|(a) General delegation. The following purchasing functions are delegated to agencies: (1) commodity purchases of goods, including goods for resale that do not exceed $25,000; (2) emergency purchases; (3) purchases of perishable items; (4) purchases of services, including services for resale, the estimated cost of which does not exceed $100,000; (5) purchases of publications directly from the publisher; (6) fuel, oil, and grease purchases; and (7) distributor purchases. (b) Adherence to ethical standards. Employees of agencies who perform purchasing functions under delegated authority shall adhere to the same ethical standards required of Commission employees, and shall avoid all conflict of interest in their purchasing activities. (c) Provisions generally applicable to delegated purchases. (1) Competitive bidding is not required for purchases of $5,000 or less. (2) All bids must be obtained from sources which normally offer for sale the merchandise being purchased. (3) Items purchased under delegated authority may not include scheduled items, items available under a term contract (unless purchased in quantities less than minimum ordering quantities shown in contract), or any item required by law to be purchased from a particular source. (4) The Commission must solicit formal bids from all eligible vendors on the centralized master bidders list (CMBL) when making purchases in excess of $25,000. The Commission waives the requirement for state agencies to solicit bids from all eligible vendors on the list when making purchases under subsection (e) of this section. State agencies must solicit from all eligible vendors on the CMBL when making service purchases in excess of $100,000 that the Commission has delegated to an agency. (d) Withdrawal of delegated purchase authority. The Commission will verify compliance with established procedures for delegated purchases and may withdraw delegated purchase authority in whole or part from an agency for continued violations after giving adequate warning. The Commission will report to the governor, lieutenant governor, speaker of the house of representatives, and Legislative Budget Board the findings that a state agency has not followed the Commission's rules or the laws related to the delegated purchases. (e) Provisions applicable to particular delegated purchases. (1) Commodity purchases. Commodity purchases may be made in accordance with the following provisions: (A) Agencies must attempt to obtain at least three informal bids, including a minimum of two bids from historically underutilized businesses (HUBS), on all commodity purchases in excess of $5,000 and not over $25,000. Agencies must meet competitive bidding requirements and may supplement the list of bidders obtained from the CMBL with potential bidders contained in the HUBs Directory, which is maintained and accessible electronically on the Commission's website If an agency is unable to locate two HUBs from the Commission's CMBL and HUB Directory or other available sources, the agency must make a written notation in the purchase file of all reference sources used. (B) Agencies must attempt to provide a copy of the bid to the last vendor who held the contract in addition to the informal bid requirement. (2) Emergency purchases. The Commission will approve payment for emergency purchases in accordance with the following provisions. (A) At least three informal bids should be obtained whenever possible. (B) For an emergency purchase of goods or services exceeding $25,000, an agency must send a full written explanation of the emergency along with other documentation required by the Commission for prepayment approval. (C) The agency may contact the Commission for advice and assistance in the handling of emergency purchases. The Commission may not approve an invoice for an emergency purchase unless the agency has complied with the foregoing requirements. This rule does not apply to purchases made in accordance with the Texas Government Code, Chapter 418 (Texas Disaster Act of 1975). (3) Perishable items. Purchases made under this authority must be obtained through competitive bids, and appropriate documentation must be forwarded to the Commission for approval. (4) Services. Purchases of services estimated to cost no more than $100,000 per year per contract are delegated and must be obtained through a competitive selection process, and appropriate documentation must be forwarded to the Commission for prepayment approval. (A) An agency is required to submit documentation to the Commission for proprietary purchases of services over $25,000 and for purchases expected to cost more than $25,000 per year. (B) Agencies must attempt to obtain at least three informal bids, including a minimum of two bids from HUBs, on all service purchases in excess of $5,000 and not over $25,000. As a supplement to the CMBL, agencies may refer to the Commission's HUB Directory, which is maintained and accessible electronically, to locate HUBs in the agencies' geographic region. If an agency is unable to locate two HUBs from the