Bill Text: TX SB20 | 2015-2016 | 84th Legislature | Comm Sub


Bill Title: Relating to state agency contracting; authorizing fees; creating an offense.

Spectrum: Bipartisan Bill

Status: (Engrossed) 2015-05-24 - House appoints conferees-reported [SB20 Detail]

Download: Texas-2015-SB20-Comm_Sub.html
  84R28652 YDB-D
 
  By: Nelson, et al. S.B. No. 20
 
  (Price, Cook, Raymond, Kuempel)
 
  Substitute the following for S.B. No. 20:  No.
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to state agency contracting; authorizing fees; creating an
  offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 321.013, Government Code, is amended by
  adding Subsections (k) and (l) to read as follows:
         (k)  In devising the audit plan under Subsection (c), the
  State Auditor shall consider the performance of audits on contracts
  entered into by the Health and Human Services Commission that
  exceed $100 million in annual value, including a contract between
  the commission and a managed care organization. The State Auditor
  shall collaborate with the financial managers in the Medicaid/CHIP
  Division of the commission in performing an audit described by this
  subsection.  An audit described by this subsection:
               (1)  may be limited in scope to target an area of the
  contract that the State Auditor determines poses the highest
  financial risk to this state; and
               (2)  must determine whether the entity contracting with
  the commission has spent state money in accordance with the
  purposes authorized in the contract.
         (l)  The State Auditor may contract with a private auditor to
  audit a contract under Subsection (k).
         SECTION 2.  Subchapter B, Chapter 403, Government Code, is
  amended by adding Section 403.03057 to read as follows:
         Sec. 403.03057.  CENTRALIZED STATE PURCHASING STUDY.
  (a)  The comptroller, in cooperation with the governor's budget and
  policy staff, shall conduct a study examining the feasibility and
  practicality of consolidating state purchasing functions into
  fewer state agencies or one state agency. The study must examine
  the cost savings to this state that may be achieved through:
               (1)  abolishing offices or departments of state
  agencies that have a dedicated office or department for purchasing;
  and
               (2)  consolidating or reducing the number of vendors
  authorized to contract with this state to allow this state to better
  leverage its purchasing power.
         (b)  The comptroller shall prepare and deliver to the
  governor, the lieutenant governor, and each member of the
  legislature a report on the findings of the study conducted under
  Subsection (a), including:
               (1)  a detailed projection of expected savings or costs
  to this state in consolidating state purchasing;
               (2)  a report on the process for the legislature or the
  executive branch to implement the consolidation of state
  purchasing;
               (3)  a list of state agencies, including dedicated
  offices or departments in those agencies, with purchasing
  responsibilities; and
               (4)  the total cost to this state of the purchasing
  responsibilities for each state agency, including the dedicated
  office or department in the agency with purchasing responsibility.
         (c)  The comptroller shall prepare, deliver, and post on the
  comptroller's Internet website the report required by this section
  not later than December 31, 2016.
         (d)  The comptroller may contract with a public or private
  entity to conduct the study required by this section.
         (e)  This section expires January 1, 2018.
         SECTION 3.  Subchapter L, Chapter 441, Government Code, is
  amended by adding Section 441.1855 to read as follows:
         Sec. 441.1855.  RETENTION OF CONTRACT AND RELATED DOCUMENTS
  BY STATE AGENCIES. Notwithstanding Section 441.185 or 441.187, a
  state agency:
               (1)  shall retain in its records each contract entered
  into by the state agency and all contract solicitation documents
  related to the contract; and
               (2)  may destroy the contract and documents only after
  the seventh anniversary of the date:
                     (A)  the contract is completed or expires; or
                     (B)  all issues that arise from any litigation,
  claim, negotiation, audit, open records request, administrative
  review, or other action involving the contract or documents are
  resolved.
