Bill Text: TX HB31 | 2017 | 85th Legislature 1st Special Session | Introduced
Bill Title: Relating to oversight of and requirements applicable to state contracts and other state financial and accounting issues; providing a civil penalty.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-08-01 - Referred to Appropriations [HB31 Detail]
Download: Texas-2017-HB31-Introduced.html
85S12007 MTB-F | ||
By: Capriglione | H.B. No. 31 |
|
||
|
||
relating to oversight of and requirements applicable to state | ||
contracts and other state financial and accounting issues; | ||
providing a civil penalty. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 322, Government Code, is amended by | ||
adding Section 322.025 to read as follows: | ||
Sec. 322.025. REPORT ON CONTRACT SPENDING. (a) In this | ||
section, "state agency" has the meaning assigned by Section | ||
2056.001. | ||
(b) Not later than September 15 of each year, the board | ||
shall issue a report detailing the amount of each state agency's | ||
budget for the previous state fiscal year that was spent on | ||
contracts. | ||
SECTION 2. Section 441.1855, Government Code, is amended 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) for each contract entered into by the agency, | ||
shall retain in its records, to the extent the documents exist, | ||
[ |
||
planning, solicitation, evaluation, monitoring, modification, and | ||
closeout documents related to the contract, including at a minimum: | ||
(A) a copy of all general and internal | ||
correspondence related to the contract; | ||
(B) the records or minutes of all internal or | ||
external meetings related to the contract, including sign-in sheets | ||
or agendas; | ||
(C) a copy of all contractor invoices provided | ||
under the contract; | ||
(D) any information relating to discount | ||
provisions for prompt payment under the contract and any letters | ||
related to contract price deductions or fee adjustments; | ||
(E) a copy of all supporting documentation for | ||
contractor payments or progress payments under the contract; | ||
(F) a copy of any audits performed involving the | ||
contract; and | ||
(G) a copy of all conflict of interest | ||
documentation and forms required by law related to the contract; | ||
and | ||
(2) shall retain [ |
||
documents described by Subdivision (1) until: | ||
(A) [ |
||
date[ |
||
[ |
||
[ |
||
(B) if [ |
||
litigation, claim, negotiation, audit, open records request, | ||
administrative review, or other action involving the contract or | ||
documents, the seventh anniversary of the date the issues are | ||
resolved. | ||
SECTION 3. Section 531.102, Government Code, is amended by | ||
adding Subsection (a-9) to read as follows: | ||
(a-9) The inspector general shall appoint oversight | ||
personnel to audit, review, and investigate high-risk contracts and | ||
procurement and contracting processes of the commission, as | ||
identified by the office of inspector general, and provide | ||
quarterly reports on the monitoring to the inspector general, | ||
attorney general, and governor. The quarterly reports must be | ||
posted on the commission's publicly accessible Internet website. | ||
The oversight personnel may work with the state auditor's office, | ||
governor's office, Legislative Budget Board, attorney general's | ||
office, quality assurance team established under Section 2054.158, | ||
and contract advisory team established under Subchapter C, Chapter | ||
2262, in performing the oversight personnel's duties under this | ||
subsection. | ||
SECTION 4. Section 2102.0091(c), Government Code, is | ||
amended to read as follows: | ||
(c) In addition to the requirements of Subsection (a), a | ||
state agency shall file with the Governor's Office of Budget, | ||
Planning, and Policy, the state auditor, and the Legislative Budget | ||
Board an [ |
||
agency's governing board or the administrator of the state agency | ||
if the state agency does not have a governing board in response to | ||
every issue identified in the report of the state agency's internal | ||
auditor. | ||
SECTION 5. Chapter 2115, Government Code, is amended by | ||
adding Section 2115.006 to read as follows: | ||
Sec. 2115.006. OVERPAYMENTS BY STATE AGENCY. (a) If a | ||
state agency makes an overpayment to a vendor, the vendor must | ||
return the amount overpaid by the agency before the 91st calendar | ||
day after the date either party discovers the overpayment. If the | ||
amount overpaid by the state agency is not returned before the 91st | ||
calendar day, the vendor is subject to a civil penalty in an amount | ||
equal to three times the amount of the overpayment and the agency | ||
shall refer the matter to the attorney general for action. | ||
(b) The attorney general may institute an action in district | ||
court to recover a civil penalty under this section. A civil | ||
penalty recovered in an action brought by the attorney general | ||
shall be deposited in the state treasury. | ||
SECTION 6. Section 2155.074(c), Government Code, is amended | ||
to read as follows: | ||
(c) A state agency shall consult with and receive approval | ||
from the comptroller in an open meeting [ |
||
considering factors other than price and meeting specifications | ||
when the agency procures through competitive bidding goods or | ||
services with a value that exceeds $100 million [ |
||
state agency shall retain in the agency's records a copy of the | ||
meeting minutes with the final executed contract. | ||
