CHAPTER 2161. HISTORICALLY UNDERUTILIZED BUSINESSES
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE D. STATE PURCHASING AND GENERAL SERVICES
CHAPTER 2161. HISTORICALLY UNDERUTILIZED BUSINESSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2161.001. DEFINITIONS. In this chapter:
(1) "Goods" means supplies, materials, or equipment.
(2) "Historically underutilized business" means an entity with
its principal place of business in this state that is:
(A) a corporation formed for the purpose of making a profit in
which 51 percent or more of all classes of the shares of stock or
other equitable securities are owned by one or more economically
disadvantaged persons who have a proportionate interest and
actively participate in the corporation's control, operation, and
management;
(B) a sole proprietorship created for the purpose of making a
profit that is completely owned, operated, and controlled by an
economically disadvantaged person;
(C) a partnership formed for the purpose of making a profit in
which 51 percent or more of the assets and interest in the
partnership are owned by one or more economically disadvantaged
persons who have a proportionate interest and actively
participate in the partnership's control, operation, and
management;
(D) a joint venture in which each entity in the venture is a
historically underutilized business, as determined under another
paragraph of this subdivision; or
(E) a supplier contract between a historically underutilized
business as determined under another paragraph of this
subdivision and a prime contractor under which the historically
underutilized business is directly involved in the manufacture or
distribution of the goods or otherwise warehouses and ships the
goods.
(3) "Economically disadvantaged person" means a person who is
economically disadvantaged because of the person's identification
as a member of a certain group, including Black Americans,
Hispanic Americans, women, Asian Pacific Americans, and Native
Americans, and who has suffered the effects of discriminatory
practices or other similar insidious circumstances over which the
person has no control.
(4) "Contract" includes an arrangement under which a state
agency receives professional or investment brokerage services.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.21, eff.
Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1261, Sec. 1, eff. Sept.
1, 2003.
For expiration of this section, see Section 2151.0041.
Sec. 2161.0011. 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. 1.21, eff. September 1, 2007.
Sec. 2161.0012. AUTHORITY TO ADOPT RULES. (a) 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.
(b) The comptroller shall follow the procedures prescribed by
Subchapter B, Chapter 2001, when adopting a new rule or a change
to an existing rule that relates to historically underutilized
businesses.
Added by Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.21, eff. September 1, 2007.
Sec. 2161.0015. DETERMINING SIZE STANDARDS FOR HISTORICALLY
UNDERUTILIZED BUSINESSES. The commission may establish size
standards that a business may not exceed if it is to be
considered a historically underutilized business under this
chapter. In determining the size standards, the commission shall
determine the size at which a business should be considered
sufficiently large that the business probably does not
significantly suffer from the effects of past discriminatory
practices.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.02, eff. Sept. 1,
1999.
Sec. 2161.002. COMMISSION ADMINISTRATION; COMPTROLLER
ASSISTANCE. (a) To administer Subchapters B and C, the
commission may:
(1) require information from a state agency; and
(2) adopt rules.
(b) Repealed by Acts 2007, 80th Leg., R.S., Ch. 937, Sec.
1.117(6), eff. September 1, 2007.
(c) In adopting rules to administer this chapter, the commission
shall adopt rules that are based on the results of the "State of
Texas Disparity Study, A Report to the Texas Legislature as
Mandated by H.B. 2626, 73rd Legislature, December 1994" (prepared
by National Economic Research Associates, Inc.). The commission
shall revise the rules in response to the findings of any updates
of the study that are prepared on behalf of the state.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.22, eff.
Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.117(6), eff. September 1, 2007.
Sec. 2161.003. AGENCY RULES. A state agency, including an
institution of higher education, shall adopt the commission's
rules under Section 2161.002 as the agency's or institution's own
rules. Those rules apply to the agency's construction projects
and purchases of goods and services paid for with appropriated
money without regard to whether a project or purchase is
otherwise subject to this subtitle.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.23, eff. Sept. 1,
1999.
Sec. 2161.004. APPLICABILITY; INTENT. (a) This chapter and
rules adopted by the commission under this chapter apply to state
agency construction projects and purchases of goods and services
that are paid for with appropriated money and made under the
authority of this subtitle or other law.
(b) The legislature intends that all qualified businesses have
access to compete for business from the state.
