Bill Text: TX HB923 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to historically underutilized businesses and to goods and services purchased by governmental entities.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2020-12-31 - Filed [HB923 Detail]

Download: Texas-2021-HB923-Introduced.html
  87R3371 MWC-D
 
  By: Reynolds H.B. No. 923
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to historically underutilized businesses and to goods and
  services purchased by governmental entities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2155.074(b), Government Code, is amended
  to read as follows:
         (b)  In determining the best value for the state, the
  purchase price and whether the goods or services meet
  specifications are the most important considerations. However, the
  comptroller or other state agency may, subject to Subsection (c)
  and Section 2155.075, consider other relevant factors, including:
               (1)  installation costs;
               (2)  life cycle costs;
               (3)  the quality and reliability of the goods and
  services;
               (4)  the delivery terms;
               (5)  indicators of probable vendor performance under
  the contract such as past vendor performance, the vendor's
  financial resources and ability to perform, the vendor's experience
  or demonstrated capability and responsibility, and the vendor's
  ability to provide reliable maintenance agreements and support;
               (6)  the cost of any employee training associated with
  a purchase;
               (7)  the effect of a purchase on agency productivity;
               (8)  the vendor's anticipated economic impact to the
  state or a subdivision of the state, including potential tax
  revenue and employment; [and]
               (9)  whether the vendor is a historically underutilized
  business as defined by Section 2161.001; and
               (10)   other factors relevant to determining the best
  value for the state in the context of a particular purchase.
         SECTION 2.  Sections 2155.444(a), (b), (c), and (e),
  Government Code, are amended to read as follows:
         (a)  The comptroller and all state agencies making purchases
  of goods, including agricultural products, shall give preference to
  those produced or grown in this state or offered by Texas bidders as
  follows:
               (1)  goods produced or offered by a Texas bidder that is
  a historically underutilized business [owned by a service-disabled
  veteran who is a Texas resident] shall be given a first preference
  and goods produced in this state or offered by other Texas bidders
  shall be given second preference, if the cost to the state and
  quality are equal; and
               (2)  agricultural products grown in this state shall be
  given first preference and agricultural products offered by Texas
  bidders shall be given second preference, if the cost to the state
  and quality are equal.
         (b)  If goods, including agricultural products, produced or
  grown in this state or offered by Texas bidders exceed 105 percent
  of the cost of other goods or are not equal in [cost and] quality to
  other products, then goods, including agricultural products,
  produced or grown in other states of the United States shall be
  given preference over foreign products if the cost to the state and
  quality are equal.
         (c)  In this section:
               (1)  "Agricultural products" includes textiles and
  other similar products.
               (2)  "Historically underutilized business" has the
  meaning assigned by Section 2161.001.
               [(1-a)  "Service-disabled veteran" means a person who
  is a veteran as defined by 38 U.S.C. Section 101(2) and who has a
  service-connected disability as defined by 38 U.S.C. Section
  101(16).]
               (3) [(2)]  "Texas bidder" means a business:
                     (A)  incorporated in this state;
                     (B)  that has its principal place of business in
  this state; or
                     (C)  that has an established physical presence in
  this state.
         (e)  The comptroller and all state agencies procuring
  services shall give first preference to services offered by a Texas
  bidder that is a historically underutilized business [owned by a
  service-disabled veteran who is a Texas resident] and shall give
  second preference to services offered by other Texas bidders if:
               (1)  the services meet state requirements regarding the
  service to be performed and expected quality; and
               (2)  the cost of the service does not exceed the cost of
  other similar services of similar expected quality that are offered
  by a bidder that is not entitled to a preference under this
  subsection.
         SECTION 3.  Section 2161.001, Government Code, is amended by
  amending Subdivision (3) and adding Subdivision (5) to read as
  follows:
               (3)  "Economically disadvantaged person" means a
  person who:
                     (A)  is economically disadvantaged because of the
  person's identification as a member of a certain group, including:
                           (i)  Black Americans;
                           (ii) Hispanic Americans;
                           (iii) women;
                           (iv) Asian Pacific Americans;
                           (v) Native Americans; and
                           (vi)  veterans as defined by 38 U.S.C.
  Section 101(2) who have [suffered at least] a [20 percent]
  service-connected disability as defined by 38 U.S.C. Section
  101(16); and
                     (B)  has suffered the effects of discriminatory
  practices or other similar insidious circumstances over which the
  person has no control.
               (5)  "Professional services" has the meaning assigned
  by Section 2254.002.
         SECTION 4.  Section 2161.064, Government Code, is amended by
  adding Subsection (f) to read as follows:
         (f)  A state agency may use the directory to create a mailing
  list for soliciting bids from historically underutilized
  businesses.  A state agency that determines the size of the
  acquisition justifies rotation may rotate the businesses included
  on the mailing list by using different portions of the directory for
  separate acquisitions of goods or services. A state agency
  rotating the businesses included on a solicitation mailing list
  shall solicit bids from:
               (1)  a bidder who was previously awarded the bid for the
  goods or services;
               (2)  each business added to the directory since the
  last solicitation; and
               (3)  each business included in the portion of the
  directory selected for the solicitation mailing list.