SECTION 7. Section 2155.077(a-2), Government Code, is | ||
amended to read as follows: | ||
(a-2) The comptroller shall [ |
||
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 for cause based on | ||
unsatisfactory vendor performance during the preceding three | ||
years. | ||
SECTION 8. Subchapter B, Chapter 2155, Government Code, is | ||
amended by adding Section 2155.092 to read as follows: | ||
Sec. 2155.092. REPORT ON PERFORMANCE BY AGENCY FOR CERTAIN | ||
PROCUREMENTS. (a) This section applies only to a procurement for | ||
services with a value of at least $1 million but not more than $5 | ||
million. | ||
(b) Before a purchase of services under this chapter, each | ||
state agency, including the comptroller, must: | ||
(1) create a written report evaluating the feasibility | ||
of the agency performing the service that is the subject of the | ||
proposed purchase; and | ||
(2) if the agency determines from the evaluation that | ||
it is not feasible for the agency to perform the service, provide an | ||
explanation of the reasons for the agency's determination. | ||
(c) A report created under this section must be included in | ||
the procurement analysis for the purchase. | ||
SECTION 9. Subchapter B, Chapter 2251, Government Code, is | ||
amended by adding Section 2251.031 to read as follows: | ||
Sec. 2251.031. PAYMENT TO VENDOR. (a) A state agency may | ||
not: | ||
(1) pay an invoice from a vendor unless the invoice | ||
directly correlates to a corresponding contract with the vendor; or | ||
(2) make a payment to a vendor more than once per | ||
month. | ||
(b) A payment by a state agency to a vendor under a contract | ||
must receive: | ||
(1) the approval and signature of two employees of the | ||
state agency; or | ||
(2) if a contract manager, as defined by Section | ||
2262.001, has been assigned to the contract by the state agency, the | ||
approval and signature of the contract manager and one other | ||
employee of the state agency. | ||
(c) If a finding is made that a payment was made without the | ||
signatures required under Subsection (b), the state agency may | ||
revoke the payment at any time. | ||
SECTION 10. Subchapter C, Chapter 2261, Government Code, is | ||
amended by adding Section 2261.103 to read as follows: | ||
Sec. 2261.103. REQUIRED CONTRACT PROVISIONS. (a) An | ||
attorney representing a state agency shall assist in drafting a | ||
contract to be entered into by the agency and include in the | ||
contract at a minimum the provisions listed in Subsection (b) and | ||
other applicable provisions recommended in the contract management | ||
guide developed under Section 2262.051. | ||
(b) The following are required provisions in each contract | ||
to which the provisions are applicable: | ||
(1) amendments; | ||
(2) antitrust; | ||
(3) applicable law and venue; | ||
(4) applicable law and conforming amendments; | ||
(5) assignments; | ||
(6) confidentiality and public information act; | ||
(7) equal opportunity; | ||
(8) federal, state, and local law requirements; | ||
(9) felony criminal convictions; | ||
(10) financial interests and gifts; | ||
(11) immigration; | ||
(12) no conflicts; and | ||
(13) right to audit. | ||
SECTION 11. Subchapter D, Chapter 2261, Government Code, is | ||
amended by adding Section 2261.152 to read as follows: | ||
Sec. 2261.152. DOCUMENTATION REQUIRED FOR PAYMENT. (a) A | ||
state agency may not make a payment to a vendor without a contract, | ||
invoice, or other documentation that clearly demonstrates the | ||
agency's obligation to make a payment. | ||
(b) This section does not apply to the return of any amount | ||
overpaid by a state agency to a vendor because of an incorrect | ||
contract, invoice, or other documentation. | ||
SECTION 12. Subchapter F, Chapter 2261, Government Code, is | ||
amended by adding Section 2261.258 to read as follows: | ||
Sec. 2261.258. REPORTING OF CONTRACT VIOLATION. (a) A | ||
state employee or member of the public may report to the comptroller | ||
a state contracting violation. The comptroller shall investigate a | ||
report made under this subsection. | ||
(b) A state agency may not suspend or terminate the | ||
employment of, or take other adverse personnel action against, a | ||
state employee who in good faith reports a violation to the | ||
comptroller under this section. | ||
(c) If, as a result of an investigation under this section | ||
of a state contracting violation that occurred before March 8, | ||
2017, savings to the state are realized, the comptroller shall | ||
verify the amount of savings and an amount equal to 30 percent of | ||
the savings may be appropriated to the comptroller only for | ||
distribution to the state employee or member of the public who | ||
reported the violation that initiated the investigation. | ||
SECTION 13. Section 2262.051, Government Code, is amended | ||
by amending Subsections (a), (b), (c), (d), and (g) and adding | ||
Subsections (i) and (j) to read as follows: | ||
(a) In consultation with the attorney general, the | ||
Department of Information Resources, the [ |
||
state auditor, and state agencies that award major contracts, the | ||
comptroller [ |
||
update a contract management guide for use by state | ||
agencies. Participation by the state auditor under this | ||
subsection is subject to approval by the legislative audit | ||
committee for inclusion in the audit plan under Section 321.013(c). | ||
(b) The comptroller [ |
||
to develop or update the guide. | ||
