Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 81.
ELECTIONS
Subchapter F. PRIMARY ELECTIONS
1 TAC §81.135
The Office of the Secretary of State, Elections Division,
adopts new §81.135, concerning primary canvass rules for 2004 elections,
without changes to the text published in the November 28, 2003, issue of the
The new rule will ensure that sufficient time is provided to permit provisional
ballots to be processed and that the local county and state canvassing of
the primary elections in 2004 will occur in a timely manner.
No public comments were received concerning the proposed rule.
The new section is adopted pursuant to §31.010 of the Election
Code, which requires the Secretary of State to adopt rules as necessary to
implement the federal Help America Vote Act of 2002. In the 2003 Legislative
Session, the date of the local (county) canvass was modified to allow time
for counting provisional ballots; however, the state canvassing date was not
similarly modified.
Statutory Authority: Election Code, §31.010.
No other article, statute, or code is affected by this proposed new rule.
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 26, 2004.
TRD-200401462
Ann McGeehan
Director of Elections
Office of the Secretary of State
Effective date: March 17, 2004
Proposal publication date: November 28, 2003
For further information, please call: (512) 463-5650
Chapter 116.
PROPERTY MANAGEMENT DIVISION
Subchapter A. STATE OWNED PROPERTY
1 TAC §116.4
The Texas Building and Procurement Commission repeals Title
1, TAC, Chapter 116, Property Management Division, Subchapter A, State Owned
Property, §116.4, concerning Procedures Governing Maintenance Service
and Minor Construction Contracts, without changes to the proposal as published
in the September 12, 2003, issue of the
Texas Register
(28 TexReg 7901).
Section 116.4 is repealed because the language in the rule no longer reflects
the Commission programs and a new §116.4 is adopted contemporaneously
in this issue of the
Texas Register
.
No comments were received regarding the repeal.
The repeal is adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, §2165.108, which provides the Texas Building
and Procurement Commission with the authority to promulgate the rules necessary
to implement the section.
The following code is affected by the repeal: Texas Government Code, Chapters
2165.
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-200401348
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 14, 2004
Proposal publication date: September 12, 2003
For further information, please call: (512) 463-4257
1 TAC §§116.4, 116.8 - 116.13
The Texas Building and Procurement Commission adopts new
1 TAC Chapter 116, Subchapter A, §116.4 and §§116.8 - 116.13,
concerning the management of state owned property with changes to the text
as published in the September 12, 2003, issue of the
Texas Register
(28 TexReg 7902).
The amendments are made pursuant to statutory changes and staff recommendations
intended to achieve savings in facilities management costs due to the consolidation
of facility management, maintenance and administrative operations as set forth
in House Bill 3042, effective September 1, 2003.
The rules clarify regulations relating to certain service and construction
contracts, parking, air quality, conference rooms, signage, delegated facilities
management authority and security administration.
The comment period ended September 28, 2003. TBPC received comments from
the Texas State Library and Archives Committee (TSLAC) and the Texas Department
of Banking (DOB).
DOB Comment on §116.8:
This proposal
assigns the authority of parking assignments at all buildings to TBPC. Shouldn't
an executive director of an agency located in a remote facility have the authority
to decide how to allocate or award parking spaces to employees? In our situation,
the three agencies located in this building have worked out parking arrangements
for all of us. No other agencies are close to the building that would raise
availability issues. This provision appears to go beyond facilities and building
maintenance and should be deleted or provision should be made for functional
delegations in appropriate circumstances.
Staff Response:
Parking facilities are
property under the control of the Commission by statute and staff disagrees
that the rule goes beyond facilities management and building maintenance.
Further, §116.12 addresses the possibility of delegated responsibilities
associated with parking facilities.
TSLAC Comment on §116.10:
Amend subsection
(c) and add new subsection (e) to read:
(c) Conference Rooms may not be reserved in advance of 30 days, with the
exception of statutorily mandated training events, multi-agency events, and
state agency board/commission meetings, unless otherwise approved by the Facilities
Management Division.
