CHAPTER 2157. PURCHASING: PURCHASE OF AUTOMATED INFORMATION SYSTEMS
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE D. STATE PURCHASING AND GENERAL SERVICES
CHAPTER 2157. PURCHASING: PURCHASE OF AUTOMATED INFORMATION
SYSTEMS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2157.001. DEFINITIONS. In this chapter:
(1) "Automated information system" includes:
(A) the computers and computer devices on which an information
system is automated, including computers and computer devices
that the commission identifies in guidelines developed by the
commission in consultation with the department and in accordance
with Chapter 2054 and rules adopted under that chapter;
(B) a service related to the automation of an information
system, including computer software or computers;
(C) a telecommunications apparatus or device that serves as a
component of a voice, data, or video communications network for
transmitting, switching, routing, multiplexing, modulating,
amplifying, or receiving signals on the network, and services
related to telecommunications that are not covered under
Paragraph (D); and
(D) for the department, as telecommunications provider for the
state, the term includes any service provided by a
telecommunications provider, as that term is defined by Section
51.002, Utilities Code.
(2) "Department" means the Department of Information Resources.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 952, Sec. 1, eff.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 18.25, eff.
Sept. 1, 1999; Acts 1999, 76th Leg., ch. 426, Sec. 10, eff. June
18, 1999; Acts 2001, 77th Leg., ch. 1422, Sec. 4.13, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 309, Sec. 7.25, eff. June 18,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.02, eff. September 1, 2005.
For expiration of this section, see Section 2151.0041.
Sec. 2157.0011. 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. 1.19, eff. September 1, 2007.
Sec. 2157.0012. 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. 1.19, eff. September 1, 2007.
Sec. 2157.002. APPLICABILITY. Subchapters A, B, and D apply
only to a state agency to which Chapter 2054 applies.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2157.003. DETERMINING BEST VALUE FOR PURCHASES OF AUTOMATED
INFORMATION SYSTEMS. "Best value" for purposes of this chapter
means the lowest overall cost of an automated information system.
In determining the lowest overall cost for a purchase or lease
of an automated information system under this chapter, the
commission or a state agency shall consider factors including:
(1) the purchase price;
(2) the compatibility to facilitate the exchange of existing
data;
(3) the capacity for expanding and upgrading to more advanced
levels of technology;
(4) quantitative reliability factors;
(5) the level of training required to bring persons using the
system to a stated level of proficiency;
(6) the technical support requirements for the maintenance of
data across a network platform and the management of the
network's hardware and software;
(7) the compliance with applicable department statewide
standards validated by criteria adopted by the department by
rule; and
(8) applicable factors listed in Sections 2155.074 and 2155.075.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 18, eff.
Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.03, eff. September 1, 2005.
Sec. 2157.004. TRANSFERS AND LOANS. A state agency that
acquires a telecommunications device, system, or service or an
automated information system by interagency transfer, contract,
or loan, or by public loan, shall comply with the requirements of
Chapter 2054.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2157.006. PURCHASING METHODS. (a) The commission or
other state agency shall purchase an automated information system
using:
(1) the purchasing method described by Section 2157.068 for
commodity items; or
(2) a purchasing method designated by the commission to obtain
the best value for the state, including a request for offers
method.
(b) A local government may purchase an automated information
system using a method listed under Subsection (a). A local
government that purchases an item using a method listed under
Subsection (a) satisfies any state law requiring the local
government to seek competitive bids for the purchase of the item.
(c) The commission shall adopt rules for designating purchasing
methods under Subsection (a)(2).
Added by Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 9, eff. September 1, 2007.
SUBCHAPTER B. COMMODITY ITEMS
Text of section as repealed by Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 16
Text of section as amended by Acts 2007, 80th Leg., R.S., Ch.
1354, Sec. 2
Without reference to the amendment of this section, this section
was repealed by Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 16(3), eff. September 1, 2007.
Sec. 2157.0611. REQUIREMENT TO EVALUATE THREE OFFERS WHEN
POSSIBLE. A catalog purchase or lease that exceeds $5,000 or
that is made under a written contract shall, when possible, be
based on an evaluation of at least three catalog offers made to
the commission or other state agency by catalog information
systems vendors. If at least three catalog offers are not
evaluated by the commission or other state agency before a
purchase or lease is made that exceeds the threshold amount or is
made under a written contract, the commission or other agency
shall document the reasons for that fact before making the
purchase or lease under Section 2157.063.
