Part 5.
TEXAS BUILDING AND PROCUREMENT COMMISSION
Chapter 113.
PROCUREMENT DIVISION
Subchapter A. PURCHASING
1 TAC §113.4
The Texas Building and Procurement Commission proposes amendments
to Title 1, §113.4 - Centralized Master Bidders List. The amendments
will revise the current rule to correct administrative errors in the rule
title and in the name of the catalog information systems vendors. An additional
revision to the rule is proposed to add more specificity to the statutory
authority for administratively removing a vendor from the Centralized Master
Bidders List (CMBL).
Ms. Cindy Reed, Executive Director, has determined for the first five year
period the rules are in effect there will be no fiscal implication for the
state or local governments as a result of the administrative corrections made
to the CMBL rule. An indirect positive fiscal implication is anticipated from
the rule revision relating to the removal of vendors from CMBL who have, by
their omissions or lack of responsibility, damaged the fiscal interests of
the state. Although the overall positive fiscal impact on state and local
governments cannot be quantified at present, the revision relating to statutory
specificity will promote competition among responsible vendors for state business
opportunities and enable the state to more readily identify and exclude business
entities that are not responsible. The overall result will be that the procurement
actions of the state will be accomplished in a more cost efficient manner.
Ms. Reed has further determined that for each year of the first five year
period the amended rule is in effect, the public benefit anticipated as a
result of enforcing the rule is compliance with the current statutory requirements
of Texas Government Code, Chapters 2155 and 2157 as relates to the removal
of non responsible vendors from the statewide bid list and the registration
of catalog information systems vendors. There will be a positive effect on
large, small or micro-businesses that routinely participate in state business
opportunities in that statutory authority is clarified for policing the quality
of the statewide centralized master bidders list and vendor performance expectations
are referenced more exactly. There will be no anticipated economic costs to
persons who are required to comply with these rules and there is no impact
on local employment.
Comments on the proposals may be submitted to Elizabeth J. Boyt, Paralegal
to the General Counsel, Texas Building and Procurement Commission, P.O. Box
13047, Austin, TX 78711-3047. Comments may also be sent via email to elizabeth.boyt@tbpc.state.tx.us.
Comments must be received no later than thirty days from the date of publication
of the proposal to the
Texas Register
.
The amendments to §113.4 are proposed under the authority
of the Texas Government Code, Title 10, Subtitle D, §2152.003, which
provides the Texas Building and Procurement Commission with the authority
to promulgate rules necessary to implement the sections.
The following codes are affected by these rules: Texas Government Code,
Title 10, Subtitle D, §§2152.003, 2155.070, 2155.077, 2155.262 through
2155.270 and §2157.062.
§113.4.Centralized Master Bidders List.
(a)
The
TBPC
[
(b)
Registration for the Centralized Master Bidders List is
an on line process with a vendor managed web based system. The established
fee is to be paid annually.
(c)
It is the vendor's responsibility to maintain their CMBL
profile to ensure correct information for receipt of bids based on products
or services which can be provided for selected districts for the State of
Texas.
(d)
A vendor may be administratively removed from the CMBL
for one or more of the following reasons:
(1)
failing to pay or unnecessarily delaying payment of damages
assessed by the
TBPC
[
(2)
failing to remit the annual CMBL fee; or
(3)
any factor set forth in
Texas
Government Code,
§2155.070 & §2155.077
[
(e)
A vendor which has been removed from the CMBL shall not
be reinstated until expiration of the period for which the vendor was removed
and approval is granted.
(f)
An error in addressing a bid invitation or request for
proposal or a failure of the post office to deliver the solicitation will
not be sufficient reason to require the
TBPC
[
(g)
State agencies shall use the CMBL to select bidders for
competitive bids or proposals and to the fullest extent possible for purchases
exempt from the
TBPC's
[
(h)
As set forth in Texas Government Code, §2155.269,
state agencies may waive the requirement to solicit only from bidders listed
on the Centralized Master Bidders List (CMBL) by obtaining approval from the
agency head or designee to add non-CMBL bidders to the final bid list. Non-CMBL
bidders can be added to the final bid list for specific solicitations where
the requirement to solicit only CMBL bidders is not warranted, such as to
increase competition. This does not apply to purchases in §113.19 of
this title, relating to Catalog of Information Systems Vendors (CISV).
