TITLE 1.ADMINISTRATION

Part 5. TEXAS BUILDING AND PROCUREMENT COMMISSION

Chapter 113. PROCUREMENT DIVISION

The Texas Building and Procurement Commission adopts amendments to 1 TAC §113.19, relating to Catalog Information Systems Vendor with changes to the proposed text as published in the March 11, 2005, issue of the Texas Register (30 TexReg 1379). The name of the agency, TBPC, is substituted for Commission.

The amendments change the title of the rule to be consistent with the governing statute, correct various administrative errors in describing requirements of the catalog information systems vendor (CISV) program, add a specific statutory reference, and change "Commission" to "TBPC". Pursuant to the amendment to §113.19(d), vendors may substitute "negotiated" for the state price. This change provides the vendor with the flexibility to offer prices based on negotiations to obtain the best value for the state.

The adopted amendments include a new subsection that implements the commission’s statutory authority to prescribe a higher monetary threshold (in excess of $2,000) for non-competitive CISV purchases. The new threshold is $5,000, which reflects an appropriate threshold considering the costs of most procurement methods.

The added subsection is also consistent with the non-competitive purchasing procedures for delegated purchases allowed under the provisions of Gov't Code, §2155.132 and 1 TAC §113.11 of this subchapter.

The period for public comment ended April 11, 2005. There were no public comments.

The amendments are adopted under the authority of the Gov't Code, Title 10, Subtitle D, §§2152.003, 2157.0611, and 2157.066 which provides the Texas Building and Procurement Commission with the authority to promulgate rules necessary to implement the section.

The following codes are affected by these amendments: Gov't Code, Title 10, Subtitle D, §§2157.0611, 2157.062, 2157.066, and 2157.067.

§113.19.Catalog Information Systems Vendor.

(a) Upon registration on the TBPC's Centralized Master Bidders List (CMBL), a vendor wishing to sell or lease automated information systems to governmental entities in accordance with this rule shall register with the commission as a catalog information systems vendor (CISV) by submitting a catalog Universal Resource Locator (URL), i.e., web site address.

(b) In this section a governmental entity is a state agency subject to the Information Resources Management Act (Gov't Code, Title 10, Subtitle B, Chapter 2054) or a local government entity that participates in the Cooperative Purchasing Program under the Local Gov't Code, Title 8, Subtitle C, Subchapter D.

(1) contain a statement acknowledging that any terms and conditions in the vendor's catalog that conflict with the Constitution or laws of the State of Texas shall not be enforceable and, therefore, will not be binding.

(2) conform to requirements set forth in Gov't Code, §2157.062 and §2157.066 and any other requirements established by the TBPC.

(3) be maintained on a website in accordance with paragraph (2) of this section and include indexing and keywords consistent with the TBPC's online catalog requirements. The vendor's catalog maintained on the website and in compliance with this rule shall be the official version of the catalog.

(d) Vendors are responsible for maintaining a current price list, including list and state prices in their catalog. Where marketing strategy is a concern, the term "negotiated" may be substituted for the state price.

(e) The director shall promulgate guidelines for the revision process of a vendor's catalog.

(f) Failure of a vendor to remain active on the CMBL, or failure to conform to any other TBPC rules may result in suspension or removal of CISV status. A vendor that has been suspended or removed may not market or sell products or services from its CISV catalog to the state until the cause of the suspension or removal has been resolved.

(g) Preference shall be given to CISV who sell or lease products in Texas in accordance with provisions of the Gov't Code, §2155.444 and §2155.4441.

(h) The CISV vendor is encouraged to:

(1) use, produce, or provide products that contain recycled or remanufactured content, are environmentally sensitive, or possess energy saving features;

(2) identify recycled or remanufactured products and if possible, include the percentage of the total product that is recycled or remanufactured and/or the percentage of the total post-consumer recycled material content in its product literature or other representations; and

(3) use recycled/recyclable paper if printing a catalog for marketing purposes.