         SECTION 4.  Subchapter C, Chapter 572, Government Code, is
  amended by adding Section 572.069 to read as follows:
         Sec. 572.069.  CERTAIN EMPLOYMENT FOR FORMER STATE OFFICER
  OR EMPLOYEE RESTRICTED; CRIMINAL PENALTY. (a)  A former state
  officer or employee of a state agency who during the period of state
  service or employment participated on behalf of a state agency as an
  evaluation team member or other decision maker in determining the
  person to whom a contract should be awarded during the procurement
  or contract negotiation may not accept employment from that person
  before the second anniversary of the date the officer's or
  employee's service or employment with the state agency ceased.
         (b)  An individual commits an offense if the individual
  violates this section. An offense under this subsection is a Class
  A misdemeanor.
         SECTION 5.  Subchapter C, Chapter 2054, Government Code, is
  amended by adding Section 2054.067 to read as follows:
         Sec. 2054.067.  POSTING OF CERTAIN DOCUMENTS RELATING TO
  CONTRACT SOLICITATIONS. (a) The department shall post all
  solicitation documents related to a contract of the department,
  including contracts under Chapter 2157, to the centralized
  accounting and payroll system authorized under Sections 2101.035
  and 2101.036, or any successor system used to implement the
  enterprise resource planning component of the uniform statewide
  accounting project.
         (b)  The documents posted under Subsection (a) must include
  documents showing the criteria by which the department evaluated
  each vendor responding to the contract solicitation and, if
  applicable, an explanation of why the vendor was selected by the
  department under Section 2157.068(b).
         SECTION 6.  Section 2101.001(1), Government Code, is amended
  to read as follows:
               (1)  "Enterprise resource planning" includes the
  administration of a state agency's:
                     (A)  general ledger;
                     (B)  accounts payable;
                     (C)  accounts receivable;
                     (D)  budgeting;
                     (E)  inventory;
                     (F)  asset management;
                     (G)  billing;
                     (H)  payroll;
                     (I)  projects;
                     (J)  grants;
                     (K)  human resources, including administration of
  performance measures, time spent on tasks, and other personnel and
  labor issues; and
                     (L)  purchasing, including solicitations and
  contracting.
         SECTION 7.  Section 2101.035, Government Code, is amended by
  adding Subsection (i) to read as follows:
         (i)  State agencies shall report contract and purchasing
  information in the uniform manner required by the comptroller.
         SECTION 8.  Section 2101.036, Government Code, is amended by
  adding Subsection (e) to read as follows:
         (e)  Notwithstanding Subsection (d), a state agency in the
  legislative branch may elect to participate in the enterprise
  resource planning system developed under this section.
         SECTION 9.  Subchapter C, Chapter 2101, Government Code, is
  amended by adding Section 2101.041 to read as follows:
         Sec. 2101.041.  STATE AGENCY REPORTING OF CONTRACTING
  INFORMATION. (a) The comptroller by rule shall determine the
  contracting information that state agencies must report or provide
  using the centralized accounting and payroll system, or any
  successor system used to implement the enterprise resource planning
  component of the uniform statewide accounting project, developed
  under Sections 2101.035 and 2101.036.
         (b)  In making the determination required by this section,
  the comptroller shall consider requiring a state agency to report
  or provide:
               (1)  a brief summary of each contract that is quickly
  and easily searchable, including the contract's purpose, timeline,
  and deliverables;
               (2)  contract planning and solicitation documents;
               (3)  the criteria used to determine the vendor awarded
  the contract;
               (4)  if the contract was awarded based on best value to
  the state:
                     (A)  a list of the factors considered in
  determining best value with the weight given each factor; and
                     (B)  a statement regarding how the vendor awarded
  the contract provides the best value to the state in relation to
  other vendors who bid or otherwise responded to the contract
  solicitation;
               (5)  any statements of work and work orders prepared
  for or under the contract;
               (6)  the proposed budget for the contract;
               (7)  any conflict of interest documents signed by state
  agency purchasing personnel participating in the planning,
  soliciting, or monitoring of the contract; and
               (8)  criteria used or to be used by the state agency in
  monitoring the contract and vendor performance under the contract.