(e) Conference rooms containing video-conferencing equipment are exempted
from this section.
DOB Comment on §116.10:
This proposal
requires that all scheduling of conference and hearing rooms be coordinated
through TPBC. It appears impractical for TBPC to schedule use of the conference
and hearing rooms in our facility. We currently have an automate calendar
that can be used by all department staff to schedule meeting and hearings.
Other agencies wishing to use these rooms coordinate the activity through
my executive assistant. For the hearing rooms alone in the Finance Commission
Building, in fiscal 2003, we had over 600 hearings set. Being required to
request use of these rooms through TBPC seems to be an added layer of needless
effort and time for my staff. Additionally, we have some set Finance Commission
meetings that we set a year in advance. We suggest that this requirement be
made optional for those agencies that have a current system in place that
allows for outside use and offer the following language:
(a) TBPC shall be responsible for reserving common areas and conference
rooms for occupying agency use if the occupying agency does not have an internal
reservation system that allows for other state agency use.
Alternatively, TBPC could define "delegated authority" in a functional
manner and delegate the reservation function to agencies with the demonstrated
competence to handle the function.
Staff Response:
The rules have been changed
to make scheduling discretionary to the Commission, and the definition of
"delegated authority" has been amended to eliminate possible confusion.
DOB Comments on §116.11 (Commission staff
has inserted numbers between the questions to correspond to the answers in
the Staff Response.):
This proposal requires that TBPC approve all
signs, flyers and posters in common areas of the building.
(1) Does this really mean that TBPC is going to approve "School Bake Sale"
and "I-have-a-car-for-sale" postings in employee lunch rooms? (See the proposed
definition of "common area" in proposed §116.1(4).) Also, for example,
we have numerous consumer awareness and education brochures available in waiting
areas that provide helpful information regarding financial services in Texas.
(2) Does TBPC have the expertise and knowledge relating to each state agency's
mission to determine what should and should not be provided to consumers?
The Executive Director of each state agency should have the authority to determine
what is posted in the individual agency's offices and common areas.
(3) This provision appears to go beyond facilities and building maintenance
and should either be deleted or provision should be made for functional delegation
in appropriate circumstances. It is also possible that we misunderstand the
proposed definition of "common area."
Staff Response:
In the order of the questions
presented:
1. Yes.
2. Yes. DOB should note that the rule does
NOT
address consumer awareness and educational brochures.
3. Staff disagrees that this rule goes beyond facilities management and
building maintenance and that it should be deleted. Section 2165.007 provides
that facilities management service means any management service not unique
to carrying out a program of the agency. Poster, flyers, and signage are not
unique to any agency.
DOB Comments on §116.12:
This proposal
allows TBPC to delegate facilities management responsibilities to an agency
but does not provide guidelines to apply for this authority or the basis for
how the Commission or agency will decide how to approve delegation. We suggest
that guidelines, possible as explicit as those you propose in §122.2
be included here to request this delegation as well as the time frame for
response by TBPC. The statute at §2165.002 provides for exceptions to
Commission (Commission or the agency?) charge and control, and states, in
part, that the provision of §2165.001 relating to charge and control
of public buildings and grounds do not apply to buildings and grounds of
(3) a state agency:
(A) that has demonstrated ability and competence to maintain and control
its buildings and grounds; and
(B) to which the commission delegates that authority.
How can we know if we qualify for this delegation? Our earlier suggestion
for a more functional approach to delegation would be a welcome addition as
well.
Staff Response:
Staff agrees that procedural
guidelines would be helpful and have amended the rules to expand on this recommendation.
The amendments are adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, §2165.108 which provides the Texas Building
and Procurement Commission with the authority to promulgate the rules necessary
to implement the section.
The following code is affected by the amendments: Texas Government Code,
Chapters 2165.
§116.4.Procedures Governing Maintenance Service and Minor Construction Contracts.
(a)
An occupying agency shall not perform nor contract for
any facilities management service within a commission managed facility without
prior written approval of the Commission. A contract for a facilities management
service in a commission managed facility must be executed by an authorized
representative of the Commission.
