Part 1. COMPTROLLER OF PUBLIC ACCOUNTS
Chapter 20. STATE PROCUREMENT AND PROGRAM SUPPORT SERVICES OFFICE
Subchapter A. GENERAL PROVISIONS
The Comptroller of Public Accounts proposes new §20.1, concerning purpose of the State Procurement and Support Services Office and new §20.2, concerning State Procurement and Support Services Office business location and mailing address.
House Bill 3560, transfers to the comptroller certain powers and duties of the Texas Building and Procurement Commission that do not primarily concern state facilities. Government Code, §2151.003(2) and §2151.004(d), transfer certain powers and duties of the Texas Building and Procurement Commission to the comptroller. Government Code, §2155.0011, transfers powers and duties under Government Code, Chapter 2155, to the comptroller and authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2155. Government Code, §2155.0012, require the comptroller to conduct a public hearing before adopting those rules.
The new sections are proposed under Texas Administrative Code, Title 34, Part 1, new Chapter 20: State Procurement and Support Services Office, Subchapter A: General Provisions, and related to the functions and responsibilities of that office, pursuant to House Bill 3560, 80th Legislature, 2007. House Bill 3560 is effective September 1, 2007.
John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government.
Mr. Heleman also has determined that for each year of the first five years the rule is in effect, it would benefit the public by consolidating certain state procurement and services within the comptroller, enhancing financial information about these activities. There is no significant anticipated economic cost to individuals who are required to comply with the proposed rule. There are no significant anticipated fiscal implications for small businesses.
Comments on the proposals may be submitted to Martin Cherry, General Counsel, General Counsel Division, P.O. Box 13528, Austin, Texas 78711-3528.
The new sections are proposed under Government Code, §§2151.003, 2151.004, 2155.0011, and 2155.0012, which authorize the comptroller to adopt rules to efficiently and effectively administer these provisions.
The new sections implement Government Code, §§2155.003, 2151.004, 2155.0011, and 2155.0012.
§20.1.Purpose of the State Procurement and Support Services Office.
The State Procurement and Support Services Office is established within the Office of the Comptroller as a separate division and shall carry out the powers and duties transferred to the comptroller from the Texas Building and Procurement Commission and otherwise provided to the comptroller under House Bill 3560, 80th Legislature, 2007. These powers and duties include without limitation, statewide procurement, the historically underutilized business program, administrative support and offices for the State Council on Competitive Government, mail operations, printing and vehicle fleet management as provided in that legislation.
§20.2.State Procurement and Support Services Office Business Location and Mailing Address.
The business office of the State Procurement and Support Services Office is located in the Lyndon Baines Johnson (LBJ) State Office Building, 111 E. 17th Street, Suite 104, Austin, Texas 78774. The mailing address for the State Procurement and Support Services Office is: State Procurement and Support Services Office, Comptroller of Public Accounts, P.O. Box 13528, Austin, Texas 78711-3528.
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 June 25, 2007.
TRD-200702648
Martin Cherry
General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: August 5, 2007
For further information, please call: (512) 475-0387
The Comptroller of Public Accounts proposes new §20.381, concerning purpose, new §20.382, concerning application, new §20.383, concerning open meetings for certain contract awards, new §20.384, concerning protests, new §20.385, concerning negotiation and mediation of contract disputes and new §20.386, concerning statewide procurement advisory council.
House Bill 3560, transfers to the comptroller certain powers and duties of the Texas Building and Procurement Commission that do not primarily concern state facilities. Government Code, §2151.003(2) and §2151.004(d), transfer certain powers and duties of the Texas Building and Procurement Commission to the comptroller. Government Code, §2155.0011, transfers powers and duties under, Government Code, Chapter 2155, to the comptroller and authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2155. Government Code, §2155.0012, requires the comptroller to conduct a public hearing before adopting those rules. Government Code, §2155.086, establishes procedures for awards of certain contracts by the chief clerk of the comptroller or the chief clerk's designee. Government Code, §2155.087, establishes the Statewide Procurement Advisory Council and requires the comptroller to adopt rules describing the purposes and tasks of the council as provided by Government Code, §2110.005, and Government Code, §2155.087(c), requires the comptroller to conduct a public hearing before adopting these rules.
