owners will be evaluated by TBPC staff. All final recommendations
shall be presented to the commission or purchasing agency for acceptance.
All appropriate studies, appraisals and title work shall accompany such recommendations.
(c)
The TBPC or the purchasing agency, shall accept offers
which are in the best interest of the State of Texas. The TBPC and the purchasing
agency retain the right to reject any and all offers.
(d)
The TBPC or the purchasing agency, after acceptance of
a written offer to sell property, is authorized to complete the purchase as
follows:
(1)
A real estate contract will be executed by the seller and
the TBPC stating all specific conditions of the transfer of property, including
delivery of draft deeds, acquisition of title policies, conduct of surveys,
environmental tests and other such matters, and other details of the individual
transaction. A closing on the transaction shall be scheduled at the convenience
of the parties.
(2)
The terms and conditions under which the TBPC purchases
the real property shall be designed to comply with applicable law to protect
the interests of the State of Texas and shall be reasonable and prudent under
normal business practices.
§123.13.Land and Real Property Acquisition, Condemnation.
(a)
When no agreement on purchase price between the seller
and the buyer is reached through negotiations, the TBPC may exercise its power
of eminent domain.
(b)
At least one appraisal as to fair market value shall be
obtained from independent sources and a final offer presented to the seller
based on an appraisal.
(c)
The final offer to purchase shall contain a designated
acceptance period stated in calendar days.
(d)
If this final offer to purchase is not accepted by the
seller within the designated time period, the commission may proceed to make
a finding of public purpose for the taking and seek assistance from the office
of the Attorney General to proceed with the condemnation action.
(e)
Conduct of the condemnation proceedings shall be in accordance
with state law.
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 November 16, 2001.
TRD-200107101
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §§123.23 - 123.33
new rules are proposed under the authority of the Texas Government
Code, Title 10, Subtitle D, §§2152.03, 2166.062, 2166.202, 2166.2525
(new by S.B. 311, §9.02, 77th Leg. (2001)), 2166.2526 (new by S.B. 311, §9.03,
77th Leg. (2001)) and S.B. 1268 77th Leg. (2001) which provides the General
Services Commission with the authority to promulgate rules necessary to implement
the sections.
following code is affected by these rules: Government Code, Title 10, Subtitle
D, Chapter 2166 and S.B. 311, Art. 9, 77th Leg. (2001) and S.B. 1268, 77th
Leg. (2001)
§123.23.General Project Responsibility.
(a)
The TBPC is responsible for the administration of project
analyses and construction projects for all state agencies except as otherwise
provided in Texas Government Code, §§2166.003 and 2166.004, and
other statutes.
(b)
The TBPC will act as the owner for the benefit of the using
agency and shall provide timely and complete information to the using agency
for any pending project for which it is responsible.
(c)
The TBPC shall act in the best interests of the State of
Texas in administering project contracts for which it is responsible.
(d)
Each construction project administered by the TBPC shall
bear the cost of services rendered thereon. At the start of a construction
project, an estimate of the cost of services provided by the TBPC will be
provided to the using agency. This estimate may be changed by agreement of
the TBPC and the using agency.
(e)
One-half of the cost of services shall be transferred to
TBPC upon approval of the total project cost by the using agency. The remaining
half of the cost of services fee shall be transferred to the TBPC upon award
of the primary construction contract for each project or approval to begin
construction on projects using alternate delivery procedures. TBPC shall use
the fees collected to pay for the expenses of performing its services.
(f)
FCSMD shall develop detailed operating procedures that
outline the process for construction project management.
§123.24.Project Analysis Process.
(a)
The using agency is responsible for initiating a project
analysis. The using agency shall initiate a project analysis by submitting
to the FCSMD a request that a project analysis of a proposed project be prepared.
Standard request forms are provided by the FCSMD and are available on the
FCSMD Computer Management System (CMS).
(b)
To ensure results are available in a timely manner, requests
for project analyses shall be made no later than January 1 of even-numbered
years in order to ensure completion in time for submission with an using agency's
budget prior to the regular session of the legislature.
(c)
Project analyses shall be prepared based on FCSMD detailed
operating procedures.
§123.25.Construction Project Process.