(i) The State of Texas is committed to assisting historically underutilized businesses (HUBs) to receive a portion of the total value of all contracts that an agency will award. If the vendor qualifies as a HUB, but is not certified by the State of Texas as such, the vendor should contact the TBPC to obtain a HUB certification application. Upon the request of a governmental entity, the vendor will be required to detail the amount of expenditures that have been made to material suppliers and subcontractors that are Texas certified HUBs. A vendor that has demonstrated past HUB participation is still expected to provide documentation using the reporting forms provided by a governmental entity to show its good faith effort in meeting or exceeding the state's procurement utilization goals identified in TBPC's HUB Rules (1 TAC §111.14).

(j) Pursuant to the provisions of Gov't Code, §2157. 0611, the monetary threshold for non-competitive CISV purchases for commodities and services shall correspond with the threshold of $5,000 for non-competitive delegated purchases as set forth in TBPC’s Delegated Purchases Rule, 1 TAC §113.11.

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 May 20, 2005.

TRD-200502036

Ingrid K. Hansen

General Counsel

Texas Building and Procurement Commission

Effective date: June 9, 2005

Proposal publication date: March 11, 2005

For further information, please call: (512) 463-4257

Chapter 126. SURPLUS AND SALVAGE PROPERTY PROGRAMS

Subchapter A. STATE SURPLUS AND SALVAGE PROPERTY

1 TAC §126.4

The Texas Building and Procurement Commission (TBPC) adopts amendments to 1 TAC §126.4, relating to State Surplus and Salvage Property with changes to the proposed text as published in the March 11, 2005, issue of the Texas Register (30 TexReg 1380). The name of the agency, TBPC, is substituted for Commission.

The amendments revise language regarding the determination of method of sale for surplus or salvage property. The amendment to subsection (a)(2) establishes criteria that will be used to determine the sale method most advantageous to the state. These criteria will guide TBPC and delegated agencies and provide notice to the public about TBPC's decision making process.

The comment period ended April 10, 2005. There were no public comments.

The amendments are adopted under the authority of the Gov't Code, §§2175.061(b), 2175.129(b), and 2175.186(b).

The following code is affected by these amendments: Gov't Code, §2175.129 and §2175.186.

§126.4.Disposition of Surplus and Salvage Property to the Public by Competitive Bidding, Auction, or Direct Sale.

(a) Generally. If no state agency, political subdivision, or assistance organization desires to receive any property reported as surplus or salvage, the TBPC may dispose of the property, with the exception of data processing equipment, in a method that is most advantageous to the state and the reporting agency under the circumstances.

(1) Disposal. Property not disposed of under §126.3 of this title (relating to Direct Transfer, Priority, Reporting, and other Disposition) may be disposed of by sealed bids, auction, or direct sale to the public, including a sale using an internet auction site.

(2) Method of Sale. The TBPC will consider the following criteria for determining the method of sale for surplus and salvage property:

(A) geographic location;

(B) cost of transportation if applicable;

(D) type of property; and

(E) condition of property.

(3) Delegation of disposal authority. The TBPC may delegate its authority to dispose of property not disposed of under §126.3 of this title (relating to Direct Transfer, Priority, Reporting, and other Disposition) to a state agency having possession of the property by any method listed in subsection (a)(1) of this section, so long as the method of sale chosen is most advantageous to the state under the circumstances, and the delegation is approved by the TBPC. Any delegation under this section shall be subject to the procedures and reporting requirements in §126.2(6) of this title (relating to General Terms and Conditions).

(4) Requirement to advertise. If the value of any property to be disposed of under this section is estimated to be worth more than $5,000, the sale shall be advertised at least one time in at least one newspaper of general circulation in the vicinity in which the property is located.

(b) Disposition by competitive sealed bids. Sealed bids will be handled in accordance with §113.5 of this title (relating to Bid Submission, Bid Opening, and Tabulation).

(1) Bid deposits. When a bid deposit is required, the deposit must be in the amount specified in the bid invitation. Only the following will be considered as meeting the bid deposit requirements: a cashier's check, a certified check, a money order, or cash in the amount specified in the bid invitation. Failure to include a bid deposit in the proper amount will automatically disqualify a bid.

