Part 5.
TEXAS BUILDING AND PROCUREMENT COMMISSION
Chapter 115.
FACILITIES LEASING PROGRAM
Subchapter A. STATE LEASED PROPERTY
1 TAC §115.1
The Texas Building and Procurement Commission (TBPC) adopts
amendments with changes in the proposed text in 1 TAC §115.1 concerning
definitions related to state leased property, published in the September 5,
2003, edition of the
Texas Register
(28 TexReg
7519). The amendments with changes affect the definitions of words and terms
to be used in Chapter 115, Subchapter A, related to leasing of space for state
government agencies, boards and commissions. The Commission finds that these
amendments support the public interest by clarifying statutory changes.
The commission received written comments on the proposed amendments on
September 19, 2003, from the Texas Department of Banking (TDOB) and on September
30, 2003, from the Texas Department of Transportation (TxDOT).
TDOB Comment
on use of the terms "Commission"
and "TBPC": Our first comment relates to the use of the terms "Commission"
and "TBPC". For example, the term "Commission" is defined in §115.1 and
elsewhere as "The Texas Building and Procurement Commission (TBPC)". However,
we are unsure if "TBPC" as used in the rules means the state agency or the
seven member oversight board. The distinction between board and agency is
important; decision by the "board" must be made in open meetings subject to
public notice requirements. Decision authority delegated by the board to the
"agency" permits a more streamlined process subject to review and oversight
by the board. Agencies subject to TBPC jurisdiction will benefit from clear
guidance regarding what decisions can be made by agency staff and what decisions
are reserved for Commission vote. TBPC has made some effort in this regard;
however, often a proposed rule will identify a division of TBPC as having
a role but other text in the same rule proposal refers to TBPC, implying that
the board assumes duties that may not be intended. Clarification of these
roles would be beneficial.
Response:
Staff agrees with the intent
of the comments, and is working to establish uniform definitions for the Code;
however, Staff does not believe that one particular rule is the place to implement
changes in definitions which could affect other rules. Staff is conducting
a review of all references to Commission, General Services Commission, Texas
Building and Procurement Commission, and TBPC to pinpoint all references in
order to effectively execute a uniform transition. Accordingly, Staff declines
to make the delineation at this time.
Staff is well aware of the difference in decisions made in open meetings
and those made under delegated authority and will continue to diligently monitor
all activities to insure they are within the parameters of the Open Meetings
Act.
The amendment is adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, §2152.003 and §2167.008.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Chapter 2167.
§115.1.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings:
(1)
Commission--The Texas Building and Procurement Commission.
(2)
Negotiated Lease--A lease negotiated directly with a public
or private entity on behalf of the State by the Commission or its tenant representative.
(3)
Request for Proposal (RFP)--A procurement for lease space
conducted by the Commission or its tenant representative through a public
process under the guidelines set forth by procedures established by the Leasing
Division and approved by the Commission.
(4)
State agency or agency--A board, a commission, or agency
established by the Texas Legislature.
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 February 19, 2004.
TRD-200401184
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 10, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 463-4257
1 TAC §§115.2 - 115.11
The Texas Building and Procurement Commission adopts the
repeal of 1 TAC §§115.2 - 115.11, concerning the facilities leasing
program, as published in the September 5, 2003, issue of the
Texas Register
(28 TexReg 7519).
The repeal is being adopted because new rules, which are being adopted
simultaneously and published elsewhere in this issue, more accurately reflect
agency practices.
The Commission received no comments on the proposed repeal.
The repeal is adopted under the authority of Texas Government
Code, Title 10, Subtitle D, §2152.003 and §2167.008.
The following code is affected by the repeal: Government Code, Title 10,
Subtitle D, Chapters 2165 and 2167.
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 February 23, 2004.
