A Procedure for Major Consulting Services Contracts

transcript

A Procedure forMajor Consulting Services

Contracts

February 8, 2008

Consulting Services Contracts

A Texas state agency that wishes to enter into a contract for “consulting services” must comply with the statutory requirements set forth in Chapter 2254, Subchapter B of the Texas Government Code.

What Are Consulting Services?

Texas law defines a “consulting service" to mean “the service of studying or advising a state agency under a contract that does not involve the traditional relationship of employer and employee.”

Texas Government Code, Section 2254.021 (1)

Major Consulting Services Contracts

Chapter 2254, Subchapter B of the Texas Government Code sets forth certain statutory requirements that are only applicable to “Major Consulting Services Contracts.”

Major Consulting Services Contracts and UT System Policy

Moreover, U. T. System Policy UTS128 contains additional requirements that must be met by a U.T. institution that wishes to enter into a Major Consulting Services Contract.

UTS128

What is a Major Consulting Services Contract?

For U. T. System and its institutions, a “Major Consulting Services Contract” is a consulting services contract for which it is reasonably foreseeable that the value of the contract will exceed $25,000.

A Procedure for Major Consulting Services Contracts

This presentation identifies a procedure that U. T. institutions can use to comply with the Major Consulting Services Contract requirements that are set forth in Chapter 2254, Subchapter B of the Texas Government Code and in UTS128.

Major Consulting Services Contract Forms

This presentation also includes sample forms that a U. T. institution can use in processing a Major Consulting Services Contract.

What This Procedure Doesn’t Address

This presentation may not address all of the requirements in Ch. 2254, Subch. B of the Texas Government Code or in UTS128 that are applicable to all types of consulting services contracts (i.e., not just major consulting services contracts.)

What This Procedure Doesn’t Address

Therefore, you may want to consult with an OGC attorney to ensure that you comply with all requirements in Texas law and UT policy regarding consulting services contracts.

STEP 1: The “Finding of Fact”

Before a U. T. institution can enter into a major consulting services contract, it must first obtain a written “Finding of Fact” that the proposed consulting services are necessary. Texas Government Code, Section 2254.028

STEP 1: Importance of a Finding of Fact

If this Finding of Fact is not obtained before entering into a major consulting services contract, then that contract is void under Texas law.

Texas Government Code, Section 2254.028 (b)

STEP 1: Obtaining a Finding of Fact

If the Major Consulting Services Contract is for U. T. System, the Chancellor may make the Finding of Fact.

Texas Government Code, Section 2254.028 (c)

Click the following Microsoft Word icon for a form that can be used to create a Finding of Fact to be made by the Chancellor:

STEP 1: Obtaining a Finding of Fact (con’t)

If the Major Consulting Services Contract is for a U. T. Institution, then the Finding of Fact may be made by that U. T. Institution’s President.

STEP 1: Obtaining a Finding of Fact (con’t)

Click the following Microsoft Word icon for a form that can be used to create a Finding of Fact to be made by a UT Institution’s President:

Alternatively, the Finding of Fact may be obtained from the Governor’s Office of Budget and Planning.

Texas Government Code, Section 2254.028 (a)(3)

Click the following Microsoft Word icon for a form that can be used to create a Finding of Fact to be made by the Governor’s Office of Budget and Planning:

However, UT Institutions that wish to obtain a Finding of Fact from the Governor’s Office of Budget and Planning must obtain the approval of the appropriate Executive Vice Chancellor before doing so, as set forth in Step 2 of this procedure.

UT System Policy UTS128

STEP 2: Approval by Executive Vice Chancellor

After obtaining the Finding of Fact, a Major Consulting Services Contract for a U. T. institution must be approved by the appropriate Executive Vice Chancellor (“EVC”).

U. T. Academic Institutions must obtain such approval from the EVC for Academic Affairs.

U. T. Health Institutions must obtain such approval from the EVC for Health Affairs.

U. T. System Administration offices must obtain such approval from the EVC for Business Affairs.

To obtain approval, a “Major Consulting Services Contract Approval Request Form” must be submitted to the applicable EVC. A copy of this form is available here.

During Step 1, did a U.T. Institution President or the Chancellor make the Finding of Fact for the Major Consulting Services Contract?

If so, attach the Finding of Fact to the Major Consulting Services Contract Approval Request Form that is submitted to the EVC.

Will the Governor’s Office of Budget and Planning be asked to make the Finding of Fact for the Major Consulting Services Contract?

If so, attach a written draft of the proposed Finding of Fact to the Major Consulting Services Contract Approval Request Form submitted to the EVC.

STEP 3: Notices to Governor & Legislative Budget Board

After EVC approval of a Major Consulting Services Contract, provide the Governor’s Office of Budget and Planning and the Legislative Budget Board with written notices of your intent to contract with a consultant under a Major Consulting Services Contract.