These new sections are proposed under Texas Administrative Code, Title 34, Part 1, new Chapter 20: State Procurement and Support Services Office, Subchapter G: Contract Procedures, and relate to the powers and duties of the comptroller, pursuant to House Bill 3560, 80th Legislature, 2007, and housed by the comptroller in that office. House Bill 3560 is effective September 1, 2007.
John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government.
Mr. Heleman also has determined that for each year of the first five years the rule is in effect, it would benefit the public by consolidating certain state procurement and services within the comptroller, enhancing financial information about these activities. There is no significant anticipated economic cost to individuals who are required to comply with the proposed rule. There are no significant anticipated fiscal implications for small businesses.
Comments on the proposals may be submitted to Martin Cherry, General Counsel, General Counsel Division, P.O. Box 13528, Austin, Texas 78711-3528.
The new sections are proposed under Government Code, §§2151.003, 2151.004, 2155.0011, 2155.0012, 2155.086, 2155.087, and 2110.005, which authorize the comptroller to adopt rules to efficiently and effectively administer these provisions.
The new sections implement Government Code, §§2151.003, 2151.004, 2155.0011, and 2155.0012, 2155.086, 2155.087, and 2110.005.
§20.381.Purpose.
The purpose of this subchapter is to provide for the efficient and effective administration of the provisions of the Government Code relating to certain contract awards by the State Procurement and Support Services Office established in §20.1 of this title (relating to Purpose of the State Procurement and Support Services Office).
§20.382.Application.
Except as otherwise provided, this subchapter applies to the contracting and purchasing powers and duties of the State Procurement and Support Services Office established in §20.1 of this title (relating to Purpose of the State Procurement and Support Services Office)
§20.383.Open meetings for Certain Contract Awards.
(a) This section applies only to the award of a contract by the State Procurement and Support Services Office that:
(1) relates to the powers and duties transferred to the comptroller under Government Code, §2151.004(d);
(2) is reasonably expected by the State Procurement and Support Services Office at the time of the award to have a value of $100,000 or more over the life of the contract;
(3) is evaluated based wholly or partly on best value factors other than cost; and
(4) is a contract for which the solicitation of bids or proposals or similar expressions of interest is published on or after September 1, 2007.
(b) This section does not apply to:
(1) the award of a contract by the chief clerk on behalf of divisions of the comptroller other than the State Procurement and Support Services Office or for multiple divisions of the comptroller that also include the office that do not relate to the powers and duties transferred to the comptroller under Government Code, §2151.004(d);
(2) the award of a contract by the chief clerk that relate to the powers and duties of the comptroller to award such contracts prior to or notwithstanding the transfer of powers and duties of the comptroller under Government Code, §2151.004(d);
(3) the award of a contract by any state agency, local government or any other authorized entity under a statewide or master contract established by the State Procurement and Support Services Office, including without limitation, a state term contract or Texas multiple award schedule contract;
(4) any part of the contracting process other than the award, including without limitation planning, budgeting, solicitation, pre-response conference, respondent presentation, evaluation, development of staff or evaluation committee recommendations, negotiation, and signature;
(5) a renewal, extension, or amendment of a contract provided for in the written solicitation for the original contract; or
(6) an emergency purchase or other contract award for which delay would create a hazard to life, health, safety, welfare, or property or would cause undue additional cost to the state.
(c) As used in this section, the chief clerk of the comptroller includes the chief clerk or his or her designee.
(d) To award a contract to which this section applies, the chief clerk shall chair and conduct a public meeting to make the contract award.
(e) The chief clerk shall determine the time and location for the meeting. The meeting must comply with the applicable provisions of Government Code, Chapter 551, including requirements relating to posting notice of the meeting. The State Procurement and Support Services Office shall post notice of the meeting on the office's website and in the state business daily. The office of the attorney general shall advise the chief clerk and the office on the applicable provisions of Chapter 551 upon request.