(c) Section 2161.003 and Subsections (a) and (b) of this section
do not apply to a project or contract subject to Section 201.702,
Transportation Code.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.23, eff. Sept. 1,
1999.
Sec. 2161.005. TRANSFER OF FUNDS FOR PURCHASING. If the state
auditor reports to the commission under Section 2161.123(d) that
a state agency is not complying with Section 2161.123, the
commission shall report that fact to the Legislative Budget
Board. If the Legislative Budget Board determines that, one year
after the date of the state auditor's report to the commission,
the agency is still not complying with Section 2161.123, the
budget board may, under Section 69, Article XVI, Texas
Constitution, direct the emergency transfer of the agency's
appropriated funds for making purchases under purchasing
authority delegated under Section 2155.131 or 2155.133 to the
appropriate state agency. The amount transferred from the
agency's funds to the appropriate agency shall be an amount
determined by the Legislative Budget Board.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.23, eff. Sept. 1,
1999.
SUBCHAPTER B. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 2161.061. COMMISSION CERTIFICATION OF HISTORICALLY
UNDERUTILIZED BUSINESSES. (a) The commission shall certify
historically underutilized businesses.
(b) As one of its certification procedures, the commission may:
(1) approve the certification program of one or more local
governments or nonprofit organizations in this state that certify
historically underutilized businesses, minority business
enterprises, women's business enterprises, or disadvantaged
business enterprises under substantially the same definition, to
the extent applicable, used by Section 2161.001, if the local
government or nonprofit organization meets or exceeds the
standards established by the commission; and
(2) certify a business that is certified by a local government
or by a nonprofit organization as a historically underutilized
business under this chapter.
(c) To maximize the number of certified historically
underutilized businesses, the commission shall enter into
agreements with local governments in this state that conduct
certification programs described by Subsection (b) and with
nonprofit organizations. The commission may terminate an
agreement if a local government or nonprofit organization fails
to meet the standards established by the commission for
certifying historically underutilized businesses. The agreements
must take effect immediately and:
(1) allow for automatic certification of businesses certified by
the local government or nonprofit organization;
(2) provide for the efficient updating of the commission
database containing information about historically underutilized
businesses and potential historically underutilized businesses;
and
(3) provide for a method by which the commission may efficiently
communicate with businesses certified by the local government or
nonprofit organization and provide those businesses with
information about the state historically underutilized business
program.
(d) A local government or a nonprofit organization that
certifies historically underutilized businesses, minority
business enterprises, women's business enterprises, or
disadvantaged business enterprises as described in Subsections
(b) and (c) shall complete the certification of an applicant or
provide an applicant with written justification of its
certification denial within the period established by the
commission in its rules for certification activities.
(e) A local government or a nonprofit organization that
certifies historically underutilized businesses under Subsection
(c) or that conducts a certification program described by and
approved under Subsection (b) shall make available to the public
an online searchable database containing information about
historically underutilized businesses, minority business
enterprises, women's business enterprises, and disadvantaged
business enterprises certified by the local government or
nonprofit organization, including:
(1) the name of the business;
(2) the contact person or owner of the business;
(3) the address and telephone number of the business;
(4) the type or category of business, including relevant
capabilities of the business and the North American Industry
Classification System codes for the business; and
(5) the expiration date of the business's certification.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.03(a),
eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1499, Sec. 2.03,
eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1422, Sec. 13.01,
eff. Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.22, eff. September 1, 2007.
Sec. 2161.062. ASSISTANCE TO HISTORICALLY UNDERUTILIZED
BUSINESSES. (a) The commission shall seek the advice of the
governor, legislature, and state agencies in identifying and
developing opportunities for historically underutilized
businesses.
(b) The commission shall offer historically underutilized
businesses assistance and training regarding state procurement
procedures.
(c) The commission shall advise historically underutilized
businesses of available state contracts and shall advise
historically underutilized businesses to apply for registration
on the commission's master bidders list.
(d) The commission shall send historically underutilized
businesses an orientation package on certification or
recertification. The package shall include:
(1) a certificate issued in the historically underutilized
business's name;
(2) a description of the significance and value of
certification;
(3) a list of state purchasing personnel;
(4) information regarding electronic commerce opportunities;
(5) information regarding the Texas Marketplace website; and
(6) additional information about the state procurement process.