         SECTION 10.  Subchapter B, Chapter 2155, Government Code, is
  amended by adding Section 2155.0755 to read as follows:
         Sec. 2155.0755.  VERIFICATION OF USE OF BEST VALUE STANDARD.
  (a) The contract manager or procurement director of each state
  agency shall:
               (1)  approve each state agency contract for which the
  agency is required to purchase goods or services using the best
  value standard; 
               (2)  ensure that, for each contract, the agency
  documents the best value standard used for the contract; and
               (3)  acknowledge in writing that the agency complied
  with the agency's and comptroller's contract management guide in
  the purchase. 
         (b)  For each purchase of goods or services for which a state
  agency is required to use the best value standard, the comptroller
  shall ensure that the agency includes in the vendor performance
  tracking system established under Section 2262.055 information on
  whether the vendor satisfied that standard.
         SECTION 11.  Section 2155.077, Government Code, is amended
  by amending Subsections (a) and (b) and adding Subsection (a-2) to
  read as follows:
         (a)  The commission may bar a vendor from participating in
  state contracts that are subject to this subtitle, including
  contracts for which purchasing authority is delegated to a state
  agency, for:
               (1)  substandard performance under a contract with the
  state or a state agency;
               (2)  material misrepresentations in a bid or proposal
  to the state or a state agency or during the course of performing a
  contract with the state or a state agency;
               (3)  fraud; [or]
               (4)  breaching a contract with the state or a state
  agency; or
               (5)  repeated unfavorable performance reviews under
  Section 2155.089 or receipt of an unfavorable classification given
  by the comptroller under Section 2262.055.
         (a-2)  The comptroller shall bar a vendor from participating
  in state contracts that are subject to this subtitle, including
  contracts for which purchasing authority is delegated to a state
  agency, if more than two contracts between the vendor and the state
  have been terminated by the state.
         (b)  Except as provided by Subsection (d), the commission
  shall bar a vendor from participating in state contracts under
  Subsection (a) or (a-2) for a period that is commensurate with the
  seriousness of the vendor's action and the damage to the state's
  interests.
         SECTION 12.  Section 2155.078, Government Code, is amended
  by amending Subsections (a) and (b) and adding Subsection (a-1) to
  read as follows:
         (a)  The commission shall establish and administer a system
  of training, continuing education, and certification for state
  agency purchasing personnel. The training and continuing education
  for state agency purchasing personnel must include ethics training.
  The commission may establish and offer appropriate training to
  vendors on a cost recovery basis. The commission may adopt rules to
  administer this section, including rules relating to monitoring a
  certified purchaser's compliance with the continuing education
  requirements of this section.
         (a-1)  The training, continuing education, and certification
  required under Subsection (a) must include:
               (1)  training on the selection of an appropriate
  procurement method by project type; and
               (2)  training conducted by the Department of
  Information Resources on purchasing technologies.
         (b)  Notwithstanding [Except as provided by] Subsection (n),
  all state agency purchasing personnel, including agencies exempted
  from the purchasing authority of the commission, must receive the
  training and continuing education to the extent required by rule of
  the commission. The training and continuing education must include
  ethics training. A state agency employee who is required to receive
  the training may not participate in purchases by the employing
  agency unless the employee has received the required training or
  received equivalent training from a national association
  recognized by the commission. The equivalent training may count,
  as provided by Subsection (k), toward the continuing education
  requirements.
         SECTION 13.  Subchapter B, Chapter 2155, Government Code, is
  amended by adding Section 2155.089 to read as follows:
         Sec. 2155.089.  REPORTING VENDOR PERFORMANCE. (a)  After a
  contract is completed or otherwise terminated, each state agency
  shall review the vendor's performance under the contract.
         (b)  The state agency shall report to the comptroller, using
  the tracking system established by Section 2262.055, on the results
  of the review regarding a vendor's performance under a contract.
         (c)  This section does not apply to:
               (1)  an enrollment contract described by 1 T.A.C.
  Section 391.183 as that section existed on September 1, 2015; or
               (2)  a contract of the Employees Retirement System of
  Texas or the Teacher Retirement System of Texas except for a
  contract with a nongovernmental entity for claims administration of
  a group health benefit plan under Subtitle H, Title 8, Insurance
  Code.