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 April 22, 2005.
TRD-200501657
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Earliest possible date of adoption: June 5, 2005
For further information, please call: (512) 463-4257
1 TAC §113.33, §113.34
The Texas Building and Procurement Commission (TBPC) proposes
amendments to 1 TAC §113.33, Selection of Items for Development of Texas
Uniform Standards and Specifications, and §113.34, Development of Texas
Uniform Standards and Specifications. The amendments include changes that
reflect current statutory responsibilities for developing Texas school bus
specifications and clarify the role and responsibilities of TBPC in procurement
of school buses, pursuant to Texas Local Government Code, Chapter 271.083.
The proposed amendments also include minor revisions to remove a gender related
reference to purchasers and reflect the correct name of the Commission and
division that is responsible for procurement.
Ms. Cindy Reed, Executive Director, has determined for the first five-year
period the rules are in effect there will be no fiscal implication for the
state or local governments as a result of the revised and added rules. The
revised text, added definitions and rules with facilitate the use and understanding
of statutory requirements associated the selection and development of Texas
Uniform Standards and Specifications.
Ms. Reed has further determined that for each year of the first five-year
the amendments are in effect, the public benefit anticipated as a result of
enforcing the revised rules will be positive with respect to the effect on
large, small or micro-businesses that routinely participate in state business
opportunities. There will be no anticipated economic costs to persons who
are required to comply with the rules and there is no impact on local employment.
Comments on the proposals may be submitted to Elizabeth J. Boyt, Paralegal
to the General Counsel, Texas Building and Procurement Commission, P.O. Box
13047, Austin, TX 78711-3047. Comments may also be sent via email to: elizabeth.boyt@tbpc.state.tx.us.
Comments must be received no later than thirty days from the date of publication
of the proposal to the
Texas Register
.
The amendments to §113.33 and §113.34 are proposed
under the authority of the Texas Government Code, Title 10, Subtitle D, §2152.003
which provides the Texas Building and Procurement Commission with the authority
to promulgate rules necessary to implement procurement related statutes.
The following codes are affected by these rules: Texas Government Code,
Title 10, Subchapter B, §§2155.066, 2155.068, 2155.069, 2155.070,
the Texas Government Code, Subchapter D, §2155.204, the Texas Local Government
Code, §271.083, the Texas Education Code, §34.001 and the Texas
Transportation Code, §547.7015.
§113.33.Selection of Items for Development of Texas Uniform Standards and Specifications.
Items are selected for specification development by or through one
or more of the following methods.
(1)
Required by statute.
(A)
School buses. Pursuant to the
Texas Education Code, §34.002, the Texas Department of Public Safety,
with advice from the Texas Education Agency, establishes safety standards
for school buses used to transport students. Pursuant to the Texas Education
Code, §34.001, specifications developed by the Texas Department of Public
Safety in compliance with the Texas Transportation Code, §547.7015, shall
be referenced in solicitations and made a part of any contract awarded by
the TBPC as result of a requisition received from a school district pursuant
to the Texas Local Government Code, Chapter 271.083. For the convenience of
qualified purchasing entities the specifications shall be posted on the TBPC
website.
[
(B)
Prison-made products and raw materials. Pursuant to Texas
Government Code, Subtitle G, Subchapter B, §7.027, an article or product
produced under Subchapter B must meet specifications established by the
TBPC
[
(2)
Requests from using agencies. If a using agency finds that
it is having difficulty in obtaining a certain item to meet a particular requirement,
then the agency can communicate this need to the standards and specifications
section of the [
(3)
Requests from purchasers. If a state purchaser is having
difficulty in securing bids on a particular item in the absence of adequate
uniform standards and specifications,
the purchaser
[
(4)
Requests from vendors and/or bidders. Bidders may petition
the standards and specification section to ascertain the feasibility of developing
a specification on an article bid by agencies.