(e) A state agency with a biennial budget that exceeds $10
million shall designate a staff member to serve as the
historically underutilized businesses coordinator for the agency
during the fiscal year. The procurement director may serve as the
coordinator. In agencies that employ a historically underutilized
businesses coordinator, the position of coordinator, within the
agency's structure, must be at least equal to the position of
procurement director. In addition to any other responsibilities,
the coordinator shall:
(1) coordinate training programs for the recruitment and
retention of historically underutilized businesses;
(2) report required information to the commission; and
(3) match historically underutilized businesses with key staff
within the agency.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 2.04, eff.
Sept. 1, 1999.
Sec. 2161.063. ASSISTING STATE AGENCIES. (a) The commission
shall encourage state agencies to use historically underutilized
businesses by:
(1) working with state agencies to establish a statewide policy
for increasing the use of historically underutilized businesses;
(2) assisting state agencies in seeking historically
underutilized businesses capable of supplying required goods or
services;
(3) assisting state agencies in identifying and advising
historically underutilized businesses on the types of goods and
services the agencies need; and
(4) assisting state agencies in increasing the amount of
business placed with historically underutilized businesses.
(b) The commission shall assist the Texas Department of Economic
Development in performing the department's duties under Section
481.0068.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 2.05, eff.
Sept. 1, 1999.
Sec. 2161.064. DIRECTORY. (a) The commission shall compile, in
the most cost-efficient form, a directory of businesses certified
as historically underutilized businesses under Section 2161.061.
(b) The commission at least semiannually shall update the
directory and provide access to the directory electronically or
in another form to each state agency.
(c) Depending on the needs of a state agency, the commission
shall provide access to the directory electronically or in
another form.
(d) The commission shall provide a copy of the directory to
every municipality in January and July of each year. On request,
the commission shall make the directory available to other local
governments and the public.
(e) A state agency, including the commission, shall use the
directory in determining awards of state purchasing and public
works contracts.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 2.06, eff.
Sept. 1, 1999.
Sec. 2161.065. MENTOR-PROTEGE PROGRAM. (a) The commission
shall design a mentor-protege program to foster long-term
relationships between prime contractors and historically
underutilized businesses and to increase the ability of
historically underutilized businesses to contract with the state
or to receive subcontracts under a state contract. Each state
agency with a biennial appropriation that exceeds $10 million
shall implement the program designed by the commission.
(b) Participation in the program must be voluntary for both the
contractor and the historically underutilized business
subcontractor.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.08, eff. Sept. 1,
1999.
Sec. 2161.066. HISTORICALLY UNDERUTILIZED BUSINESS FORUMS. (a)
The commission shall design a program of forums in which
historically underutilized businesses are invited by state
agencies to deliver technical and business presentations that
demonstrate their capability to do business with the agency:
(1) to senior managers and procurement personnel at state
agencies that acquire goods and services of a type supplied by
the historically underutilized businesses; and
(2) to contractors with the state who may be subcontracting for
goods and services of a type supplied by the historically
underutilized businesses.
(b) The forums shall be held at state agency offices.
(c) Each state agency with a biennial appropriation that exceeds
$10 million shall participate in the program by sending senior
managers and procurement personnel to attend relevant
presentations and by informing the agency's contractors about
presentations that may be relevant to anticipated subcontracting
opportunities.
(d) Each state agency that has a historically underutilized
businesses coordinator shall:
(1) design its own program and model the program to the extent
appropriate on the program developed by the commission under this
section; and
(2) sponsor presentations by historically underutilized
businesses at the agency.
(e) The commission and each state agency that has a historically
underutilized businesses coordinator shall aggressively identify
and notify individual historically underutilized businesses
regarding opportunities to make a presentation regarding the
types of goods and services supplied by the historically
underutilized business and shall advertise in appropriate trade
publications that target historically underutilized businesses
regarding opportunities to make a presentation.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.08, eff. Sept. 1,
1999.