Added by Acts 1997, 75th Leg., ch. 1206, Sec. 20, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 426, Sec. 12, eff.
June 18, 1999; Acts 2003, 78th Leg., ch. 309, Sec. 7.12, eff.
June 18, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 16(3), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
1354, Sec. 2, eff. September 1, 2007.
Sec. 2157.068. PURCHASE OF INFORMATION TECHNOLOGY COMMODITY
ITEMS. (a) In this section, "commodity items" means commercial
software, hardware, or technology services, other than
telecommunications services, that are generally available to
businesses or the public and for which the department determines
that a reasonable demand exists in two or more state agencies.
The term includes seat management, through which a state agency
transfers its personal computer equipment and service
responsibilities to a private vendor to manage the personal
computing needs for each desktop in the state agency, including
all necessary hardware, software, and support services.
(b) The department shall negotiate with vendors to attempt to
obtain a favorable price for all of state government on licenses
for commodity items, based on the aggregate volume of purchases
expected to be made by the state. The terms and conditions of a
license agreement between a vendor and the department under this
section may not be less favorable to the state than the terms of
similar license agreements between the vendor and retail
distributors.
(c) In contracting for commodity items under this section, the
department shall make good faith efforts to provide contracting
opportunities for, and to increase contract awards to,
historically underutilized businesses and persons with
disabilities' products and services available under Chapter 122,
Human Resources Code.
(d) The department may charge a reasonable administrative fee to
a state agency, political subdivision of this state, or
governmental entity of another state that purchases commodity
items through the department in an amount that is sufficient to
recover costs associated with the administration of this section.
(e) The department shall compile and maintain a list of
commodity items available for purchase through the department
that have a lower price than the prices for commodity items
otherwise available to state agencies under this chapter. The
department shall make the list available on the world wide web or
on a suitable successor to the world wide web if the
technological developments involving the Internet make it
advisable to do so.
(f) The department may adopt rules regulating a purchase by a
state agency of a commodity item under this section, including a
requirement that, notwithstanding other provisions of this
chapter, the agency must make the purchase in accordance with a
contract developed by the department unless the agency obtains:
(1) an exemption from the department; or
(2) express prior approval from the Legislative Budget Board for
the expenditure necessary for the purchase.
(g) The Legislative Budget Board's approval of a biennial
operating plan under Section 2054.102 is not an express prior
approval for purposes of Subsection (f)(2). A state agency must
request an exemption from the department under Subsection (f)(1)
before seeking prior approval from the Legislative Budget Board
under Subsection (f)(2).
(h) The department shall, in cooperation with state agencies,
establish guidelines for the classification of commodity items
under this section. The department may determine when a
statewide vendor solicitation for a commodity item will reduce
purchase prices for a state agency.
(i) Unless the agency has express statutory authority to employ
a best value purchasing method other than a purchasing method
designated by the commission under Section 2157.006(a)(2), a
state agency shall use a purchasing method provided by Section
2157.006(a) when purchasing a commodity item if:
(1) the agency has obtained an exemption from the department or
approval from the Legislative Budget Board under Subsection (f);
or
(2) the agency is otherwise exempt from this section.
Added by Acts 1999, 76th Leg., ch. 860, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2003, 78th Leg., ch. 309, Sec. 7.17, eff.
June 18, 2003.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 1.08, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 11, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 12, eff. September 1, 2007.
SUBCHAPTER C. REQUESTS FOR PROPOSALS PURCHASE METHOD
Sec. 2157.121. ACQUISITION THROUGH COMPETITIVE SEALED PROPOSALS.
(a) The commission or other state agency may acquire a
telecommunications device, system, or service or an automated
information system by using competitive sealed proposals if the
commission determines that competitive sealed bidding and
informal competitive bidding are not practical or are
disadvantageous to the state.
(b) A state agency, other than the department, 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 department may acquire a telecommunications device,
system, or service or an automated information system by using
competitive sealed proposals without regard to whether the
commission makes the determination required under Subsection (a)
for other state agencies.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 21, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1422, Sec. 4.14, eff.
Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.06, eff. September 1, 2005.
Sec. 2157.122. SOLICITATION OF PROPOSALS; PUBLIC NOTICE. The
commission or other state agency shall:
(1) solicit proposals under this subchapter by a request for
proposals; and
(2) give public notice of the request in the manner provided for
requests for bids under Subchapter B, Chapter 2156.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 21, eff.
Sept. 1, 1997.
Sec. 2157.123. OPENING AND FILING 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. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 21, eff.
Sept. 1, 1997.
Sec. 2157.124. DISCUSSION AND REVISION OF PROPOSAL. (a) As
provided by a request for proposals and under commission rules,
the commission or other state agency may discuss an acceptable or
potentially acceptable proposal with an offeror to assess the
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 an offeror to revise
a proposal to obtain the best final offer.
(c) The commission or other state agency may not disclose
information derived from a proposal submitted by a competing
offeror 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. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 21, eff.
Sept. 1, 1997.
Sec. 2157.125. CONTRACT AWARD; FACTORS CONSIDERED. (a) The
commission or other state agency shall make a written award of a
purchase or lease to the offeror whose proposal under this
subchapter 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 no offer submitted is acceptable.
(c) In determining which proposal under this subchapter offers
the best value for the state, the commission or other state
agency shall, when applicable and subject to Sections 2155.074
and 2155.075, consider factors including:
(1) the installation cost;
(2) the overall life of the system or equipment;
(3) the cost of acquisition, operation, and maintenance of
hardware included with, associated with, or required for the
system or equipment during the state's ownership or lease;
(4) the cost of acquisition, operation, and maintenance of
software included with, associated with, or required for the
system or equipment during the state's ownership or lease;
(5) the estimated cost of other supplies needed because of the
acquisition;
(6) the estimated cost of employee training needed because of
the acquisition;
(7) the estimated cost of necessary additional permanent
employees because of the acquisition; and
(8) the estimated increase in employee productivity because of
the acquisition.
(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. Amended by Acts 1997, 75th Leg., ch. 1206, Sec. 21, eff.
Sept. 1, 1997.
Sec. 2157.126. RULES. The commission shall adopt rules
necessary or convenient to perform its responsibilities regarding
requests for proposals under this subchapter and shall request
assistance from other state agencies as needed.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER D. PREAPPROVED CONTRACT TERMS AND CONDITIONS
Sec. 2157.181. PREAPPROVED CONTRACT TERMS AND CONDITIONS. (a)
The commission, with the concurrence of the department, may
negotiate with vendors preapproved terms and conditions to be
included in contracts relating to the purchase or lease of a
telecommunication device, system, or service or an automated
information system awarded to a vendor by a state agency.
(b) The commission and the department must agree to the wording
of preapproved terms and conditions negotiated with a vendor.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.07, eff. September 1, 2005.
Sec. 2157.182. VALIDITY OF PREAPPROVED TERMS AND CONDITIONS;
RENEGOTIATION. (a) Preapproved terms and conditions to which a
vendor, the commission, and the department agree are valid for
two years after the date of the agreement and must provide that
the terms and conditions are to be renegotiated before the end of
the two years.
(b) The commission and the department jointly shall establish
procedures to ensure that terms and conditions are renegotiated
before they expire in a contract between the vendor and a state
agency.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.08, eff. September 1, 2005.
Sec. 2157.183. PREAPPROVED TERM OR CONDITION PART OF CONTRACT;
CHANGE OF TERM OR CONDITION. (a) Preapproved terms and
conditions must be part of any contract between a state agency
and a vendor that has agreed to them.
(b) A preapproved term or condition that is changed remains
valid for an existing contract of which it is part but must be
renegotiated before it may be part of another or a renewed
contract.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Sec. 2157.184. NOTIFICATION OF STATE AGENCIES AND VENDORS. The
commission and the department jointly shall establish procedures
to notify state agencies and potential vendors of the provisions
of this subchapter regarding preapproved terms and conditions.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Amended by:
Acts 2005, 79th Leg., Ch.
1068, Sec. 2.09, eff. September 1, 2005.