(a)
Initiation of a construction project.
(1)
The using agency is responsible for initiating a construction
project. The using agency may commence the process by submitting a request
on its letterhead to initiate work on the project or through the CMS. Project
Request forms are provided by the FCSMD and are available on the CMS. The
using agency must identify the source and amount of funds to be applied to
the project. If the funds for the project are not directly appropriated to
the GSC, the using agency must execute an interagency agreement with the GSC,
which will govern the payment of all services and contracts necessary to accomplish
the project.
(2)
Projects should be initiated at the earliest opportunity
after authorization by the Legislature, but not later than January 1 of even-numbered
years. This timeframe is required for a contract award to be made within the
fiscal year for which appropriated project funds are available.
(b)
Selection of Construction Delivery Method: When a project
has been requested by a using agency or appropriated to the TBPC, FCSMD shall
assess which construction method provides the state with the best value:
(1)
Lowest and Best Bid
(2)
Design-Build
(3)
Construction Manager at Risk
(4)
Competitive Sealed Proposals
(c)
FCSMD shall develop detailed operating procedures to manage
the construction project process.
§123.26.Exclusions from Commission Authority.
(a)
Pursuant to the Texas Government Code, §§2166.003
(a)(6) and (7), §§2166.004 and 2166.063, certain types of repair
and rehabilitation projects are not subject to TBPC construction administration,
or are otherwise excluded from TBPC's jurisdiction.
(b)
Applications for a determination that a project is excluded
shall be provided to the FCSMD in writing on or before June 1 of each fiscal
year. The FCSMD shall advise using agencies that because an approval after
the June 1 deadline may result in funds not be spent during that fiscal year,
that TBPC assumes no liability thereof. Each application must provide the
proposed changes, budget information, and method of construction intended
by the using agency.
(c)
FCSMD shall develop detailed operating procedures for implementing
the exclusion process.
§123.27.Selection of Design Professionals for Construction Projects.
(a)
Registration of Design Professionals.
(1)
On or before May 1 of odd-numbered years, the FCSMD shall
advertise in appropriate media, including the TBPC web site, the Texas Electronic
State Business Daily and such other media generally available to the public,
for all interested design professionals to register with the TBPC for the
following biennium.
(2)
Registration with the TBPC will be accomplished by filling
out a questionnaire, either in writing or electronically, and submitting it
on or before July 1 of odd numbered years, or anytime before or after that
date.
(b)
Selection process for construction project design professionals.
FCSMD shall develop detailed operating procedures for selection of design
professionals
(c)
Non-prime design selections. The TBPC shall conduct selections
of design professionals for non-prime design work in accordance with Texas
Government Code, Chapter 2254, Subchapter A, for non-prime design professionals,
and Chapter 2166, Subchapter D, for design professionals who may perform prime
and non-prime design services. The TBPC reserves the authority to award multiple,
indefinite quantity services agreements to design professionals in the disciplines
needed by FCSMD.
§123.28.Contractor Qualifications.
(a)
Interested contractors shall submit a contractor's qualification
form to the FCSMD in a timely fashion and no later than the date established
in the notice to bidders. Forms are available for pick up with bid documents.
Incomplete forms shall be rejected.
(b)
FCSMD shall develop detailed operating procedures for contractor
selection.
§123.29.Bidding Procedures.
(a)
All TBPC construction projects are competitively bid, except
those using best value alternate delivery methods, and publicly opened in
the office designated by the commission.
(b)
FCSMD shall develop detailed operating instructions for
the contractor selection and bidding process, including selection for best
value alternate delivery methods.
§123.30.Construction Contract Award.
(a)
Award of construction contracts will be made by the commission
except in cases of emergency outlined in §123.31(c) of this chapter (relating
to Emergency Bidding and Awards Procedures). Award will be based upon the
best value to the state for bids and proposals received from a qualified bidder.
(b)
FCSMD shall develop detailed operating procedures for construction
contract award.
§123.31.Emergency Bidding and Award Procedures.
(a)
Emergency Bidding. The FCSMD may issue an advertisement
for a bid and let a bid for a period of time less than required by Texas Government
Code, §2166.253, when an emergency condition requires expedient action.