(f) Before the open meeting, the chief clerk may review any written recommendations for the proposed contract award submitted by the staff of the State Procurement and Support Services Office or by an evaluation committee established by the office for the proposed contract. The chief clerk may discuss and review these written recommendations for proposed contract award with the staff or evaluation committee prior to the open meeting and may request that additional or clarifying written information be obtained for presentation in the public meeting. The chief clerk shall make the staff's or committee's final written recommendations available to the public at the meeting.
(g) A contract awarded by the chief clerk under this section is not considered final and does not bind the state until all negotiations are completed, if applicable, and all parties to the contract have signed the final contract.
(h) The State Procurement and Support Services Office shall post notice of a contract award made in an open meeting under this section on the office's website and in the state business daily.
(i) The State Procurement and Support Services Office shall post the text of a contract awarded in an open meeting under this section on the office's website and in the state business daily, except for information in a contract that is not subject to disclosure under Government Code, Chapter 552. Information that is not subject to disclosure under Chapter 552 shall be referenced in an appendix that generally describes the information without disclosing the specific content of the information.
§20.384.Protests.
(a) The following words and terms, when used in this section, shall have the following meaning unless the context clearly indicates otherwise.
(1) Comptroller's office--The Office of the Comptroller of Public Accounts, an agency of the state.
(2) Chief clerk--deputy comptroller of the comptroller's office.
(3) Director of the office--director of the State Procurement and Support Services Office of the comptroller's office
(4) General counsel--general counsel of the comptroller's office.
(5) Interested parties--All vendors who have submitted bids, proposals or other expressions of interest for the provision of goods or services pursuant to a contract with the State Procurement and Support Services Office of the comptroller's office.
(6) Office--State Procurement and Support Services Office.
(7) Using agency--A state agency, governmental entity or other entity involved in the contract.
(b) Any actual or prospective bidder, offeror, or contractor who considers himself to have been aggrieved in connection with the office's solicitation, evaluation, or award of a contract may formally protest to the director of the office. Such protests must be made in writing and received by the director of the office within 10 working days after the protesting party knows, or should have known, of the occurrence of the action that is protested. Formal protests must conform to the requirements of subsections (b) and (d) of this section, and shall be resolved through use of the procedures that are described in subsections (e) - (i) of this section. The protesting party must mail or deliver copies of the protest to the using agency and other interested parties.
(c) In the event of a timely protest under this section, the state shall not proceed further with the solicitation or award of the contract unless the chief clerk, after consultation with the director of the office and the using agency, makes a written determination that the contract must be awarded without delay, to protect the best interests of the state.
(d) A formal protest must be sworn and contain:
(1) a specific identification of the statutory or regulatory provision that the protesting party alleges has been violated;
(2) a specific description of each action by the office that the protesting party alleges to be a violation of the statutory or regulatory provision that the protesting party has identified pursuant to paragraph (1) of this subsection;
(3) a precise statement of the relevant facts;
(4) a statement of any issues of law or fact that the protesting party contends must be resolved;
(5) a statement of the argument and authorities that the protesting party offers in support of the protest; and
(6) a statement that copies of the protest have been mailed or delivered to the using agency and all other identifiable interested parties.
(e) The director of the office may settle and resolve the dispute over the solicitation or award of a contract at any time before the matter is submitted on appeal to the general counsel. The director of the office may solicit written responses to the protest from other interested parties.
(f) If the protest is not resolved by mutual agreement, the director of the office shall issue a written determination that resolves the protest.
(1) If the director of the office determines that no violation of statutory or regulatory provisions has occurred, then the director of the office shall inform the protesting party, the using agency, and other interested parties by letter that sets forth the reasons for the determination.
(2) If the director of the office determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has not been awarded, then the director of the office shall inform the protesting party, the using agency, and other interested parties of that determination by letter that details the reasons for the determination and the appropriate remedy.
(3) If the director of the office determines that a violation of any statutory or regulatory provisions has occurred in a situation in which a contract has been awarded, then the director of the office shall inform the protesting party, the using agency, and other interested parties of that determination by letter that details the reasons for the determination. This letter may include an order that declares the contract void.