(b)
The Commission will provide facilities management in accordance
with the Texas Government Code.
(c)
The Commission shall require prior approval for any contract
for services associated with and affecting the operation or maintenance of
the Commission managed facility. The Commission may require contracts to include
specific termination clauses.
§116.8.Parking.
The Commission shall manage, administer, maintain and assign parking
in parking lots and/or parking structures in facilities managed by the Commission
and those within the Commission's inventory, with the exception of those which
are under the jurisdiction of the Texas Department of Public Safety.
§116.9.Air Quality.
(a)
Smoking is prohibited in all state buildings under the
Commission's jurisdiction. Smoking shall not be permitted within 15 feet of
an entrance to a facility owned or managed by the state. The Commission shall
designate a smoking area for each facility and provide waste receptacles,
which shall be located only in designated areas.
(b)
The Commission shall report all Indoor Air Quality issues
on facilities subject to this rule to the Texas Department of Health, and
shall coordinate tests and investigations as required by the Department of
Health.
§116.10.Conference Rooms.
(a)
The Commission may assume responsibility for reserving
common areas and conference rooms for state agency use.
(b)
The Commission may provide an automated reservation system
for state agencies. Reserved conference rooms that are not occupied by the
reserving agency within 30 minutes of the reserved date and time may be made
available for other reservations. An agency seeking a reservation does not
have to be a tenant is the facility where the reservation is made.
(c)
Conference Rooms may not be reserved in advance of 30 days,
unless otherwise approved by the Commission.
(d)
Conference room furniture and equipment may be reconfigured
only with the approval of the Commission, and shall be restored to the original
arrangement at the conclusion of the meeting.
§116.11.Signage.
(a)
Signage, flyers and posters are subject to approval by
the Commission.
(b)
The Commission shall maintain a directory in the main lobby
of each facility. Requested changes to the directory shall be made in writing.
§116.12.Delegated Authority for Facilities Management.
(a)
Requests for delegated facilities management authority
for state-leased and owned facilities under the Commission's control shall
be made in writing by the requesting agency.
(1)
Requests shall provide the following information:
(A)
Statement of justification that addresses staff (enumerate
number of FTEs and agency unit), inadequacy of current services, and anticipated
cost-savings.
(B)
Written certification that funds are authorized and available
to accomplish the requested action.
(C)
Identification of the services the request applies to and
any related service contracts.
(D)
The location of the facilities subject to the request including
street address and zip code.
(E)
Term of the application: short-term (48 months or less)
or long-term (specify duration), requested effective date, and other factors
the applicant deems are critical.
(F)
Special conditions related to agency functions that require
facility services beyond regular business hours.
(G)
Requesting agency contact, telephone and fax numbers.
(2)
The Commission will grant or deny a request in writing.
(b)
The Commission may delegate facilities management responsibilities
in facilities or associated parking facilities for which the Commission is
responsible for providing management services in accordance with the Texas
Government Code.
(c)
Any delegated authority granted by the Commission in relation
to facilities management services may be revoked in writing at the discretion
of the Commission. The facility management responsibility shall revert to
the Commission or its designee. In the event that the delegated authority
is revoked, monies appropriated to and/or available for facility management
services by an occupying agency shall be transferred to the Commission for
management of said facilities.
(d)
Any occupying agency granted delegated facility management
authority shall be required to use the Commission's facilities management
software, including but not limited to, facilities cost accounting, repair
requests and tracking, contract tracking, utility management, etc.
(e)
Occupying agency granted delegated authority shall submit
a report to the Commission by October 1st of each year detailing all costs
and expenditures related to each facility managed by designated agency. Failure
to submit required reports shall result in revocation of delegated authority.
(f)
Reports provided by occupying agencies granted delegated
authority shall be reviewed, compiled and submitted to the Legislative Budget
Board and the Governors Budget Office.