§113.34.Development of Texas Uniform Standards and Specifications.
(a)
Preparation of Texas Uniform Standards and Specifications.
(1)
The procedure used in developing uniform standards and
specifications includes consultation, research, collection, and evaluation
of data, and preparation of the specification. The standards and specification
section consults with knowledgeable people in various state agencies, user
advisory groups, purchasers, vendors, manufacturers, distributors, bidders,
governmental and trade associations, colleges and universities, testing laboratories,
and other experts.
(2)
Uniform standards and specifications from federal, state,
and local governments and standards agencies, such as ASTM, SAE, and others,
and product literature from manufacturers, distributors, etc., are obtained,
studied, and their contents evaluated.
(3)
A proposed specification is then prepared by stipulating
minimum requirements necessary to provide products of the level of quality
required by various state agencies.
(4)
This draft specification is then distributed to the individuals
and groups initially contacted as well as other interested parties for their
review, comments, and suggestions.
(5)
Comments and suggestions received are reviewed, analyzed,
and evaluated, and the proposed specification modified accordingly.
(6)
If, as a result of this analysis and evaluation, major
changes in the proposed specification are made, then a second proposed specification
is prepared and distributed and the process outlined in paragraphs (4) and
(5) of this subsection is followed.
(7)
If no major change in the proposed specification is made,
then the uniform standard and specification is finalized and distributed.
(8)
Comments and suggestions received from the distribution
of a second proposed specification are reviewed, analyzed, evaluated, and
the process outlined in paragraphs (5) and (7) of this subsection is followed.
(9)
This process is continued until a uniform standard and
specification is developed that will provide the level of quality required
by the state and that will provide competitive bidding.
(10)
The agency user advisory groups provide the standards
and specifications section with their individual requirements and otherwise
assist in the preparation and development of specifications.
(b)
Distribution of Texas uniform standards and specifications.
The initial distribution of newly adopted or prepared uniform standards and
specifications is to state agencies, vendors/distributors and manufacturers
contacted during the development phase of the uniform standard and specification
and subsequently to others upon request.
(c)
Approved products list.
(1)
A manufacturer, vendor, or distributor may submit a product
for inclusion in an established approved product list to the standards and
specifications section the [
(2)
A product can be removed from the approved products list
if:
(A)
the quality of a given product is decreased; or
(B)
the minimum level of quality for the approved products
list is increased in order to provide the quality of products required by
state agencies.
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 April 22, 2005.
TRD-200501658
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Earliest possible date of adoption: June 5, 2005
For further information, please call: (512) 463-4257
1 TAC §§113.101 - 113.108
The Texas Building and Procurement Commission (TBPC) proposes
new 1 TAC §§113.101 - 113.108, concerning vendor performance and
debarment. TBPC proposes the new rules to protect the interests of the state
and to enhance public confidence in the integrity of the state's procurement
policies and practices. The rules replace current §113.102, concerning
vendor performance and debarment which is contemporaneously being proposed
for repeal in this issue of the
Texas Register
.
The new rules provide more detailed notice of the factors TBPC will consider
when making a decision to debar a vendor. Vendors doing business with the
state will have a clearer understanding of the expected performance and ethical
standards. The rules also provide procedures to ensure that the vendor has
an opportunity to be heard prior to a finding by TBPC.
Proposed §113.101, concerning the purpose and applicability of 1 TAC
Chapter 113, Subchapter F, describes the reasons for the rules and that they
apply to all procurement conducted under the authority of Government Code,
Title 10, Subtitle D.
Proposed §113.102, concerning definitions provides definitions for
terms not otherwise defined by statute or in §113.2, concerning definitions
and in the case of the debarment definition, adds language to the definition
in §113.2.
Proposed §113.103, concerning protecting the state's interest when
there is a failure to meet specifications, lists the factors TBPC shall consider
when proposing an action based on a vendor's failure to meet specifications.
