Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter R. PROVISIONS RELATING TO MUNICIPAL REGULATION AND RIGHTS-OF-WAY MANAGEMENT
16 TAC §26.467
The Public Utility Commission of Texas (commission) proposes
new §26.467, relating to Rates, Allocation, Compensation, Adjustments
and Reporting. This section is proposed under Project Number 20935.
The proposed new rule implements certain provisions of House Bill 1777
(HB 1777), Act of May 25, 1999, 76th Legislature, Regular Session, chapter
840, 1999 Texas Session Law Service 3499 (Vernon) (to be codified as Local
Government Code §§283.001
et seq.
),
which authorizes the commission to determine a uniform method for calculating
municipal franchise compensation paid by certificated telecommunications providers
(CTPs). The proposed new rule is part of a series of rules that will be adopted
by the commission to implement HB 1777.
D. Diane Parker, Senior Attorney, Office of Policy Development and Elango
Rajagopal, Senior Policy Analyst, Office of Regulatory Affairs, have determined
that for each year of the first five-year period the proposed section is in
effect, that there may be fiscal implications to local governments as a result
of enforcing or administering the section. Ms. Parker and Mr. Rajagopal do
not anticipate any fiscal implications to state government.
Ms. Parker and Mr. Rajagopal have determined that for each year of the
first five years the proposed section is in effect, the public benefit anticipated
as a result of enforcing the section will be a uniform method of compensating
municipalities for the use of the public rights-of-way by CTPs. This uniformity
will promote competition for local telephone service in Texas by ensuring
that CTPs do not obtain a competitive advantage or suffer a disadvantage in
their ability to obtain use of a public right-of-way within a municipality.
There is no anticipated effect on small businesses or micro-businesses as
a result of enforcing this section.
Ms. Parker and Mr. Rajagopal have also determined that for each year of
the first five years the proposed section is in effect there should be no
effect on a local economy, and therefore no local employment impact statement
is required under the Administrative Procedure Act 2001.022.
In proposing this rule, the commission's objective is to establish a method
for compensating municipalities for the use of a public right-of-way by CTPs
that: (1) is administratively simple for municipalities and telecommunications
providers; (2) is nondiscriminatory; (3) is competitively neutral; (4) is
consistent with the burdens on municipalities created by the incursion of
CTPs into a public right-of-way; (5) provides fair and reasonable compensation
for the use of a public right-of-way; and (6) is consistent with state and
federal law.
The commission seeks any comments on the proposed rule that interested
parties believe are appropriate. Parties should organize their comments in
a manner consistent with the organization of the proposed rule. In particular,
the commission invites comments regarding the following issue: Are municipalities
whose agreements or ordinances include fee rate escalation provisions entitled
to receive such additional compensation until the natural expiration date
of their franchise agreement or ordinance, even though those agreements or
ordinances may have been terminated by CTPs by December 1, 1999? Parties that
believe that municipalities are entitled to this additional compensation,
please provide specific implementation details for including this compensation
as part of the base amount. For example, explain how the commission should
establish new rates for those municipalities with fee rate escalation provisions.
Please provide specific statutory citation for your rationale. Parties are
also requested to respond to the costs associated with, and benefits that
will be gained by, implementation of the proposed section.
Comments on the proposed new rule may be submitted to the Filing Clerk,
Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326,
Austin, Texas 78711- 3326, within 20 days after publication. All comments
should refer to Project Number 20935. The commission staff will conduct a
public hearing on this rulemaking under Government Code §2001.029 at
the commission's offices, located in the William B. Travis Building, 1701
North Congress Avenue, Austin, Texas 78701, on Friday, January 21, 2000 at
1:30 p.m.
This new section is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which
provides the Public Utility Commission with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction.
The proposed rule is also authorized by House Bill 1777 (HB 1777), Act of
May 25, 1999, 76th Legislature, Regular Session, chapter 840, 1999 Texas Session
Law Service 3499 (Vernon) (to be codified as an amendment to the Local Government
Code §283.055), which provides that not later than March 1, 2000, the
commission shall establish rates per access line by category for the use of
a public right-of-way by certificated telecommunications providers in each
municipality and the statewide average of those rates. The rates shall be
applied to the total number of access lines b category in the municipality.
