Part 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES
Chapter 104. PURCHASE OF GOODS AND SERVICES BY THE DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES
The Texas Health and Human Services Commission ("HHSC") proposes amendments to Title 40, Part 2, Chapter 104, of the rules of the Department of Assistive and Rehabilitative Services ("DARS"). This proposal amends Subchapter C, Purchase of Goods and Services, §104.255, Definitions, and Subchapter J, Protest Procedures, §104.301, Availability of Protest Procedures.
DARS' current §104.301 contains requirements for potential contractors to protest nonselection for a purchase award, in accordance with requirements of Title 1, Texas Administrative Code (TAC), Part 15, Chapter 391. As allowed by Title 1, TAC, Part 15, Chapter 391, DARS is proposing to amend §104.255 and §104.301 to establish streamlined procedures for potential contractors to protest nonselection for informal competitive procurements, which are competitive procurements with a dollar value of $25,000 or less.
In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year rule review of Chapter 104 of Title 40, Part 2, of DARS rules. Chapter 104 consists of Subchapter C, Purchase of Goods and Services, §§104.251, 104.253, 104.255, 104.257, 104.259, 104.261, and 104.263, and Subchapter J, Protest Procedures, §104.301. DARS has determined that the reasons for initially adopting these rules continue to exist for the reasons detailed above. However, the rules review identified areas where amendments were needed to further define and streamline the protest procedures in accordance with state law. The proposed rule review of Chapter 104 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863).
Bill Wheeler, Chief Financial Officer, Texas Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the proposed rules will be in effect, there will be no foreseeable fiscal implications for state or local government as a result of enforcing or administering the rules thereto.
Mr. Wheeler has determined that for each year of the first five years the proposed rules and will be in effect, the public benefit anticipated as a result of enforcing the rules will be a more effective and streamlined process for potential contractors to protest nonselection for informal competitive procurements.
Mr. Wheeler has also determined that there will be no probable economic cost to persons who are required to comply with the proposed rules. Further, in accordance with Texas Government Code §2001.022, he has determined that the proposed rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses.
Written comments on the proposed rules and the four-year rule review which proposes readoption of the rules and readoption of §104.255 and §104.301 with amendments may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Texas Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756.
Subchapter C. PURCHASE OF GOODS AND SERVICES
The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code §531.033 and §2155.144, which grant HHSC the authority to promulgate rules for the acquisition of goods and services, and Texas Government Code §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
No other statute, article, or code is affected by this proposal.
§104.255.Definitions.
The following words and terms, when used in this chapter and Chapter 101 of this title (relating to Administrative Rules and Procedures), have the following meanings, unless the context clearly indicates otherwise:
(1) Award--The act of communicating acceptance of a bid or offer to the bidder or offeror, thereby forming a contract. The term also applies to the act of communicating acceptance of a grant proposal.
(2) Bid--An offer to contract with the state submitted in response to a bid invitation.
(3) Bona fide Emergency--A purchase of goods or services required as a direct result of an emergency that constitutes an immediate threat to public health or safety or which creates an imminent risk of loss to the purchasing entity that the entity documents and justifies in the procurement record.
(4)
[
(3)
] Competition--The effort
or action of two or more entities to gain commercial advantage and
thereby obtain the same business from the state. For purposes of state
contracts, competition must be open, equitable and just as between
competitors. Competition also refers to a contract or purchasing action
in which two or more qualified or responsible vendors, acting independently,
may be solicited to supply goods or services on acceptable terms and
under a procedure that allows the simultaneous, comparative evaluation
of bids, proposals, offers, quotes, or other suitable expressions
of interest by a vendor.
(5)
[
(4)
] Contract--A promise,
or a set of promises, for breach of which the law gives a remedy,
or the performance of which the law in some way recognizes as a duty.
It is an agreement between two or more parties creating obligations
that are enforceable or otherwise recognizable at law. The term also
encompasses the written document that describes the terms of the agreement.
For state contracting purposes, it generally describes the terms of
a purchase of goods and/or services from a vendor or service provider;
however, the term also encompasses grant arrangements.