Proposed §113.104, concerning protecting the state's interest when
there is a failure to meet contract requirements, contains the factors TBPC
shall consider when evaluating vendors' performance measured by the vendor
performance tracking system and the categories listed therein.
Proposed §113.105, concerning debarment, describes actions TBPC may
take and the general reasons for debarment including the time periods of debarment.
Proposed §113.105(a) describes TBPC's potential actions. Proposed §113.105(b)
requires notice of potential action. Proposed §113.105(c) provides that
TBPC may assess actual damages and costs against a vendor who fails to perform
as specified under a contract. Proposed §113.105(d) provides that a vendor
may be debarred upon finding that the vendor has engaged in the conduct prohibited
by that subsection. Proposed §113.105(e) provides that a vendor may be
debarred upon a finding that the vendor's performance was substandard. Proposed §113.105(f),
(g), and (h), concerning failure to meet specifications, describe actions
upon a first and subsequent failures to meet specifications.
Proposed §113.106, concerning procedures for investigations and debarment,
provides that TBPC shall provide notice to the vendor of a proposed action
and also describes the time periods for vendor response, investigations, and
TBPC finding. The proposed section also contains mitigating circumstances
and remedial measures TBPC may consider when determining the appropriate action.
Proposed §113.107, concerning request for review, provides a process
for a review of TBPC action. The Executive Director conducts the review and
has discretion to revise the finding.
Proposed §113.108, concerning the vendor performance tracking system,
describes the parameters for the system and requires state agencies to report
vendor performance for contracts over $25,000.
Cindy Reed, Executive Director, has determined that for the first five
year period that the new rules are in effect there will be no fiscal implication
for the state or local governments as a result of enforcing or administering
the new rules. An indirect positive fiscal implication is anticipated to result
from improving the state's ability to hold vendors accountable. Although the
impact cannot be presently quantified, the revised rules will enable the state
to more readily identify and exclude poorly performing vendors. Overall, this
will improve the efficiency of the state procurement process.
Ms. Reed has further determined that for each year of the first five year
period the new rules are in effect, the anticipated benefit to the public
will be more efficient and effective statewide compliance with the state statute,
Government Code §2155.070 and §2155.077, relating to the debarment
of non responsible vendors (contractors). There will be a positive impact
on large, small and micro-businesses that routinely participate in business
because the new rules provide more detail regarding required standards of
performance and behavior and provide procedures that give vendors an opportunity
to be heard prior to debarment. There will be no anticipated economic costs
to persons who are required to comply with the rules because the standards
of performance are already required under state laws and contracts. Additionally
these proposed rules provide notice to vendors that assist them in proper
performance under state contracts; the rules also describe the vendor's opportunities
to perform remedial measures and to be heard during the debarment proceedings.
Ms. Reed has determined that these proposed rules do not affect a local
economy and therefore TBPC has not prepared a local employment impact statement
under Government Code §2001.022.
Comments on the new rules may be submitted to Elizabeth J. Boyt, Paralegal
to the General Counsel, Texas Building and Procurement Commission, P.O. Box
13047, Austin, Texas 78711-3047. Comments may also be sent via e-mail to elizabeth.boyt@tbpc.state.tx.us.
All comments must be received no later than thirty days from the date of publication
of the proposal in the
Texas Register
.
The proposed new §§113.101 - 113.108, are proposed
under the authority of the Texas Government Code, §2155.070 and §2155.077(c).
The following codes are affected by the new sections: Texas Government
Code, Chapter 2155, 2156, 2157, 2158, 2161, 2162, 2163, 2165, 2166, 2167,
2170, 2171, 2172, 2175, 2177; Local Government Code, Chapter 271; and the
Transportation Code, Chapters 223 and 224.
§113.101.Purpose and Applicability.
(a)
The purpose of this subchapter is to protect the interests
of the state and to ensure public confidence in the integrity of the State's
procurement laws, policies and practices. Debarment is a discretionary action
and shall be undertaken only for the reasons in, and under the procedures
of, this subchapter.