The commission shall establish an allocation of the base amount over the categories
of access lines if a municipality does not file its proposed allocation by
December 1, 1999. On a quarterly basis, certificated telecommunication utilities
are required to file a report with the commission that shows the number of
access lines the provider has within each municipality at the end of each
month of the quarter, and are required to pay the municipality a quarterly
amount calculated monthly based on the reported access line counts and the
commission's access line rates.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002
and Local Government Code §283.055.
§26.467. Rates, Allocation, Compensation, Adjustments and Reporting.
(a)
Purpose. This section establishes the following:
(1)
rates for categories of access lines;
(2)
default allocation formula for municipalities;
(3)
adjustments to the base amount and allocation formula;
(4)
compensation; and
(5)
associated reporting requirements.
(b)
Application. The provisions of this section apply to certificated
telecommunication providers (CTPs) and municipalities in the State of Texas.
(c)
Rate determination. The sum of the amounts derived from
the rate for each category of access lines multiplied by the total number
of access lines in that category in a municipality shall be equal to the base
amount.
(1)
Initial rates. No later than March 1, 2000, the commission
shall establish rates for each category of access lines in a municipality.
These rates shall be considered to be initial rates. The initial rates may
be updated before April 1, 2000, pursuant to subsection (d) of this section.
The updated rates shall be in effect until a municipality makes revisions
to its rates pursuant to subsection (f) of this section.
(2)
Access line count period. The commission shall use
a 1998 access line count for establishing rates for access lines.
(3)
Estimating 1998 access line count. If a CTP does
not provide an actual 1998 access line count, the commission shall use the
reported 1999 access line count to derive an estimated 1998 access line count
as follows:
(A)
Estimating access lines in category 1. The commission
shall estimate the 1998 access line count for category 1 from the reported
1999 line count by discounting the growth that has occurred for category 1
during the year 1999. The commission shall estimate the growth of lines for
1999 by using the statewide growth rates for residential access lines reported
in the 1997 and 1999 Scope of Competition Reports. The estimated statewide
growth rate for category 1 lines is 4.5%.
(B)
Estimating access lines in category 2 and category 3.
The commission shall estimate the 1998 access line count for categories 2
and 3 from the reported 1999 line count by discounting the growth that has
occurred for categories 2 and 3 during the year 1999. The commission shall
estimate the growth of category 2 and category 3 lines for 1999 by using the
statewide growth rates for business access lines reported in the 1997 and
1999 Scope of Competition Reports. The estimated statewide growth rate for
category 2 and category 3 lines is 7.0%.
(C)
Municipality's estimate for 1998 access lines. A municipality
may petition the commission to use different growth factors for 1999 than
those derived using subparagraphs (A) and (B) of this paragraph for estimating
its 1998 access line count. The municipality's petition shall be accompanied
by its proposed growth figure along with adequate proof and methodology for
deriving the growth figures from public and verifiable sources. Subject to
approval by the commission, the municipality's proven growth figures shall
be used for estimating 1998 access line count for that municipality.
(d)
Updates to municipality filings. Municipalities shall
have a one-time opportunity in the year 2000 to update their base amount and
their allocation formula filed using the
Forms for
Calculating Rights-of-Way Compensation.
(1)
Base amount. Before April 1, 2000, a municipality may
petition the commission to update its base amount with appropriate justification
for the update. Appropriate justification may include, but is not limited
to: receipt of late payments from CTPs attributable to 1998 usage of rights-of-way,
reduction to judgment of disputed payments attributable to 1998 usage of rights-of-way,
settlement of disputed payments attributable to 1998 usage of rights-of-way
or an inadvertent base amount computational error.
(2)
Allocation formula. A municipality that has filed
its own allocation formula before December 1, 1999 may petition the commission
and file an updated allocation formula before April 1, 2000.
