16 Tex. Admin. Code § 401.101 - Lottery Procurement Procedures
(a) Definitions. The following words and
terms, when used in this subchapter, shall have the following meanings, unless
the context clearly indicates otherwise.
(1)
Act--The State Lottery Act.
(2)
Agency--For the purposes of this subchapter that deals with procurements for
the administration of the lottery, the term "agency" refers to the commission
as defined in paragraph (5) of this subsection.
(3) Best and Final Offer (BAFO)--A revised
final bid or proposal submitted after all clarifications, discussions, and
negotiations with the agency.
(4)
Executive director--The executive director of the Commission.
(5) Commission--The state agency established
under Chapter 466 and Chapter 467, Government Code. However, this subchapter
applies only to the procurement of goods and services for the administration of
the lottery authorized by the State Lottery Act. For the sake of clarity, this
subchapter will refer to the commission as "agency" and to the appointed board
as the "Texas Lottery Commission".
(6) Cost--The price at which the agency can
purchase goods and/or services.
(7)
Electronic State Business Daily or Business Daily--An online directory
administered by the Comptroller of Public Accounts, or its successor, that
publishes solicitations for the purpose of informing vendors of procurement
opportunities and provides public notice of contract awards.
(8) Emergency procurement--A situation
requiring the state agency to make the procurement more quickly to prevent a
hazard to life, health, safety, welfare, or property or to avoid undue
additional cost to the state.
(9)
Goods--Supplies, materials, and equipment.
(10) IFB--A written invitation for
bids.
(11) Lottery--The procedures
and operations of the agency 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.
(12) Nonresident bidder or
proposer--A person whose principal place of business is not in Texas, but does
not include a bidder whose majority owner or parent company has its principal
place of business in Texas.
(13)
Principal place of business--The state in which the head office of a business
is located, and generally, where the executive management is located and the
business records are maintained.
(14) 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.
(15) Proprietary purchase--A
product or service that is unique to a single vendor or manufacturer and is not
available from other sources.
(16)
Resident bidder or proposer--A person whose principal place of business is in
this state, including a contractor whose ultimate parent company or majority
owner has its principal place of business in this state.
(17) RFP--A written request for
proposals.
(18) RFQ--A written
request for qualifications.
(19)
Services--The furnishing of skilled or unskilled labor or professional
work.
(20) State or statewide
contract--A contract for goods or services established and administered by
another state agency (e.g., Texas Comptroller of Public Accounts, Texas
Department of Information Resources) for use by all state agencies.
(21) Texas Lottery Commission--The appointive
board or commission established in Chapter 467, Government
Code.
(b) Use and Effect.
This subchapter is prescribed for the performance of the statutory powers and
functions vested in the agency. In no event shall they, or any of them, be
construed as a limitation or restriction upon the exercise of any discretion
authorized to be exercised by the Texas Lottery Commission.
(c) Procurement method.
(1) For the purchase or lease of goods and
services not expected to exceed $10,000, 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 agency, at a minimum, will conduct
an informal competitive solicitation in an attempt to obtain at least three
competitive bids and will solicit at least two HUB vendors.
(3) For the purchase or lease of goods and
services expected to exceed $25,000, the agency will conduct a formal
competitive solicitation in an attempt to obtain at least three competitive
bids or proposals and will solicit at least two HUB vendors.
(4) Printing services. For the purchase of
printing services over $2,500, the agency will submit print job specifications
and bid requests to the State Print Shops. If no responsive bids are received
from a State Print Shop or, after the results of the bid evaluation, the agency
determines that best value would be achieved through a private sector vendor,
the agency may perform a competitive solicitation outlined in paragraph (2) or
(3) of this subsection.
(5)
Emergency procurement. Notwithstanding paragraphs (1) - (4) of this subsection,
the agency may make an emergency purchase or lease of goods or services. 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
$10,000, the agency may conduct an informal competitive solicitation in an
attempt to obtain at least three competitive bids, whenever possible. For
emergency purchases in excess of $25,000, the procurement will be posted on the
Electronic State Business Daily; however, the minimum posting requirements do
not apply. Posting of the advertisement and/or the award notice satisfies this
requirement. In response to an emergency, the agency may procure goods or
services in the most expeditious manner deemed appropriate, including from a
sole source.
(6) Proprietary
purchase. When the agency believes that a purchase of goods or services over
$10,000 is proprietary to one vendor or one manufacturer, a written proprietary
purchase justification will be included in the procurement file. If the
estimated purchase price exceeds $25,000, the procurement will be posted on the
Electronic State Business Daily prior to a purchase order or contract being
issued.
