CHAPTER 2156. PURCHASING METHODS
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE D. STATE PURCHASING AND GENERAL SERVICES
CHAPTER 2156. PURCHASING METHODS
SUBCHAPTER A. CONTRACT PURCHASE PROCEDURE
Sec. 2156.001. CONTRACT PURCHASE PROCEDURE AUTHORIZED. The
commission may use the contract purchase procedure to purchase
goods and services.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
For expiration of this section, see Section 2151.0041.
Sec. 2156.0011. TRANSFER OF DUTIES; REFERENCE. (a) The powers
and duties of the commission under this chapter are transferred
to the comptroller.
(b) In this chapter, a reference to the commission means the
comptroller.
Added by Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.18, eff. September 1, 2007.
Sec. 2156.0012. AUTHORITY TO ADOPT RULES. The comptroller may
adopt rules to efficiently and effectively administer this
chapter. Before adopting a rule under this section, the
comptroller must conduct a public hearing regarding the proposed
rule regardless of whether the requirements of Section
2001.029(b) are met.
Added by Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.18, eff. September 1, 2007.
Sec. 2156.002. SOLICITATION OF BIDS THROUGH PUBLIC NOTICE. (a)
A notice inviting bids shall be published at least once in at
least one newspaper of general circulation in the state not later
than the seventh day before the last day set for the receipt of
bids.
(b) The notice must:
(1) include a general description of the items to be purchased;
(2) state the location at which bid forms and specifications may
be obtained; and
(3) state the time and place for opening bids.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2156.003. SOLICITATION OF BIDS THROUGH BIDDERS LIST; BID
INVITATIONS. (a) The comptroller shall electronically maintain
a bidders list. If the comptroller determines that it is in the
state's best interest, the comptroller may also maintain the list
on paper. The comptroller may add or delete names from the list
according to applicable standards provided by Section 2156.007.
(b) An invitation to bid on an item to be purchased may be sent
electronically to a vendor on the bidders list who has expressed
a desire to bid on that type of item.
(c) The comptroller may use the bidders list in making a
purchase by any purchase method.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 2001, 77th Leg., ch. 1422, Sec. 7.03, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
393, Sec. 3.03, eff. September 1, 2009.
Sec. 2156.004. BID DEPOSIT. (a) The commission, as considered
necessary, may require a bid deposit in an amount determined by
the commission. The amount of the deposit, if any, must be stated
in the public notice and the invitation to bid.
(b) On the award of a bid or the rejection of all bids, the
commission shall refund the bid deposit of an unsuccessful
bidder.
(c) The commission may accept from a bidder a bid deposit in the
form of a blanket bond.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 2003, 78th Leg., ch. 785, Sec. 35, eff.
Sept. 1, 2003.
Sec. 2156.005. BID SUBMISSION AND OPENING; PUBLIC INSPECTION.
(a) A bidder must submit a sealed bid to the comptroller or to
the state agency making a purchase. The bid must be identified
on the envelope as a bid.
(b) Subsection (a) does not apply to bids submitted through the
use of facsimile transmission or on-line electronic transmission.
The comptroller may adopt rules to ensure the identification,
security, and confidentiality of bids submitted through the use
of facsimile transmission or on-line electronic transmission.
(c) The comptroller or other state agency making a purchase
shall open bids at the time and place stated in the invitation to
bid.
(d) The comptroller shall keep a tabulation of all bids received
by the comptroller available for public inspection under rules
adopted by the comptroller. State agencies making purchases
shall adopt the comptroller's rules related to bid opening and
tabulation.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 494, Sec. 3, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1206, Sec. 13, eff.
Sept. 1, 1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
393, Sec. 3.04, eff. September 1, 2009.
Sec. 2156.006. SUBMISSION OF ADDITIONAL MATERIAL WITH BID. (a)
A bidder as an essential element of the materiality of the bid
must comply with the specified time limit for the submission of
written information, samples, or models at or before the time for
bid opening.
(b) The commission may waive this requirement if the failure to
comply is beyond the bidder's control.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2156.007. CONTRACT AWARD. (a) The commission or other
state agency making a purchase shall award a contract to the
bidder offering the best value for the state while conforming to
the specifications required.
(b) In determining the bidder offering the best value, the
commission or other state agency may consider the safety record
of the bidder, the entity represented by the bidder, and any
person acting for the represented entity only if:
(1) the commission or other state agency has adopted a written
definition and criteria for accurately determining the safety
record of a bidder; and
(2) the commission or state agency provided notice in the bid
specifications to prospective bidders that a bidder's safety
record may be considered in determining the bidder offering the
best value for the state.
