PART 7. TEXAS COUNCIL ON PURCHASING FROM PEOPLE WITH DISABILITIES
CHAPTER 189. PURCHASES OF PRODUCTS AND SERVICES FROM PEOPLE WITH DISABILITIES
40 TAC §§189.2 - 189.4, 189.7, 189.8, 189.11
The Texas Council on Purchasing from People with Disabilities (council) adopts amendments to §§189.2 - 189.4, 189.7, 189.8, and 189.11, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8308).
The amendments to §189.2, regarding definitions, remove the definition of Texas Building and Procurement Commission (commission) and replace it with Comptroller of Public Accounts (comptroller). This is due to House Bill 3560, 80th Legislature, 2007, which transferred the state procurement functions to the comptroller and renamed the commission to the Texas Facilities Commission. The comptroller now provides the administrative assistance to the council that the commission used to provide. The amendments also remove the word "price" from the definition of "exception" in order to clarify the rule in accordance with statute. State law does not provide an exception for price. Instead, the council is charged with ensuring that products and services sold through the council's programs are priced at a fair market price.
The amendments to §189.3, regarding organization, remove the references to the commission and replace them with comptroller.
The amendments to §189.4, regarding ethical standards, replace the executive director of the commission with the deputy comptroller.
The amendments to §189.7, regarding contracting with central non-profit agencies, §189.8, regarding product specifications and exceptions, and §189.11, regarding records, remove the references to commission and replace them the comptroller.
The council received written comments from Mr. Floyd Self regarding the proposed amendments and the council's programs. The commenter's statements are summarized below, followed by the council's responses.
The commenter asked for the statutory basis for not providing an exception for price.
Response: Exceptions to the requirement to purchase goods and services through the council's programs are in §122.106, Human Resources Code. Price is not an exception in this statute.
The commenter raised questions regarding the definition and determination of "fair market pricing" by the council.
Response: There is not a definition for this term, but instead a process for arriving at the fair market value for each good and service. The process is set out in §122.015, Human Resources Code, and §189.9 of this title.
The commenter expressed a concern about removal of the word "price" from one section of the statute and not all sections.
Response: The council is not removing the word "price" from any statute. Price is considered in determining fair market value. However, price is not a statutory exception to buying a good or service from another source when it is available through the council's programs.
The commenter stated that "price" is a part of "best value" determination by definition in the purchasing statutes, and that removal of "price" in association with any procurement decision is not rational.
Response: Price is absolutely considered when the council determines the fair market value for the goods and services available through the council's programs. These rule amendments are simply to synchronize the exceptions to purchasing from the programs with the state law. These amendments do not affect the determination of price at all.
The commenter disagreed with council's "determination that there will be no fiscal implications for the state or local governments as a result of enforcing or administering these amended rules", and stated that he believes the council's programs as currently implemented are no longer effective.
Response: The council strongly disagrees with these comments. However, these comments are far beyond the scope of the amendments. The amendments clean up the rules to acknowledge that the Texas Building and Procurement Commission was dissolved and to synchronize the exceptions with statute.
These amendments are adopted under Human Resources Code, §122.013, which authorizes the council to adopt rules for the implementation, extension, administration, or improvement of the program authorized by Chapter 122.
The amendments implement Human Resources Code, Chapter 122.
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 December 16, 2008.
TRD-200806534
David D. Duncan
Deputy General Counsel
Texas Council on Purchasing from People with Disabilities
Effective date: January 5, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 463-3562
CHAPTER 604. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM
The State Pension Review Board (PRB) adopts amendments to 40 TAC §604.1, Historically Underutilized Businesses. The amended section is adopted without changes to the proposed text as published in the October 10, 2008, issue of the Texas Register (33 TexReg 8483). The section will not be republished.
The adopted amendment is to change the reference to the rules adopted by reference from the Texas Building and Procurement Commission, 1 TAC Part 5, §§111.11 - 111.28, to the Comptroller of Public Accounts, 34 TAC Part 1, Chapter 20, Subchapter B. These changes to the text are non-substantive, and they affect no new parties or subjects of regulation.
No comments were received on the proposed amendment.
The amendment is adopted under the rulemaking authority provided in Texas Government Code, Title 8, Subtitle A and §2161.003, which requires that the Board adopt the Comptroller of Public Accounts' rules for Historically Underutilized Businesses. Section 802.201 of the Texas Government Code provides that the Board shall adopt rules for the conduct of business.
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 December 18, 2008.
TRD-200806569
Lynda Baker
Staff Services Officer
State Pension Review Board
Effective date: January 7, 2009
Proposal publication date: October 10, 2008
For further information, please call: (512) 463-1736