(b)
This subchapter applies to all vendors and contractors
who sell goods and services to the state through any purchasing method authorized
by Government Code, Title 10, Subtitle D, Chapters 2155 through 2177. This
subchapter applies to vendors and contractors who sell goods and services
to a governmental entity whether that entity has been delegated authority
by the Commission or is exempt from the Commission's procurement rules and
procedures.
§113.102.Definitions.
(a)
The definitions in Government Code §§2155.001,
2157.001, 2158.001 and in §113.2 of this title apply to this subchapter,
except as defined in subsection (b) of this section.
(b)
In this subchapter, the following definitions apply.
(1)
Bidders Lists: the centralized masters bidders list maintained
by the Commission and all other state bidders lists.
(2)
Contractor: any private sector person selling goods and
services to the State and all successors-in-interest to that contractor.
(3)
Debarment: an exclusion from contracting or subcontracting
with state agencies on the basis of any cause set forth in this subchapter,
commensurate with the seriousness of the offense, performance failure, or
inadequacy to perform. Debarment includes removal of a vendor's name and the
vendor's goods and services from all state bidders lists and a prohibition
on that vendor and its successors in interest from bidding on and receiving
any contracts from the state for a specified period of time.
(4)
Successors in interest: any person with interlocking management
or ownership, identity of interests among family members, shared facilities
and equipment, common use of employees, or a business entity organized subsequent
to the debarment or other action under this subchapter that has the same or
similar management, ownership or principal employees as the debarred vendor.
(5)
State: any agency of the State of Texas, including institutions
of higher education, and any governmental entity authorized to purchase goods
and services under Government Code, Title 10, Subtitle D.
(6)
Vendor: any person selling goods and services to the State
and all successors-in-interest to that vendor.
§113.103.Protecting the State's Interest: Failure to Meet Specifications.
(a)
When a vendor's goods or services fail to meet contract
specifications, TBPC shall consider:
(1)
the degree and nature of the variation between the contract
specifications and the specifications of the goods or services actually delivered
or offered for delivery;
(2)
whether the variation creates a hazard to life, health,
safety, welfare or property;
(3)
whether the vendor knew of the variation when the bid was
submitted or when the goods were delivered;
(4)
whether the failure to meet specifications adversely impacts
the use of other goods or services;
(5)
the ability of the vendor to provide the goods or services
that do comply with the required specifications;
(6)
the amount of economic loss to the state; economic loss
includes, but is not limited to, costs arising from delay, training of employees,
lost productivity, procuring substitute goods or services and any other cost,
direct or indirect, arising out of the failure to meet specifications; and
(7)
any other factors TBPC determines are relevant to ensure
protection of the state's interest; the Commission shall specify such other
factors in a finding made pursuant to §113.106 of this subchapter.
(b)
In addition to TBPC, any state agency, including an institution
of higher education, may determine that goods and services fail to meet specifications.
Where that determination is made by an entity other than TBPC, TBPC is authorized
to act against the vendor without further testing and inspection of the goods
and services.
§113.104.Protecting the State's Interest: Failure to Meet Contract Requirements.
(a)
When a vendor's goods or services fail to meet contract
requirements, TBPC shall consider whether the failure was:
(1)
a complete failure to deliver the goods and services or
failure to deliver
(A)
in the time period specified in the contract;
(B)
to the location specified in the contract; and
(C)
in the manner specified in the contract.
(2)
a failure to deliver goods
(A)
in the specified quantity;
(B)
with the specified invoices or other necessary documentation;
(C)
in specified packaging;
(D)
in good and usable condition;
(E)
without unauthorized substitutions; and
(F)
with specified installation including specified repair
and replacement parts.
(3)
a failure to deliver services
(A)
within the time period specified in the contract;
(B)
in the manner or at the level specified in the contract
considering;
(i)
unsuitability of the final product for the purpose intended;
(ii)
lack of integration into or compatibility with other pre-existing
systems or processes;
(iii)
repeated failure of the final product to reliably operate;
(iv)
repeated cost overuns due to circumstances within the
control of the vendor;
(v)
failure to adhere to contract schedules or ensure timely
completion;
(vi)
failure to provide specified employee training;
(vii)
failure to provide specified reports;
(viii)
misrepresentation of qualifications of assigned personnel;
and
(ix)
any other failure to perform that materially affects the
quantity or quality of the service.