(g)
At any time subsequent to the delegation permitted under
this section, the Commission may inspect any facility and may require enhancement
changes, including but not limited to, cost savings, life-safety, cleanliness,
structural, contractual, regulatory matters, space utilization, utilities,
signage, security, accessibility, smoking, energy management and efficiency,
telecommunication, indoor air quality, janitorial, recycling, renovations,
cabling, and grounds maintenance.
§116.13.Security.
The Commission shall be responsible for administration and coordination
of security for facilities in the Commission's inventory and/or management
with security personnel provided by Texas Department of Public safety or private
security entity.
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-200401349
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 14, 2004
Proposal publication date: September 12, 2003
For further information, please call: (512) 463-4257
Subchapter A. GENERAL MATTERS
1 TAC §123.1
The Texas Building and Procurement Commission adopts amendments
to Title 1, TAC, Chapter 123, concerning Facilities Construction and Space
Management Division, Subchapter A, §123.1, concerning definitions with
changes to the text as published in the September 5, 2003, issue of the
The amendments revise language to reflect current agency policy.
The amendments will result in consistent application of definitions.
The comment period ended January 5, 2004. No comments were received.
The amendments are adopted under the Government Code, Title 10,
Subtitle D, Chapter 2152, §2152.003, and Chapter 2166, §2166.001
and §2166.062.
The amendments are adopted in order to bring all rules governing the division's
activities into accordance with the Texas Government Code, Title 10, Subtitle
D, Chapter 2166.
§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 Texas Building and Procurement Commission.
(2)
Contractor's Qualification Form--A Commission promulgated
form which contractors must complete and return to the agency prior to consideration
for a construction contract award.
(3)
Cost of Services--Commission costs incurred 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 overhead employee benefit costs.
(4)
Design Professional--Persons licensed by the State of Texas
to practice architecture in accordance with Texas Occupations Code, Chapter
1051 or engineering in accordance with Texas Occupations Code, Chapter 1001.
(5)
Facilities Construction and Space Management Division--The
Commission division responsible for administration of construction projects
under the Commission's jurisdiction, and such other projects that the Commission
has agreed to manage.
(6)
Notice to Proceed--A Commission order issued to a general
contractor under contract on a project which establishes the start date and
projected completion date.
(7)
Planning Fund--A fund administered by the Facilities Construction
and Space Management Division from which authorized planning expenditures
are initially paid.
(8)
Project Analysis--A study done before the legislative appropriation
process for a project to establish basic program elements and scope of work,
and 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.
(9)
Project--A building construction project as defined in §2166.001(4).
(10)
Project Request Forms--The Commission promulgated form
which using agencies must complete, including funds certification information,
and return to TBPC prior to initiation of a construction project.
(11)
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.
(12)
Uniform General Conditions (UGC)--The terms and conditions
for state building construction projects promulgated in accordance with Texas
Government Code, Title 10, Subtitle D, Chapter 2166, Subchapter G.
(13)
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.
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-200401345
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 §§123.23 - 123.28
The Texas Building and Procurement Commission (TBPC) adopts
amendments to Title 1, TAC, Chapter 123, concerning Facilities Construction
and Space Management Division, Subchapter C, §§123.23 - 123.28 with
changes to the text as published in the September 5, 2003, issue of the
The proposed amendments implement new statutes, update, restructure, and
revise language, and create more efficient agency processes.
The amendments to the rules will result in clarity and consistency in application
of the rules.
The comment period ended November 5, 2003. One comment was received from
the Texas State Library and Archives Commission on §123.23, concerning
General Project Responsibility.
Comment:
Under the proposed rules, agencies
would be required to "immediately" transfer funds for a proposed project "before
work commences on the project." The rules proposed in this section appear
to be in violation of the Interagency Contract Act, Chapter 771 of the Texas
Government Code. Under the requirements of Chapter 771, agencies are required
to reimburse another state agency for actual costs of providing services or
resources and to ensure "after the services or resources are provided that
the providing agency has received only sufficient funds to reimburse its total
costs." The proposed rules will make it difficult, if not impossible, for
state agencies to comply with this section.