(3)
Updating initial rates. The commission shall use the
new base amount and allocation formula filed pursuant to paragraphs (1) and
(2) of this subsection to establish updated access line rates for a municipality.
(4)
Maximum Rates. A municipality that wishes to choose
lower access line rates than its initial or updated rates shall notify the
commission and all CTPs in that municipality of the lower rate(s) it chooses
no later than April 1, 2000. The new lower rates shall be in effect until
the municipality petitions for a change in access line rates pursuant to subsection
(f) of this section.
(e)
Default allocation. A municipality that does not allocate
the base amount over the categories of access lines by December 1, 1999, shall
use the default allocation established by the commission. The commission shall
develop a default allocation formula for each municipality such that the rates
for each category of access line in that municipality shall be the same.
(f)
Annual revision of access line rates. Beginning in the
year 2000, certain municipalities may revise their access line rates, as follows.
(1)
Adjustments within established rates. A municipality that
wishes to change its rates within the maximum established rates, may do so
by notifying the commission and all CTPs with access lines in that municipality
during September of the year that the municipality wishes to revise its access
line rate for the next calendar year.
(2)
Revising allocation formula.
(A)
Revising municipality's allocation formula. A municipality
that has adequately filed its allocation formula by December 1, 1999, may
revise its allocation formula once every 12 months. Beginning in the year
2000, a municipality that wishes to revise its allocation may do so by notifying
the commission and all affected CTPs in September of that year that the municipality
wishes to revise the allocation for the next calendar year.
(B)
Revising default allocation formula. A municipality may
request a modification of the commission's allocation not more than once every
24 months by notifying the commission and all affected CTPs in September of
that year that the municipality wishes to revise the allocation for the next
calendar year.
(g)
Subsequent reporting for CTPs.
(1)
A CTP shall report access line counts in each municipality
quarterly to the commission.
(2)
Beginning in the year 2001, CTPs shall report annually
to the commission the amounts collected in municipal franchise fees from ratepayers
and the total franchise fees paid to municipalities. This report shall be
filed with the commission no later than January 31 for municipal franchise
fees remitted and collected for the preceding year.
(h)
Franchise fee compensation to a municipality pursuant
to the Local Government Code, Chapter 283.
(1)
CTPs that own facilities in the rights-of-way of municipalities
shall compensate each municipality quarterly, based upon a monthly access
line count. The compensation shall be equal to the rate per category of access
line multiplied by the number of access lines in that category in that municipality
for the preceding quarter.
(2)
A CTP may not be required to remit a right-of-way
fee to a municipality on those access lines that have been resold, leased,
or otherwise provided to another CTP except as provided under paragraph (3)
of this subsection.
(3)
If the provider of services to the end-use customer
through resold or leased access lines directly remits to the municipality
a right-of-way fee based on those access lines, that CTP shall furnish adequate
proof of such payments to the underlying CTP.
(4)
Adequate proof may include copies of municipal receipts
or copies of payments made.
(5)
Nothing in this section shall prevent a CTP from
charging to another CTP an appropriate tariffed administrative fee for compensating
a municipality on behalf of another CTP to which it has resold, leased, or
otherwise provided access lines.
(i)
Pass-through. A CTP recovering its municipal franchise
compensation from its customers within the boundaries of a municipality pursuant
to PURA §54.206, shall not recover a total amount greater than the sum
of the amounts derived from the multiplication of access line rates by the
number of lines, per category, for that municipality. Consistent with PURA §54.206,
pass-through of the commission's rates established under this chapter shall
be considered to be a pro rata charge to customers. Where a CTP chooses to
pass through the pro rata charge, such CTP shall not pass through any costs
associated with its administration of municipal franchise fees. The pass-through
amount shall not exceed the access line rate by category established by the
commission for that municipality except as outlined below:
(1)
To the extent that a CTP can document failed attempts
to collect its pass-through fees from its customers within the boundaries
of a municipality, an adjustment equal to the uncollected municipal fee amount
is allowed to the commission's established access line rates for that municipality.
(2)
The access line rate adjustment for uncollectible
municipal fees under paragraph (1) of this subsection shall be made on a one-time
annual basis during the last quarter of the calendar year.