TRD-200401308
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 463-4257
1 TAC §§115.2 - 115.4, 115.6, 115.8, 115.10
The Texas Building and Procurement Commission adopts new
rules in 1 TAC §§115.2 - 115.4, §115.6, §115.8 and §115.10
concerning the facilities leasing program, with changes to the text as published
in the September 5, 2003, edition of the
Texas Register
(28 TexReg 7520).
The new rules with changes relate to leased space, leasing from private
and public sources, lease amendments, lease services, agency compliance requirements
and required reports. The new rules support the public interest by clarifying
statutory changes.
Sections 115.2 -115.4 and §115.6 establish procedures for a state
entity to request lease space or lease services. Section 115.8 prohibits a
conflict of interest in any private entity that provides lease services to
the agency. Section 115.10 relates to actions of an occupying agency and statutorily
required reports on noncompliance.
The commission received written comments on the proposed new rules from
the Texas Department of Banking (TDOB) and from the Texas Department of Transportation
(TxDOT).
TDOB Comment
on Rule 115.2(d): The proposals
frequently require agencies to make written applications to TBPC. For example, §115.2(d)
relates to a request for a leased space exemption. However, a time frame by
which TBPC must respond is not mandated. This uncertainty can lead to an agency
feeling as if it is in the dark for an extended period of time. We suggest
that TBPC include in these proposals a specific timeframe by which a request
will be answered or a necessary delay explained. This will ensure the approval
or denial process is timely handled and agencies can better plan for future
events.
Response:
The new rule does not specify
a timetable because it is currently unknown; therefore setting up a timetable
with no quantative information to support it would unnecessarily bind the
Commission to an arbitrary schedule. Given the nature of lease documents,
times will vary depending on the lease renewal date and other variables. Staff
declines to make the requested change at this time; however any agency that
applies for an exemption should include the agency's perceived deadlines in
the application, and §115.2(c) has been changed to reflect this criterion.
TxDOT Comment
on §115.2: The changes
to §115.2 include language that is vague and ambiguous. Specifically,
undefined terms such as "chief administrative officer", whether these phrases
refer to the same person or different persons within the same organization.
If these terms and phrases refer to the same persons or idea, uniformity in
language would be of great benefit to the reader. More substantively, the
"chief administrative officer" is charged with personally certifying information
about funding and Full Time Employees (FTEs). Previously, this duty could
be delegated to an "authorized official" in the agency. Allowing state agencies
to delegate certification and verification of this information would benefit
both the requesting agency and TBPC by allowing the requesting agency to be
flexible in assigning tasks while retaining ultimate responsibility for accuracy
of the information provided.
Response:
Staff agrees that clarity and
flexibility is needed for the rules governing requests, and has modified the
language.
TxDOT Comments
on §115.6. Subsection
(a) does not specify which exemptions to leasing requirements are being discussed.
Subsection (b) requires a state agency to agree to pay an unspecified "standard
charge" before leasing services will be provided. Requiring a state agency
to enter such an agreement may conflict with §115.2 wherein the chief
administrative officer is charged with certifying that available funds exist
to enter into the lease. State agencies, including the department, will need
a set figure for the standard charge or some flexibility in certifying that
sufficient funds exist. Alternatively, some description of what cost factors
are included in the standard charge would allow the department to retain sufficient
reserves to make the required §115.2 certifications.
Response in the order addressed by TxDOT
:
Specification of the exemptions being discussed: agencies that are statutorily
excluded from Commission leasing requirements. Payment of standard charge:
the language has been changed to require the requesting agency to pay actual
cost of the services to the Commission. Conflict with §115.2 referencing
the chief administrative officer: The rule has been changed to require that
the requesting agency to certify funds. Description of cost factors: to recover
the cost of providing services as authorized by §2167.007(c) of the Texas
Government Code; with regard to reserve funds, requesting agency will know
how much in reserve funds is available, and should look to that figure before
making a request for an exemption.