Staff Response:
The comment states that
under Chapter 771, "agencies are required to reimburse another state agency
for actual costs of providing services." However, this is an incomplete reading
of that chapter. Section 771.007 is titled "Reimbursement
and Advancement
of Costs." Section 771.007(c) states, "A state agency
that receives services or resources under this chapter may advance funds to
the state agency providing the services or resources if an advance is necessary
to enable the providing agency to provide the services or resources." In the
case at hand, the advance payment is particularly necessary in that TBPC is
subject to §2151.021, which requires payment to contractors within 31
days of receipt of invoice, completion of work or delivery of goods. This
statutory time constraint makes it impractical if not impossible to inspect,
evaluate, approve payment, prepare a request to the beneficiary agency, for
them to process it, have a warrant cut, for the funds to be transferred and
for TBPC to reliably pay the contractor in a timely manner.
Certain State agencies are statutorily excluded from the mandatory purview
of TBPC, but §2166.005 permits these "excluded" agencies to use TBPC
construction services and §2166.005(b) specifically excludes the transaction
from the requirements Chapter 771.
For those agencies whose facilities management authority has been transferred
to the TBPC under House Bill 3042, that bill requires that all funds associated
with the transferred services be transferred to TBPC as of September 1, 2003.
The comment mischaracterizes the proposed rule and does not require the
"immediate" transfer of funds for a proposed project. Rather, the proposed
rule requires that the funds for the project be transferred before work starts
on the project after the project request has been analyzed.
Comment:
In addition, agencies are now
required to complete a 'componentization' of costs for some construction projects
under the requirements of Senate Bill 482 (77th Regular Session). Making one
lump sum payment to TBPC at the onset of the project will not provide agencies
the documentation necessary to meet the mandate of Senate Bill 482. Therefore
we propose the following change. Add new subsection (g) to read:
TBPC will provide copies of actual vendor invoices and a monthly reconciliation
statement detailing all project costs, including any overhead or management
fees charged to the project by TBPC, to agencies that have contracted with
TBPC for construction projects.
Staff Response:
Senate Bill 482 of the
77th Legislature became effective September, 2001, as Texas Government Code §2101.015
requiring that the individual components, systems and equipment of buildings
of state agencies that receive federal funds be depreciated individually on
schedules that reflects the expected life of each separate component.
Something on the order of half of TBPC's construction projects are for
agencies that receive federal money so one such rule would not fit each case
and would be unnecessarily inefficient in those that did not require it.
"The initial lump sum payment to TBPC" is not the only information that
beneficiary agency receive or have available to determine building or component
cost. Agency needs vary. TBPC provides all appropriate periodic and final
reconciliation reports or documentation to those beneficiary agencies that
must report due to bond or other requirements. TPBC maintains complete and
current computerized accounting and invoice records in the Project Management
System. It is possible for beneficiary agencies to have read-only access to
this system for "real-time" information.
Governmental accounting is required to comply with the standards and procedures
set out by the Governmental Accounting Standards Board (GASB). GASB does not
require or recommend that componentization be calculated on incomplete, unfinished
projects. Depreciation begins after completion. Under GASB, it is not necessary
to separate overhead, management fees or other costs from the total final
cost of a building component in order to calculate the basis to depreciate.
If the purpose of receiving monthly invoices and reports is to enable the
beneficiary agency to determine the basis for depreciation, it would be premature
and unnecessarily burdensome to exchange and compile such records during the
course of construction. Only the final cost, with all changes and contingencies
is relevant to that purpose.
With regard to the "componentization" comment, the statute only applies
to federally funded construction projects, which the Commission does not perform.
The amendments are adopted under the Government Code, Title 10,
Subtitle D, Chapter 2166, §2166.062, and Chapter 2152 which provides
the Texas Building and Procurement Commission with the authority to promulgate
rules consistent with the code.
The following codes are affected by the amendments: Government Code, Title
10, Subtitle D, Chapters 2166 and 2152, §§2166.001, 2166.005, 2166.061,
and 2166.202.
§123.23.General Project Responsibility.