(3)
This adjustment shall be a proportional increase
to the commission established rates.
(j)
Compensation from Lifeline or other low-income assistance
programs. A municipality may choose to forgo municipal franchise compensation
from access lines serving Lifeline customers or customers of other similar
low-income assistance programs. A municipality electing this option shall
timely notify its CTPs of this decision. Upon receipt of such notification,
CTPs shall not pass through a municipal franchise fee to those end-use customers.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
December 17, 1999.
TRD-9908804
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: December 17, 1999
For further information, please call: (512) 936-7308
Chapter 401.
ADMINISTRATION OF STATE LOTTERY ACT
Subchapter A. PROCUREMENT
16 TAC §401.101
The Texas Lottery Commission proposes amendments to 16 TAC §401.101,
relating to lottery procurement procedures. The proposed amendments clarify
the procedures to be followed by the agency when procuring goods and/or services
pursuant to its authority under the State Lottery Act. Additionally, the proposed
amendments incorporate recommendations made by the State Auditor's Office
in SAO Report No. 99-050 entitled "A Report on the Procurement Practices at
the Texas Lottery Commission." The proposed amendments also implement several
provisions set forth in Senate Bill (SB) 177, §5, 76th Legislature, Regular
Session. The proposed amendments also delete the portions of the rule that
set out procurement protest procedures. Protest procedures may become the
subject of separate rules.
Richard Sookiasian, Budget Analyst, has determined that for each year of
the first five-year period the proposed amendments will be in effect, there
will be no fiscal implications to state government or local government as
a result of administering the proposed amendments.
Mr. Sookiasian has also determined that for each year of the first five-year
period the proposed amendments will be in effect, there will be no estimated
reductions in costs to the state and to local governments as a result of administering
the proposed amendments.
Mr. Sookiasian has also determined that for each year of the first five-year
period the proposed amendments will be in effect, there will be no estimated
increases in revenue to the state or to local governments as a result of administering
the proposed amendments. Mr. Sookiasian has also determined that for each
year of the first five-year period the proposed amendments will be in effect,
there will be no estimated decreases in revenue to the state or to local governments
as a result of administering the proposed amendments.
Mr. Sookiasian has also determined that administering the proposed amendments
does not have foreseeable implications relating to cost or revenues of the
state or local governments.
Mr. Sookiasian has also determined that for each year of the first five-year
period the proposed amendments will be in effect, the public benefits anticipated
as a result of administering the proposed amendments will be to clarify the
procedures used by the agency in procuring goods and/or services made pursuant
to its authority under the State Lottery Act.
Mr. Sookiasian has also determined that for each year of the first five-year
period the proposed amendments will be in effect, there will be no probable
economic cost to persons required to comply with the proposed amendments.
Mr. Sookiasian has also determined that there will be no cost to small
businesses or individuals who are required to comply with the proposed amendments,
and no effect on local employment is anticipated.
Comments on the proposed amendments may be submitted to Ridgely C. Bennett,
Deputy General Counsel, Texas Lottery Commission, P.O. Box 16630, Austin,
Texas 78761-6630.
A public hearing to receive public comments regarding proposed amendments
to 16 TAC §401.101, concerning lottery procurement procedures, will be
held at 12:30 p.m. on January 20, 2000 at the William P. Hobby Building, 333
Guadalupe, Room 100, Austin, Texas 78701. Persons requiring any accommodation
for a disability should notify Michelle Guerrero, Executive Assistant to the
General Counsel, Texas Lottery Commission at (512) 344-5113 at least 72 hours
prior to the public hearing.
The amendments to this section are proposed under Texas Government
Code, Section 466.015 which provides the Texas Lottery Commission with the
authority to adopt rules governing the operation of the lottery.
Texas Government Code, Chapter 466 is affected by the proposed section.
§401.101.Lottery Procurement Procedures
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Act--The State Lottery Act.
(2)
Executive director--The executive director of the
Texas Lottery Commission.
