PART 5. TEXAS FACILITIES COMMISSION
CHAPTER 111. EXECUTIVE ADMINISTRATION DIVISION
SUBCHAPTER A. ADMINISTRATION
The Texas Facilities Commission (Commission) adopts the repeal of Chapter 111, Subchapter A, §§111.1 - 111.8, concerning administration. The repeal is adopted without changes to the proposal as published in the June 6, 2008, issue of the Texas Register (33 TexReg 4401).
Justification for the Repeal.
During the Commission's statutorily required rule review of Chapter 111, Commission staff determined that the chapter should be repealed in its entirety and replaced with a new chapter. A concurrent notice of adopted new rules may be found in this issue of the Texas Register. Complete comments on the Commission's review of Chapter 111 may be found in the Review of Agency Rules section of the June 6, 2008, issue of the Texas Register (33 TexReg 4534).
Summary of Comments.
No comments were received during the 30-day comment period.
Statutory Authority.
The repeal is adopted under Texas Government Code §§661.002(c) (Vernon 2004); 2001.004(1), 2001.021(b), 2001.039(c) (Vernon 2000); 2152.060(a), 2152.064(c) (Vernon Supp. 2007); 2155.076(a) (Vernon 2000); and 2260.052(c) (Vernon Supp. 2007).
Cross Reference to Statute.
The statutory provisions affected by the adopted repeal are Texas Government Code §§661.002 (Vernon 2004); 2001.021 (Vernon 2000); 2152.060, 2152.064 (Vernon Supp. 2007); 2155.076 (Vernon 2000); and 2260.052 (Vernon Supp. 2007).
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 July 18, 2008.
TRD-200803669
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 7, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 463-7220
The Texas Facilities Commission (Commission) adopts new Chapter 111, Subchapter A, §111.1 and §111.2, Subchapter B, §§111.20 - 111.24, Subchapter C, §§111.30 - 111.32, and Subchapter D, §111.40 and §111.41 which govern the administrative functions of the Commission. Sections 111.20, 111.21, and 111.31 are adopted with changes to the proposed text, as published in the June 6, 2008, issue of the Texas Register (33 TexReg 4402). Sections 111.1, 111.2, 111.22 - 111.24, 111.30, 111.32, 111.40, and 111.41 are adopted without changes to the proposed text and will not be republished.
Justification for the New Rules.
The new chapter organizes the Commission's rules in a concise, logical manner; provides the Commission the ability to expand the chapter as needed; and satisfies the Commission's statutorily required duty to adopt certain rules.
New Subchapter A is entitled Organization and contains §111.1 and §111.2. These sections set out the organization of the Commission and provide a general delegation of authority to the Executive Director for the day-to-day operations of the agency.
New Subchapter B is entitled General Provisions and contains §§111.20 - 111.24. These sections set out the Commission's rules concerning ethics, historically underutilized businesses, petition for adoption of rules, a sick leave pool, and procedures concerning the training and education of Commission employees. Section 111.20 and §111.21 both incorporate by reference the rules of another state agency and are adopted with changes. The changes are nonsubstantive and are intended to conform the rules to the citation format of the Texas Administrative Code and to make the rules consistent within Chapter 111.
New Subchapter C is entitled Complaints and Dispute Resolution and contains §§111.30 - 111.32. These sections set out procedures for submitting complaints, for negotiation and mediation of certain contract disputes, and for bid protests, dispute resolution and hearings. Section 111.31 incorporates by reference the rules of another state agency and is adopted with changes. The changes are nonsubstantive and are intended to conform the rule to the citation format of the Texas Administrative Code and to make the rules consistent within Chapter 111.
New Subchapter D is entitled Vehicles and contains §111.40 and §111.41. These sections concern the Commission's management of its fleet vehicles and the procedures for the assignment and use of pooled vehicles.
Summary of Comments.
No comments were received during the 30-day comment period.
SUBCHAPTER A. ORGANIZATION
Statutory Authority
The new rules are adopted under Texas Government Code §2001.004(1) (Vernon 2000), which requires state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures.
Cross Reference to Statute.