(a)
The Commission is responsible for the administration of
project analyses and construction projects for all state agencies except as
otherwise provided in Texas Government Code, §§2165.007, 2166.003
and 2166.004, and other statutes.
(b)
The Commission 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 Commission 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 Commission
shall bear the cost of services to be rendered. At the start of a construction
project, an estimate of the cost of services provided by the Commission will
be provided to the using agency. This estimate may be changed by agreement
of the Commission and the using agency.
(e)
The funds for all costs of the project shall be transferred
to the Commission by an agreement signed by both parties and an interagency
transfer voucher to convey the funds. This process shall occur immediately
after the project request is received and analyzed by the Commission and before
work commences on the project. Once the project is accepted and the initial
funding requirements are identified, the voucher shall be processed and the
funds transferred.
§123.24.Project Analysis Process.
(a)
The using agency shall initiate a project analysis by submitting
a request to the Commission or a proposed project analysis. Standard request
forms are available on the Commission website, under the Facility Design and
Construction link to Forms.
(b)
Requests for project analyses shall be made no later than
January 1 of even-numbered years in order to ensure the analysis is completed
in time to be submitted with the using agency's budget prior to a regular
session of the legislature.
§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
to initiate work on the project on their letterhead or on the Commission website,
under the Facility Design and Construction link to Forms; and
(2)
Projects should be initiated not later than January 1 of
even-numbered years. This 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 Commission the
agency shall ascertain the construction method that provides the state with
the best value, including consideration of, but not limited to:
(1)
Lowest and Best Bid;
(2)
Design-Build;
(3)
Construction Manager at Risk; and
(4)
Competitive Sealed Proposals.
§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 Commission construction administration, or are
otherwise excluded from Commission's jurisdiction.
(b)
Applications for a determination that a project is excluded
shall be provided to the Commission in writing on or before June 1 of each
fiscal year. The Commission shall advise using agencies of this deadline because
an approval after the June 1 deadline may result in a lapse in unencumbered
funds for that fiscal year. Each application must provide the proposed changes,
budget information and method of construction intended by the using agency.
§123.27.Selection of Design Professionals for Construction Projects.
Prime and Non-prime design selections. The Commission 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 Commission reserves the
authority to award multiple, indefinite quantity services agreements to design
professionals in the disciplines needed by the Commission.
§123.28.Contractor Qualifications.
Interested contractors shall submit a contractor's qualification form
to the Commission no later than the date set forth in the notice to bidders.
Forms are available with bid documents or on the Commission website, under
the Facility Design and Construction link to Forms. Incomplete forms shall
be rejected.
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-200401346
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
Subchapter A. STATE SURPLUS AND SALVAGE PROPERTY
1 TAC §126.2
The Texas Building and Procurement Commission adopts the
amendment of 1 TAC §126.2, General Terms and Conditions, with changes
to the text as proposed in the December 26, 2003, issue of the
Texas Register
(28 TexReg 11449).
The section establishes the methods of disposal, the proper notices of
the availability of the property, state agency priority in the transfer, and
the disposition of surplus or salvage data processing equipment. SB 912 enacted
by the 78th Regular Session revises terms and conditions for the methods of
disposal, availability, and the disposition of surplus or salvage data processing
equipment.
The amendment revises the list entities to which state agencies, institutions
of higher education, or eleemosynary institutions must transfer data processing
equipment to include an assistance organization specified by a school district
and mandates that certain agencies give preference to public schools, school
districts, or an assistance organization designated by a school district before
disposing of the property in another manner. The amendment alters fees and
reimbursements that may be charged for transfer of state surplus data processing
equipment.
Comments: One comment was received from the Texas Department of Transportation
dated January 9, 2004. This comment correctly indicated an inadvertent error
made in the published version of the rule that was inconsistent with the modified
provisions of the Government Code §2175.128.
Staff Response: The Commission agrees with the comment received and has
made the correction to the text as noted.
The amendment is adopted under the authority of the Texas Government
Code, Title 10, §§2152.003, 2175.002 and 2175.061.