(C)
in conformance with
(i)
professional standards of care and codes of conduct;
(ii)
generally accepted principles of the business or profession;
and
(iii)
laws and regulations governing the service, including
any proper and necessary licenses, permits, certifications, or other approvals
required for the vendor to lawfully perform the services.
(b)
TBPC also may evaluate the vendor's performance by considering
whether the vendor:
(1)
provided accurate and timely invoices;
(2)
provided and maintained proof of insurance, bonds, guarantees,
letters of credit or other required documents;
(3)
provided timely notice of unanticipated factors that may
cause delay;
(4)
responded appropriately to emergencies;
(5)
maintained sufficient financial responsibility; and
(6)
any other factors TBPC determines are relevant to ensure
protection of the state's interest; TBPC shall specify such other factors
in a finding made pursuant to §113.106 of this subchapter.
§113.105.Debarment.
(a)
TBPC Actions. Under this subchapter, TBPC may, in order
to protect the interests of the State:
(1)
conduct an investigation upon a complaint regarding a vendor's
acts and omissions in procurement or performance of that contract where the
complaint may constitute cause for debarment;
(2)
cancel one or more of the vendor's active or pending contracts
upon a complaint regarding the vendor's acts and omissions in procurement
or performance of that contract where the complaint may constitute cause for
debarment;
(3)
assess actual damages and costs incurred due to vendor's
failure to perform as specified in the contract;
(4)
debar a vendor for a specified period of time; and
(5)
take any other action authorized by law.
(b)
Any action under subsection (a) of this section shall occur
upon notice as required under §113.106 of this subchapter. TBPC may,
in its sole discretion, find that more than one of the actions in subsection
(a) of this section is appropriate and necessary to protect the state's interests.
(c)
Damages for Failure to Perform. TBPC may assess actual
damages and costs incurred by the state when a vendor fails to perform as
specified under a contract. The damages and costs may be assessed whether
or not the vendor received notice of investigation or debarment under this
subchapter. TBPC shall consider a failure to pay assessed damages in determining
whether to debar a vendor under this subchapter.
(d)
TBPC may debar a vendor for a period of no more than five
years upon a finding that:
(1)
continued acceptance of goods or services or vendor performance
under the contract may constitute a hazard to health, safety, welfare or property;
(2)
the vendor committed fraud in the procurement or performance
of the contract, including submission of falsified documents by the vendor
or any person under the direction or control of the vendor;
(3)
there was financial participation by a person who received
compensation from the governmental entity to participate in preparing the
specifications or request for proposals on which the contract is based or
there was any other violation of state ethics laws;
(4)
the vendor has been debarred by another state or by the
federal government;
(5)
the vendor has been convicted of a crime related to fraud
in the procurement or performance of any governmental contract including,
but not limited to, a conviction for violation of antitrust, collusion, conspiracy,
larceny, theft of services, bribery, coercion laws or any other criminal act
based on an intent to defraud any governmental entity in the provision of
goods or services; and
(6)
the vendor has publicly indicated an unwillingness to honor
a bid award.
(e)
TBPC may debar a vendor for a period of no more than five
years upon a finding that the vendor's performance was substandard. TBPC shall
consider:
(1)
the accumulated scoring measured by the Vendor Performance
Tracking System and:
(A)
the number and severity of the vendor's performance failures
in relation to the volume of goods and services provided;
(B)
the effectiveness of remedial measures taken by the vendor;
and
(C)
the age and relevance of past performance information.
(2)
the vendor's breach of contract where the breach results
in:
(A)
significant economic loss to the state; significant economic
loss includes, but is not limited to, costs of delay, procurement from a different
vendor, costs of initial procurement, contract administration and any other
cost, direct or indirect, arising from or attributable to the breach;
(B)
a hazard to health, safety, welfare or property; or
(C)
damage to the state's reputation for integrity in procurement
or honest, efficient administration.