SUBCHAPTER C. PLANNING AND REPORTING REQUIREMENTS
Sec. 2161.121. COMMISSION REPORT OF CONTRACTS AWARDED TO
HISTORICALLY UNDERUTILIZED BUSINESSES. (a) The commission shall
prepare a consolidated report that:
(1) includes the number and dollar amount of contracts awarded
and paid to historically underutilized businesses certified by
the commission;
(2) analyzes the relative level of opportunity for historically
underutilized businesses for various categories of acquired goods
and services; and
(3) tracks, by vendor identification number and, to the extent
allowed by federal law, by social security number, the graduation
rates for historically underutilized businesses that grew to
exceed the size standards determined by the commission.
(b) Each state agency shall send to the commission information
required by Section 2161.122 and the commission for the
preparation of the commission's report not later than March 15
and September 15 of each year.
(c) The commission shall base its report on the compilation and
analysis of reports received under Subsection (b) and information
received from the comptroller.
(d) The commission shall send on April 15 of each year a report
on the previous six-month period to the joint committee charged
with monitoring the implementation of the historically
underutilized business goals.
(e) The commission shall send on October 15 of each year a
report on the preceding fiscal year to the presiding officer of
each house of the legislature and the joint committee.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 2.07, eff.
Sept. 1, 1999.
Sec. 2161.122. INFORMATION GATHERING BY STATE AGENCY. (a) To
ensure accuracy in reporting, a state agency shall maintain and
compile monthly information relating to the use by the agency and
each of its operating divisions of historically underutilized
businesses, including information regarding subcontractors and
suppliers required by Subsection (b).
(b) A contractor or supplier awarded a contract by a state
agency shall report to the agency the identity of each
historically underutilized business to whom the contractor or
supplier awarded a subcontract for the purchase of goods or
services.
(c) Each state agency shall report to the commission in
accordance with Section 2161.125 the following information with
regard to the expenditure of both treasury and nontreasury funds:
(1) the total dollar amount of purchases and payments made under
contracts awarded to historically underutilized businesses;
(2) the number of businesses participating in any issuance of
state bonds by the agency;
(3) the number of contracts awarded to businesses with regard to
the agency's acquisition, construction, or equipping of a
facility or implementation of a program; and
(4) the number of bids, proposals, or other applicable
expressions of interest made by historically underutilized
businesses with regard to the agency's acquisition, construction,
or equipping of a facility or implementation of a program.
(d) A state agency participating in a group purchasing program
shall send to the commission in the agency's report under Section
2161.121 a separate list of purchases from historically
underutilized businesses that are made through the group
purchasing program, including the dollar amount of each purchase
allocated to the reporting agency.
(e) A state agency's report is a record of the agency's
purchases for which the agency selected the vendor. If the vendor
was selected by the commission as part of its state contract
program, the commission shall include the purchase in the
commission's report of its own purchases unless the commission
made a sole source purchase for the agency under Section
2155.067. The state agency for which the purchase was made shall
report the selection of the vendor on its report as if the agency
selected the vendor when the agency drew specifications for goods
or services that are proprietary to one vendor.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.24, eff.
Sept. 1, 1999.
Sec. 2161.123. STRATEGIC PLANNING. (a) Each state agency,
including the commission, that is required to have a strategic
plan under Chapter 2056 shall include in its strategic plan a
written plan for increasing the agency's use of historically
underutilized businesses in purchasing and public works
contracting. The governing board of each university system or
institution of higher education not included in a university
system, other than a public junior college, shall prepare a
written plan for increasing the use of historically underutilized
businesses in purchasing and public works contracting by the
system or institution.
(b) The plan must include:
(1) a policy or mission statement relating to increasing the use
of historically underutilized businesses by the state agency;
(2) goals to be met by the agency in carrying out the policy or
mission; and
(3) specific programs to be conducted by the agency to meet the
goals stated in the plan, including a specific program to
encourage contractors to use historically underutilized
businesses as partners and subcontractors.
(c) On request, the commission shall provide technical
assistance to a state agency that is preparing its plan.
(d) The commission and the state auditor shall cooperate to
develop procedures providing for random periodic monitoring of
state agency compliance with this section. The state auditor
shall report to the commission a state agency that is not
complying with this section. In determining whether a state
agency is making a good faith effort to comply, the state auditor
shall consider whether the agency:
(1) has adopted rules under Section 2161.003;
(2) has used the commission's directory under Section 2161.064
and other resources to identify historically underutilized
businesses that are able and available to contract with the
agency;
(3) made good faith, timely efforts to contact identified
historically underutilized businesses regarding contracting
opportunities;
(4) conducted its procurement program in accordance with the
good faith effort methodology set out in commission rules; and
(5) established goals for contracting with historically
underutilized businesses in each procurement category based on:
(A) scheduled fiscal year expenditures; and
(B) the availability of historically underutilized businesses in
each category as determined by rules adopted under Section
2161.002.