The following code is affected by these statutes: Government Code, Title
10, Chapters 2175.001, 2175.128, 2175.304 and 2175.306
§126.2.General Terms and Conditions.
General terms and conditions of this subchapter are as follows:
(1)
Method of disposal. A state agency that determines that
it has surplus property or salvage property shall inform the commission and
the comptroller of the property's kind, number, location, condition, original
cost or value, and date of acquisition. Additionally, based on the condition
of the property, a state agency shall determine whether the property is:
(A)
Surplus property that should be offered for transfer under §2175.125
of the Texas Government Code and §126.3 of this title (relating to Direct
Transfer, Priority, Reporting, and other Disposition); or
(B)
Should be disposed of by competitive bidding, auction or
direct sale under §126.4 of this title (relating to Disposition of Surplus
and Salvage Property to the Public by Competitive Bidding, Auction, or Direct
Sale); or is
(C)
Salvage property.
(D)
A state agency making this determination shall inform the
commission and the comptroller of its determination.
(2)
Notice of availability. The commission shall maintain a
list of current surplus or salvage property and inform other state agencies,
political subdivisions, and assistance organizations of the comptroller's
website that lists such property that is available for sale.
(3)
Priority for transfer to state agency. During the ten (10)
business days after property is posted on the comptroller's website, a transfer
to another state agency has priority over any other type of transfer under
this subchapter.
(4)
Disposition of surplus or salvage data processing equipment.
Surplus or salvage data processing equipment from state agencies, institutions
or agencies of higher education, or eleemosynary institutions that is not
disposed of pursuant to the Texas Government Code, §2175.125, §2175.184,
or other law, shall be transferred by the state agency or institution to a
school district or open-enrollment charter school in this state under Subchapter
C, Chapter 32, of the Education Code, to an assistance organization specified
by the school district or to the Texas Department of Criminal Justice. An
eleemosynary institution, state agency or an institution or agency of higher
education may not collect a fee or other reimbursement from the district,
the school, the assistance organization specified by the school district or
the Texas Department of Criminal Justice for the surplus or salvage data processing
equipment. Pursuant to §2175.306, a state agency involved in health,
human services or education, when disposing of state surplus or salvage data
processing equipment, shall give a preference to a public school, school district
or assistance organization specified by the school district. Pursuant to Texas
Government Code, §2175.305, the Secretary of State shall give preference
to transferring surplus computer equipment to counties for the purpose of
improving voter registration technology in compliance with the Election Code, §18.063.
(5)
Purchaser's fee. The commission or agency disposing of
surplus or salvage property under this subchapter shall assess and collect
from the purchaser a fee over and above the proceeds from the sale of property,
to recover the costs associated with the sale of property. The fee shall be
set and reviewed annually by the commission and shall be at least two percent
(2%) but not more than twelve percent (12%) of the sale proceeds. Property
disposed of by direct transfer under §126.3 of this title (relating to
Direct Transfer, Priority, Reporting, and other Disposition) is not subject
to the purchaser's fee.
(6)
Delegation of authority to state agency. If a state agency
demonstrates to the commission its ability to dispose of its own surplus or
salvage property to the public in a manner that results in cost savings to
the state, the commission may authorize the agency to do so. The agency shall
follow procedures provided by the commission at the time the delegation is
granted and shall provide a report of the proceeds by assigned sale number
no later than September 10th of each year for the prior fiscal year.
(A)
Delegation of authority will be based on receipt of and
concurrence by the commission of the agency's projection of cost savings to
the state.
(B)
Criteria used to delegate authority to a state agency demonstrating
cost savings to the state may include information about the property such
as age, condition, limited use, size, volume, expected return and/or location;
information about the agency such as its ability to account for and report
staffing, disposals, location, and/or specific knowledge about the property.
(7)
Delegation of deletion authority to state agencies. The
commission hereby delegates to state agencies the authority to delete surplus
or salvage property from the State Property Accounting System after any method
of disposition listed under this subchapter.
(8)
Firearms. The purchaser of a surplus firearm must be a
licensed firearm dealer.