         SECTION 14.  Subchapter I, Chapter 2155, Government Code, is
  amended by adding Section 2155.5035 to read as follows:
         Sec. 2155.5035.  USE OF SCHEDULE BY STATE AGENCY.  (a)  A
  state agency purchasing goods or services under a contract listed
  on the schedule:
               (1)  for a purchase with a value of $50,000 or less, may
  directly award a contract to a vendor included on the schedule
  without submission of a request for pricing to other vendors on the
  list;
               (2)  for a purchase with a value of more than $50,000
  but not more than $150,000, shall submit a request for pricing to at
  least three vendors included on the schedule in the category to
  which the purchase relates or to all vendors in the category for a
  category with fewer than three vendors;
               (3)  for a purchase with a value of more than $150,000
  but not more than $1 million, shall submit a request for pricing to
  at least six vendors included on the schedule in the category to
  which the purchase relates or all vendors in the category for a
  category with fewer than six vendors; and
               (4)  may not purchase under the contract services in a
  state fiscal year that have a total value exceeding $1 million.
         (b)  The price listed for a good or service under a multiple
  award contract is a maximum price.  A state agency may negotiate a
  lower price for goods or services under a contract listed on a
  schedule developed under this chapter.
         SECTION 15.  Section 2156.181(a), Government Code, is
  amended to read as follows:
         (a)  The commission may enter into one or more compacts,
  interagency agreements, or cooperative purchasing agreements
  directly with one or more state governments, agencies of other
  states, or other governmental entities or may participate in,
  sponsor, or administer a cooperative purchasing agreement through
  an entity that facilitates those agreements for the purchase of
  goods or services if the commission determines that the [entering
  into an] agreement would be in the best interest of the state.
         SECTION 16.  Subchapter B, Chapter 2157, Government Code, is
  amended by adding Section 2157.0685 to read as follows:
         Sec. 2157.0685.  CONTRACT REQUIREMENTS FOR CERTAIN
  SERVICES.  (a)  In this section, "statement of work" means a
  document that states the requirements for a contract, including
  deliverables, performance specifications, and other requirements,
  specific to the vendor under that contract that are not specified in
  a contract awarded by the department under Section 2157.068 for
  contracts more than $50,000.
         (b)  For a contract awarded by the department under Section
  2157.068 that requires a state agency to develop and execute a
  statement of work to initiate services under the contract, the
  state agency must:
               (1)  consult with the department before submission of
  the statement of work to a vendor; and
               (2)  post each statement of work entered into by the
  agency on the agency's Internet website in the manner required by
  department rule.
         (c)  A statement of work executed by a state agency under a
  contract awarded by the department under Section 2157.068 is not
  valid and money may not be paid to the vendor under the terms of the
  statement of work if the department:
               (1)  has not reviewed the statement of work; or
               (2)  disapproves the statement of work before the
  contract solicitation.
         SECTION 17.  Section 2261.001(a), Government Code, is
  amended to read as follows:
         (a)  This chapter, other than Subchapter F, applies only to
  each procurement of goods or services made by a state agency that is
  neither made by the comptroller nor made under purchasing authority
  delegated to the agency by or under Section 51.9335 or 73.115,
  Education Code, or Section 2155.131 or 2155.132.
         SECTION 18.  Chapter 2261, Government Code, is amended by
  adding Subchapter F to read as follows:
  SUBCHAPTER F.  ETHICS, REPORTING, AND APPROVAL REQUIREMENTS FOR
  CERTAIN CONTRACTS
         Sec. 2261.251.  APPLICABILITY OF SUBCHAPTER. (a)
  Notwithstanding Section 2261.001, this subchapter applies to the
  Texas Department of Transportation.
         (b)  This subchapter does not apply to a contract of the
  Employees Retirement System of Texas or the Teacher Retirement
  System of Texas except for a contract with a nongovernmental entity
  for claims administration of a group health benefit plan under
  Subtitle H, Title 8, Insurance Code.