(3)
Commission--The agency created
under chapter
467, Government Code
[
(4)
Emergency purchase--The purchase or lease of goods
or services that are so badly needed that the commission will suffer financial
or operational damage if the goods or services are not secured immediately.
(5)
Goods--Supplies, materials, and equipment.
(6)
IFB--A written invitation for
bids
[
(7)
Lottery--The procedures operated by the commission
under the State Lottery Act through which prizes are awarded or distributed
by chance among persons who have paid, or unconditionally agreed to pay, for
a chance or other opportunity to receive a prize.
(8)
Nonresident bidder or proposer--A bidder or proposer
whose principal place of business is not in Texas
.
[
(9)
Principal place of business in Texas--A business entity
that has at least one [
(10)
Produced in Texas--Those goods that are manufactured
in Texas, excluding the sole process of packaging or repackaging.
Packaging
or repackaging does not constitute being manufactured in Texas.
(11)
RFP--A written request for proposals.
(12)
Resident bidder or proposer--A bidder or proposer
whose principal place of business is in Texas
.
[
(13)
Services--Includes consultant services, personal
services, professional services, facility services (i.e., the lease of real
property, including utility and custodial service), [
(14)
State contract--A term contract for goods or services
established and administered by the General Services Commission.
(15)
Electronic State Business Daily or
Business Daily--the website administered by the Department of Economic Development,
or its successor, on which procurement opportunities are advertised in electronic
format via the Texas Marketplace.
(b)
Competitive solicitations.
(1)
For the purchase or lease of goods and services not expected
to exceed $5,000, or for the purchase or lease of goods and services available
under a state contract, a competitive solicitation, whether formal or informal,
may be conducted, but is not required.
(2)
For the purchase or lease of goods and services not
expected to exceed $25,000, the commission, at a minimum, must conduct an
informal competitive solicitation in an attempt to obtain at least three competitive
price quotations.
(3)
For the purchase or lease of goods and services expected
to exceed $25,000, the commission must conduct a formal competitive solicitation
in an attempt to obtain at least three competitive bids or proposals.
(4)
For the purchase of printing services,
regardless
of the amount,
the commission must conduct a formal competitive solicitation
in an attempt to obtain at least three competitive bids or proposals.
(5)
For those formal or informal competitive solicitations
where less than three bids, proposals, or price quotations are received, the
commission must document the reasons, if known, for the lack of three bids,
proposals, or price quotations. If less than three bids, proposals, or price
quotations are received, the commission may cancel the solicitation and conduct
another solicitation, or it may award a contract if one acceptable bid, proposal,
or price quotation is received.
(6)
Notwithstanding paragraphs (1)-(3) of this subsection,
the commission may make an emergency purchase or lease of goods or services
if the commission will suffer financial or operational damage. Prior to making
an emergency purchase or lease of goods or services, the existence of an emergency
should be documented. For emergency purchases in excess of $5,000, the commission,
at a minimum, must conduct an informal competitive solicitation in an attempt
to obtain at
least
[
(7)
Notwithstanding paragraphs (1)-(3)
of this subsection, the commission may make a purchase or lease of goods or
services under any other procedure authorized by law.
(c)
Informal competitive solicitations.
(1)
An informal competitive solicitation is a process conducted
in
an effort
[
(A)
the name and telephone number of each person
or company to which the price quotation was provided;
(B)
[
(C)
[
(D)
[
(E)
[
(2)
The executive director or the executive director's
designees shall award a contract to the qualified bidder submitting the [
(3)
The contract shall be awarded by the issuance of a
written purchase order.
(d)
Formal competitive solicitations.
(1)
A formal competitive solicitation is a process conducted
in order to receive at least three sealed competitive bids or proposals pursuant
to the issuance of an IFB or RFP, respectively. An IFB will be used when the
commission is able to describe, by way of established specifications, exactly
what it wishes to procure, and wants bidders to offer such at a specific price.
An RFP will be used when the commission knows generally what it wishes to
procure in order to accomplish a certain goal(s) or objective(s), and wants
proposers to offer a solution(s) to address such need(s) at a specific price(s).
