Proposed Rules Title 34

TITLE 34. PUBLIC FINANCE

PART 1. COMPTROLLER OF PUBLIC ACCOUNTS

CHAPTER 20. STATEWIDE PROCUREMENT AND SUPPORT SERVICES

SUBCHAPTER B. PUBLIC PROCUREMENT AUTHORITY AND ORGANIZATION

DIVISION 3. CONTRACT MANAGEMENT GUIDE AND TRAINING

The Comptroller of Public Accounts proposes to amend §20.133, concerning training and certification program.

The comptroller amends this section to assist state agencies so that they may fulfill their purchasing functions and contract development obligations. The comptroller is responding to the workforce shortage in this career field. Many state agencies rely on contractors and temporary workers to perform purchasing functions. However, without the means to obtain the proper credentials, these contractors and temporary workers are limited in their ability to perform their assigned duties. The proposed amendment is designed to close this gap. Thus, the amendment should increase the number of workers with these vital credentials; create opportunities for these workers to obtain full-time state employment in this career field; and increase the likelihood of retention of these valuable talents and skills for the State of Texas.

This amendment adds a definition of contractor in subsection (b). The amendment of subsection (c)(1) requires contractors retained by a state agency to perform purchasing functions to complete the Statewide Procurement Division's (SPD's) Texas Purchasing Course. In addition, the amendment of subsection (c)(2)(A) requires contractors retained by a state agency to perform contract development functions to become certified as Certified Texas Contract Developers. The amendment of subsection (c)(2)(A) will also correct a minor grammatical error. Finally, the amendment of subsection (d) provides direction to the SPD Director to decide when contractors may obtain such training and certification.

Brad Reynolds, Chief Revenue Estimator, has determined that during the first five years that the proposed amended rule is in effect, the rule: will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; will increase the number of individuals subject to the rule's applicability; and will not positively or adversely affect this state's economy.

Mr. Reynolds also has determined that the proposed amended rule would have no significant fiscal impact on the state government, units of local government, or individuals. The proposed amended rule would benefit the public by creating opportunities for contract work or to obtain full-time state employment in this career field and increase retention of these talents and skills. There would be no significant anticipated economic cost to the public. The proposed rule amendment would not have an adverse economic effect on small businesses or rural communities. The certification training for which a fee would be charged is currently unavailable to anyone other than a state employee. A decision by anyone other than a state employee to seek certification and contract work for which certification is required, as would newly be permitted under the proposed rule amendment, would be voluntary. A contractor, as defined under the proposed amended rule, or another person or entity on the contractor's behalf, and not the hiring state agency, would be responsible for paying the cost of the required applicable credentialing. The current cost of the SPD's Basic Texas Purchaser Course is $100. The current cost of the Texas Certified Contract Developer and Texas Certified Contract Manager courses are both $435. There is also a certification renewal fee of $50 and requirement for continuing education hours, and a fee for the CTCD certification exam of $120, if paying with a Money Order, Check or Credit Card and $130, if paying with a Purchase Order. It is anticipated that there would be at least one but not more than 1000 contractors seeking such credentialing.

You may submit comments on the proposal to Ms. Tosca M. McCormick, Comptroller of Public Accounts, P.O. Box 13528 Austin, Texas 78711 or to the email address: Tosca.McCormick@cpa.texas.gov. The comptroller must receive your comments no later than 30 days from the date of publication of the proposal in the Texas Register.

This amendment is proposed under Government Code, §656.051(a), which grants to the comptroller the authority to establish and offer appropriate training to vendors on a cost recovery basis, as well as the authority to adopt rules to administer Section 656.051. The rule amendment is also proposed under Government Code, §656.054(a), which requires the comptroller to develop training programs under the State Employees Training Act that meet the needs of state agencies.

The amendment implements Government Code, §656.051 and §656.054.

§20.133.Training and Certification Program.

(a) Purpose. The purpose of these rules is to provide a uniform procedure through which the division will train and certify individuals who conduct government procurement functions.

(b) Definitions. The following words and terms when used in this section shall have the following meanings.

(1) Purchasing--The receipt and processing of requisitions, development of specifications, development of scope of work, the issuance of purchase orders against existing cooperative or agency contracts, and the verification of the inspection of merchandise or receipt of services by the agency. The term does not include the development of solicitations and contract awards that must be posted to the Electronic State Business Daily or in the Texas Register.

