2005 Texas Government Code CHAPTER 2157. PURCHASING: PURCHASE OF AUTOMATED INFORMATION SYSTEMS

GOVERNMENT CODE

CHAPTER 2157. PURCHASING:  PURCHASE OF AUTOMATED INFORMATION 
SYSTEMS

SUBCHAPTER A. GENERAL PROVISIONS


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 952, § 1, eff. Sept. 1, 
1997;  Acts 1999, 76th Leg., ch. 62, § 18.25, eff. Sept. 1, 1999;  
Acts 1999, 76th Leg., ch. 426, § 10, eff. June 18, 1999;  Acts 
2001, 77th Leg., ch. 1422, § 4.13, eff. Sept. 1, 2001;  Acts 
2003, 78th Leg., ch. 309, § 7.25, eff. June 18, 2003;  Acts 2005, 
79th Leg., ch. 1068, § 2.02, eff. Sept. 1, 2005.


	§ 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, § 1, eff. Sept. 1, 1995.            


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 18, eff. Sept. 1, 
1997;  Acts 2005, 79th Leg., ch. 1068, § 2.03, eff. Sept. 1, 
2005.


	§ 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, § 1, eff. Sept. 1, 1995.            


	§ 2157.005. TECHNOLOGY ACCESS CLAUSE.  (a) The commission 
and the department, in consultation with other state agencies and 
after public comment, shall develop a technology access clause to 
be included in all contracts entered into by the state or state 
agencies that involve the acquisition of an automated information 
system.
	(b)  State funds may not be expended in the purchase of an 
automated information system unless the contract contains the 
technology access clause.  The clause must read as follows:
	"The vendor expressly acknowledges that state funds may not 
be expended in connection with the purchase of an automated 
information system unless that system meets certain statutory 
requirements relating to accessibility by persons with visual 
impairments.  Accordingly, the vendor represents and warrants to 
(name of state agency) that the technology provided to (name of 
state agency) for purchase is capable, either by virtue of features 
included within the technology or because it is readily adaptable 
by use with other technology, of:
		(1)  providing equivalent access for effective use by 
both visual and nonvisual means;
		(2)  presenting information, including prompts used 
for interactive communications, in formats intended for both visual 
and nonvisual use;  and
		(3)  being integrated into networks for obtaining, 
retrieving, and disseminating information used by individuals who 
are not blind or visually impaired.
	"For purposes of this clause, the phrase "equivalent access" 
means a substantially similar ability to communicate with or make 
use of the technology, either directly by features incorporated 
within the technology or by other reasonable means such as 
assistive devices or services that would constitute reasonable 
accommodations under the federal Americans with Disabilities Act or 
similar state or federal laws.  Examples of methods by which 
equivalent access may be provided include, but are not limited to, 
keyboard alternatives to mouse commands and other means of 
navigating graphical displays, and customizable display 
appearance."
	(c)  This section applies to all contracts made by state 
agencies that involve the purchase of an automated information 
system, without regard to:
		(1)  the source of funds used to make the purchase;                           
		(2)  whether the purchase is made under delegated 
purchasing authority;  or 
		(3)  whether the purchase is made under the authority 
of this subtitle or other law.
	(d)  This section does not apply to the purchase of a 
wireless communications device to be used by peace officers, 
firefighters, and other emergency response personnel to respond to 
a public safety emergency.

Added by Acts 1997, 75th Leg., ch. 1206, § 19, eff. Sept. 1, 
1997.  Amended by Acts 1999, 76th Leg., ch. 426, § 11, eff. June 
18, 1999;  Acts 1999, 76th Leg., ch. 467, § 1, eff. Sept. 1, 1999;  
Acts 2003, 78th Leg., ch. 357, § 1, eff. June 18, 2003;  Acts 
2003, 78th Leg., ch. 1246, § 27, eff. Sept. 1, 2003;  Acts 2005, 
79th Leg., ch. 1068, § 2.04, eff. Sept. 1, 2005.

SUBCHAPTER B. CATALOG PURCHASE METHOD


	§ 2157.061. USE OF CATALOG PURCHASE METHOD REQUIRED 
UNLESS BEST VALUE AVAILABLE ELSEWHERE.  The commission or a state 
agency shall purchase an automated information system through the 
catalog procedure provided by this subchapter unless the commission 
or state agency determines that the best value may be obtained from 
another purchase method authorized by this subtitle.

Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.  
Amended by Acts 2003, 78th Leg., ch. 309, § 7.11, eff. June 18, 
2003.


	§ 2157.0611. REQUIREMENT TO EVALUATE THREE OFFERS WHEN 
POSSIBLE.  A catalog purchase or lease that exceeds $2,000 or a 
greater amount prescribed by commission rule 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 that 
exceeds the threshold amount is made, 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, § 20, eff. Sept. 1, 
1997.  Amended by Acts 1999, 76th Leg., ch. 426, § 12, eff. June 
18, 1999;  Acts 2003, 78th Leg., ch. 309, § 7.12, eff. June 18, 
2003.