(2)
When an RFP is used by the commission, the RFP shall
contain, at a minimum, the following:
(A)
a general description of the goods to be provided and/or
the services to be performed, and a specific identification of the goals or
objectives to be achieved;
(B)
a description of the format proposals must follow and the
elements they must contain;
(C)
the time and date proposals are due, and the location/person
they are to be submitted to; [
(D)
an identification of the
process
[
(E)
a listing of the factors to
be utilized in evaluating proposals and awarding a contract. At a minimum,
the factors should include:
(i)
the proposer's price to provide the goods or
services;
(ii)
the probable quality of the offered goods or
services;
(iii)
the quality of the proposer's past performance
in contracting with the commission, with other state entities, or with private
sector entities;
(iv)
the financial status of the proposer;
(v)
the qualifications of the proposer's personnel;
(vi)
the experience of the proposer in providing
the requested goods or services; and
(vii)
whether the proposer made a good faith effort
to reach the minority participation goals set forth by the commission.
(3)
Where time permits, the commission shall
advertise formal competitive solicitations, whether by IFB or RFP,
on
[
(4)
For formal competitive solicitations where an IFB
is used, the executive director or the executive director's designee shall
award a contract to the qualified bidder submitting the [
(5)
For formal competitive solicitations where an RFP
is used, the executive director or the executive director's designee(s) shall,
prior to the deadline for receipt of proposals, develop and establish a comprehensive
evaluation
criteria
[
(e)
Preferences.
(1)
In the award of any contract for the purchase or lease
of services, preference shall be given to a Texas resident bidder or proposer.
Preference means the right of a Texas resident bidder or proposer to receive
a contract award over a nonresident bidder or proposer, the cost to the state
and quality being equal.
(2)
In the award of any contract for the purchase or lease
of goods, preference shall be given to goods produced in Texas. Goods produced
in Texas shall have the same preference as services offered by a Texas resident
bidder or proposer.
(3)
In the award of any contract for the purchase or lease
of goods or services where the goods or services produced in Texas or offered
by a Texas resident bidder or proposer are not equal in cost and quality,
preference shall be given to those goods or services produced in another state
or offered by a bidder or proposer from another state over those goods or
services produced in a foreign country or offered by a bidder or proposer
from a foreign country, the cost to the state and quality being equal.
(4)
After application of the preferences established in
paragraphs (1)-(3) of this subsection, preference shall be given to a minority
business, as defined in the State Lottery Act, Texas Government Code, §466.107.
(5)
If, after application of the preferences established
in paragraphs (1)-(4) of this subsection, a tie continues, the contract award
shall be made by the drawing of lots.
(6)
A bidder or proposer entitled to a preference(s) under
this subsection should claim the preference(s) in its bid or proposal. [
[
Protests.]
[
Any bidder or proposer aggrieved by the terms
of any formal competitive solicitation, or with any contract award made pursuant
to such a solicitation, may protest the commission's or the executive director's
action. For the protest of a formal competitive solicitation, a protest must
be filed, in writing, with the commission's general counsel within 72 hours
after issuance of the IFB or RFP. For the protest of a contract award, a protest
must be filed, in writing, with the commission's general counsel within 72
hours after receipt of notice of the execution of the contract. Protests not
filed timely will not be considered, and the protestant will be so notified
in writing by the commission's general counsel.]
[
To be considered, a protest must contain.]
[
a specific identification of the statutory
provision, rule provision, or procurement procedure allegedly violated;]
[
a brief statement of the relevant facts;]
[
an identification of the issue or issues to
be resolved;]
[
arguments and authorities in support of the
protest;]
[
an affidavit that the contest of the protest
are true and correct; and]
[
a certification that a copy of the protest
(if to a contract award) has been served on the successful proposer.]
[
In the event of a timely filed protest
of a solicitation, the executive director shall not proceed with issuance
of a purchase order or execution of a contract unless the commission determines,
in writing, that such action is necessary to protest the interests of the
state.]
[
In the event of a protest of a contract
award, the successful proposer may file a written response to the protest
within 72 hours after the commission's receipt of the protest.]
