1. (a) Except as provided in subsection (b) of this section, negotiation with a private source to secure a state lease is permitted only when the commission determines that competitive bidding is not possible, not obtainable, not practical, or is disadvantageous to the State. Such cases include, but are not limited to, the following:

   1. (1) An emergency lease is entered into under §115.3(b) of this chapter (relating to Receipt and Processing of Requisitions for Leased Space) as considered appropriate for the circumstances by the commission.
   2. (2) Only one bid meeting specifications is received, or no bids are received, following advertisement, and the commission determines, after a review of advertised specifications, that no unduly restrictive specifications were used.
   3. (3) The commission determines that specifications needed by the requesting agency are so restrictive that they would effectively eliminate competition. Specifications of this restrictive nature must be justified by the requesting agency in writing to the commission and must be approved by the commission as necessary to the essential function and purpose of the agency. (See §115.3(d)(7)(B) of this chapter (relating to Receipt and Processing of Requisitions for Leased Space.))

2. (b) Pursuant to Texas Government Code, Title 10, Subtitle D, Chapter 2167, §2167.052(b) if the commission finds that competitive bidding is not possible, obtainable, or practical, or is disadvantageous to the state, it may also lease space from private sources by following the competitive sealed proposal procedures set forth in this subsection. As used in this subsection, "practical" means what can be accomplished or put into application and "disadvantageous" means a judgmental assessment of what is not in the state's best interest.

   1. (1) Competitive bidding is not practical unless the nature of the requisition for space permits an award of lowest and best bid to a bidder who agrees to perform without condition or reservation in accordance with the space requirements, delivery or performance schedule, and all other terms and conditions of an invitation for bids. Factors that may be considered in determining that competitive bidding is not practical include, but are not limited to, the following:

      1. (A) whether there is a need for oral or written discussions with potential offerors concerning technical and price aspects of their proposals; or
      2. (B) whether offerors may need an opportunity to revise their offers, including price; or
      3. (C) whether the state's failure to base an award upon an assessment of factors other than price is likely to result in a readvertisement of the requisition;, or
      4. (D) whether the primary consideration in determining an award may not be price.

   2. (2) A determination that competitive bidding is disadvantageous to the state may be based upon one or more of the following factors:

      1. (A) the potential for excessive or inflated bid prices;
      2. (B) the potential for an inadequate number or quality of bids;
      3. (C) the likelihood that one or more of the factors which make competitive bidding impractical, as set forth in paragraph (1) of this subsection, would also result in a lease contract that is disadvantageous to the state.
   3. (3) The commission shall solicit proposals by issuing a request for proposals (RFP). Public notice of the RFP shall be given by publication in the Texas Register and in a newspaper of general circulation in the county where the space to be leased is located. Notice of the RFP may also be mailed to potential offerors that are on the bidders list, in accordance with §115.5(b) of this chapter (relating to Leasing from a Private Source). Notice of the RFP must specify how persons who may be interested in submitting proposals may obtain a complete RFP, and must identify the time and place at which proposals will be received and opened.
   4. (4) At a minimum, an RFP must contain all information required in specifications by §115.3(b) of this chapter (relating to Receipt and Processing of Requisitions for Leased Space); criteria that will be used to evaluate proposals; a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and a statement of how and when price information should be submitted. As used in this subsection, "discussions" means negotiation, amendment, clarification, modification, or any of these.
   5. (5) Proposals shall be opened in a manner that does not disclose the contents of the proposals. At public opening of proposals, only the name of the proposer shall be made public. The proposals may not be made public until a lease contract is awarded.
   6. (6) Proposals shall be evaluated considering only the evaluation criteria set forth in the RFP, and by comparing the proposal to the stated criteria, rather than comparing one proposal to another. An evaluation team may be designated to evaluate proposals.
   7. (7) If discussions are to be conducted, the commission shall provide to each offeror, whose offer meets the minimum requirements set forth in the request for proposals, a reasonable opportunity for discussion and revision of its proposal. The commission shall invite a requesting agency to participate in such discussions and negotiations. During discussions, information from a competing proposal may not be revealed to another competitor. Any procedure that amounts to an auction practice is prohibited as being inconsistent with fair competition. When all discussions have been concluded, a time and place will be established for the receipt of best and final offers. A proposal may not be modified or amended in any respect after the established time for receipt of best and final offers.
   8. (8) An award shall be made to the offeror whose proposal is evaluated to be the most advantageous to the state, considering the evaluation factors of the RFP and price. No other factors shall be considered in evaluation. If the commission finds that no proposals are acceptable, it shall reject all proposals. When an award is made, the basis of the award shall be stated in writing and made a part of the lease file. The lease contract resulting from the RFP shall be embodied in the standard state lease contract form, which incorporates the advertised requirements and the proposal, including amendments made during discussions and the best and final offer.
3. (c) An institution of higher education to whom leasing authority has been delegated pursuant to Texas Government Code, Title 10, Subtitle D, Chapter 2167, § 2167.005 and §115.10 of this chapter (relating to Delegation of Leasing Authority) may enter into leases through competitive sealed proposal procedures in compliance with subsection (b) of this section.

Source Note:The provisions of this §115.6 adopted to be effective November 21, 1999, 24 TexReg 10034.