(e) In conducting an audit of an agency's compliance with this
section or an agency's making of a good faith effort to implement
the plan adopted under this section, the state auditor shall
consider the success or failure of the agency to contract with
historically underutilized businesses in accordance with the
agency's goals described by Subsection (d)(5).
(f) If the state auditor reports to the commission that a state
agency is not complying with this section, the commission shall
assist the agency in complying.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.25, eff.
Sept. 1, 1999; Acts 2003, 78th Leg., ch. 785, Sec. 36, eff. Sept.
1, 2003; Acts 2003, 78th Leg., ch. 1266, Sec. 4.08, eff. June 20,
2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.23, eff. September 1, 2007.
Sec. 2161.124. STATE AGENCY PROGRESS REPORTS. (a) Each state
agency, including the commission, shall prepare a report for each
fiscal year documenting progress under its plan for increasing
use of historically underutilized businesses.
(b) The commission shall develop a standard form for the report.
(c) The state agency shall file the report with the governor,
lieutenant governor, and the speaker of the house of
representatives not later than December 31 of each year.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 2003, 78th Leg., ch. 785, Sec. 37, eff.
Sept. 1, 2003.
Sec. 2161.125. CATEGORIZATION BY SEX, RACE, AND ETHNICITY. The
comptroller, in cooperation with each state agency reporting
under this subchapter, shall categorize each historically
underutilized business included in a report under this subchapter
by sex, race, and ethnicity.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.24, eff. September 1, 2007.
Sec. 2161.126. EDUCATION AND OUTREACH BY COMMISSION. Before
September 1 of each year, the commission shall report to the
governor, the lieutenant governor, and the speaker of the house
of representatives on the education and training efforts that the
commission has made toward historically underutilized businesses.
The report must include the following as related to historically
underutilized businesses:
(1) the commission's vision, mission, and philosophy;
(2) marketing materials and other educational materials
distributed by the commission;
(3) the commission's policy regarding education, outreach, and
dissemination of information;
(4) goals that the commission has attained during the fiscal
year;
(5) the commission's goals, objectives, and expected outcome
measures for each outreach and education event; and
(6) the commission's planned future initiatives on education and
outreach.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.09, eff. Sept. 1,
1999.
Sec. 2161.127. LEGISLATIVE APPROPRIATIONS REQUESTS. (a) Each
state agency must include as part of its legislative
appropriations request a detailed report for consideration by the
budget committees of the legislature that shows the extent to
which the agency complied with this chapter and rules of the
commission adopted under this chapter during the two calendar
years preceding the calendar year in which the request is
submitted. To the extent the state agency did not comply, the
report must demonstrate the reasons for that fact. The extent to
which a state agency complies with this chapter and rules of the
commission adopted under this chapter is considered a key
performance measure for purposes of the appropriations process.
(b) The report under Subsection (a) must include:
(1) the agency's goals established under Section 2161.123(d)(5)
for contracting with historically underutilized businesses during
the two calendar years preceding the calendar year in which the
request is submitted;
(2) a statement regarding whether the goals established under
Section 2161.123(d)(5) were met during the two calendar years
preceding the calendar year in which the request is submitted;
and
(3) if the goals established under Section 2161.123(d)(5) were
not met during the two calendar years preceding the calendar year
in which the request is submitted:
(A) a statement of the percentage by which the agency's actual
use of historically underutilized businesses deviated from the
agency's goals; and
(B) an explanation of why the goals were not met.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.09, eff. Sept. 1,
1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.25, eff. September 1, 2007.
SUBCHAPTER D. PURCHASING GOALS
Sec. 2161.181. GOALS FOR PURCHASES OF GOODS AND SERVICES. A
state agency, including the commission, shall make a good faith
effort to increase the contract awards for the purchase of goods
or services that the agency expects to make during a fiscal year
to historically underutilized businesses based on rules adopted
by the commission to implement the disparity study described by
Section 2161.002(c).
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.26, eff.