[
The executive director will review the
protest, any response, and the solicitation file; and will make a written
determination of the protest. The written determination on the protest may
include a determination cancelling the solicitation or voiding the contract.
The executive director's written determination will be served, by facsimile,
on the protestant and the successful proposer (if any). Confirmation of delivery
to the designated facsimile machine will be conclusive proof that delivery
was made. The protestant may appeal the determination of the executive director
to the Texas Lottery Commission by filing a request with the general counsel
not later than 72 hours after receipt of notice of the executive director's
determination. Any appeal to the Texas Lottery Commission will be based solely
on the written protest, any responses filed with the executive director, and
the executive director's written determination The Texas Lottery Commission's
determination of any appeal shall be administratively final when issued.
(f)
[
(1)
When determined appropriate by the executive director,
a contract for the purchase or lease of goods or services related to the implementation,
operation, or administration of the lottery shall provide for liquidated damages
and a performance bond in an amount equal to the executive director's best
available estimate of the revenue that would be lost by the state if the contractor
fails to meet deadlines specified in the contract or materially fails to perform
its contractual obligations in any other manner. When such contract terms
are determined appropriate by the executive director, the IFB or RFP shall
reflect such requirement.
(2)
When determined appropriate by the executive director,
a contract for the purchase or lease of goods or services related to the implementation,
operation, or administration of the lottery shall provide that the contractor,
when utilizing subcontractors, shall give a preference to minority businesses,
as defined in the State Lottery Act, Texas Government Code, §466.107.
When such contract term is determined appropriate by the executive director,
the IFB and RFP shall reflect such requirement.
(3)
A contract for the purchase or lease of goods or services
relating to the implementation, operation, or administration of the lottery
shall provide that the executive director may terminate the contract, without
penalty, if an investigation made pursuant to the Act reveals that the person
to whom the contract was awarded would not be eligible to receive a sales
agent license under the State Lottery Act, Texas Government Code, §466.155.
An IFB or RFP may require that bidders or proposers provide in their bids
or proposals sufficient information to allow the commission to determine whether
the bidder or proposer meets the eligibility requirements for a sales agent
license.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
December 17, 1999.
TRD-9908775
Ridgely C. Bennett
Deputy General Counsel
Texas Lottery Commission
Earliest possible date of adoption: January 30, 2000
For further information, please call: (512) 344-5113
Part 9.
TEXAS LOTTERY COMMISSION
by House Bill 54, 72nd Legislature, First
Called Session, as amended by House Bill 1587 and House Bill 1013, 73rd Legislature,
Regular Session
].
bid
].
, but
excludes a bidder or
]
A
[
a
] proposer whose ultimate
parent company or majority owner has its principal place of business in Texas
is considered a resident bidder or proposer
.
permanent
] office located in Texas, from
which business activities other than submitting bids or proposals to governmental
agencies are conducted, with at least one employee working in that office.
, and includes
]
A
[
a
] bidder or proposer whose ultimate parent
company or majority owner has its principal place of business in Texas
is considered a resident bidder or proposer
.
public relations,
] telecommunications services, and advertising services.
lease
] three competitive price quotations.
The commission may ask the General Services Commission or any other appropriate
entity for advice and assistance in the handling of an emergency purchase.
order
] to receive at least three competitive
price quotations for a specifically identified good or service, without the
advertisement and issuance of an IFB or RFP. The price quotations may be solicited
by letter,
electronic mail
[
telegram
], facsimile, or
telephone call. The following information must be recorded by the commission
in the solicitation file:
(A)
] the name and telephone number
of the person or company submitting the price quotation;
(B)
] the time and date the price
quotation was received;
(C)
] the amount of the price quotation;
and
(D)
] the name and telephone number
of the person receiving the price quotation for the
commission
[
division
].
lowest
] price quotation
that provides the best value to the state,
except that the executive director may reject all price quotations if it is
determined to be in the best interest of the state
. In determining the
lowest price quotation, an amount will be added to a nonresident bidder's
or proposer's price quotation equal to the amount a Texas resident bidder
or proposer would be required to underbid a nonresident bidder or proposer
to obtain a comparable contract in the state in which the nonresident bidder
or proposer has its principal place of business. This added amount will only
be used for evaluation purposes, and will not be included in the nonresident
bidder's or proposer's contract if one is awarded.
and
]
criteria
] to be utilized in evaluating proposals and awarding a contract
; and
[
.