(2) Contract development--The term applies to actions taken prior to contract execution, including the receipt and processing of requisitions, assessment of need, development and review of specifications, development and review of scopes of work, identification and selection of procurement methods, identification and preparation of evaluation criteria, preparation of and advertising solicitation documents, tabulation of respondent bids, evaluation of respondent proposals, negotiation of proposals, and the preparation and completion of contract award documents. The term does not include invoice or audit functions.

(3) Contract management--The term applies to actions taken following contract execution, including the assessment of risk, verification of contractor performance, monitoring compliance with deliverable and reporting requirements, enforcement of contract terms, monitoring and reporting of vendor performance, and ensuring that contract performance and practices are consistent with applicable rules, laws and the State of Texas Procurement Manual and Contract Management Guide.

(4) Procurement--The performance of any purchasing, contract development, or contract management functions.

(5) Contractor--For purposes of this section, a person other than a state agency employee retained by a state agency to perform purchasing or contract development functions.

(1) Purchasing requirements. A state agency employee or contractor must complete the division's Texas Purchasing Course to engage in purchasing functions on behalf of a state agency if the employee or contractor:

(A) has the job title of "purchaser";

(B) performs purchasing functions as 15% or more of their job functions; or

(2) Certified Texas Contract Developer requirements.

(A) A state agency employee or contractor must be certified as a Certified Texas Contract Developer to engage in contract development functions on behalf of a state agency and to issue [~~issues~~] a solicitation or contract award required to be posted to the Electronic State Business Daily or in the Texas Register.

(B) A Certified Texas Contract Developer may conduct purchasing functions.

(3) Certified Texas Contract Manager requirements. A state agency employee must be certified as a Certified Texas Contract Manager to engage in contract management functions on behalf of a state agency if the employee:

(A) has the job title of "contract manager" or "contract administration manager" or "contract technician";

(B) performs contract management functions as 50% or more of their job functions; or

(4) Certified Texas Contract Manager exemption. In accordance with Government Code, §656.052(h)(2), a contract manager whose contract management duties primarily relate to contracts described by Government Code, §2262.002(b) is exempt from the contract management certification requirements of this section.

(5) Licensed attorneys exemption. A licensed attorney employed by a state agency performing procurement or contract management functions described by this section is exempt from the certification requirements of this section.

(d) Eligible applicants. To be eligible to apply for and receive a certification, an applicant must be:

(1) a current Texas state or local government employee; [or]

(2) at the sole discretion of the director, a contractor as defined in subsection (b)(5) of this section; or

(3) [~~(2)~~] at the sole discretion of the director, a student:

(A) currently enrolled in an accredited Texas university or community college; or

(B) who has graduated within the last three years from an accredited Texas university or community college.

(e) Requirements to receive certification.

(1) To be a Certified Texas Contract Developer, an eligible applicant must:

(A) complete the Texas Contract Developer Certification training course provided by the division;

(B) complete the division approved Texas Contract Developer Certification examination with a score of 80% or higher;

(D) be issued a Texas Contract Developer Certification.

(2) To be a Certified Texas Contract Manager, an eligible applicant must:

(A) complete the Texas Contract Manager Certification training course provided by the division;

(B) complete the division approved Texas Contract Manager Certification examination with a score of 80% or higher;

(D) be issued a Texas Contract Manager Certification.

(f) Training completion. To complete any training required in this section, an eligible applicant must:

(1) register for the applicable training using the electronic registration provided by the division on the official comptroller website;

(2) provide documentation of eligibility acceptable to the director;

(3) attend the applicable training course; and

(4) receive confirmation of course completion from the director.

(g) Certification examinations.

(1) To take any certification examination required in this section, an eligible applicant must register to take the examination using the electronic registration provided by the division on the official comptroller website within:

(A) three months of confirmation of completion of the applicable course by the director; or

(B) the time period determined at the sole discretion of the director with documented extenuating circumstances not to exceed twelve months from confirmation of completion of the applicable course.

(2) If an applicant receives a score of less than 80% following completion of the course, the applicant shall have two additional attempts to obtain a score of 80% or higher during a time period not to exceed six months following completion of the course.

(3) If the applicant does not obtain a score of 80% or higher after three attempts, the applicant must retake the applicable training course prior to retaking the examination.

