Presenter: Steve Whiston

Commission Agenda Item No. 3
Action
Negotiated Contracts
November 1999

I. DISCUSSION: The enactment of Senate Bill 874 by the Seventy-sixth Texas Legislature created a mechanism for the Department to enter into contracts when circumstances make sealed bidding impractical or counterproductive. Under the terms of SB 874, the Department is authorized to negotiate and enter into contracts with federal and state governments, other subdivisions of state government, and non-profit organizations, as well as to negotiate and enter into contracts for project management, design, construction, and construction management, provided the Commission by rule adopts policies and procedures for the solicitation and award of contracts. Staff was authorized by the Executive Director to publish the regulations required by the Act. The proposed rules appeared in the October 15, 1999, issue of the Texas Register (24 TexReg 8916). The proposed regulations located at Exhibit A would: set forth the conditions and protocol for the issuance of a Request for Proposal (RFP), the evaluation of proposals received in response to an RFP, and the selection of proposals for award; specify the conditions for contract award in response to an RFP; and provide for the termination of negotiations with proposers under certain circumstances. The proposed regulations located at Exhibit B codify the legislative intent of S.B. 874 in the Texas Administrative Code. Staff will provide the Commission with a summary of public comment at the time of the November hearing.

II. RECOMMENDATION: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§61.21 and 61.24, new 61.25 and 61.26, and 51.60, concerning Negotiated Contracts for Public Works and Authority to Contract with other governmental agencies, with changes to the proposed text as published in the October 15, 1999, issue of the Texas Register (24 TexReg 8916)"

Attachments – 3

1. Exhibit A – Proposed Regulations for Negotiated Contracts

2. Exhibit B – Proposed Regulation Establishing Authority to Contract

3. Exhibit C - Fiscal Note (Exhibit C - Available upon request.)


Commission Agenda Item No. 3
Exhibit A

Contract for Public Works
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §61.21 and §61.24, new §61.25, and new §61.26, concerning contracts for public works. The amendments and new section are necessary to provide a mechanism for the agency to enter into contracts when circumstances make sealed bidding impractical. The amendment to §61.21, concerning General, adds a new subsection (c) to allow the executive director to solicit proposals for public works projects by means of a Request for Proposal (RFP) process. The amendment to §61.24, concerning Award, alters the title of the section to reflect the fact that the rule pertains to sealed bids rather than the RFP process. New §61.25, concerning Solicitation, Evaluation, and Selection of Proposals, sets forth the protocol for the issuance of an RFP, the evaluation of proposals received in response to an RFP, and the selection of proposals for award. New §61.26, concerning Award in Response to Proposals, specifies the conditions for contract awards in response to an RFP, and provides for the termination of negotiations with proposers under certain circumstances.

2. Fiscal Note.

Frank Pulis, Infrastructure Division Project Controls Branch Head, has determined that for each of the first five years that the amendments and new section as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rules.

3. Public Benefit - Cost Note.

Mr. Pulis also has determined that for each of the first five years the amendments and new section are in effect:

(A) The public benefit anticipated as a result of enforcing the amendments and new section as proposed will be the department’s ability to more efficiently and effectively award contracts, thereby expediting the agency’s statutory obligation to develop, operate, and maintain facilities, areas, and programs for the benefit of the public.

(B) There will be no effect on small businesses. There is no additional economic cost to persons required to comply with the amendments and new section as proposed.

(C) The department has not filed a local impact statement with the Texas Employment Commission as required by Government Code, §2001.022, as this agency has determined that the amendments and new section as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed amendments and new section.

4. Request for Public Comments.

Comments on the proposed amendments and new section may be submitted to Frank Pulis, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4944 or 1-800-792-4410.

5. Statutory Authority.

The amendments and new section are proposed under Parks and Wildlife Code, Chapter 11, Subchapter B, which requires the commission to adopt policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts.

The proposed amendments and new section affect Parks and Wildlife Code, Chapter 11, Subchapter B.

§61.21. General.

(a) The services of a contractor will be obtained by competitive bids except as provided in these rules.

(b) The executive director or his designee may waive the competitive bid requirement under the following conditions:

(1) when construction or repair work is needed without delay to protect the health or safety of any person or to preserve or protect state property from damage; or

(2) when it is determined that the interest of the state will be best served if the work is accomplished by one or more selected sources, in accordance with established, approved criteria.

(3)[(c)] A statement clearly outlining the criteria and justification for selecting one or more sources to perform the work must be placed in the project file.

(c) The executive director or his designee may solicit competitive proposals as provided in §61.25 of this title (relating to Solicitation, Evaluation, and Selection of Proposals) to negotiate contracts for:

(1) professional services, including project management, design, construction, and construction administration; and

(2) construction services.

§61.24. Award of Bids.