]
in
] the
electronic state business journal
[
Texas Register
]. The commission may advertise such solicitations in
other media determined appropriate by the commission. [
In addition, the
commission shall provide a copy of the IFB or RFP to those vendors who have
specifically expressed, in writing, an interest in providing certain goods
or services to the commission and whose names and addresses are on file with
the commission.
]
lowest
]
bid
that provides the best value to the state
, except that the
executive director may reject all bids if it is determined to be in the best
interest of the
lottery
[
state
].
In determining
the lowest bid, an amount will be added to a nonresident bidder's bid equal
to the amount a Texas resident bidder would be required to underbid a nonresident
bidder to obtain a comparable contract in the state in which the nonresident
bidder has its principal place of business. This added amount will only be
used for evaluation purposes, and will not be included in the nonresident
bidder's contract if one is awarded.
The contract shall be awarded by
the issuance of a written purchase order. At the time the purchase order is
issued, the commission shall also notify, in writing, all other bidders of
the contract award by
facsimile, or by
certified mail, return receipt
requested, or by overnight mail. Any information relating to the solicitation
not made privileged from disclosure by law shall be made available for public
disclosure after issuance of the purchase order pursuant to the Texas Open
Records Act.
plan
] to be utilized by an evaluation
committee in evaluating the proposals and awarding a contract.
In determining
the lowest price,
[
The evaluation plan shall be based upon the
evaluation criteria used by the evaluation committee appointed by the executive
director. If the evaluation criteria include price as one of the criteria
] an amount will be added to a nonresident proposer's price proposal
equal to the amount a Texas resident proposer would be required to underbid
a nonresident proposer to obtain a contract in the state in which the nonresident
proposer has its principal place of business. This added amount will only
be used for evaluation purposes, and will not be included in the nonresident
proposer's contract if one is awarded. All proposals
that are responsive
to the RFP
[
received
] will be reviewed by the evaluation
committee. The evaluation committee will evaluate and rank all proposals in
accordance with the evaluation
criteria
[
plan
]. As part
of the evaluation process, the top proposers may be requested to make an oral
presentation to the committee, which may include an inspection trip to the
proposer's facilities [
at a mutually agreeable time and place
].
The evaluation committee will then make a final ranking of all proposers who
have made a presentation, based upon the presentation and the evaluation
criteria
[
plan
]. The committee will forward its written recommendation
to the executive director, who will review the recommendation and make the
final decision, including the acceptance of a proposal in whole or in part.
The executive director or the executive director's designee(s) shall then
attempt to negotiate a contract with the selected proposer. If a contract
cannot be negotiated with the selected proposer
on terms
[
at a price
] the executive director determines reasonable, negotiations
with that proposer will be terminated, and negotiations will be undertaken
with the next highest ranked proposer. This process will be continued until
a contract is executed by a proposer and the executive director, or negotiations
with the highest ranked proposers are terminated. If no contract is executed,
the executive director or the executive director's designee(s) may attempt
to negotiate a contract with any of the other proposers. Negotiations will
continue until a contract is executed or all proposals are rejected. If a
contract is executed, the commission shall promptly notify, in writing, all
other proposers of the contract award by
facsimile, or by
certified
mail, return receipt requested, or by overnight mail. Any information relating
to the solicitation not made privileged from disclosure by law shall be made
available for public disclosure after execution of the contract pursuant to
the Texas Open Records Act.
However, a preference(s) may be granted to a bidder or proposer who fails
to claim the preference(s) if documents attached to the bid or proposal clearly
indicate entitlement to the preference(s).
]
(f)
(1)
(2)
(A)
(B)
(C)
(D)
(E)
(F)
(3)
(4)
(5)
(g)
] Contract terms.