(9)
Rejection of bids. The state reserves the right to reject
any bid or part of a bid, and or waive minor technicalities.
(10)
List of buyers. The commission shall maintain an annually
updated list of qualified buyers of surplus and salvage property. The commission
shall renew annually a list it maintains of
(A)
Assistance organizations and individuals responsible for
purchasing for political subdivisions who have requested information regarding
available state surplus or salvage property; and
(B)
Other prospective buyers of surplus and salvage property.
(C)
Names may be deleted from lists maintained by the commission
for failure to bid, failure to make a payment or failure to remove awarded
items.
(D)
A buyer who has been removed from the buyers list for failure
to make a payment or to remove surplus or salvage property may not reinstated
to the list until a written request has been presented to and approved by
the commission.
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 26, 2004.
TRD-200401551
Cynthia de Roch
General Counsel
Texas Building and Procurement Commission
Effective date: March 17, 2004
Proposal publication date: December 26, 2003
For further information, please call: (512) 463-4257
Chapter 401.
ADMINISTRATION
Subchapter B. COUNCIL MEETING GUIDELINES AND REQUIREMENTS
1 TAC §401.21
The State Council on Competitive Government (CCG) adopts
an amendment to 1 TAC Chapter 401, Subchapter B, §401.21 concerning the
location of the clerk of the CCG with no changes to the text as published
in the October 24, 2003, issue of the
Texas Register
(28 TexReg 9147). The section establishes the officers of the Council
and the requirements and procedures related to the delivery of all forms of
communication addressed to the clerk of CCG for distribution to the members
of CCG. Legislation enacted in 1993 required the CCG to provide for identification
and review of state services.
Texas Building and Procurement Commission is now the administrative host
for CCG. The adopted amendment changes the address, telephone, and fax numbers
to reflect that physical change.
The adopted amendment changes the address of the CCG from the LBJ State
Office Building to the Central Services Building.
No public comments were received.
The amendment is adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, Chapter 2162.101 which provides the Council on
Competitive Government 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 2162.
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 26, 2004.
TRD-200401553
Cynthia de Roch
General Counsel
State Council on Competitive Government
Effective date: March 17, 2004
Proposal publication date: October 24, 2003
For further information, please call: (512) 463-4257
1 TAC §401.47
The State Council on Competitive Government (CCG) adopts
an amendment to 1 TAC Chapter 401, Subchapter C, §401.47 concerning the
administrative requirements of the CCG's host agency with no changes to the
text as published in the October 24, 2003, issue of the
Texas Register
(28 TexReg 9147). The section establishes the requirements
and procedures related to the preparation of documents necessary for submitting
an identified state service to competition. Legislation enacted in 1993 required
the CCG to provide for identification and review of state services.
The adopted amendment changes the host agency of the CCG from the Comptroller
of Public Accounts to the Texas Building and Procurement Commission.
Under the adopted rule, the Commission is required to prepare documents
necessary in the submission of an identified state service to competition
and to provide CCG with any other assistance as required by the rules governing
the council.
No comments were received.
The amendment is adopted under the authority of the Texas Government
Code, Title 10, Subtitle D, Chapter 2162.101 which provides the Council on
Competitive Government 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 2162.
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 26, 2004.
TRD-200401554
Cynthia de Roch
General Counsel
State Council on Competitive Government
Effective date: March 17, 2004
Proposal publication date: October 24, 2003
For further information, please call: (512) 463-4257
Part 5.
TEXAS BUILDING AND PROCUREMENT COMMISSION
Chapter 123.
FACILITIES CONSTRUCTION AND SPACE MANAGEMENT DIVISION
Subchapter C. CONSTRUCTION PROJECT ADMINISTRATION
Chapter 126.
SURPLUS AND SALVAGE PROPERTY PROGRAMS
Part 16.
STATE COUNCIL ON COMPETITIVE GOVERNMENT
Subchapter C. IDENTIFICATION AND REVIEW OF STATE SERVICES
Subchapter D. EVALUATION OF PROPOSALS