The statutory provisions affected by the adopted rules are Texas Government Code §§2152.051 (Vernon Supp. 2007), 2152.101 (Vernon 2000), and 2152.103 (Vernon 2000).
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 July 18, 2008.
TRD-200803670
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 7, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 463-7220
Statutory Authority
The new rules are adopted under Texas Government Code §§656.048(a) (Vernon 2004) (employee training and education), 661.002(c) (Vernon 2004) (sick leave pool), 2001.004(1) (Vernon 2000) (rules of practice and procedures), 2001.021(b) (Vernon 2000) (petition for adoption of rules), 2152.064(c) (Vernon Supp. 2007) (ethics rules), and 2161.003 (Vernon 2000) (historically underutilized businesses program), which require the Commission to promulgate rules.
Cross Reference to Statute.
The statutory provisions affected by the adopted rules are Texas Government Code §§656.048 (Vernon 2004), 661.002 (Vernon 2004), 2001.004 (Vernon 2000), 2001.021 (Vernon 2000), 2152.064 (Vernon Supp. 2007), and 2161.003 (Vernon 2000).
§111.20.Ethical Standards.
The Commission adopts by reference the rules of the Texas Ethics Commission in 1 TAC Part 2, Chapter 45 (relating to Conflicts of Interest). The Texas Ethics Commission rules are located at the Office of the Secretary of State's internet website: www.sos.state.tx.us/tac/index.html. The Texas Ethics Commission has specific rulemaking authority relating to the ethical standards set out in Texas Government Code §2152.064 relating to conflicts of interest in certain transactions by the Texas Facilities Commission.
§111.21.Historically Underutilized Businesses.
In accordance with Texas Government Code §2161.003, the Commission adopts by reference the rules of the Comptroller of Public Accounts in 34 TAC Part 1, Chapter 20, Subchapter B (relating to the Historically Underutilized Business Program). The Comptroller of Public Accounts rules are located at the Office of the Secretary of State's internet website: www.sos.state.tx.us/tac/index.html.
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 July 18, 2008.
TRD-200803671
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 7, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 463-7220
Statutory Authority.
The new rules are adopted under Texas Government Code §§2152.060(a) (Vernon Supp. 2007) (complaints), 2155.076(a) (Vernon 2000) (bid protests, dispute resolution, and hearings), and 2260.052(c) (Vernon Supp. 2007) (negotiation and mediation of contract disputes), which require the Commission to promulgate rules.
Cross Reference to Statute.
The statutory provisions affected by the adopted rules are Texas Government Code §§2152.060 (Vernon Supp. 2007), 2155.076 (Vernon 2000), and 2260.052 (Vernon Supp. 2007).
§111.31.Negotiation and Mediation of Certain Contract Disputes.
(a) The Commission adopts by reference the rules of the Office of the Attorney General in 1 TAC Part 3, Chapter 68 (relating to Negotiation and Mediation of Certain Contract Disputes). The Office of the Attorney General rules are located at the Office of the Secretary of State's internet website: www.sos.state.tx.us/tac/index.html.
(b) The rules set forth a process to permit parties to structure a negotiation or mediation in a manner that is most appropriate for a particular dispute regardless of contract's complexity, subject matter, dollar amount, or method and time of performance.
(c) The adoption of this rule is required by Texas Government Code, Chapter 2260, §2260.052(c).
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 July 18, 2008.
TRD-200803672
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 7, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 463-7220
Statutory Authority.
The new rules are adopted under Texas Government Code §2171.1045 (Vernon 2000), which requires the Commission to promulgate rules relating to vehicle assignment and use.
Cross Reference to Statute.
The statutory provision affected by the adopted rules is Texas Government Code §2171.1045 (Vernon 2000).
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 July 18, 2008.
TRD-200803673
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 7, 2008
Proposal publication date: June 6, 2008
For further information, please call: (512) 463-7220
SUBCHAPTER A. STATE LEASED PROPERTY
1 TAC §§115.1 - 115.3, 115.8, 115.10, 115.13
The Texas Facilities Commission (Commission) adopts amendments to §§115.1 - 115.3, 115.8, and 115.10 which governs leasing facilities for the use and benefit of state agencies; and adopts new §115.13, entitled Best Value Guidelines, which establishes guidelines for determining best value in procurement of leased space. Section 115.8 and new §115.13 are adopted with changes to the proposed text, as published in the May 2, 2008, issue of the Texas Register (33 TexReg 3503). The amendments to §§115.1 - 115.3 and 115.10 are adopted without changes to the proposed text and that text will not be republished.