         Sec. 2261.252.  REQUIRED POSTING OF CERTAIN CONTRACTS;
  ENHANCED CONTRACT AND PERFORMANCE MONITORING. (a)  For each
  contract for the purchase of goods or services from a private
  vendor, each state agency shall post on its Internet website:
               (1)  each contract the agency enters into, including
  contracts entered into without inviting, advertising for, or
  otherwise requiring competitive bidding before selection of the
  contractor, until the contract expires or is completed;
               (2)  the statutory or other authority under which a
  contract that is not competitively bid under Subdivision (1) is
  entered into without compliance with competitive bidding
  procedures; and
               (3)  the request for proposals related to a
  competitively bid contract included under Subdivision (1) until the
  contract expires or is completed.
         (b)  A state agency monthly may post contracts described by
  Subsection (a) that are valued at less than $15,000.
         (c)  Each state agency by rule shall establish a procedure to
  identify each contract that requires enhanced contract or
  performance monitoring and submit information on the contract to
  the agency's governing body or, if the agency is not governed by a
  multimember governing body, the officer who governs the agency.
  The agency's contract management office or procurement director
  shall immediately notify the agency's governing body or governing
  official, as appropriate, of any serious issue or risk that is
  identified with respect to a contract monitored under this
  subsection.
         (d)  This section does not apply to a memoranda of
  understanding, interagency contract, interlocal agreement, or
  contract for which there is not a cost.
         Sec. 2261.253.  CONTRACTS WITH VALUE EXCEEDING $1 MILLION.
  (a)  For each contract for the purchase of goods or services that
  has a value exceeding $1 million, a state agency shall develop and
  implement contract reporting requirements that provide information
  on:
               (1)  compliance with financial provisions and delivery
  schedules under the contract;
               (2)  corrective action plans required under the
  contract and the status of any active corrective action plan; and
               (3)  any liquidated damages assessed or collected under
  the contract.
         (b)  Each state agency shall verify:
               (1)  the accuracy of any information reported under
  Subsection (a) that is based on information provided by a
  contractor; and
               (2)  the delivery time of goods or services scheduled
  for delivery under the contract.
         (c)  Except as provided by Subsection (d), a state agency may
  enter into a contract for the purchase of goods or services that has
  a value exceeding $1 million only if:
               (1)  the governing body of the state agency approves
  the contract and the approved contract is signed by the presiding
  officer of the governing body; or
               (2)  for a state agency that is not governed by a
  multimember governing body, the officer who governs the agency
  approves and signs the contract.
         (d)  The governing body or governing official of a state
  agency, as appropriate, may delegate to the executive director of
  the agency the approval and signature authority under Subsection
  (c).
         (e)  A highway construction, engineering services, or
  maintenance contract that is in compliance with all applicable laws
  related to procuring engineering services or construction bidding
  and that is awarded by the Texas Department of Transportation under
  Subchapter A, Chapter 223, Transportation Code, is not required to
  be signed by a member of the Texas Transportation Commission or the
  executive director of the department.  This exception does not
  apply to expedited highway improvement contracts under Subchapter
  C, Chapter 223, Transportation Code, a comprehensive development
  agreement entered into under Subchapter E, Chapter 223,
  Transportation Code, a design-build contract entered into under
  Subchapter F, Chapter 223, Transportation Code, or any other
  contract entered into by the Texas Department of Transportation.
         Sec. 2261.254.  CONTRACTS WITH VALUE EXCEEDING $5 MILLION.
  For each state agency contract for the purchase of goods or services
  that has a value exceeding $5 million, the contract management
  office or procurement director of the agency must:
               (1)  verify in writing that the solicitation and
  purchasing methods and contractor selection process comply with
  state law and agency policy; and
               (2)  submit to the governing body of the agency, or
  governing official of the agency if the agency is not governed by a
  multimember governing body, information on any potential issue that
  may arise in the solicitation, purchasing, or contractor selection
  process.
