1 TAC §113.8
The Texas Building and Procurement Commission adopts amendments
to §113.8, relating to preferences, with changes to the text as published
in the September 12, 2003, issue of the
Texas Register
(28 TexReg 7889) in response to comments submitted.
The amendments reflect changes to statutory purchasing preferences made
to §2155.444 and §2155.445 of the Texas Government Code by HB 845
(78th Legislature). The amendments include a newly defined term "Texas bidder,"
expand existing purchasing preferences for "Texas and United States products"
to include a preference for Texas services and revise the existing purchasing
preference for "recycled, remanufactured, or environmentally sensitive products"
to include "recycled steel products." HB 1365 (78th Legislature) and HB 7
(3rd Called Session of the 78th Legislature) establish a new preference applicable
to certain contracts with vendors meeting or exceeding air quality standards.
This new preference is included in the proposed amendments.
Changes in the text based upon comments include separation of §113.8(b)(10)(B)
into three parts; reference to a designated nonattainment area and affected
county as defined in the Health and Safety Code and clarification that the
preference method must be included on the relevant solicitation.
These changes do not create a different rule, affect individuals who would
not have been impacted by the rule as proposed or impose more stringent requirements
than the proposed version.
Comment of TxDOT: TBPC received one comment from the Texas Department of
Transportation (TxDOT) relating to §113.8, Preferences. TxDOT recommended
that TBPC include guidelines in §113.8(b)(10) that would promote the
consistent application of the new clean air preference. TxDOT stated that
the rules as written leave room for extreme and possibly controversial interpretations.
As part of their comment, TxDOT pointed out a typographical error in the
proposed language that resulted in §113.8(b)(10)(B) having only two parts
instead of three parts.
TxDOT also explained how they intended to implement the rules absent additional
guidelines.
Response of TBPC: TBPC agrees with the comment of TxDOT concerning the
typographical error, which has been corrected.
TBPC agrees that some additional guidance should be given; therefore, the
rule as adopted clarifies that the methods used by all agencies to implement
this preference be included on the relevant solicitation. However, TBPC disagrees
with the recommendation that strict, standardized guidelines be placed into
this rule. As a discretionary preference, TBPC believes that agencies should
be permitted the flexibility to develop innovative ways to achieve the goals
of the clean air preference. By placing the method of administration of the
clean air preference into the specifications of each applicable project, bidders
will also be able to approach this preference in ways that may not now be
apparent; therefore, additional guidelines may hinder rather than facilitate
the goals of this preference.
The amendment is adopted under the authority of the Texas Government
Code, §§2152.003, 2155.267, 2155.444, 2155.445, 2155.451, 2165.126,
and 2157.066.
The following codes are affected by these rules: Texas Government Code,
Chapters 2155, 2157, 2158, 2166, 2167, and 2170.
§113.8.Preferences.
(a)
Claiming a preference. To claim a preference, a bidder
shall mark the appropriate box on the face of the bid invitation. If the appropriate
box is not marked, a preference will not be granted unless other documents
included in the bid show a right to the preference.
(b)
Preferences.
(1)
Texas bidders.
(A)
A Texas bidder shall be given preference over a nonresident
bidder when the cost, and quality of the goods or services are equal.
(B)
The commission may award a contract to a nonresident bidder
only if its bid is lower than the lowest bid submitted by a responsible Texas
bidder by the same amount that a Texas bidder would be required to underbid
the nonresident bidder to obtain a comparable contract in the state where
the nonresident's principal place of business is located. In evaluating a
bid of a nonresident bidder, an amount will be added equal to the amount a
Texas bidder would be required to underbid a nonresident bidder to obtain
a comparable contract in the state where the nonresident bidder's principal
place of business is located, otherwise known as reciprocal preference. After
the amount is added, an award may be made to the nonresident bidder if it
is determined to have the lowest price and best bid. The amount added is for
evaluation purposes only; in no event shall an amount be awarded in excess
of the amount actually bid.
(2)
Texas and United States products and Texas services.
(A)
Supplies, materials, or equipment produced in Texas shall
be given preference over comparable goods produced outside Texas when the
cost and quality of the goods are equal. Supplies, materials, and equipment
are considered to be produced in Texas if they are manufactured in Texas;
"manufactured" does not include the work of packaging or repackaging.