(c) A determination of a bidder's safety record may not be
arbitrary and capricious.
(d) In determining the bidder offering the best value, in
addition to price the commission or other state agency shall
consider:
(1) the quality and availability of the goods or contractual
services and their adaptability to the use required;
(2) the scope of conditions attached to the bid;
(3) the bidder's ability, capacity, and skill to perform the
contract or provide the service required;
(4) the bidder's ability to perform the contract or provide the
service promptly, or in the time required, without delay or
interference;
(5) the bidder's character, responsibility, integrity, and
experience or demonstrated capability;
(6) the quality of performance of previous contracts or
services;
(7) the bidder's previous and existing compliance with laws
relating to the contract or service;
(8) the bidder's previous or existing noncompliance with
specification requirements relating to the time of submission of
specified information, including samples, models, drawings, or
certificates;
(9) the sufficiency of the bidder's financial resources and
ability to perform the contract or provide the service; and
(10) the bidder's ability to provide future maintenance, repair
parts, and service for the use of the contract's subject.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 14, eff.
Sept. 1, 1997.
Sec. 2156.008. REJECTION OF BIDS. (a) The commission or other
state agency making the purchase shall reject a bid in which
there is a material failure to comply with specification
requirements.
(b) The commission or other state agency may reject all bids or
parts of bids if the rejection serves the state's interest.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 14, eff.
Sept. 1, 1997.
Sec. 2156.009. REASONS FOR AWARD. On award of a contract, the
division of the commission responsible for purchasing or the
state agency making the purchase shall prepare and file with
other records relating to the transaction a statement of the
reasons for making the award to the successful bidder and the
factors considered in determining which bidder offered the best
value for the state.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 14, eff.
Sept. 1, 1997.
Sec. 2156.010. TIE BIDS. In the case of tie bids, the value and
cost to the state being equal, a contract shall be awarded under
commission rules.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 14, eff.
Sept. 1, 1997.
Sec. 2156.011. PERFORMANCE BOND. (a) The commission may
require a performance bond before executing a contract.
(b) The commission may require the bond in an amount that the
commission finds reasonable and necessary to protect the state's
interests.
(c) Any bond required shall be issued on the condition that the
bidder faithfully execute the terms of the contract.
(d) Any bond required shall be filed with the commission.
(e) Recoveries under the bond may continue until the bond is
exhausted.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER B. OPEN MARKET PURCHASE PROCEDURE
Sec. 2156.061. USE OF OPEN MARKET PURCHASE PROCEDURE AUTHORIZED;
USE OF PROCEDURE. On a commission determination that a purchase
of goods or services may be made most effectively in the open
market, the commission may use the open market purchase procedure
and the purchase may be made without newspaper advertising.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2156.062. MINIMUM NUMBER AND EVALUATION OF BIDS. An open
market purchase shall, to the extent possible, be:
(1) based on at least three competitive bids; and
(2) awarded to the bidder offering the best value for the state
in accordance with standards set forth in Chapters 2155, 2156,
2157, and 2158.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 15, eff.
Sept. 1, 1997.
Sec. 2156.063. SOLICITATION OF BIDS. The comptroller and each
state agency making a purchase shall solicit bids under this
subchapter by:
(1) direct mail;
(2) telephone;
(3) telegraph;
(4) facsimile transmission; or
(5) on-line electronic transmission.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 494, Sec. 4, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1206, Sec. 15, eff.
Sept. 1, 1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
393, Sec. 3.05, eff. September 1, 2009.
Sec. 2156.064. RECORDING AND INSPECTION OF BIDS. (a) The
commission shall keep a record of all open market orders and bids
submitted on the orders.
(b) A tabulation of the bids shall be open for public
inspection, under rules established by the commission.
(c) A tabulation of the bids shall always be open for inspection
by the state auditor or the auditor's representative.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2156.065. AGENCY REVIEW OF BIDS. (a) On the request of a
state agency to review the bids on a purchase administered by the
commission, the commission shall send or make available to the
requesting agency copies of each bid received and the
commission's recommended award.
(b) If, after review of the bids and evaluation of the quality
of goods or services offered in the bids, the state agency
determines that the bid selected by the commission does not offer
the best value for the state, the agency may file with the
commission a written recommendation that the award be made to the
bidder who, according to the agency's determination, offers the
best value for the state. The agency recommendation must include
a justification of the agency's determination.
(c) The commission shall consider, but is not bound by, the
agency recommendation in making the award.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 16, eff.