(g) The protesting party may appeal a determination of a protest by the director of the office to the general counsel. An appeal of the director's determination must be in writing and received in the office of the general counsel by not later than 10 working days after the date on which the director has sent written notice of his determination. The scope of the appeal shall be limited to review of the director's determination. The protesting party must mail or deliver to the using agency and all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.
(h) The general counsel may refer the matter to the chief clerk for consideration or may issue a written decision that resolves the protest.
(i) The following requirements shall apply to a protest that the general counsel refers to the chief clerk.
(1) The general counsel shall deliver copies of the appeal and any responses by interested parties to the chief clerk.
(2) The chief clerk may consider any documents that agency staff or interested parties have submitted.
(3) The chief clerk shall issue a written letter of determination of the appeal to the parties which shall be final. In a subsequent open meeting conducted by the chief clerk under §20.383 of this title (relating to Open Meetings for Certain Contract Awards), the chief clerk shall inform the Statewide Procurement Advisory Council of any such recent determinations by the chief clerk on any contract awards made in any open meeting attended by the council.
(4) A protest or appeal that is not filed timely shall not be considered unless good cause for delay is shown or the chief clerk determines that an appeal raises issues that are significant to agency procurement practices or procedures in general.
(5) A written decision that either the chief clerk or the general counsel has issued shall be the final administrative action of the comptroller's office.
(j) The office shall maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the office's retention schedule.
§20.385.Negotiation and Mediation of Contract Disputes.
The negotiation and mediation of breach of contract claims asserted by contractors against the State Procurement and Support Services Office shall be governed by Chapter 1, Subchapter F of this title (relating to Negotiation and Mediation of Contract Disputes).
§20.386.Statewide Procurement Advisory Council.
(a) Purpose. The Statewide Procurement Advisory Council is established under Government Code, §2155.087. The purpose of the council is to make recommendations to and advise the chief clerk in open meetings conducted by the chief clerk under §20.383 of this title (relating to Open Meetings for Certain Contract Awards), to make certain contract awards for the State Procurement and Support Services Office.
(b) Duties. The Statewide Procurement Advisory Council shall assist and advise the chief clerk in open meetings conducted under §20.383 of this title. The council shall make recommendations in these open meetings on proposed procurements, recommendations designed to increase the cost savings, efficiency and other benefits to the state of consolidated state procurement through the State Procurement and Support Services Office.
(c) Manner of reporting. The Statewide Procurement Advisory Council shall report to the chief clerk in open meetings conducted under §20.383 of this title.
(d) Duration. The Statewide Procurement Advisory Council is abolished on September 1, 2011, unless Government Code, §2155.087, establishing the council, or similar legislation, is otherwise continued by the 82nd Legislature, 2011.
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 June 25, 2007.
TRD-200702649
Martin Cherry
General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: August 5, 2007
For further information, please call: (512) 475-0387
The Comptroller of Public Accounts proposes new §20.391, concerning request for offers purchase method.
This new section is proposed under Texas Administrative Code, Title 34, Part 1, new Chapter 20: State Procurement and Support Services Office, Subchapter H: Purchase Methods, and relates to the functions and responsibilities of that Office, pursuant to House Bill 3560, 80th Legislature, 2007. House Bill 3560 is effective September 1, 2007. This new section is also proposed pursuant to House Bill 2918, 80th Legislature, 2007. House Bill 2918 is effective September 1, 2007.
House Bill 3560, transfers to the comptroller certain powers and duties of the Texas Building and Procurement Commission that do not primarily concern state facilities. Government Code, §2151.003(2) and §2151.004(d), transfer certain powers and duties of the Texas Building and Procurement Commission to the comptroller. Government Code, §2155.0011, transfers powers and duties under Chapter 2155, Government Code, to the comptroller and authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2155. Government Code, §2155.0012, requires the comptroller to conduct a public hearing before adopting those rules. Government Code, §2157.0011, transfers powers and duties under Government Code, Chapter 2157, to the comptroller and authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2157. Government Code, §2157.0012, requires the comptroller to conduct a public hearing before adopting those rules. Government Code, §2157.003, requires the commission, and therefore the comptroller due to the transfer of powers and duties, and state agencies to consider certain best value factors in determining the lowest overall cost for a purchase or lease of an automated information system.
