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.