The amendments update references to the Commission's agency name; delete definitions that are no longer in use in this chapter; and correct typographical errors, including reformatting. In addition, the amendments relate to state agency requests for lease space when state-owned space is not available. Furthermore, a new §115.13 establishes guidelines to evaluate proposed lease properties and identify the best value to the State of Texas.
Section 115.1 defines terms used in this chapter. Section 115.2 establishes prerequisites to leasing space, such as state agency requests for lease space and certification of availability of funds. Section 115.3 specifically addresses requests for leasing space by Health and Human Services Commission agencies. Section 115.8 imposes certain requirements on private firms used by the Commission to obtain lease space, including disclosure of any potential conflicts of interest. Section 115.10 discusses tenant agency responsibilities and reporting with respect to leased space. Also, pursuant to statutory rulemaking requirements, a new §115.13, entitled Best Value Guidelines, is added to outline in greater detail the factors considered when the Commission evaluates responses to solicitations associated with the procurement of lease space for the use and benefit of state agencies under Texas Government Code, Chapter 2167 and makes a best value determination on which a solicitation award is based. The Commission makes corrections to the typographical errors found in §115.13(b)(7) by adding the word "of" between the words "security" and "premises"; and in §115.13(c) the word "file" is added between the words "lease" and "of" in the last sentence.
The comment period ended June 2, 2008. One informal comment was received in regards to typographical errors. The Commission agrees and will make the necessary changes to §115.13(b)(7) and §115.13(c).
The amendments and new section are adopted under the Texas Government Code, §2167.0021(b) (Vernon 2000) and §2167.008 (Vernon Supp. 2007), which requires the Commission to adopt rules establishing guidelines to determine best value in lease transactions and to adopt rules necessary to the administration of Commission duties related to State leases.
§115.8.Use of Private Firms to Obtain Space.
(a) Any entity that provides lease services to the Commission shall immediately disclose any conflict of interest in a transaction to all parties and shall withdraw from all matters related to the conflict. Final determination of a conflict of interest shall be made by the Commission.
(b) No broker, real estate firm, tenant representative or entity representing the state as an agent in a leasing matter may, during the term of the agency, simultaneously represent, participate or profit from the actions of buyers, sellers, owners or any other entity that possesses an interest in any lease in which the Commissioner is the lessor.
§115.13.Best Value Guidelines.
(a) The Commission shall develop procedures, deadlines, site analyses and market analyses to ensure that recommendations for lease procurements reflect the best value to the State of Texas.
(b) In determining the specific procedures to be used to evaluate the properties and identification of the best value to the state, the Commission shall develop and maintain documents in the permanent lease file of the Commission detailing its evaluation of each of the following criteria for all qualified sites selected for final consideration:
(1) analysis of the total cost of occupancy offered by the proposed Lessor;
(2) utility costs;
(3) age, type and condition of the premises;
(4) costs, if any, of improvements required to meet the approved agency specifications;
(5) location of the property and access to public facilities and transportation;
(6) access to and cost of parking;
(7) security of premises;
(8) space planning considerations including implementation of the Facilities Master Plan and space consolidation options;
(9) direct and indirect costs of relocation; and
(10) any other considerations relevant to the approved agency specifications and existing market conditions.
(c) Prior to making a recommendation to the Commission, an assessment of the proposed Lessor shall be performed to determine the relevant experience, financial condition, and history of bankruptcy, litigation and judgments involving the proposed Lessor, and, as appropriate, its owners, officers, directors, subsidiaries, affiliates, or predecessors that may be relevant indicators of proposed Lessor's ability to perform under the lease contract. The findings of this inquiry shall be maintained in the permanent lease file of 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 July 16, 2008.
TRD-200803653
Kay Molina
General Counsel
Texas Facilities Commission
Effective date: August 5, 2008
Proposal publication date: May 2, 2008
For further information, please call: (512) 463-7220