PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 20. STATEWIDE PROCUREMENT AND SUPPORT SERVICES
SUBCHAPTER E. SPECIAL CATEGORIES OF CONTRACTING
DIVISION 2. STATEWIDE PROCUREMENT DIVISION SERVICES - TRAVEL AND VEHICLES
The Comptroller of Public Accounts adopts amendments to §20.411, concerning state agency reimbursement and reporting and §20.413, concerning state travel credit cards, without changes to the proposed text as published in the October 20, 2023, issue of the Texas Register (48 TexReg 6193). The rules will not be republished.
In its planning and administration of the state travel program, the comptroller utilizes data collected through the state travel credit card. Because that data is sufficient for comptroller purposes, the amendment deletes the requirement for agencies to manually report travel data. Reference to agency reporting is deleted from §20.411(e) and §20.413(a).
The amendment substantially modifies §20.413(c), regarding issuance of state travel credit cards to state agency employees, in three ways. First, it clarifies the obligation imposed by the first sentence of the subsection. The phrase should be issued could be interpreted as an aspiration rather than a requirement, and does not specify whether it addresses employees, state agencies, or the financial institution administering the credit card program. The amendment replaces that phrase with a plain statement that a state agency shall encourage certain employees to obtain the state travel credit card.
Second, the amendment raises the level of annual travel spending that §20.413(c) addresses from $500 to $1,000. The $1,000 threshold better balances the administrative costs of establishing, monitoring, and terminating card accounts against the rebates generated from the cards.
Finally, the amendment to §20.413(c) eliminates the need to forecast the number of trips an employee will take in a fiscal year. Instead, agencies will use the expected monetary value of travel to determine whether §20.413(c) applies. Because the amount spent through the state travel credit card is the primary factor in calculating rebates, it is the best measure of value.
Section 20.413 is further revised to ensure consistent usage of the term state travel credit card.
The comptroller did not receive any comments regarding adoption of the amendment.
These amendments are adopted under Government Code, §403.023, which authorizes the comptroller to adopt rules relating to the use of credit or charge cards by state agencies to pay for purchases, and Government Code, §2171.002, which authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2171.
These amendments implement Government Code, §§403.023, 2171.051, and 2171.055.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 30, 2023.
TRD-202304406
Don Neal
General Counsel for Operations and Support Legal Services
Comptroller of Public Accounts
Effective date: December 20, 2023
Proposal publication date: October 20, 2023
For further information, please call: (512) 475-2220
DIVISION 2. REPORTS AND AUDITS
The Comptroller of Public Accounts adopts amendments to §20.509, concerning vendor performance reporting, without changes to the proposed text as published in the October 13, 2023, issue of the Texas Register (48 TexReg 5967). The rule will not be republished.
The amendments delete subsection (a), which contained a requirement that is adequately stated in subsection (b).
The amendment of former subsection (b), now subsection (a), removes language providing that a state agency shall submit a vendor performance report and grade within 30 days of completion or termination of a purchase order or contract. The subsection now states only that the submission is mandatory. The time for submitting a vendor performance report is addressed in relettered subsection (c).
The amendment also revises subsection (b)(1) through (b)(4). Amended paragraph (1) provides the requirement to report and grade a vendor's performance applies to a purchase exceeding $25,000 from a contract administered by the comptroller and the Department of Information Resources, which refers to contracts entered into by the comptroller under Government Code, §2155.061, and by the Department of Information Resources under Government Code, §2157.068, respectively. Amendments to paragraph (2) state that the requirement applies to any agency contract, and remove the reference to purchases made through an agency's delegated authority. This revised language is consistent with Government Code, §2155.089, which provides that the requirement applies to all contracts aside from those expressly exempted by Government Code, §2155.089(c). The amendments delete paragraphs (3) and (4) because all contracts subject to the requirement to report and grade a vendor's performance in Government Code, §2155.089, are covered by amended paragraphs (1) and (2).
The amendment of former subsection (c), now subsection (b), removes language providing that a state agency shall, for contracts in excess of $5 million, submit a vendor performance report and grade within 30 days of completion of a key milestone identified in the contract and at least once each year during the term of the contract. The subsection now states only that the submission is mandatory. The time for submitting a vendor performance report is addressed in relettered subsection (c).
The amendment of former subsection (d), now subsection (c), adds language requiring submission of a vendor performance report and grade within 30 days of completion or termination of a purchase order or contract and, for a contract with a value that exceeds $5 million, the completion of a key milestone identified in the contract. The 30-day requirement has been relocated to amended subsection (c) to clarify that a state agency's obligation to submit the vendor performance report and grade is separate from the requirement to submit within 30 days, and that a failure to submit within the 30-day period does not invalidate the report or grade. The amendment also corrects a grammatical error.
The amendment of former subsection (e), now subsection (d), corrects a grammatical error.
Subsection (f) is now subsection (e), and the text of this subsection is unchanged.
The amendment of former subsection (g), now subsection (f), excludes certain purchases from the requirement to report and grade a vendor's performance. Because paragraph (1) now states that the section does not apply to contracts described in Government Code, §2155.089(c), it no longer reproduces the operative language from the Government Code.
Subsection (f), formerly subsection (g), also excludes certain small purchases from the requirement to report and grade a vendor's performance. Paragraph (2) excludes spot purchases of $10,000 or less, for which competitive bidding is not required under §20.82(b)(1) of this title. Paragraph (3) excludes purchase orders resulting from informal bids under §20.82(d)(1)(A), which applies to purchases of goods and services not exceeding $25,000.
There is no requirement in statute to report vendor performance for spot purchases. Spot purchases are not "contracts" within the meaning of Government Code, Title 10, Subtitle D. Spot purchases are carved out by Government Code, §2155.132(e), which distinguishes a purchase "made under a written contract" from the broader category of purchases. Therefore, not every purchase is a "contract," and smaller purchases are not subject to all formal contracting requirements. Because Government Code, §2155.089 applies to contracts, spot purchases are outside its scope.
Likewise, there is no requirement in statute to report vendor performance for purchases resulting from informal bids. Purchases resulting from informal bids are not "contracts" within the meaning of Government Code, Title 10, Subtitle D. The informal bidding method of procurement is described in Government Code, Chapter 2156, Subchapter B. That method of procurement is expressly distinguished in Chapter 2156 from the "Contract Purchase Procedure" in Subchapter A and the formal bidding procedure in Subchapter C. While Subchapters A and C each reference the awarding of a "contract" (§2156.007 and §2156.125, respectively), Subchapter B does not mention that term. Because Government Code, §2155.089 applies to contracts, purchases resulting from informal bids are outside its scope.
Prudent procurement policy does not require vendor performance reporting for spot purchases and purchases resulting from informal bids. Government Code, §2155.002, instructs the comptroller to focus resources on purchases "that involve relatively large amounts of money." Reporting and grading performance on every small purchase would consume significant amounts of agency staff time. By allowing, rather than requiring, agencies to report vendor performance on small purchases, the rule will allow agencies to focus on the most remarkable vendor performance, good and bad. Thus, the most useful reports may still appear in the comptroller's vendor performance tracking system.
The comptroller did not receive any comments regarding adoption of the amendment.
These amendments are adopted under Government Code, §2155.0012, which authorizes the comptroller to adopt rules to efficiently and effectively administer Government Code, Chapter 2155.
The amendments implement Government Code, §2155.089.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 30, 2023.
TRD-202304405
Don Neal
General Counsel for Operations and Support Legal Services
Comptroller of Public Accounts
Effective date: December 20, 2023
Proposal publication date: October 13, 2023
For further information, please call: (512) 475-2220