	§ 2157.062. BASIC REQUIREMENTS FOR CATALOG VENDOR.  At a 
minimum, a catalog information systems vendor must:
		(1)  maintain an Internet catalog containing each 
product and service eligible for purchase by a state agency, 
including for each product or service:
			(A)  a description;                                                          
			(B)  the list price;  and                                                    
			(C)  the price to a state agency;                                            
		(2)  maintain a maintenance, repair, and support plan 
for each eligible product or service;
		(3)  provide on request proof of the applicant's 
financial resources and ability to perform;  and
		(4)  provide a guarantee that the vendor will make 
available equivalent replacement parts for a product sold to the 
state until at least the third anniversary of the date the product 
is discontinued.

Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 538, § 2, eff. Sept. 1, 
1997;  Acts 2003, 78th Leg., ch. 309, § 7.13, eff. June 18, 2003.


	§ 2157.063. DIRECT PURCHASE OR LEASE BY STATE AGENCY;  
NEGOTIATION OF ADDITIONAL TERMS.  (a) If a purchase or lease is the 
best value available and is in the state's best interest, a state 
agency may under this subchapter purchase or lease an automated 
information system directly from a catalog information systems 
vendor and may negotiate price and additional terms and conditions 
to be included in a contract relating to the purchase or lease.
	(b)  In determining which goods or services are in the 
state's best interest, the agency shall consider:
		(1)  the installation and hardware costs;                                     
		(2)  the overall life-cycle cost of the system or 
equipment;                
		(3)  the estimated cost of employee training and 
estimated increase in employee productivity;
		(4)  the estimated software and maintenance costs;  and                       
		(5)  the rules that prescribe applicable statewide 
standards adopted by the department.

Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1999, 76th Leg., ch. 426, § 13, eff. June 18, 
1999;  Acts 2003, 78th Leg., ch. 309, § 7.14, eff. June 18, 2003;  
Acts 2005, 79th Leg., ch. 1068, § 2.05, eff. Sept. 1, 2005.


	§ 2157.066. CATALOG REQUIREMENTS.  (a) A catalog 
information systems vendor shall publish and maintain a catalog 
described by Section 2157.062(1) in the manner required by the 
commission.
	(b)  The vendor shall revise the catalog as necessary in the 
manner required by the commission.
	(c)  Repealed by Acts 2003, 78th Leg., ch. 309, § 7.25.                     
	(d)  Repealed by Acts 2003, 78th Leg., ch. 309, § 7.25.                     
	(e)  In this section, "Internet" means the largest 
nonproprietary nonprofit cooperative public computer network, 
popularly known as the Internet.
	(f)  The commission may audit a catalog information systems 
vendor's catalog for compliance with rules adopted under Subsection 
(g).
	(g)  The commission shall adopt rules that specify the 
requirements for a catalog information systems vendor's 
maintenance of Internet catalogs, including:
		(1)  availability;                                                            
		(2)  format;  and                                                             
		(3)  other relevant requirements.                                             

Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 538, § 3, eff. Sept. 1, 
1997;  Acts 1999, 76th Leg., ch. 426, § 14, eff. June 18, 1999;  
Acts 2003, 78th Leg., ch. 309, § 7.15, 7.25, eff. June 18, 2003.


	§ 2157.067. CATALOG PURCHASING AVAILABLE TO CERTAIN LOCAL 
GOVERNMENTS.  (a) The commission shall make the catalog purchasing 
procedure available to a local government that qualifies for 
cooperative purchasing under Sections 271.082 and 271.083, Local 
Government Code.
	(b)  In this section, "local government" has the meaning 
assigned by Section 271.081, Local Government Code.

Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.  
Amended by Acts 2003, 78th Leg., ch. 309, § 7.16, eff. June 18, 
2003.


	§ 2157.068. PURCHASE OF 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 catalog information 
systems 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.

Added by Acts 1999, 76th Leg., ch. 860, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2003, 78th Leg., ch. 309, § 7.17, eff. June 18, 
2003;  Acts 2005, 79th Leg., ch. 1068, § 1.08, eff. Sept. 1, 
2005.

SUBCHAPTER C. REQUESTS FOR PROPOSALS PURCHASE METHOD


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 21, eff. Sept. 1, 
1997;  Acts 2001, 77th Leg., ch. 1422, § 4.14, eff. Sept. 1, 
2001;  Acts 2005, 79th Leg., ch. 1068, § 2.06, eff. Sept. 1, 
2005.


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 21, eff. Sept. 1, 
1997.


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 21, eff. Sept. 1, 
1997.


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 21, eff. Sept. 1, 
1997.


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 1997, 75th Leg., ch. 1206, § 21, eff. Sept. 1, 
1997.


	§ 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, § 1, eff. Sept. 1, 1995.            

SUBCHAPTER D. PREAPPROVED CONTRACT TERMS AND CONDITIONS


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 2005, 79th Leg., ch. 1068, § 2.07, eff. Sept. 1, 
2005.


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 2005, 79th Leg., ch. 1068, § 2.08, eff. Sept. 1, 
2005.


	§ 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, § 1, eff. Sept. 1, 1995.            


	§ 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, § 1, eff. Sept. 1, 1995.  
Amended by Acts 2005, 79th Leg., ch. 1068, § 2.09, eff. Sept. 1, 
2005.