(f)
Failure to Meet Specifications: General. TBPC shall remove
a vendor's name from all bidders lists and prohibit the vendor from bidding
on and receiving any contracts from the state when the vendor's goods or services
fail to meet specifications. The period of removal shall be less than one
year. The period of time for removal shall be determined by evaluating the
factors listed in §113.103 of this subchapter, relating to failure to
meet specifications.
(g)
Failure to Meet Specifications: Repeated Complaints. If
after the period of removal determined under subsection (f) of this section,
TBPC determines that the same vendor or a successor in interest to the vendor
has again responded to a contract with goods or services that do not meet
specifications, TBPC shall remove the vendor's name and the vendor's goods
and services from all bidders lists for a period of one year.
(h)
Failure to Meet Specifications: Debarment. If after the
expiration of the one year removal under subsection (g) of this section, TBPC
determines that the same vendor or a successor in interest to the vendor has
again responded to a contract with goods or services that do not meet specifications,
TBPC shall debar the vendor for a period of no more than five years.
§113.106.Procedures for Investigations and Debarment.
(a)
Method and Content of Notice. TBPC shall notify the vendor
by the most expeditious method available, including but not limited to telephone,
e-mail, and fax, of an action under this subchapter. In addition to the most
expeditious method, TBPC shall also notify the vendor in writing, via certified
mail, return receipt requested. The notice shall be in terms sufficient to
apprise the vendor of the conduct or transactions upon which it is based.
TBPC shall notify a vendor when:
(1)
a vendor is being investigated for potential debarment;
(2)
a vendor's contracts have been cancelled; or
(3)
a vendor will be disbarred.
(b)
Investigation. TBPC shall investigate a complaint that
a vendor has failed to perform under the contract for any of the reasons in
this subchapter.
(1)
TBPC shall complete its investigation within 120 days of
the receipt of the complaint. TBPC may, upon receipt of a complaint, cancel
the vendor's contracts or cease payments under the vendor's contracts during
the period the vendor is under investigation.
(2)
Participation of Receiving State Agency. TBPC, in conjunction
with the receiving agency, shall decide whether to cancel the vendor's contracts
by considering:
(A)
the effects of a work stoppage on the state agency;
(B)
the seriousness of the breach of contract;
(C)
any hazard to health, safety, welfare or property; and
(D)
any other reason TBPC and the state agency determine is
relevant to the particular circumstances.
(c)
Vendor Response. A vendor shall submit a written response
to TBPC within ten (10) days of receipt of the notice received under subsection
(a) of this section. The vendor is presumed to have received the notice upon
TBPC's receipt of fax confirmation or receipt returned by U.S. mail, whichever
period is shorter. TBPC may, for good cause shown, allow the vendor one ten
(10) day extension of time to provide the vendor's response.
(d)
Contents of Vendor Response. The vendor shall respond to
each reason TBPC cites in the notice and shall include all facts the vendor
believes are relevant, including any applicable mitigating circumstances and
remedial measures.
(e)
TBPC Finding. Upon completion of its investigation or upon
receipt of the vendor's response, TBPC shall determine whether the vendor
should be debarred. TBPC shall consider the seriousness of the vendor's acts
or omissions and any mitigating factors or remedial measures. TBPC shall inform
the vendor of its finding within ninety (90) days of the original notice provided
in subsection (a) of this section. If TBPC is conducting an investigation
under subsection (b) of this section, then the time periods in this subsection
are extended by the length of the investigation.
(f)
Mitigating Circumstances. TBPC shall consider whether the
vendor's failure to perform was caused, in whole or in part, by:
(1)
an act of God or
force majeure
; TBPC shall review whether the vendor provided TBPC with timely notification
of the event and the reasonableness of the duration of the vendor's failure
to perform after the event;
(2)
mutual mistake;
(3)
legal impossibility; or
(4)
significant economic disruption affecting a particular
industry.