Sept. 1, 1999.
Sec. 2161.182. GOALS FOR CONSTRUCTION CONTRACTS. (a) A state
agency that contracts for a construction project, including a
project under Section 2166.003, shall make a good faith effort to
increase the construction contract awards that the agency expects
to make during a fiscal year to historically underutilized
businesses based on rules adopted by the commission to implement
the disparity study described by Section 2161.002(c).
(b) In this section, "project" has the meaning assigned by
Section 2166.001.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.27, eff.
Sept. 1, 1999.
Sec. 2161.183. ESTIMATE OF EXPECTED CONTRACT AWARDS. (a) Not
later than the 60th day of its fiscal year, a state agency,
including the commission:
(1) shall estimate the total value of contract awards the agency
expects to make for that fiscal year that are subject to Section
2161.181; and
(2) shall estimate the total value of contract awards the agency
expects to make for that fiscal year under Chapter 2166.
(b) The state agency may revise an estimate as new information
requires.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER E. PENALTY
Sec. 2161.231. PENALTY. (a) A person commits an offense if the
person:
(1) intentionally applies as a historically underutilized
business for an award of a purchasing contract or public works
contract under this subtitle; and
(2) knows the person is not a historically underutilized
business.
(b) An offense under this section is a third degree felony.
Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER F. SUBCONTRACTING
Sec. 2161.251. APPLICABILITY. (a) This subchapter applies to
all contracts entered into by a state agency with an expected
value of $100,000 or more, including:
(1) contracts for the acquisition of a good or service; and
(2) contracts for or related to the construction of a public
building, road, or other public work.
(b) This subchapter applies to the contract without regard to:
(1) whether the contract is otherwise subject to this subtitle;
or
(2) the source of funds for the contract, except that to the
extent federal funds are used to pay for the contract, this
subchapter does not apply if federal law prohibits the
application of this subchapter in relation to the expenditure of
federal funds.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.10, eff. Sept. 1,
1999.
Sec. 2161.252. AGENCY DETERMINATION REGARDING SUBCONTRACTING
OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN. (a) Each state
agency that considers entering into a contract with an expected
value of $100,000 or more shall, before the agency solicits bids,
proposals, offers, or other applicable expressions of interest
for the contract, determine whether there will be subcontracting
opportunities under the contract. If the state agency determines
that there is that probability, the agency shall require that
each bid, proposal, offer, or other applicable expression of
interest for the contract include a historically underutilized
business subcontracting plan.
(b) When a state agency requires a historically underutilized
business subcontracting plan under Subsection (a), a bid,
proposal, offer, or other applicable expression of interest for
the contract must contain a plan to be considered responsive.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.10, eff. Sept. 1,
1999.
Sec. 2161.253. GOOD FAITH COMPLIANCE WITH BUSINESS
SUBCONTRACTING PLAN. (a) When a state agency requires a
historically underutilized business subcontracting plan under
Section 2161.252, the awarded contract shall contain, as a
provision of the contract that must be fulfilled, the plan that
the contractor submitted in its bid, proposal, offer, or other
applicable expression of interest for the contract. The
contractor shall make good faith efforts to implement the plan. A
contractor's participation in a mentor-protege program under
Section 2161.065 and submission of a protege as a subcontractor
in the contractor's historically underutilized business
subcontracting plan constitutes a good faith effort under this
section for the particular area of the subcontracting plan
involving the protege.
(b) To the extent that subcontracts are not contracted for as
originally submitted in the historically underutilized business
subcontracting plan, the contractor shall report to the state
agency all the circumstances that explain that fact and describe
the good faith efforts made to find and subcontract with another
historically underutilized business.
(c) The state agency shall audit the contractor's compliance
with the historically underutilized business subcontracting plan.
In determining whether the contractor made the required good
faith effort, the agency may not consider the success or failure
of the contractor to subcontract with historically underutilized
businesses in any specific quantity. The agency's determination
is restricted to considering factors indicating good faith.
(d) If a determination is made that the contractor failed to
implement the plan in good faith, the agency, in addition to any
other remedies, may bar the contractor from further contracting
opportunities with the agency.
(e) The commission shall adopt rules to administer this
subchapter.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 2.10, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1422, Sec. 13.02, eff.
Sept. 1, 2001.