(b)
Emergency conditions. Emergency conditions include, but
are not limited to:
(1)
preventing undue additional cost to a state agency; or
(2)
preventing or removing a hazard to life or property.
(c)
Emergency award procedures. The executive director, or
his designee, is authorized to award construction contracts when conditions
as described in subsection (b) of this section are determined to exist. The
award shall be reported to the commission at its next regularly scheduled
meeting for ratification.
(d)
Documenting emergency conditions. Each time an emergency
is determined to exist, a written statement describing the emergency condition
shall be prepared for approval by the executive director. Copies of the document
shall be maintained in the project file.
§123.32.Construction Contract Administration.
FCSMD shall develop detailed operating procedures for management of
the construction process, which shall focus on administrative procedures,
and successful compliance with the project schedule and budget, and successful
completion of the project.
§123.33.Small Contractor Participation Assistance Program.
The TBPC operates a Small Contractor Participation Assistance Program
as set forth in Texas Government Code, §2166.258 (amended by S.B. 1268,
77th Legi. (2001)) and §2166.259 and this section. In accordance with
Texas Government Code, §2166.258, this shall include the contracting
with insurance company(ies), surety company(ies), agent(s) or broker(s) to
provide surety technical assistance services for the benefit of small and
historically underutilized businesses. FCSMD shall develop detailed operating
procedures for implementation of this process.
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 November 16, 2001.
TRD-200107102
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
1 TAC §123.43, §123.44
new rules are proposed under the authority of the Texas Government
Code, Title 10, Subtitle D, §§2152.03, 2166.062, 2166.202, 2166.2525
(new by S.B. 311, §9.02, 77th Leg. (2001)), 2166.2526 (new by S.B. 311, §9.03,
77th Leg. (2001)) which provides the General Services Commission with the
authority to promulgate rules necessary to implement the sections.
following code is affected by these rules: Government Code, Title 10, Subtitle
D, Chapter 2166 and S.B. 311, §14.05, 77th Leg. (2001).
§123.43.Wage Rate Surveys.
(a)
The TBPC has adopted the prevailing wage rates for the
locality as determined by the United States Department of Labor in accordance
with the Davis-Bacon Act, if the survey was conducted within three years before
the project in question is to be bid, or the wage determination of the Texas
Workforce Commission, or other available sources. For counties designated
in Section 14.05 of SB 311, 77th Leg'. (2001) the TBPC will use the "Davis-Bacon"
rates and the wage rate determinations of the Texas Workforce Commission,
or other available surveys, for the local and state average wage rate determinations.
(b)
Affected workers and contractors and subcontractors are
responsible for complying with Texas Government Code, Chapter 2258. The TBPC
is not a party to arbitration under the Texas Government Code.
§123.44.Withholding of Penalties.
The TBPC shall retain the amounts authorized by Texas Government Code,
Chapter 2258 upon a finding that prevailing wages have not been paid. The
TBPC shall use any amounts retained to pay the affected worker in accordance
with Texas Government Code, §2258.056.
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 November 16, 2001.
TRD-200107103
Juliet King
Legal Counsel
General Services Commission
Earliest possible date of adoption: December 30, 2001
For further information, please call: (512) 463-3960
Chapter 251.
REGIONAL PLANS--STANDARDS
(g)
] The commission will send all
certified HUBs an orientation packet including a certificate, description
of certification value/significance, list of agency purchasers, and information
regarding electronic commerce, the Texas Marketplace, and the state procurement
process.
Chapter 115.
FACILITIES LEASING PROGRAM
Chapter 123.
FACILITIES CONSTRUCTION AND SPACE MANAGEMENT DIVISION
Subchapter B. REAL PROPERTY ACQUISITIONS
Subchapter C. CONSTRUCTION PROJECT ADMINISTRATION
Subchapter D. WAGE RATES
Chapter 123.
FACILITIES CONSTRUCTION AND SPACE MANAGEMENT DIVISION
Subchapter B. REAL PROPERTY ACQUISITIONS
Subchapter C. CONSTRUCTION PROJECT ADMINISTRATION
Subchapter D. WAGE RATES
Part 12.
COMMISSION ON STATE EMERGENCY COMMUNICATIONS