House Bill 2918, amends certain provisions of the Government Code relating to state information technology procurement practices. Under that bill, amended Government Code, §2157.006, requires the Texas Building and Procurement Commission to adopt rules for designating best value purchasing methods for the state, including a request for offers method, under Government Code, §2157.006(c); since these duties and powers of the commission under Chapter 2157 were transferred to the comptroller, the comptroller is required to adopt these rules to designate best value purchase methods, including a request for offer method. Under that bill, the catalog purchase method is repealed.
John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government.
Mr. Heleman also has determined that for each year of the first five years the rule is in effect, it would benefit the public by consolidating certain state procurement and services within the comptroller, enhancing financial information about these activities. There is no significant anticipated economic cost to individuals who are required to comply with the proposed rule. There are no significant anticipated fiscal implications for small businesses.
Comments on the proposal may be submitted to Martin Cherry, General Counsel, General Counsel Division, P.O. Box 13528, Austin, Texas 78711-3528.
This new section is proposed under Government Code, §§2151.003, 2151.004, 2155.0011, 2155.0012, 2157.003, 2157.006, 2157.0011, and 2157.0012, which authorize the comptroller to adopt rules to efficiently and effectively administer these provisions.
This new section implements Government Code, §§2155.003, 2151.004, 2155.0011, 2155.0012, 2157.003, 2157.006, 2157.0011, and 2157.0012.
§20.391.Request for Offers Purchase Method.
(a) This section designates the request for offers purchase method for automated information systems by the State Procurement and Support Services Office, other state agencies or local governments as provided in Government Code, §§2157.003, 2157.006(a)(2), 2157.006(b), and 2157.068(i). This section applies regardless of dollar value of the procurement. The request for offers purchase method in this section supersedes the catalog purchase method repealed by House Bill 2918, 80th Legislature, 2007.
(b) As provided in Government Code, §2157.006(a)(2) and §2157.068(i), the State Procurement and Support Services Office and other state agencies shall use the request for offers purchase method under this section. As provided in Government Code, §2157.006(b), local governments may use the request for offers purchase method under this section. In procuring under this method, procuring entities shall use the best value factors as provided in Government Code, §2157.003.
(c) The request for offers method is a direct purchase or lease method after the procuring entity's evaluation of written offers received in response to a published open and competitive solicitation in accordance with the solicitation to result in best value to the state. Under this request for offers method, the State Procurement and Support Services Office, other state agencies or local governments shall solicit, evaluate, select, negotiate as appropriate, and contract directly with one or more qualified vendors in accordance with the open and competitive solicitation. In procuring under this request for offers method, the procuring entity shall also comply with the Request for Offers provisions in the office's State of Texas Procurement Manual or similar statewide publication.
(d) Qualified vendors are those that meet the minimum requirements of the published request for offers and are qualified to provide the automated information system goods or services solicited. For this purpose, qualified vendors do not have to be listed on the centralized master bidders list or maintain any type of online catalog.
(e) To initiate this request for offers method, the State Procurement and Support Services Office, other state agencies or local governments shall publish a written, open and competitive request for offers in the state business daily in accordance with Government Code, §2155.083. The procuring entity shall comply with Government Code, §2155.083, regardless of dollar value of the procurement. If the office, other agencies or local governments believe that the solicited goods or services may be proprietary to one vendor under Government Code, §2155.067, that procuring entity shall include the following statement in the request for offers published in the state business daily: "The issuing office believes that the requested items in this request for offers may be proprietary to one vendor under Government Code, §2155.067; however, the issuing office strongly encourages offers from all qualified respondents that may be able to provide the requested items". The procuring entity shall include this statement in bold and prominent type at the beginning of the request for offers.
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 June 25, 2007.
TRD-200702650
Martin Cherry
General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: August 5, 2007
For further information, please call: (512) 475-0387