(B)
Agricultural products grown in Texas and offered by a Texas
Bidder shall be given preference over comparable products grown outside Texas
when the cost and quality of the goods are equal. Agricultural products are
considered grown in Texas if they contain any amount grown in Texas. In case
of tie bids between agricultural products claiming the preference, the bidder
whose product contains the greatest percentage of the product grown in Texas
will prevail. For purposes of this preference, agricultural products include,
among other things, textiles and fiber products, processed and unprocessed
foods, feed, lumber and forestry products, live animals, plants, flowers,
and nursery stock.
(C)
Supplies, materials, equipment, or agricultural products
produced or grown in the United States shall be given preference over foreign
products when the cost and quality are equal, if comparable goods of equal
cost and quality produced or grown in Texas or offered by Texas bidders are
not available.
(D)
Services offered by a Texas bidder shall be given preference
if the services meet state requirements regarding the service to be performed
and expected quality; and the cost of the service does not exceed the cost
of other similar services of similar expected quality that are not offered
by a Texas bidder.
(3)
Products of persons with mental or physical disabilities.
A preference shall be given to manufactured products of workshops, organizations,
or corporations whose primary purpose is training and employing persons with
mental or physical disabilities, if the products meet state specifications
as to quantity, quality, and price. Competitive bids are not required for
purchases of blind-made goods or services offered as a result of efforts by
the Texas Council on Purchasing from People with Disabilities, if the goods
or services meet state specifications as to quantity, quality, price, delivery,
life cycle costs, and costs no more than the fair market price of similar
items.
(4)
Recycled, remanufactured or environmentally sensitive products.
A preference shall be given to recycled, remanufactured or environmentally
sensitive products, including recycled steel products, if the products meet
state specifications as to quantity and quality and defined best value factors.
The preference for recycled steel products applies also to products purchased
in connection with projects described in the Texas Government Code, §2166.003.
(5)
Energy efficient products. A preference shall be given
to energy efficient products if they meet state requirements as to quantity
and quality, and are equal to or less than the cost of other products offered.
This preference shall be applied by evaluating the energy use of the products
offered and considering the costs of such energy use over the expected life
of the equipment. The methodology for evaluating energy use and costs shall
be included in the bid invitation.
(6)
Rubberized asphalt paving material. A preference shall
be given to rubberized asphalt paving material made from scrap tires by a
facility in this state if the cost, as determined by life-cycle cost benefit
analysis, does not exceed the bid cost of alternative paving materials by
more than 15%.
(7)
Recycled motor oil and lubricants. A preference shall be
given to motor oils and lubricants that contain at least 25% recycled oil
if the quality is comparable and the cost is equal to or less than new oil
and lubricants.
(8)
Products and services from economically depressed or blighted
areas as defined in Texas Government Code, §2306.004 or that meet the
definition of a historically underutilized business zone as defined by 15
U.S.C. §632(p). Preference shall be given to products from economically
depressed or blighted areas if they meet state requirements as to quantity
and quality, and are equal to or less than the cost of other products offered.
(9)
Products produced at a facility located on property for
which the owner has received a certificate of completion under §361.609,
Health and Safety Code, if the goods meet state specifications regarding quantity,
quality, delivery, life cycle costs, and price.
(10)
Vendors that meet or exceed air quality standards.
(A)
For contracts to be performed, in whole or in part, in
a designated nonattainment area or an affected county, as those terms are
defined by §386.001, Health and Safety Code, the Commission and state
agencies procuring goods and services may:
(i)
give preference to goods or services of a vendor that demonstrates
that the vendor meets or exceeds any state or federal environmental standards,
including voluntary standards, relating to air quality; or,
(ii)
require that a vendor demonstrate that the vendor meets
or exceeds any state or federal environmental standards, including voluntary
standards, relating to air quality.
(B)
The preference may be given only if the cost to the state
for the goods and services would not exceed 105% of the cost of the goods
or services provided by a vendor who does not meet the standards.
(C)
When this preference is made available, the methodology
for claiming, evaluating and granting the preference shall be included in
the Commission's and other state agencies' solicitations. The application
of the preference should encourage vendor innovation to achieve the clean
air objectives as described in the solicitation.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on December 18, 2003.
TRD-200308680
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: January 7, 2004
Proposal publication date: September 12, 2003
For further information, please call: (512) 463-3188