Commission's HUB Directory or other available sources, the agency must make a written notation in the purchase file of all reference sources used. (C) For purchases of services estimated more than $25,000 and less than $100,000, state agencies shall, as a minimum, solicit formal bids from all CMBL and HUB Directory vendors located in the agencies' geographic region. (D) For purchases of services estimated to cost more than $100,000 per year, the Commission must review any proposed specifications or statements of work and determine whether the Commission or the agency should make the advertisement and award. The Commission may determine that the service should be advertised to the entire CMBL rather than to only those vendors in the agency's geographical area. If no competitive advantage would be obtained by having the Commission make the advertisement and award, the Commission may permit the agency to do so as a delegated purchase. (5) Publications. An agency may purchase publications directly from the publisher when such publications are not available through statewide contract or through competitive bidding. Direct publication orders shall be made by following guidelines established by the Commission. Examples of direct publications include, but are not limited to: (A) foreign publications; (B) out-of-print or rare publications; (C) back issues of magazines, journals, and newspapers; (D) publications of professional societies; (E) prepared films, tapes, and discs (audio, visual, or both); (F) computer software; (G) collections of any of the foregoing items, and microfilm or microfiche copies of any of the foregoing items; and (H) Library of Congress cards. (6) Fuel, oil, and grease. An agency may make fuel, oil, and grease purchases at service stations or in bulk. Fuel, oil, and grease purchases shall be made by following guidelines suggested by the Commission. Non-competitive and emergency purchase procedures apply to purchases at service stations. (7) Distributor purchases. An agency may make distributor purchases by following guidelines established by the Commission. An agency may not purchase any of the following on a distributor purchase basis: consumable items; labor of any kind (see "service"); "will fit" parts (non-OEM); parts for stock; contract items; electrical parts for electric motors; electrical switch panel boards; electrical accessories. (f) Specific delegations. The authority to grant specific delegations resides with the director. The application method, review process, delegation finding, and appeal process will be set forth by policy statement of the director. At a minimum, state agencies granted specific delegations shall meet the following criteria: (1) procurement audit standards set forth in §113.18 of this title (relating to Auditing of Purchase Documents and Payment Vouchers); (2) minimum training and certification standards established in the State Procurement Manual; and (3) approved processes and procedures for the specific type of delegation being requested. All processes and procedures are subject to the prior review, revision and approval of the director. (g) Protest Procedures. State agencies shall adopt protest procedures and submit a copy to the Commission during the post-payment audit of the agency's purchasing documents or upon request by the Commission. (h) Procurement Plan. State agencies shall formulate an agency procurement plan that identifies an agency's management controls and purchasing oversight authority in accordance with the policy guidance contained in the Commission's Procurement Manual. An agency must submit a copy of the procurement plan during the Commission's audit of the agency's purchasing documents or upon request by the Commission. (i) Debarred Vendors. State agencies shall ensure that debarred vendors do not participate in state contracting and will establish procedures to ensure awards are not made to debarred vendors. (j) Reporting Purchasing Activity under Delegated Authority. State agencies will report to the Commission, not later than May 1 of each year regarding the previous six-month period and on November 1 of each year regarding the preceding fiscal year, information related to delegated purchasing activity for goods and services in the form prescribed by the Commission.
|Source Note: The provisions of this §20.41 adopted to be effective April 20, 1993, 18 TexReg 2297; amended to be effective February 16, 1994, 19 TexReg 714; amended to be effective April 7, 1994, 19 TexReg 2125; amended to be effective February 15, 1995, 20 TexReg 639; amended to be effective December 29, 1997, 22 TexReg 12483; amended to be effective May 12, 1998, 23 TexReg 4561; amended to be effective December 21, 1999, 24 TexReg 11257; amended to be effective September 11, 2000, 25 TexReg 8848; amended to be effective June 17, 2003, 28 TexReg 4541; amended to be effective December 11, 2003, 28 TexReg 10911; amended to be effective June 14, 2004, 29TexReg 5779; transferred effective September 1, 2007, as published in the Texas Register July 6, 2007, 32 TexReg 4237