(2) Notice of award. The TBPC will notify the successful bidder or bidders, on a sealed bid sale of surplus or salvage property, that an award has been made to them and specify a period of time for payment. In the event that a successful bidder fails to make payment within the specified time, the TBPC may retain the bid deposit and consider it forfeited. Furthermore, the bidder forfeits his rights to the property and ownership of the property remains with the state.

(3) Transfer of property and forfeiture. When a successful bidder has paid the full amount due for the purchase of surplus or salvage property obtained through a sealed bid sale, the TBPC shall notify both the successful bidder and the agency holding the title of the surplus or salvage and authorize the transfer of possession. In the case of vehicles or other items which require title transfer, it shall be the responsibility of the agency holding title to complete the transfer of title to the successful bidder. In the event a bidder pays for the property but fails to remove the property within the time specified, the bidder forfeits his rights to the property and ownership of the property reverts to the state.

(c) Disposition by live auctions. Surplus or salvage sold through the live auction method shall be accompanied by an auctioneer's paid receipt. The auctioneer's paid receipt will serve as the authorization of the TBPC that the purchaser has in good faith complied with the conditions of the sale. In the case of vehicles or other items carrying titles, the agency holding the original title shall be responsible for the transfer to the successful bidder. In the event that a successful bidder fails to make payment or remove the property within the specified time, the bidder forfeits his rights to the property and ownership of the property remains with the state.

(d) Disposition by direct sale to the public.

(1) Generally. If the TBPC or a state agency which has been delegated authority under subsection (a)(3) of this section or under §126.2(6), determines that selling the property by competitive sealed bid or auction, would not maximize the resale value of property to the state, the TBPC or state agency may sell surplus or salvage property directly to the public.

(2) Fixed price. The TBPC, in cooperation with the state agency that declared the property as salvage or surplus, or a state agency which has delegated authority under subsection (a)(3) of this section or under §126.2(6) of this title, shall set a fixed price for the property.

(3) Location and method of direct sales. Direct sales operations may be conducted at designated state facilities or warehouses approved by the TBPC, or by Internet auction.

(A) Access. The general public and assistance organizations will have equal access.

(B) Payment. A purchaser under this section must pay for the property by an approved method at the time sale and prior to obtaining possession or actual title to the property.

(C) Forfeiture. In the event a purchaser pays for property but fails to remove it with the time specified at sale, the purchaser forfeits any ownership rights and subsequently, ownership reverts to the state without recourse.

(D) Internet auction. The TBPC may contract with one or more commercial Internet auction sites for sale of state surplus or salvage property. Property on the Internet auction site shall be posted for at least ten (10) calendar days.

(e) Disposition of property with no resale value (salvage). If the TBPC or a state agency with delegated authority under subsection (a)(3) of this section or under §126.2(6) of this title (relating to General Terms and Conditions) does not dispose of property under another method in this subchapter, and has advertised the property for sale and received no bids, or has determined that the property has no resale value, the agency may delete the property on the State Property Accounting System and dispose of the property in a manner that best serves the interests of the state in accordance with Gov't Code, §2175.193.

(f) Purchaser's title. A purchaser of surplus or salvage property at a sale conducted under this section obtains good title to the property if the purchaser in good faith has complied with all the terms and conditions of the sale.

(g) Reporting of sale.

(1) On a sale by the TBPC of any property under this section, the TBPC shall report the property sold and the sales price to the agency that declared the property surplus or salvage.

(2) The TBPC or a state agency with delegated authority under this subchapter shall report the sale and the amount of the sale proceeds to the comptroller. The comptroller by law shall remove the property from the State Property Accounting System.

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 May 20, 2005.

TRD-200502037

Ingrid K. Hansen

General Counsel

Texas Building and Procurement Commission

Effective date: June 9, 2005

Proposal publication date: March 11, 2005

For further information, please call: (512) 463-4257