(6)
[
(5)
] Contractor--An entity
or person holding a written agreement with a purchasing entity to
provide goods and services; or a recipient or sub-recipient holding
a written agreement with a grantor or sub-recipient to carry out all
or part of a program.
(7)
[
(6)
] DARS--The Department
of Assistive and Rehabilitative Services
.
(8) Formal Competitive Procurement--A competitive procurement with an estimated value that equals or exceeds the value required for posting the solicitation on the Electronic State Business Daily.
(9)
[
(7)
] Goods--A transportable
article of trade or commerce that can be bartered or sold. Goods do
not include services or real property. For health and human services
agencies, goods does not include:
(A) goods within the definition of "automated information system" under Chapter 2157, Government Code;
(B) goods obtained under an Interagency Contract or an Interlocal Contract; or
(C) goods used in support of a health and human services agency's health care programs and acquired under §2155.144, Government Code.
(10)
[
(8)
] HHSC--Health and Human Services Commission.
(11) Informal Competitive Procurement--A competitive procurement with a value that is less than the value required for posting the solicitation on the Electronic State Business Daily.
(12) Notice of Award--For a formal competitive procurement, a written notice that is sent to a bidder or offeror notifying the bidder or offeror that they have been awarded a purchase. For an informal competitive procurement, a verbal or written notification that is provided to a bidder or offeror notifying the bidder or offeror that they have been awarded a purchase.
(13)
[
(9)
] Notice of Provider
Enrollment (NPE)--Notice announcing the availability of a provider
enrollment opportunity.
(14)
[
(10)
] Offer--A proposal
by one party to another that invites the other party to accept. An
offer may consist of a proposal to sell something, buy something,
take some action, or refrain from doing something. If the offer is
accepted and there is an exchange of consideration, a contract is created.
(15)
[
(11)
] Procurement--The
acquisition of goods or services. Procurement can refer to the act
of obtaining something through effort, and therefore does not necessarily
involve the exchange of consideration or create a contract. The term
is broader than purchasing, which has the connotation of an exchange
of consideration (i.e., buying), but the terms are generally used
interchangeably.
(16)
[
(12)
] Provider--An individual
or business entity that supplies goods or services to a purchasing
entity under an agreement or contract to provide such goods or services.
(17)
[
(13)
] Proposal--Binding
offer submitted by a respondent in response to a Request for Proposals
(RFP).
(18)
[
(14)
] Purchase Order--A
written document issued by DARS to accept a bid or an offer, thereby
creating an agreement between the bidder or offeror and DARS.
(19)
[
(15)
] Solicitation--A document
requesting submittal of bids or proposals for goods or services in
accordance with the advertised specifications. May also apply to grant
arrangements.
(20)
[
(16)
] Subcontract--A written
agreement between the original contractor and a third party to provide
all or a specified part of the goods, services, work, and materials
required in the original contract.
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 March 6, 2008.
TRD-200801328
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Earliest possible date of adoption: April 20, 2008
For further information, please call: (512) 424-4050
The amendments are proposed pursuant to HHSC's statutory rulemaking authority under Texas Government Code §531.033 and §2155.144, which grant HHSC the authority to promulgate rules for the acquisition of goods and services, and Texas Government Code §531.0055(e), which provide the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
No other statute, article, or code is affected by this proposal.
§104.301.Availability of Protest Procedures.
(a) A potential recipient of a purchase award may protest a purchase award under the following circumstances:
(1) the purchase award was made under a formal or informal competitive procurement method in accordance with 1 TAC Chapter 391 (relating to Purchase of Goods and Services by Health and Human Services Agencies), and the potential recipient submitted a bid or proposal that was not selected for the award; or
(2) the purchase award was a sole source or emergency procurement.
(b) The protest must be limited to matters relating to the protester's qualifications, the suitability of the goods or services offered by the protester or alleged irregularities in the procurement process.
(c) Protesters must submit written protests to the Department of Assistive and Rehabilitative Services (DARS) designated purchaser.