(7) Notwithstanding
paragraphs (1) - (4) of this subsection, the agency may make a purchase or
lease of goods or services under any other procedure not otherwise prohibited
by law.
(d) Informal
competitive solicitations.
(1) An informal
competitive solicitation is a process conducted in an effort to receive at
least three competitive bids for a specifically identified good or service,
without the advertisement and issuance of an IFB or RFP. The bids may be
solicited by letter, electronic mail, facsimile, or telephone call. The
following information will be recorded by the agency in the procurement file:
(A) the name and telephone number of each
person or company to which the solicitation was provided;
(B) the name and telephone number of the
person or company submitting the bid;
(C) the date the bid was received;
(D) the amount of the bid;
(E) bidder's Historically Underutilized
Business status; and
(F) the name
and telephone number of the person receiving the bid for the
agency.
(2) The agency
will award a contract to the qualified bidder submitting the lowest and best
bid, except that the agency may reject all bids if it is determined to be in
the best interest of the state.
(3)
The contract will be awarded by the issuance of a written purchase
order.
(e) 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,
RFP, RFQ, or another statewide contract process, respectively.
(A) An IFB will be used when the agency 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. For formal
competitive solicitations where an IFB is used, the agency will award a
contract to the qualified bidder submitting the lowest cost responsible bid
meeting all specifications and providing the best value for the agency, as
determined during the evaluation of the bids.
(B) An RFP will be used when the agency knows
generally what it wishes to procure in order to accomplish a certain goal(s) or
objective(s); requirements cannot be completely and accurately described;
requirements can be satisfied in a number of ways, all of which could be
acceptable; or, where oral or written communications with proposers may be
necessary in order to effectively communicate requirements and/or assess
proposals, and the agency wants proposers to offer a solution(s) to address
such need(s) at a specific price(s). The RFP process allows for negotiations
between a proposer and the issuing agency.
(C) An RFQ will be used when the agency wants
to procure professional services and evaluate proposers solely on their
qualifications.
(2) The
agency will advertise formal competitive solicitations, whether by IFB, RFP, or
RFQ on the Electronic State Business Daily in accordance with the Comptroller
of Public Accounts posting time requirements. The agency may advertise such
solicitations in other media determined appropriate by the agency.
(3) For all formal competitive solicitations,
the agency will award a contract to the most qualified bidder or proposer as
determined during the evaluation of the bids or proposals. The agency may
reject all bids or proposals if it is determined to be in the best interest of
the agency. At the time a purchase order is issued or a contract is executed,
the agency will notify, in writing, all other bidders or proposers of the
contract award by facsimile, email or by certified mail. Any information
relating to the solicitation not made privileged from disclosure by law will be
made available for public disclosure, after award of a contract, pursuant to
the Texas Public Information Act.
(4) For those formal competitive
solicitations where fewer than two bids or proposals are received, the agency
will document the reasons, if known, for the lack of two bids or proposals. If
fewer than two bids or proposals are received, the agency may cancel the
solicitation and conduct another solicitation, or it may award a contract if
one acceptable bid or proposal is received.
(f) RFPs and IFBs.
(1) Submission of RFP. When an RFP is used by
the agency, the RFP will contain, at a minimum, the following:
(A) a general description of the goods and/or
services to be provided, 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 and person to whom they must be
submitted;
(D) an identification of
the process to be utilized in evaluating proposals; and
(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 agency's evaluation of the
likelihood of the proposal to produce the desired outcome for the agency,
considering, among other criteria:
(I) the
quality of the proposer's past performance in contracting with the agency, with
other state entities, or with private sector entities;
(II) the qualifications of the proposer's
personnel;
(III) the experience of
the proposer in providing the requested goods or services;
(IV) the financial status of the proposer;
and
(iv) whether the
proposer performed the good faith effort required by the HUB subcontracting
plan, when the agency has determined that subcontracting is
probable.
(2)
Submission of IFB. When an IFB is used by the agency, a bidder will submit a
bid in response to the solicitation. The IFB solicitation will contain, at a
minimum, the following:
(A) A detailed
description of the goods and/or services to be provided, and specific
specifications for the goods or services to be procured;
(B) A description of the format bids must
follow and the elements they must contain;
(C) The time and date bids are due, and the
location and person to whom they must be submitted;
(D) an identification of the process to be
utilized in evaluating bids; and
(E) a listing of the factors to be utilized
in evaluating bids and awarding a purchase order. At a minimum, the factors
should include:
(i) the bidder's price to
provide the goods or services;
(ii)
the probable quality of the offered goods or services;
(iii) the quality of the bidder's past
performance in contracting with the Texas Lottery, with other state entities or
with private sector entities;
(iv)
the bidder's experience in providing the requested goods or services;
(v) the qualifications of the bidder's
personnel; and,
(vi) whether the
bidder performed the good faith effort required by the HUB subcontracting plan,
as applicable.