(a) Award shall be made of a contract to the bidder submitting the lowest and best bid conforming to the specifications required.

(b) In determining the lowest and best bidder, in addition to price, the following shall be considered:

(1) quality and availability of the materials, equipment, or contractual services and their adaptability to the work required;

(2) bidder's ability, capacity, and skill to perform the contract or provide the services required;

(3) bidder's ability to perform the contract or provide the service within the time required in the contract;

(4) bidder's responsibility, reputation in the business field under consideration, and experience;

(5) the documented quality of performance of previous contracts or services for similar work as specified;

(6) bidder's previous and existing compliance with laws relating to the contract or services and with specification requirements relating to the time of submission of specified information, including but not limited to submittals;

(7) the sufficiency of the bidder's financial resources and ability to perform the contract or provide the service;

(8) the bidder's ability to supply all information required in connection with the bidder qualification review process conducted by the department; and

(9) other factors as may be appropriate.

(c) The safety record of the bidder, the entity represented by the bidder, and any person acting for the represented entity, may be considered in determining lowest and best bidder only if:

(1) the department has adopted a written definition and criteria for accurately determining the safety record of the bidder; and

(2) the department gave notice in the bid specifications to prospective bidders that a bidder's safety record may be considered in determining the lowest and best bidder.

(d) A determination of a bidder's safety record may not be arbitrary and capricious.

§61.25. Solicitation, Evaluation, and Selection of Proposals.

(a) Projects may be accomplished by issuing a Request for Proposal (RFP) to solicit competitive proposals when the department determines that sealed bidding is either not practical or not advantageous to the state.

(b) Competitive proposals for professional services shall be evaluated in accordance with procedures specified for the selection of architects or engineers as provided in Government Code, §2254.004.

(c) Competitive proposals for construction services will be evaluated as follows.

(1) In phase one, the department will evaluate each proposer's:

(A) experience, technical competence, and capability to perform;

(B) past performance; and

(C) other appropriate factors submitted in response to the RFP.

(2) In phase two, the department will evaluate top-ranked proposers on:

(A) on the feasibility of implementing the project as proposed;

(B) their ability to meet schedules;

(C) costing/pricing methodology; and

(D) other factors as appropriate.

(d) Oral presentations may be requested from proposers in the competitive range.

(e) Contract(s) will be negotiated with the responsive, responsible proposer whose proposal is determined to be the most advantageous to the state.

(f) Proposals may be selected using ‘best value’ evaluation factors, including subjective criteria (other than price) and objective criteria, as stipulated in the RFP.

(g) The department may, in accordance with the provisions of Government Code, §2254.004 applicable to the procurement of professional services, independently provide or contract for:

(1) inspection services;

(2) the testing of construction materials engineering; and

(3) the verification testing services necessary for acceptance of the project by the department.

§61.26. Award in Response to Proposals.

(a) Contract(s) will be awarded to the proposer(s) deemed most advantageous, provided that a fair and reasonable price is obtained.

(b) If a satisfactory contract cannot be negotiated with a selected proposer, negotiations with that proposer may be terminated.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.


Commission Agenda Item No. 3
Exhibit B

Authority to Contract
Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes new 31 TAC §51.60, concerning Authority to Contract for Public Works. The new section is necessary to implement the provisions of Senate Bill 874, Acts of the 76th Texas Legislature, 1999, which requires the commission to adopt policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts. The new section will function by codifying the intent of the legislature.

2. Fiscal Note.

Judy Doran, Administrative Resources Division Staff Attorney, has determined that for each of the first five years that the new section as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rule.

3. Public Benefit - Cost Note.

Ms. Doran also has determined that for each of the first five years the new section is in effect:

(A) The public benefit anticipated as a result of enforcing the new section as proposed will be the department’s ability to more efficiently and effectively award contracts, thereby expediting the agency’s statutory obligation to develop, operate, and maintain facilities, areas, and programs for the benefit of the public.

(B) There will be no effect on small businesses. There is no additional economic cost to persons required to comply with the new section as proposed.

(C) The department has not filed a local impact statement with the Texas Employment Commission as required by Government Code, §2001.022, as this agency has determined that the new section as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed new section.

4. Request for Public Comments.

Comments on the proposed new section may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-4410.

5. Statutory Authority.

The new section is proposed under Parks and Wildlife Code, Chapter 11, Subchapter B, which requires the commission to adopt policies and procedures consistent with applicable state procurement practices for soliciting and awarding the contracts.

The proposed new section affects Parks and Wildlife Code, Chapter 11, Subchapter B.

§51.60. Authority to Contract. The executive director or the executive director's designee may negotiate, contract, or enter into an agreement with the United States government, another state or a political subdivision of another state or of this state, or a nonprofit organization, if the department determines that it is in the best interests of the state to do so.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.


Top of Page
Back to Top
Back to Top