TxDOT Comments
on §115.10. Language
in §115.10 is unclear and it is difficult to see how this section follows
the requirement of Texas Government Code, §2167.102 which appears to
protect state agencies from misdeeds by their lessors. Further, this section
appears to place greater restrictions on the state agencies than are included
in the lease contract. It is not readily apparent why TBPC would extend greater
protections to lessors of property than what lessors have demanded for themselves.
Response
: Staff agrees that the subtitle
is misleading and has been changed. The intent of the rule was to conform
agency activities to §2167.105, Texas Government Code.
The new rules are authorized under the Texas Government Code,
Title 10, Subtitle D, §2152.003 and §2167.008.
The following code is affected by these rules: Government Code, Title 10,
Subtitle D, Chapters 2165 and 2167.
§115.2.Prerequisites for Leasing Space.
(a)
When a board, commission or agency requests to lease property
that is not owned by the state, the Commission shall verify that state-owned
space is not available.
(b)
All requests for lease space must be submitted by the office
of the Executive Director or designated the agency representative head of
the requesting agency party.
(c)
The Chief Administrative Officer of the requesting agency
must certify the availability of funds for the requested lease space, the
number of full time employees to be located at the requested space and the
agency's projected schedule.
(d)
§2165.104(c) of the Texas Government Code does not
exempt any state entity from statutorily imposed lease space restrictions.
All requests for space exemptions from state statute or rule shall be determined
on a case by case basis by the Commission. No exemption granted by the Commission
will be considered as a precedent for any future exemption requests.
§115.3.Leasing Space for Health and Human Services Agencies.
(a)
All requests for lease space by Health and Human Services
(HHSC) agencies must be submitted by the office of the Executive Commissioner.
(b)
The Chief Administrative Officer of HHSC, or a designated
representative, shall certify the availability of funds for the requested
leased space, the number of full time employees to be located at the requested
lease space and the agency's projected schedule.
§115.4.Delegation of Authority to State Agencies.
A request by an agency for delegated leasing authority must have the
approval of the governing body of the agency making the request. Any agency
under the authority of an individual Commissioner or Executive Director, appointed
by or directly accountable to the Governor, must provide evidence of notification
to the Office of the Governor in order for such a request to be considered
valid. The Commission may revoke delegated leasing authority upon notice to
the affected state entity.
§115.6.Leasing Services to State Agencies.
(a)
Any agency excluded from the leasing requirements who seeks
the assistance from the Commission for leasing services shall submit the request
in writing.
(b)
The head of the agency that requests leasing assistance
must agree to pay the actual costs of the leasing services provided before
the request for lease assistance shall be considered.
§115.8.Use of Private Firms to Obtain Space.
(a)
Any entity that provides lease services to the Commission
shall immediately disclose any conflict of interest in a transaction to all
parties, and shall withdraw from all matters related to the conflict. Final
determination of a conflict of interest shall be made by the Commission.
(b)
No broker, real estate firm, tenant representative or entity
representing the state as an agent in a leasing matter may, during the term
of the agency, simultaneously represent, participate or profit from the actions
of buyers, sellers, owners or any other entity that possesses an interest
in any lease in which the Commission is the lessor.
§115.10.Tenant Agency Responsibility; Reporting.
(a)
No state agency occupying state leased space shall commit
any act or action that may endanger the State's interest under the lease contract.
(b)
Any state agency that the Commission determines has acted
in bad faith against the State's interest, or is in noncompliance as referenced
in §2167.105 of the Government Code, shall be reported to the Governor,
Lt. Governor Office of the Speaker of the House, of Representatives, the House
Committee on Appropriations, the Office of the Lt. Governor and the Senate
Committee on Finance.
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 February 20, 2004.
TRD-200401187
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 14, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 463-4257
The Texas Building and Procurement Commission (TBPC) adopts amendments
to Title 1, TAC, Chapter 122, concerning Facilities Planning; Subchapter A, §122.1
and Subchapter B, §122.3 with changes to the text as published in the
September 5, 2003, issue of the
Texas Register
(28 TexReg 7521).