(d) In order for the protest to be evaluated on its merits, it must state:
(1) the protester's company name; [:]
(2) specific action the protester is requesting be reconsidered;
(3) how the decision, action, or inaction by DARS violated published DARS policy, or state or federal laws and regulations regarding procurement;
(4) the protester's claim with specific supporting information such as references to pertinent parts of the original request for proposal, offer, bid, or the award documents;
(5) an explanation of the facts under disagreement; and
(6) the subsequent action the protester is requesting.
(e) The written protest must be signed by the protester or the protester's authorized representative.
[(1) signed by the protester
or the protester's authorized representative and]
[(2) delivered by hand,
certified mail return receipt requested, facsimile or other verifiable
delivery service.]
[(f) DARS must receive
the protest no later than seven calendar days after DARS' notice of
decision to execute a purchase award.]
(f) [(g)] Failure to comply with any of the requirements in [
subsections (a) - (f) of
] this section will result in dismissal of the protest.
(g) The DARS staff member who is making the decision regarding the protest may, at his or her sole discretion, request supplemental oral or written information from the protester or DARS staff if needed, to evaluate the protest.
[(h) The DARS Commissioner
or designee will review the protest and issue a final determination
regarding the protest. The Commissioner or designee may, at his or
her sole discretion, request supplemental oral or written information
from the protester or DARS staff if the information is necessary to
evaluate the protest.]
(h) [(i)] DARS limits the review
of the protest to a desk review of: [the materials
supplied by the protester and the DARS staff that made the award decision.
]
(1) the materials supplied by the protester and the DARS staff member who made the award decision; and
(2) any supplemental oral or written information requested by DARS and provided by the protester or DARS staff member.
[(j) DARS sends the protester
a written notice of the final determination within 30 days of receiving
the written protest.]
(i) [(k)] DARS will not execute
a purchase award for a purchase that is the subject of a protest filed
in accordance with this section until DARS provides the protester
with a written disposition of the protest. DARS may execute a purchase
award when there is a pending protest if there is a bona fide emergency
or when state or federal laws require a purchase to be awarded by
a particular date.
(j) [(l)] DARS's decision on
the protest is the final administrative action taken by DARS.
(k) [(m)] This section does not
grant any additional standing or right for an unsuccessful or prospective
bidder to protest the award of a contract than otherwise exists in law.
(l) [(n)] The right to protest
non-selection for a purchase award does not apply to:
(1) the award of grants or subcontracts;
(2) goods or services purchased pursuant to the Interagency Cooperation Act, Chapter 771, Government Code, or Interlocal Cooperation Act, Chapter 791, Government Code;
(3) the lease, purchase, or lease-purchase of real property;
(4) interstate or international agreements executed in accordance with applicable law; or
(5) goods or services purchased under contracts or processes administered by any other state agency.
(m) The following protest procedures are for purchase awards made under a formal competitive procurement.
(1) The protester must deliver the written protest to DARS by hand, certified mail return receipt requested, facsimile, or other verifiable delivery service.
(2) DARS must receive the protest no later than seven calendar days after DARS's notice of decision to execute a purchase award.
(3) The DARS commissioner or designee reviews the protest and issues a final determination regarding the protest.
(4) DARS sends the protester a written notice of the final determination within 30 days after receiving the written protest.
(n) The following protest procedures are for purchase awards made under an informal competitive procurement.
(1) The protester must deliver the written protest to DARS by email, hand, facsimile, or other verifiable delivery service.
(2) DARS must receive the protest no later than 24 hours, excluding weekends and state and federal holidays, after the time and date by which DARS told potential recipients that a decision would be made regarding the purchase award.
(3) The DARS purchasing manager reviews the protest and issues a final determination regarding the protest.
(4) The purchasing manager sends the protester a written notice of the final determination within 1 workday after the purchasing manager receives the written protest.
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 March 6, 2008.
TRD-200801329
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Earliest possible date of adoption: April 20, 2008
For further information, please call: (512) 424-4050