(3) Evaluation Process. The agency will,
prior to the deadline for receipt of proposals or bids, develop and establish
comprehensive evaluation criteria to be utilized by an evaluation committee in
evaluating the proposals or bids. All proposals or bids that are responsive to
the procurement will be reviewed by the evaluation committee. Part of the
initial evaluation process may include an inspection trip to the proposer's
facilities, and/or proposers may be requested to make an oral presentation to
the committee. The evaluation committee may seek advice from consultants. If
consultants are employed, they may be provided all information provided by the
proposers or bidders. The evaluation committee will evaluate and score all
proposals in accordance with the evaluation criteria.
(4) Best and Final Offers (BAFO). With an
RFP, the agency may select top proposers, which may each be given an
opportunity to discuss, clarify, and negotiate with the agency, and submit
revisions to their respective proposals to the agency through a BAFO process.
During discussions between the proposers and the agency, no information from a
competing proposal may be revealed by the agency to another competitor. Any
type of auction practice or allowing the transfer of technical information is
specifically prohibited. At the conclusion of the discussions, BAFOs may be
formally requested from the proposers and a deadline will be set for
submission. BAFOs will be submitted by supplemental pages and not a complete
resubmission of the proposal. All BAFOs will be reviewed by the evaluation
committee. The evaluation committee will evaluate and score the BAFO response
together with the original proposal in accordance with the evaluation
criteria.
(5) Negotiation.
(A) RFP. If a BAFO process is not used, the
agency will attempt to negotiate a contract with the selected proposer. If a
contract cannot be negotiated with the selected proposer on terms the agency
determines reasonable, negotiations with that proposer will be terminated, and
negotiations will be undertaken with the next highest scored proposer. This
process will be continued until a contract is executed by a proposer and the
agency, or negotiations with all qualified proposers are terminated. If no
contract is executed, the agency may cancel the solicitation.
(B) IFB. Negotiations are not authorized when
utilizing an IFB procurement method; however, if only one response is received,
negotiations are allowed, provided, negotiations may not result in a material
change to the advertised specifications.
(6) Multiple Award. The agency may award a
contract to two or more vendors or contractors using a single solicitation to
furnish the same or similar supplies or services, where more than one vendor or
contractor is needed to meet the agency's requirements for quantity, delivery,
or service.
(g) RFQ.
(1) Submission. When an RFQ is used by the
agency, the RFQ will contain, at a minimum, the following:
(A) a general description of the professional
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 and person to whom they are to be
submitted;
(D) an identification of
the process to be utilized in evaluating proposals and awarding a contract;
and
(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 demonstrated
competence and qualifications to perform the services;
(ii) the quality of the proposer's past
performance in contracting with the agency, with other state entities, or with
private sector entities;
(iii) the
financial status of the proposer;
(iv) the qualifications of the proposer's
personnel;
(v) the experience of
the proposer in providing the requested services; and
(vi) whether the proposer performed the good
faith effort required by the HUB subcontracting plan, when the agency has
determined that subcontracting is probable.
(2) Evaluation Process. The agency will,
prior to the deadline for receipt of proposals, develop and establish
comprehensive evaluation criteria to be utilized by an evaluation committee in
evaluating the proposals. All proposals that are responsive to the RFQ will be
reviewed by the evaluation committee. The evaluation committee will evaluate
and score all proposals in accordance with the evaluation criteria.
(3) Negotiation. The agency will then attempt
to negotiate a contract, for a fair and reasonable price, with the selected
proposer; or, the agency may engage in simultaneous negotiations with multiple
proposers. If a contract cannot be negotiated with the selected proposer on
terms the agency determines reasonable, negotiations with that proposer will be
terminated, and negotiations will be undertaken with the next highest scored
proposer. This process will continue until a contract is executed by a proposer
and the agency, or negotiations with all qualified proposers are terminated. If
no contract is executed, the agency may cancel the
solicitation.
(h)
Preferences.
(1) If, after application of the
preferences required by Texas law, a tie continues, the contract award will be
made by the drawing of lots.
(2) A
bidder or proposer entitled to a preference(s) under Texas law shall claim the
preference(s) in its bid or proposal.
(i) Contract terms. A contract for the
purchase or lease of goods or services relating to the implementation,
operation, or administration of the lottery will 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, RFP
or RFQ may require that bidders or proposers provide in their bids or proposals
sufficient information to allow the agency to determine whether the bidder or
proposer meets the eligibility requirements for a sales agent
license.
Notes
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