         SECTION 5.  Subchapter B, Chapter 2161, Government Code, is
  amended by adding Section 2161.067 to read as follows:
         Sec. 2161.067.  JOINT VENTURES. (a) In this section:
               (1)  "Eligible purchase" means a purchase of goods or
  services that:
                     (A)  a state agency determines is eligible for a
  joint venture based on work and market availability; and
                     (B)  exceeds the minimum dollar value provided by
  comptroller rule.
               (2)  "Joint venture" means an association of two or
  more individuals or businesses, at least one of which is a
  historically underutilized business, that is:
                     (A)  established to engage in a single business
  activity;
                     (B)  certified as a joint venture by the
  comptroller; and
                     (C)  limited in scope and duration.
         (b)  Each state agency shall determine whether a purchase of
  goods or services is an eligible purchase for which the agency is
  required to make a good faith effort to award the contract to a
  joint venture. The agency may not accept a contract bid submitted
  by any bidder other than a joint venture unless the agency
  determines, based on the relevant facts, documents, and
  circumstances, that the agency made a good faith effort to award the
  contract to a joint venture.
         (c)  A contract for a joint venture must be in writing and:
               (1)  be based on shared economic interests in the
  venture, including proportionate control over management, interest
  in capital acquired by the joint venture, and interest in earnings;
               (2)  be completed by all parties to the joint venture;
               (3)  be executed before a notary public;
               (4)  clearly delineate the rights and responsibilities
  of each party;
               (5)  comply with any requirements of the comptroller as
  provided in bid documents or otherwise; and
               (6)  provide that the joint venture continue for at
  least the duration of the eligible purchase.
         (d)  The comptroller using available resources shall select
  for review a random sampling of state agency joint venture
  determinations made under Subsection (b).
         (e)  A state agency selected by the comptroller under
  Subsection (d), the joint venture, and each party to the joint
  venture shall provide the comptroller access to all records
  pertaining to joint venture agreements before and after the
  agency's award of a contract to the joint venture to reasonably
  assess compliance with this section.
         (f)  A party to a joint venture who fails to comply with this
  section, and whose failure to comply continues for at least 30 days
  after the date the party receives written notice of the
  noncompliance from the comptroller, is subject to any or all of the
  following penalties:
               (1)  withholding of 10 percent of all future payments
  for the eligible purchase until the comptroller determines the
  party is in compliance with this section;
               (2)  withholding of all future payments under the
  eligible purchase until the comptroller determines the party is in
  compliance with this section;
               (3)  cancellation of the eligible purchase; and
               (4)  ineligibility for future contracts or
  subcontracts with this state for one to five years after the date on
  which the penalty is imposed.
         SECTION 6.  Section 2161.252, Government Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  A historically underutilized business subcontracting
  plan must require the contractor to accept bids, proposals, offers,
  or other applicable expressions from historically underutilized
  businesses for not less than 10 working days after the date the
  contractor notifies the businesses of the subcontracting
  opportunity. This subsection does not apply to a professional
  services contract.
         SECTION 7.  Section 2254.002(2), Government Code, is amended
  to read as follows:
               (2)  "Professional services" means services:
                     (A)  within the scope of the practice, as defined
  by state law, of:
                           (i)  accounting;
                           (ii)  architecture;
                           (iii)  landscape architecture;
                           (iv)  land surveying;
                           (v)  medicine;
                           (vi)  optometry;
                           (vii)  professional engineering;
                           (viii)  real estate appraising; or
                           (ix)  professional nursing;
                     (B)  provided in connection with the professional
  employment or practice of a person who is licensed or registered as:
                           (i)  a certified public accountant;
                           (ii)  an architect;
                           (iii)  a landscape architect;
                           (iv)  a land surveyor;
                           (v)  a physician, including a surgeon;
                           (vi)  an optometrist;
                           (vii)  a professional engineer;
                           (viii)  a state certified or state licensed
  real estate appraiser; [or]
                           (ix)  a registered nurse; or
                           (x)  an attorney; or
                     (C)  provided by a person lawfully engaged in
  interior design, regardless of whether the person is registered as
  an interior designer under Chapter 1053, Occupations Code.
         SECTION 8.  Section 2254.154, Government Code, is repealed.
         SECTION 9.  (a) Not later than December 1, 2021, the
  comptroller of public accounts shall adopt the rules required to
  implement the changes in law made by this Act.
         (b)  Chapters 2155 and 2161, Government Code, as amended by
  this Act, apply only to a purchase of goods or services or a
  contract entered into on or after January 1, 2022.
         SECTION 10.  This Act takes effect September 1, 2021.
feedback