(g)
Remedial Measures. TBPC may consider whether the vendor:
(1)
immediately identified and remedied the cause of the failure
to perform;
(2)
brought the offending conduct to the attention of TBPC
and fully investigated the circumstances surrounding that conduct;
(3)
cooperated fully in TBPC's investigation;
(4)
recognizes and understands the seriousness of the misconduct
giving rise to the cause for debarment; and
(5)
any other remedial measures, including implementation of
control procedures, ethics training, or other disciplinary actions against
responsible individuals, that the vendor has instituted.
§113.107.Request for Review.
(a)
A finding that a vendor should be debarred may be reviewed
by the Executive Director at the request of the vendor. A vendor shall submit
a written request for review by the Executive Director within ten (10) days
of receipt of the TBPC finding.
(b)
The Executive Director may reinstate the vendor to bidders
lists; reduce the period of debarment; affirm the finding of TBPC; or reinstate
the vendor to a particular contract. The Executive Director may take one or
more of the actions listed herein and shall specify, in writing, the reasons
for the decision.
(c)
The Executive Director shall issue the decision on the
request for review within sixty (60) days of the receipt of the vendors' request
for review.
(d)
No person who has an interest in the outcome of the Executive
Director's review may communicate directly or indirectly upon the merits of
an investigation or debarment with any commission employees prior to the Executive
Director's decision unless the Executive Director specifically authorizes
such communication.
§113.108.Vendor Performance Tracking System.
(a)
TBPC shall utilize the vendor performance tracking system,
available at http://www.tbpc.state.tx.us/stpurch/venvpts.html. The system
measures vendor performance for purchases over $25,000, and is used by TBPC
to score vendor performance in the areas of commodity delivery and service
and service delivery and performance.
(b)
State agencies shall report a vendor's performance on any
purchase of $25,000 or more from contracts administered by the commission
or any other purchase made through an agency's delegated authority or a purchase
made pursuant to the authority in Government Code, Title 10, Subtitle D or
a purchase exempt from TBPC's procurement rules and procedures.
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 April 22, 2005.
TRD-200501660
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Earliest possible date of adoption: June 5, 2005
For further information, please call: (512) 463-4257
commission
] maintains
the Centralized Master Bidders List (CMBL) of the names and addresses of vendors
which have registered for inclusion on the CMBL. The CMBL is maintained for
the state's use in obtaining competitive bids for purchases and for registering
vendors who wish to be designated as
catalog
[
qualified
]
information systems vendors
(CISV)
. Bid invitations and requests
for proposals shall be transmitted to vendors on the CMBL for the solicited
commodity and/or service designated by the vendor for open market, term contracts,
competitive sealed proposal acquisitions and delegated purchases in excess
of the non-competitive bid limit.
commission
];
Chapter 2155
].
commission
]
to reject all other bids or proposals.
commission's
] purchasing authority.
This requirement does not apply to the Texas Department of Transportation
or to an institution of higher education as defined by §61.003, Education
Code, but an institution of higher education should use the CMBL when possible.
Subchapter C. SPECIFICATION
(A)
School buses. Pursuant to
the Texas Education Code, §34.002, the Texas Department of Public Safety,
with advice from the commission and the Texas Education Agency, establishes
safety standards for school buses used to transport students. Pursuant to
the Transportation Code, §547.7015, the commission hereby delegates to
the Director of the Central Procurement Division the authority to develop
specifications governing the design, color, lighting and other equipment,
construction, and operation of school buses. The specifications shall be posted
on the commission's website].
commission
] that are in effect when the article or
product is produced.
Central
] Procurement Division.
he
]
may request the standards and specification section to investigate the feasibility
of developing a uniform standard and specification to cover the purchase of
this item.
Central
] Procurement Division, along
with technical literature and product specifications. The product may then
be tested and the results evaluated and compared with the minimum level of
quality for the approved products list.
Subchapter F. VENDOR PERFORMANCE AND DEBARMENT PROGRAM