1 TAC §113.11
The Texas Building and Procurement Commission proposes an
amendment to Title 1, T.A.C., §113.11 - Delegated Purchases. The amendment
will revise the current rule as relates to delegated purchases and add the
purchase of "goods and services for resale" as a delegated purchase category
for agencies that are under the procurement oversight of the Commission. The
rule amendment will result in conformity with the amended provisions of Texas
Government Code, § 2155.141 as provided under HB 3042.
Ms. Cindy Reed, Deputy Executive Director, has determined for the first
five year period the rule is in effect there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the amended rule.
Ms. Reed, further determines that for each year of the first five year
period the amendment is in effect, the public benefit anticipated as a result
of enforcing the rule will be more efficient compliance with the current statutory
requirements of Texas Government Code, Chapter 2155. There will be a positive
effect on large, small or micro-businesses that routinely participate in state
business opportunities in that the rule amendment will bring clarity to the
purchasing process. There will be no anticipated economic costs to persons
who are required to comply with this rule and there is no impact on local
employment.
Comments on the proposal may be submitted to Cynthia de Roch, General Counsel,
Texas Building and Procurement Commission, P.O. Box 13047, Austin, TX 78711-3047.
Comments may also be sent via email to travis.langdon@tbpc.state.tx.us . All
comments must be received no later than thirty (30) days from the date of
publication of the proposal to the
Texas Register
.
The amendment to §113.11 is proposed under the authority
of the Texas Government Code, § 2152.003.
The following codes are affected by this rule: Texas Government Code, Chapters
2155, 2156, 2157, 2158, 2167, and 2170.
§113.11.Delegated Purchases.
(a)
General delegation. The following purchasing functions
are delegated to agencies:
(1)
commodity purchases of goods, including goods for resale
that do not exceed $25,000;
(2)
emergency purchases;
(3)
purchases of perishable items;
(4)
purchases of services, including services for resale, the
estimated cost of which does not exceed $100,000;
(5)
purchases of publications directly from the publisher;
(6)
fuel, oil, and grease purchases; and
(7)
distributor purchases.
(b)
Adherence to ethical standards. Employees of agencies who
perform purchasing functions under delegated authority shall adhere to the
same ethical standards required of
Commission
[
commission
] employees, and shall avoid all conflict of interest in their purchasing
activities.
(c)
Provisions generally applicable to delegated purchases.
(1)
Competitive bidding is not required for purchases of
$5,000
[
$2,000
] or less.
(2)
All bids must be obtained from sources which normally offer
for sale the merchandise being purchased.
(3)
Items purchased under delegated authority may not include
scheduled items, items available under a term contract (unless purchased in
quantities less than minimum ordering quantities shown in contract), or any
item required by law to be purchased from a particular source.
(4)
The
Commission
[
commission
] must
solicit formal bids from all eligible vendors on the centralized master bidders
list (CMBL) when making purchases in excess of $25,000. The
Commission
[
commission
] waives the requirement for state agencies to
solicit bids from all eligible vendors on the list when making purchases under
subsection (e) of this section. State agencies must solicit from all eligible
vendors on the CMBL when making service purchases in excess of $100,000 that
the
Commission
[
commission
] has delegated to an agency.
(d)
Withdrawal of delegated purchase authority. The
Commission
[
commission
] will verify compliance with established procedures
for delegated purchases and may withdraw delegated purchase authority in whole
or part from an agency for continued violations after giving adequate warning.
The
Commission
[
commission
] will report to the governor,
lieutenant governor, speaker of the house of representatives, and Legislative
Budget Board the findings that a state agency has not followed the
Commission's
[
commission's
] rules or the laws related to the delegated
purchases.
(e)
Provisions applicable to particular delegated purchases.
(1)
Commodity purchases. Commodity purchases may be made in
accordance with the following provisions:
(A)
Agencies must attempt to obtain at least three informal
bids, including a minimum of two bids from historically underutilized businesses
(HUBS), on all commodity purchases in excess of
$5,000
[
$2,000
] and not over
$25,000
[
$10,000
]. Agencies must
meet competitive bidding requirements and may supplement the list of bidders
obtained from the CMBL
with potential bidders contained in the
[
and
] HUBs Directory
, which is maintained and accessible electronically
on the Commission's website
[
with non-CMBL bidders if the purchase
price does not exceed $5,000. Agencies must attempt to obtain at least three
formal bids, including a minimum of two bids from HUBs, on all commodity purchases
in excess of $10,000 and not over $25,000. Agencies may refer to the commission's
HUB Directory, which is maintained and accessible electronically, to locate
HUBs.
] If an agency is unable to locate two HUBs from the
Commission's
[
commission's
]
CMBL and
HUB Directory or other
available sources, the agency must make a written notation in the purchase
file of all reference sources used.
(B)
Agencies must attempt to provide a copy of the bid to the
last vendor who held the contract in addition to the informal bid requirement.
(2)
Emergency purchases. The
Commission
[
commission
] will approve payment for emergency purchases in accordance with the
following provisions.
(A)
At least three informal bids
should
[
must
] be obtained whenever possible [
on all purchases in excess of
$10,000
].
(B)
For an emergency purchase of goods or services exceeding
$25,000, an agency must send a full written explanation of the emergency along
with other documentation required by the
Commission
[
commission
] for prepayment approval.
(C)
The agency may contact the
Commission
[
commission
] for advice and assistance in the handling of emergency purchases.
The
Commission
[
commission
] may not approve an invoice
for an emergency purchase unless the agency has complied with the foregoing
requirements. This rule does not apply to purchases made in accordance with
the Texas Government Code, Chapter 418 (Texas Disaster Act of 1975).