Statutory changes in House Bill 3042 to the Texas Government Code affected
existing definitions and required new and revised definitions. The amendments
clarify the calculation of gross area and replace references to General Services
Commission with that of the Texas Building and Procurement Commission. The
Legislature repealed statutory exemptions relating to space allocation, §2165.104(c)(2)
of the Texas Government Code effective September 1, 2003.
The rules will inform the public of the agency name, defined terms and
the statutory reduction in allocable space per FTE to 135 square feet.
The FTE allocation on the commenting agencies for FY03 and FY04 are set
forth below.
Figure: 1 TAC Chapter 122--Preamble
Letters of comment were received from the Texas Department of Banking (DOB),
the Texas State Library and Archives Commission (TSLAC) and Texas Department
of Transportation (TXDOT).
DOB Comment on §122.1(5):
First, by
definition "Agency Space Allocation" is not to exceed "135 square feet per
FTE", the statutory ideal. This concept appears unrealistic; if no agency
has an "Agency Space Allocation" in excess of 135 square feet per FTE, TBPC
would not need to adopt rules or monitor efforts to achieve this ideal.
Response:
The rule continues on to provide...
"less the following exceptions" and also defines a variance in §122.1(11).
DOB Comment on §122.1(5):
Further,
we had difficulty locating the term "Agency Space Allocation" elsewhere in
the proposed rules.
Response:
See amended §122.1(11) and §122.3(a).
DOB Comment on §122.1(5):
We recommend
a new rule entitled "Calculation of Usable Office Space." This new rule should
allow the calculation to be whatever results, without adding the requirement
that it can never exceed 135 square feet per FTE.
Response:
The rule continues on to provide..
"less the following exceptions" and also defines a variance in §122.1(11).
DOB Comment on §122.1(5):
With regard
to the four proposed "real" exceptions in paragraph (5)(A) - (D), the preamble
contains no explanation of the reasons for several deletions and failure to
include former statutory exceptions. No evidence appears in the legislative
record underlying House Bill 3042 or similar measures indicating that the
Legislature intended to both reduce the allocation of usable office space
per employee and simultaneously eliminate areas or types of space previously
listed as statutory exceptions.
Response:
Staff disagrees with DOB's evaluation
of legislative intent. No change recommended to the rule, but the preamble
has been changed to explain the deletions were based upon statutory changes.
DOB Comment on §122.1(5):
With regard
to the definition of agency space allocation, "...specifies a calculation
less the following exceptions, (A) - (F); however, (E) and (F) are not exceptions,
but additional substantive rules..."
Response:
Staff agrees: subpargraph (E)
has been deleted and subparagraph (F) has been moved to §122.2(3).
TXDOT Comment on §122.1(5), Agency Space
Allocation and §122.1(10), Usable Space:
The rules do not clearly
describe how these two terms interact. Texas Government Code, §2165.104(c)
requires, subject to certain exceptions, that the TBPC not allocate to a state
agency more than 135 square feet of usable office space per FTE. "Usable Office
Space" is not a term defined by the proposed rules. Instead, the phrase "Agency
Space Allocation" is used and is defined to mean gross area less certain excepted
areas, but not more than 135 square feet per FTE. Hallways and other unusable
areas are not automatically excluded from the "Agency Space Allocation," although
they appear to be excluded from the "Usable Area" definition. The definition
of "Space Allocation Ratio" uses "space allocation" rather than "usable area"
as the variable for determining the ratio. Assuming that "space allocation"
means "Agency Space Allocation" as defined in §122.1(5), it appears that
the ratio would not reflect "usable office space" per FTE as required by the
Texas Government Code, §2165.104(c).
Response:
The definitions have been amended.
DOB Comment on §122.1(10):
"We could
not locate the term "usable office space," a term TBPC is charged with defining
by Government Code, §2165.104(c)."