Sept. 1, 1997.
Sec. 2156.066. STATEMENT OF REASONS FOR AWARD. The division of
the commission responsible for purchasing or the state agency
making a purchase shall prepare and file with other records
relating to a transaction under this subchapter a statement of
the reasons for placing an order with a successful bidder for the
transaction and the factors considered in determining the bid
offering the best value for the state.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 16, eff.
Sept. 1, 1997.
SUBCHAPTER C. COMPETITIVE SEALED PROPOSALS FOR ACQUISITION OF
GOODS AND SERVICES
Sec. 2156.121. USE OF COMPETITIVE SEALED PROPOSALS. (a) The
commission or other state agency may follow a procedure using
competitive sealed proposals to acquire goods or services if the
commission determines that competitive sealed bidding and
informal competitive bidding for the purchase or type of purchase
are not practical or are disadvantageous to the state.
(b) A state agency shall send its proposal specifications and
criteria to the commission for approval or request the commission
to develop the proposal specifications and criteria.
(c) The commission shall determine whether to delegate sole
oversight of the acquisition to a state agency or to retain
oversight of the procurement.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 17, eff.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 426, Sec. 8, eff. June
18, 1999.
Sec. 2156.122. SOLICITATION OF PROPOSALS. The commission or
other state agency shall:
(1) solicit proposals under this subchapter by a request for
proposals; and
(2) give public notice of a request for proposals in the manner
provided for requests for bids under Subchapter B.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.124 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
Sec. 2156.123. OPENING AND FILING OF PROPOSALS; PUBLIC
INSPECTION. (a) The commission or other state agency shall
avoid disclosing the contents of each proposal on opening the
proposal and during negotiations with competing offerors.
(b) The commission or other state agency shall file each
proposal in a register of proposals, which, after a contract is
awarded, is open for public inspection unless the register
contains information that is excepted from required disclosure
under Subchapter C, Chapter 552.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.126 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
Sec. 2156.124. DISCUSSION AND REVISION OF PROPOSALS. (a) As
provided in a request for proposals and under rules adopted by
the commission, the commission or other state agency may discuss
acceptable or potentially acceptable proposals with offerors to
assess an offeror's ability to meet the solicitation
requirements. When the commission is managing the request for
proposals process, it shall invite a requisitioning agency to
participate in discussions conducted under this section.
(b) After receiving a proposal but before making an award, the
commission or other state agency may permit the offeror to revise
the proposal to obtain the best final offer.
(c) The commission or other state agency may not disclose
information derived from proposals submitted from competing
offerors in conducting discussions under this section.
(d) The commission or other state agency shall provide each
offeror an equal opportunity to discuss and revise proposals.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.127 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
Sec. 2156.125. CONTRACT AWARD. (a) The commission or other
state agency shall make a written award of a contract to the
offeror whose proposal offers the best value for the state,
considering price, past vendor performance, vendor experience or
demonstrated capability, and the evaluation factors in the
request for proposals.
(b) The commission or other state agency shall refuse all offers
if none of the offers submitted is acceptable.
(c) The commission or other state agency shall determine which
proposal offers the best value for the state in accordance with
Sections 2155.074 and 2155.075.
(d) The commission or other state agency shall state in writing
in the contract file the reasons for making an award.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.128 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
Sec. 2156.126. ADOPTION OF RULES; STATE AGENCY ASSISTANCE. The
commission may adopt rules and request assistance from other
state agencies to perform its responsibilities under this
subchapter.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.129 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
Sec. 2156.127. COMPETITIVE SEALED PROPOSALS FOR
TELECOMMUNICATIONS AND AUTOMATED INFORMATION SYSTEMS NOT
AFFECTED. This subchapter does not affect Subchapter C, Chapter
2157.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Renumbered from Sec. 2156.130 and amended by Acts 1997,
75th Leg., ch. 1206, Sec. 17, eff. Sept. 1, 1997.
SUBCHAPTER D. INTERSTATE COMPACTS PROCEDURE
Sec. 2156.181. INTERSTATE COMPACTS AND COOPERATIVE AGREEMENTS
FOR PROCUREMENTS. (a) The commission may enter into one or more
compacts, interagency agreements, or cooperative purchasing
agreements with one or more state governments, agencies of other
states, or other governmental entities for the purchase of goods
or services if the commission determines that entering into an
agreement would be in the best interest of the state.
(b) The commission may adopt rules to implement this section.
Added by Acts 1999, 76th Leg., ch. 426, Sec. 9, eff. June 18,
1999.