         Sec. 2261.255.  ACCOUNTABILITY AND RISK ANALYSIS PROCEDURE;
  CONTRACT MANAGEMENT HANDBOOK. (a)  Each state agency shall develop
  and comply with a purchasing accountability and risk analysis
  procedure. The procedure must provide for:
               (1)  assessing the risk of fraud, abuse, or waste in the
  contractor selection process, contract provisions, and payment and
  reimbursement rates and methods for the different types of goods
  and services for which the agency contracts;
               (2)  identifying contracts that require enhanced
  contract monitoring or the immediate attention of contract
  management staff; and
               (3)  establishing clear levels of purchasing
  accountability and staff responsibilities related to purchasing.
         (b)  Each state agency shall publish a contract management
  handbook that establishes consistent contracting policies and
  practices to be followed by the agency and that is consistent with
  the comptroller's contract management guide. The procedures
  described by Subsections (a)(2) and (3) must be approved by the
  comptroller and be included in the agency's handbook. The agency's
  handbook may include standard contract provisions and formats for
  the agency to incorporate in contracts.
         Sec. 2261.256.  CONTRACT DATABASE. (a)  Each state agency
  that becomes a participant in the centralized accounting and
  payroll systems as authorized by Sections 2101.035 and 2101.036
  shall use the system to identify and record each contract entered
  into by the agency as specified by the rules, policies, or
  procedures developed by the comptroller.
         (b)  The comptroller shall provide as necessary information
  and state agency contract data contained in the centralized
  accounting and payroll systems to other state agencies with
  oversight duties, including the Legislative Budget Board, the state
  auditor's office, and the Department of Information Resources.
         SECTION 19.  Section 2262.053(d), Government Code, is
  amended to read as follows:
         (d)  The comptroller shall administer training under this
  section and may assess a fee for the training in an amount
  sufficient to recover the comptroller's costs under this section.
         SECTION 20.  Section 2262.0535, Government Code, is amended
  by adding Subsection (c) to read as follows:
         (c)  The comptroller may assess a fee for the training
  provided under this section in an amount sufficient to recover the
  comptroller's costs under this section.
         SECTION 21.  Section 2262.055, Government Code, is amended
  by amending Subsections (a) and (b) and adding Subsections (d) and
  (e) to read as follows:
         (a)  The comptroller shall evaluate the vendor's performance
  based on information reported by state agencies under Section
  2155.089 and criteria established by the comptroller.
         (b)  The comptroller by rule shall establish an evaluation
  process that:
               (1)  rates vendors on an A through F scale, with A being
  the highest grade; and
               (2)  allows vendors who receive a grade lower than a C
  [an unfavorable performance review] to protest any classification
  given by the comptroller.
         (d)  A state agency shall use the vendor performance tracking
  system to determine whether to award a contract to a vendor reviewed
  in the tracking system.  A state agency may not award a contract to a
  vendor who receives a grade lower than a C from the comptroller
  under Subsection (b).
         (e)  The comptroller shall make the vendor performance
  tracking system accessible to the public on the comptroller's
  Internet website.
         SECTION 22.  Section 2155.502(d), Government Code, is
  repealed.
         SECTION 23.  As soon as is practicable after the effective
  date of this Act, the comptroller of public accounts, and each
  affected state agency as necessary, shall adopt the rules,
  processes, and procedures and take the actions necessary to
  implement the changes in law made by this Act.
         SECTION 24.  Section 572.069, Government Code, as added by
  this Act, applies only to a state officer or employee whose service
  or employment with a state agency ceases on or after the effective
  date of this Act.
         SECTION 25.  Section 2262.055(d), Government Code, as added
  by this Act, applies only in relation to a contract for which the
  request for bids or proposals or other applicable expression of
  interest is made public on or after October 1, 2015.
         SECTION 26.  The changes in law made by this Act apply only
  to a contract entered into on or after the effective date of this
  Act. A contract entered into before that date is governed by the
  law in effect immediately before the effective date of this Act, and
  the former law is continued in effect for that purpose.
         SECTION 27.  This Act takes effect September 1, 2015.
feedback