(3)
Perishable items. Purchases made under this authority must
be obtained through competitive bids, and appropriate documentation must be
forwarded to the
Commission
[
commission
] for approval.
(4)
Services. Purchases of services estimated to cost no more
than $100,000 per year per contract are delegated and must be obtained through
a competitive selection process, and appropriate documentation must be forwarded
to the
Commission
[
commission
] for
prepayment
approval.
(A)
An agency is required to submit documentation to the
Commission
[
commission
] for proprietary purchases of services
over $25,000 and for purchases expected to cost more than $25,000 per year.
[(B)
Agencies must attempt to obtain at least
three informal bids, including a minimum of two bids from HUBs, on all service
purchases in excess of $2,000 and not over $10,000. ]
[(C)
Agencies must meet competitive bidding
requirements and may supplement the list of bidders obtained from the CMBL
and HUBs Directory with non-CMBL bidders if the purchase price does not exceed
$5,000. ]
(B)
[
(D)
] Agencies must attempt to obtain
at least three
informal
[
formal
] bids, including a minimum
of two bids from HUBs, on all service purchases in excess of
$5,000
[
$10,000
] and not over $25,000.
As a supplement to the CMBL, agencies
[
Agencies
] may refer to the
Commission's
[
commission's
] HUB Directory, which is maintained and accessible electronically,
to locate HUBs
in the agencies' geographic region
. If an agency
is unable to locate two HUBs from the
Commission's
[
commission's
] HUB Directory or other available sources, the agency must make a written
notation in the purchase file of all reference sources used. [
For purchases
of services estimated up to $25,000, state agencies shall solicit a minimum
of three bids (two must be HUBs,) from CMBL and HUB Directory Vendors located
in the agencies' geographic region.
]
(C)
[
(E)
] For purchases of services
estimated more than $25,000 and less than $100,000, state agencies shall,
as a minimum, solicit
formal
bids from all CMBL and HUB Directory
vendors
[
Vendors
] located in the agencies' geographic region.
(D)
[
(F)
] For purchases of services
estimated to cost more than $100,000 per year, the
Commission
[
commission
] must review any proposed specifications or statements of
work and determine whether the
Commission
[
commission
]
or the agency should make the advertisement and award. The
Commission
[
commission
] may determine that the service should be advertised
to the entire CMBL rather than to only those vendors in the agency's geographical
area. If no competitive advantage would be obtained by having the
Commission
[
commission
] make the advertisement and award, the
Commission
[
commission
] may permit the agency to do so as
a delegated purchase.
(5)
Publications. An agency may purchase publications directly
from the publisher when such publications are not available through statewide
contract or through competitive bidding. Direct publication orders shall be
made by following guidelines established by the
Commission
[
commission
]. Examples of direct publications include, but are not limited
to:
(A)
foreign publications;
(B)
out-of-print or rare publications;
(C)
back issues of magazines, journals, and newspapers;
(D)
publications of professional societies;
(E)
prepared films, tapes, and discs (audio, visual, or both);
(F)
computer software;
(G)
collections of any of the foregoing items, and microfilm
or microfiche copies of any of the foregoing items; and
(H)
Library of Congress cards.
(6)
Fuel, oil, and grease. An agency may make fuel, oil, and
grease purchases at service stations or in bulk. Fuel, oil, and grease purchases
shall be made by following guidelines suggested by the
Commission
[
commission
]. Non-competitive and emergency purchase procedures apply
to purchases at service stations.
(7)
Distributor purchases. An agency may make distributor purchases
by following guidelines established by the
Commission
[
commission
]. An agency may not purchase any of the following on a distributor
purchase basis: consumable items; labor of any kind (see "service"); "will
fit" parts (non-OEM); parts for stock; contract items; electrical parts for
electric motors; electrical switch panel boards; electrical accessories.
(f)
Specific delegations. The authority to grant specific delegations
resides with the director. The application method, review process, delegation
finding, and appeal process will be set forth by policy statement of the director.
At a minimum, state agencies granted specific delegations shall meet the following
criteria:
(1)
procurement audit standards set forth in §113.18 of
this title (relating to Auditing of Purchase Documents and Payment Vouchers);
(2)
minimum training and certification standards established
in the State Procurement Manual; and
(3)
approved processes and procedures for the specific type
of delegation being requested. All processes and procedures are subject to
the prior review, revision and approval of the director.
(g)
Protest Procedures. State agencies shall adopt protest
procedures and submit a copy to the
Commission
[
commission
] during the post-payment audit of the agency's purchasing documents
or upon request by the
Commission
[
commission
].
(h)
Procurement Plan. State agencies shall formulate an agency
procurement plan that identifies an agency's management controls and purchasing
oversight authority in accordance with the policy guidance contained in the
Commission's Procurement Manual. An agency must submit a copy of the procurement
plan during the
Commission's
[
commission's
] audit of
the agency's purchasing documents or upon request by the
Commission
[
commission
].
(i)
Debarred Vendors. State agencies shall ensure that debarred
vendors do not participate in state contracting and will establish procedures
to ensure awards are not made to debarred vendors.
(j)
Reporting Purchasing Activity under Delegated Authority.
State agencies will report to the
Commission
[
commission
],
not later than May 1 of each year regarding the previous six-month period
and on November 1 of each year regarding the preceding fiscal year, information
related to delegated purchasing activity for goods and services in the form
prescribed by the
Commission
[
commission
].
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 February 24, 2004.
TRD-200401410
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Earliest possible date of adoption: April 11, 2004
For further information, please call: (512) 463-4257