(c) The guide must provide information regarding the | ||
primary duties of a contract manager, including how to: | ||
(1) develop and negotiate a contract; | ||
(2) select a contractor; [ |
||
(3) monitor contractor and subcontractor performance | ||
under a contract; and | ||
(4) encourage competition for goods and services | ||
purchased by this state. | ||
(d) The guide must include model provisions for state agency | ||
contracts. The guide must: | ||
(1) distinguish between essential provisions that a | ||
state agency must include in a contract to protect the interests of | ||
this state and recommended provisions that a state agency may | ||
include in a contract; | ||
(2) recognize the unique contracting needs of an | ||
individual state agency or program based on the size, nature, and | ||
type of goods or services purchased by the state agency or program | ||
and provide sufficient flexibility to accommodate those needs, | ||
consistent with protecting the interests of this state; | ||
(3) include maximum contract periods under which a new | ||
competitive solicitation is not necessary; and | ||
(4) include the model contract management process | ||
developed under Section 2262.104 and recommendations on the | ||
appropriate use of the model. | ||
(g) The guide must establish procedures under which a state | ||
agency is required to: | ||
(1) solicit explanations from qualified potential | ||
respondents who did not respond to a competitive solicitation for a | ||
contract on which fewer than two qualified bids were received by the | ||
agency; and | ||
(2) develop and implement improved procurement | ||
practices. | ||
(i) The guide must suggest best practices related to | ||
procurement metrics used by a state agency to measure and monitor | ||
the effectiveness of the state agency's procurement methods, | ||
including the: | ||
(1) number and value of procurements made by the state | ||
agency; | ||
(2) number of canceled procurements by the state | ||
agency; | ||
(3) reasons for canceled procurements; | ||
(4) common exceptions to the state agency's terms and | ||
conditions by a respondent; | ||
(5) number of responses per competitive solicitation; | ||
and | ||
(6) average length of time for each phase of the state | ||
agency's procurement processes, including the length of time: | ||
(A) between the date the state agency issues the | ||
competitive solicitation and the date the state agency begins | ||
receiving responses to the solicitation; | ||
(B) for the evaluation of responses to a | ||
competitive solicitation; | ||
(C) of the negotiation between the state agency | ||
and a vendor; and | ||
(D) between the date the state agency issues the | ||
competitive solicitation and the date the state agency awards a | ||
contract to a vendor. | ||
(j) The guide may include references to procurement | ||
maturity models and procurement readiness assessments used by other | ||
large public and private enterprises. | ||
SECTION 14. Subchapter B, Chapter 2262, Government Code, is | ||
amended by adding Section 2262.056 to read as follows: | ||
Sec. 2262.056. CONTRACT MANAGERS REQUIRED FOR MAJOR | ||
CONTRACTS. A state agency, at a minimum, shall assign a contract | ||
manager for each major contract of the agency to manage the | ||
oversight of the contract. | ||
SECTION 15. Chapter 2262, Government Code, is amended by | ||
adding Subchapter E to read as follows: | ||
SUBCHAPTER E. CONTRACT OUTSIDE TACTICAL TEAM | ||
Sec. 2262.201. DEFINITIONS. In this subchapter: | ||
(1) "Information resources" has the meaning assigned | ||
by Section 2054.003. | ||
(2) "Team" means a contract outside tactical team | ||
established under authority provided by this subchapter. | ||
Sec. 2262.202. CONTRACT OUTSIDE TACTICAL TEAM. (a) From | ||
appropriated funds, a state agency shall enter into a contract with | ||
a team for assistance in improving information resources contract | ||
management practices for contracts with a value of at least $100 | ||
million. The team shall review and make recommendations on the | ||
solicitation documents, contract documents, scope of work, project | ||
timeline and management, documentation requirements, audit | ||
schedule and audit scope, and technical issues for the contract. | ||
(b) A team consists of the following members selected by the | ||
state agency: | ||
(1) outside legal counsel; or | ||
(2) providers of professional consulting services | ||
with expertise in the subject matter of the contract. | ||
(c) A state agency may not select a provider of professional | ||
consulting services or a group or association of providers or award | ||
a contract for the services on the basis of competitive bids | ||
submitted for the contract or for the services but shall make the | ||
selection and award: | ||
(1) on the basis of demonstrated competence and | ||
qualifications to perform the services; and | ||
(2) for a fair and reasonable price. | ||
(d) A state agency shall: | ||
(1) comply with a recommendation made under Subsection | ||
(a); or | ||
(2) submit a written explanation regarding the reasons | ||
the recommendation is not applicable to the contract under review. | ||
SECTION 16. This Act applies only in relation to a contract | ||
for which a state agency first advertises or otherwise solicits | ||
bids, proposals, offers, or qualifications on or after the | ||
effective date of this Act and to a payment made under a contract | ||
described by this section. | ||
SECTION 17. This Act takes effect December 1, 2017. |