(h) Certification issuance.

(1) To be issued any certification in this section, eligible applicants must within three months of the issuance of examination completion with a score of 80% or higher, submit:

(A) an application provided by the division on the official comptroller website; and

(B) any other documents required by the director.

(2) If the director determines that all applicable requirements have been satisfied, a certification will be issued to the applicant.

(i) Continuing education.

(1) A procurement professional certified in this section must complete twenty-four hours of in-person or online continuing education every three years, one hour of which must be ethics, to maintain certification. Twenty-three hours of the required hours must be division-sponsored training and one hour may be an elective selected by the professional, subject to division approval. The ethics requirement must be satisfied by division-sponsored training.

(2) A procurement professional dual certified in this section must complete thirty-six hours of in-person or online continuing education every three years, one hour of which must be ethics, to maintain dual certification. Thirty-four hours of the required hours must be division-sponsored training and two hours may be elective courses selected by the professional, subject to division approval. The ethics requirement must be satisfied by division-sponsored training.

(3) A procurement professional certified in this section is required to take the Renewal Refresher course offered by division once every three years in order to maintain certification. The Renewal Refresher course does not count towards continuing education hours.

(4) The Renewal Refresher course must be completed no earlier than two years following the date of initial certification or last renewal. Renewal Refresher courses completed prior to two years following the date of initial certification or last renewal will not be considered applicable to the Renewal Refresher requirement.

(5) Division-sponsored or elective course continuing education will be counted as credit with the completion of the course and approval of the continuing education course credit application. The division will email a certificate of completion to the certified procurement professional upon approval of the continuing education course credit application. The same course may not be taken more than once per renewal period for credit.

(j) Certification renewal.

(1) Certifications issued in this section expire three years following the date of issuance.

(2) Procurement professionals certified in this section must submit an application for certification renewal at least thirty calendar days prior to the expiration date of their certification.

(3) The application must include a certificate of completion of the applicable Renewal Refresher course, and certificates of completion of the division sponsored continuing education required under this rule.

(4) If a certified procurement professional allows the certification to expire, an extension may be requested within thirty calendar days from the date of expiration. If the division approves the extension, the certified procurement professional has sixty calendar days from the date of extension approval to complete the requirements for renewal. If the certified procurement professional does not complete the requirements during the extension period, the initial certification requirements must be completed to receive a new certification.

(5) Certifications awarded or renewed under previous requirements are valid until the date of first renewal.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 6, 2024.

TRD-202402019

Don Neal

General Counsel, Operations and Support Legal Services

Comptroller of Public Accounts

Earliest possible date of adoption: June 16, 2024

For further information, please call: (512) 475-2220

DIVISION 4. IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

34 TAC §20.157

The Comptroller of Public Accounts proposes to amend §20.157, concerning adherence to ethical standards.

This amendment will require that contractors retained by a state agency to perform purchasing functions or to perform contract development functions must adhere to the same ethical standards required of comptroller employees, and must also avoid all conflicts of interest in their purchasing activities.

Many state agencies rely on contractors and temporary workers to perform purchasing functions. The comptroller proposes this amendment because it is in the public's interest that contractors working in the state public procurement arena in Texas be held to the same ethical standards as comptroller employees.

Contemporaneous with this proposal, the comptroller is proposing an amendment of §20.133, concerning training and certification program. Under that proposal, contractors retained by a state agency to perform purchasing functions must complete the Statewide Procurement Division's (SPD's) Basic Texas Purchaser Course and contractors retained by a state agency to perform contract development functions must become certified as Certified Texas Contract Developers.

Mr. Reynolds also has determined that the proposed amended rule would have no significant fiscal impact on the state government, units of local government, or individuals. The proposed amended rule would benefit the public by updating the rule to reflect current practices. There would be no significant anticipated economic cost to the public. The proposed amended rule would have no significant fiscal impact on small businesses or rural communities.

This rule is proposed under Government Code, §656.051(a), which grants the comptroller the authority to establish and offer appropriate training to vendors, including ethics training, on a cost recovery basis, as well as the authority to adopt rules to administer Government Code, §656.051. The rule is also proposed under Government Code, §656.054(a), which requires the comptroller to develop training programs under the State Employees Training Act that meet the needs of state agencies.