Response:
Section 122.1(10) had been posted
defining "Usable Space." This has been corrected. The rule now defines "Usable
Office Space."
DOB Comment on §122.1(10):
"We do
not believe the intent of the bill was to have janitorial closets or "mechanical,
electrical, telecommunication, and data cabling rooms" in a building housing
a single tenant to constitute "usable office space." We recommend that the
TBPC board reconsider the list of exempted space and add back the deleted
areas discussed above along with other reasonable areas such as hearings and
conference rooms, libraries and records storage space.
Response:
Variances may be granted on a
case by case basis.
TSLAC Comments on §122.3:
Amend paragraphs
(3) and (4) of subsection (c) and add new paragraphs (5) and (6) to subsection
(c) and new paragraph (4) to subsection (e) to read:
(c) This section does not apply to:
(3) an agency site which renders application of this section as impractical
in carrying out the mandated operations of an agency or as otherwise determined
by TBPC;
(4) an agency site which renders application of this section as impractical
because of the site type of space or use of space necessary to carry out a
mandated operation of an agency, or as otherwise determined by TBPC.
(5) a mandated law or public access library space; or
(6) a mandated records storage or archives (non-office) space.
(e) TBPC may allocate usable office space in excess of 135 square feet
per agency employee, if TBPC determines that:
(4) it is necessary for an agency to carry out mandated operations of the
agency.
Response:
No change is recommended at this
time. A request for variance could address the suggested language.
TXDOT Comments on §122.3(a):
This
section used the phrase "usable square feet space allocation" to describe
the limitations for the amount of space that TBPC can allocate to a state
agency. Although similar to the terms "Agency Space Allocation" and "Usable
Area" defined in §122.1, they are not identical and do not clearly express
to state agencies how TBPC will calculate the amount of usable space. If §122.3(a)
is being used to express the same idea as in the definition of §122.1(5),
"Agency Space Allocation," the language should be revised to avoid ambiguity.
Response:
The language has been revised.
TXDOT Comments on §122.3(d):
Variances
or Waivers of allocation limits uses still more terms to describe the 135
square feet per FTE limitation. By deleting the phrase "net usable" in the
second line, it appears that TBPC is requiring state agencies to request a
variance whenever the request for space exceeds the 135 square feet/employee
ratio based on gross area. Texas Government Code, §2165.104(c) refers
to usable office space. It is not clear how this variance procedure is consistent
with this Texas Government Code section.
Response:
Staff does not agree there is
an inconsistency with the Code.
DOB Comments on §122.3:
DOB currently
has 88 parking spaces for 120 FTE. The closest state parking facility is a
ten minute drive away. We do not believe the Legislature intended to meet
the 135 square footage requirements by increasing an agency's fiscal burden,
requiring the agency to pay for offsite parking and shuttling services. The
current proposal does not appear to provide sufficient flexibility for us
to qualify for an exemption. We suggest that the following be added to subsection
(c):
(5) an agency site where parking cannot be secured within 500 feet of the
site adequate to accommodate 90% of the state employees housed at the site.
Response to DOB:
These comments are restricted
to parking which is not the subject of these rules.
TSLAC comments on Chapter 122 generally (paraphrased):
The proposed changes in this chapter of the rules will impose procedures
on agencies that will be burdensome and place unnecessary restrictions on
the daily operations of state agencies in carrying out their legislative mandate.
Many agencies are mandated by the legislature to carry out operations that
require space other than staff work areas.
Amendments were also recommended to allow exempted space use status for
mandated law and public library space and records storage or archives (non-office)
space.
Response:
The statute and corresponding
proposed rule amendments afford the Commission the authority to make space
exemption variances when it is impractical to comply with 135 square feet
per FTE.
Subchapter A. APPLICATION FOR STATE-LEASED OR OWNED FACILITIES
Chapter 122.
FACILITIES PLANNING