Sec. 2157.068. PURCHASE OF INFORMATION TECHNOLOGY 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 from two or more customers, including state agencies and political subdivisions of this state, entities described by Subsection (j), and governmental entities of another state, that purchase the items through the department. The term includes seat management, through which a customer transfers its personal computer equipment and service responsibilities to a private vendor to manage the personal computing needs for each desktop of the customer, including all necessary hardware, software, and support services.
(b) The department shall negotiate with vendors to obtain the best value for the state in the purchase of commodity items. When negotiating with a vendor, the department shall use information related to the state's historical spending levels on particular commodity items to secure the best value for the state. The department may consider strategic sourcing and other methodologies to select the vendor offering the best value on commodity items. 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. The department shall, to the greatest extent practicable, negotiate a specific price for commonly purchased commodity items. If the department selects a vendor based on the vendor's offer of a percentage discount from the list price of commodity items, the department shall document in writing how that arrangement obtains the best value for the state.
(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. Revenue derived from the collection of fees imposed under this subsection may be appropriated to the department for:
(1) developing statewide information resources technology policies and planning under Chapters 2054 and 2059; and
(2) providing shared information resources technology services under Chapter 2054.
(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.
(e-1) Except as provided by Subsection (e-4), a state agency contracting to purchase a commodity item shall use the list maintained as required by Subsection (e) as follows:
(1) for a contract with a value of $50,000 or less, the agency may directly award the contract to a vendor included on the list without submission of a request for pricing to other vendors on the list;
(2) for a contract with a value of more than $50,000 but not more than $1 million, the agency must submit a request for pricing to at least three vendors included on the list in the category to which the contract relates; and
(3) for a contract with a value of more than $1 million but not more than $10 million, the agency must submit a request for pricing to at least six vendors included on the list in the category to which the contract relates or all vendors on the schedule if the category has fewer than six vendors.
(e-2) A state agency may not enter into a contract to purchase a commodity item if the value of the contract exceeds $10 million.
(e-3) The procedural requirements of Subsection (e-1) and the limitation prescribed by Subsection (e-2) do not apply to a state agency's purchase of commodity items under a department contract for the bulk purchase of commodity items intended for use by more than one customer.
(e-4) For a contract with a value of more than $5 million but not more than $10 million, a state agency may purchase a commodity item using a purchasing method designated by the comptroller under Section 2157.006(a)(2).
(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:
(1) the agency obtains:
(A) an exemption from the department; or
(B) express prior approval from the Legislative Budget Board for the expenditure necessary for the purchase; or
(2) the department certifies in writing that the commodity item is not available for purchase under an existing contract developed by the department.
(f-1) Subject to Subsection (f-2), a state agency may purchase a commodity item through a contract developed by a local government purchasing cooperative under Chapter 791 if the department certifies in writing that the commodity item is not available for purchase under an existing contract developed by the department.
(f-2) A contract used by a state agency that purchases a commodity item through a contract described by Subsection (f-1) is subject to all provisions required by applicable law to be included in a state agency contract without regard to whether:
(1) the provision appears on the face of the contract; or
(2) the contract includes any provision to the contrary.
(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)(1)(B). A state agency must request an exemption from the department under Subsection (f)(1)(A) before seeking prior approval from the Legislative Budget Board under Subsection (f)(1)(B).
(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.
(i) Unless the agency has express statutory authority to employ a best value purchasing method other than a purchasing method designated by the comptroller under Section 2157.006(a)(2), a state agency shall use a purchasing method provided by Section 2157.006(a) when purchasing a commodity item if:
(1) the agency has obtained an exemption from the department or approval from the Legislative Budget Board under Subsection (f); or
(2) the agency is otherwise exempt from this section.
(j) The following entities may purchase commodity items through the department, and be charged a reasonable administrative fee, as provided by this section:
(1) the Electric Reliability Council of Texas;
(2) the Lower Colorado River Authority;
(3) a private school, as defined by Section 5.001, Education Code;
(4) a private or independent institution of higher education, as defined by Section 61.003, Education Code;
(5) a volunteer fire department, as defined by Section 152.001, Tax Code;
(6) subject to Section 418.193, a public safety entity, as defined by 47 U.S.C. Section 1401;
(7) subject to Section 418.193, a county hospital, public hospital, or hospital district; or
(8) the Texas Permanent School Fund Corporation, if incorporated under Section 43.052, Education Code.
(k) The department, in cooperation with state agencies, shall, with respect to the purchase of commodity items included in the list maintained under Subsection (e):
(1) periodically assess the risk to this state in the purchase of those commodity items; and
(2) based on that risk assessment and as the department considers necessary to ensure accuracy, monitor and verify the purchase transaction reports of the monthly sales of those commodity items submitted by vendors in accordance with department requirements.
Added by Acts 1999, 76th Leg., ch. 860, Sec. 2, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 309, Sec. 7.17, eff. June 18, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1068 (H.B. 1516), Sec. 1.08, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1081 (H.B. 2918), Sec. 11, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1081 (H.B. 2918), Sec. 12, eff. September 1, 2007.
Acts 2011, 82nd Leg., 1st C.S., Ch. 4 (S.B. 1), Sec. 23.06, eff. September 28, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 48 (H.B. 2472), Sec. 17, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 151 (H.B. 1994), Sec. 1, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 326 (S.B. 20), Sec. 15, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 547 (H.B. 2000), Sec. 1, eff. September 1, 2015.
Acts 2017, 85th Leg., R.S., Ch. 291 (S.B. 261), Sec. 1, eff. May 29, 2017.
Acts 2017, 85th Leg., R.S., Ch. 556 (S.B. 533), Sec. 8, eff. September 1, 2017.
Acts 2017, 85th Leg., R.S., Ch. 716 (S.B. 262), Sec. 1, eff. September 1, 2017.
Acts 2019, 86th Leg., R.S., Ch. 1071 (H.B. 1524), Sec. 72, eff. September 1, 2019.
Acts 2019, 86th Leg., R.S., Ch. 1116 (H.B. 2325), Sec. 5, eff. September 1, 2019.
Acts 2021, 87th Leg., R.S., Ch. 83 (S.B. 538), Sec. 1, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 855 (S.B. 799), Sec. 11, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 875 (S.B. 1232), Sec. 1.07, eff. September 1, 2021.