1. (a) Public solicitation required.

   1. (1) Except as otherwise provided in subsection (b) of this section, each state agency that proposes to receive information resources technologies under a contract from another state agency must first solicit bids or proposals for the procurement of such technologies by giving public notice of a request for proposals or a request for bids.
   2. (2) Each state agency that solicits bids or proposals from the public for the procurement of information resources technologies must do so in accordance with applicable rules adopted by the General Services Commission pertaining to competitive bidding or competitive sealed proposals.

   3. (3) If a state agency receives a bid or a proposal from a private vendor in response to a solicitation issued in accordance with this subsection, it must review the bid or proposal and compare it with the best proposed interagency contract that is currently available to the state agency for the receipt of such information resources technologies. Specifically, the state agency must determine whether the bid or proposal:

      1. (A) is for the same or substantially the same technologies as those available under the proposed interagency contract;
      2. (B) would allow the state agency to accomplish the application or project at an acceptable level of quality;
      3. (C) would allow the state agency to accomplish the application or project in an acceptable period of time; and
      4. (D) would have a total cost to the state that is less than the total cost to the state of the best proposed interagency contract that is currently available to the state agency.
   4. (4) If a state agency receives a bid or proposal from a private vendor that satisfies all of the criteria listed under paragraph (3) of this subsection, it may not enter into an interagency contract for the receipt of such information resources technologies.

2. (b) Exceptions to public solicitation requirement. A state agency may procure information resources technologies from another state agency without first giving public notice of a request for proposals or an invitation for bids in the following cases:

   1. (1) the total dollar amount of the proposed interagency contract does not exceed $50,000;
   2. (2) the state agency has requested and received a waiver from the department in accordance with subsection (c) of this section, and the total dollar amount of the proposed interagency contract does not exceed the amount specified by the department in the waiver; or

   3. (3) the total dollar amount of the proposed interagency contract does not exceed $1 million and one or more of the following circumstances are present:

      1. (A) the primary purpose of the proposed interagency contract is the direct accomplishment of a specific legislative mandate;
      2. (B) the same or substantially the same information resources technologies are available from two or more private vendors under the catalogue purchasing procedure of the General Services Commission at a cost that exceeds the cost of the proposed interagency contract;
      3. (C) the procurement constitutes an emergency purchase under applicable rules of the General Services Commission;
      4. (D) the procurement constitutes a proprietary purchase under applicable rules of the General Services Commission;
      5. (E) both parties to the proposed interagency contract are institutions of higher education with a common governing board, as those terms are defined in the Education Code, §61.003; or
      6. (F) both parties to the proposed interagency contract are health and human service agencies, as that term is defined in Texas Civil Statutes, Article 4413(502).

3. (c) Waivers.

   1. (1) A state agency may submit a written request to the department for a waiver of the public solicitation requirement described in subsection (a) of this section. The written request must include the following:

      1. (A) a description of the proposed interagency contract, including the total dollar amount of the contract;
      2. (B) a description of the circumstances that would, in the opinion of the requesting state agency, justify an exception to the public solicitation requirement;
      3. (C) a certification that a procurement under the proposed interagency contract would, in the opinion of the requesting state agency, be more cost effective than a procurement based on a public solicitation of bids or proposals;
      4. (D) detailed cost information to support the certification of cost effectiveness; and
      5. (E) any other information requested by the department.
   2. (2) Upon receipt of a request for a waiver, the department shall promptly review the request to determine whether it contains the required information and the required certification of cost effectiveness. If the request does contain such information and certification, the department will then review the request to determine whether the proposed interagency contract is consistent with the requesting state agency's current biennial operating plan and all amendments, if any, that have been approved by the department. Unless the proposed interagency contract is clearly inconsistent with the agency's current approved plan and amendments, the department shall issue a written determination that a procurement under the proposed contract is presumed by the department to be more cost effective than a procurement based on a public solicitation of bids or proposals, and shall issue a written waiver of the public solicitation requirement for the proposed contract. The written waiver shall specify the maximum dollar amount that may be expended in connection with the proposed contract without having to comply with the public solicitation requirement.
   3. (3) If the department has not issued a written denial of the waiver request within 30 calendar days following the date of its receipt of the request, the request for a waiver shall be deemed to have been approved for an amount equal to the total dollar amount of the proposed interagency contract.
   4. (4) A decision by the department regarding the issuance of a waiver or a determination of cost effectiveness is final and may not be appealed.

Source Note:The provisions of this §201.7 adopted to be effective August 16, 1995, 20 TexReg 5777.