Texas Government Code, Section 2254.028

These notices must demonstrate that there is a substantial need for the consulting services you are obtaining under the Major Consulting Services Contract.

Texas Government Code, Sections 2254.026, 2254.028

These notices must demonstrate that the U. T. Institution cannot adequately perform the consulting services with its own personnel.

These notices must demonstrate that the U. T. Institution cannot obtain the consulting services through a contract with a state governmental entity.

These notices must demonstrate that in selecting the consultant the U. T. Institution shall base its choice on:

• demonstrated competence, knowledge, and qualifications, and

• the reasonableness of the proposed fee for the services.

These notices must demonstrate that, if other considerations are equal, the U. T. Institution will give preference to a consultant:

• whose principal place of business is in Texas, or

• who will manage the consulting contract wholly from an office in Texas.

If you want the Governor’s Office of Budget and Planning to make the Finding of Fact for your Major Consulting Services Contract, attach a written draft of it to the notice you send to the Governor’s office for approval.Texas Government Code, Section 2254.028 (a) (3)

These notices should include a completed copy of the “Consultant Contract Notification Form” that is required by the Governor’s Office. This form is available at this link.

Click the following Microsoft Word icon to obtain a form for the notice sent to the Governor’s Office of Budget and Planning:

Click the following Microsoft Word icon to obtain a form for the notice sent to the Legislative Budget Board:

STEP 4: Publish an Invitation for Offers in the Texas Register

After completing Step 3 and obtaining the Finding of Fact, you must have an invitation published in the Texas Register for consultants to provide offers to perform the Major Consulting Services Contract (an “Invitation for Offers.”) Texas Government Code, Section 2254.029

The Invitation for Offers must identify the U. T. individual who should be contacted by a consultant who intends to make an offer to perform the Major Consulting Services Contract.

Texas Government Code, Section 2254.029 (a) (2)

In identifying the U. T. individual, please provide their:• Title• Phone Number• Email Address• Mailing Address

The Invitation for Offers must identify the closing date for receipt of offers from consultants to perform the Major Consulting Services Contract.

The Invitation for Offers must identify the procedure by which the Major Consulting Services Contract will be awarded.

The Invitation for Offers must disclose whether the consulting services sought under the Major Consulting Services Contract relate to services previously provided by a consultant.

The Invitation for Offers must disclose whether the U. T. Institution intends to award the Major Consulting Services Contract to a consultant that previously provided the services, unless a better offer is received.Texas Government Code, Section 2254.029 (b)

Has the Governor granted a limited waiver from the statutory requirements for this Major Consulting Services Contract due to an “Unforeseen Emergency”?

If so, then the Invitation for Offers must include a detailed description of the emergency on which the waiver request was predicated.

Has the Finding of Fact for this Major Consulting Services Contract been obtained from the Chancellor or a U. T. Institution President?

If so, then the Invitation for Offers must include the Finding of Fact and an explanation of that finding.

The final Invitation for Offers should be submitted to the Office of the Board of Regents, who will file it with the Texas Secretary of State for publication in the Texas Register.

The Office of the Board of Regents has a website that identifies how to handle such Consulting Contract Submissions, which is available at this link.

The Board of Regents’ Office will provide the U. T. Institution with a confirmation copy of the “Texas Register Submission Form” under which the Invitation for Offers was submitted for publication.

Under no circumstances should you enter into a Major Consulting Services Contract earlier than 30 days after the Board of Regents’ Office files the Invitation for Offers with the Texas Secretary of State for publication. Texas Government Code, Section 2254.029 (a)

Any Major Consulting Services Contract entered into without complying with the requirements of this Step 4 concerning Invitation for Offers is void under Texas law.

Texas Government Code, Section 2254.034 (a)

OPTION: During Step 1, did you obtain the Finding of Fact for your Major Consulting Services Contract from the Chancellor or a U. T. Institution president?

If so, you may request publication of the Invitation for Offers for that contract before submitting the notices identified in Step 3 to the Legislative Budget Board and the Governor’s Office of Budget and Planning.

If you use this option, attach a copy of the Texas Register Submission Form for the Invitation for Offers (received from the Board of Regents’ Office) to the notices you send to the Legislative Budget Board and the Governor’s Office of Budget and Planning during Step 3.

A form for the Texas Register notice addressed in this Step 4 is available by clicking the following Microsoft Word icon:

STEP 4: Publish an Invitation for Offers in the Texas RegisterAlso, OGC has an Invitation for Offers template that may be used to procure a Major Consulting Services Contract.

Such a template is available from the UT Purchasing Council website.

Notices

Texas law identifies two (2) notices that must be sent after a Major Consulting Services Contract is entered into. These notices are addressed in Steps 5 and 6 of this procedure.

STEP 5: Notice to the LBB After Entering Into Contract

A state agency must provide written notice to the Legislative Budget Board (LBB) after entering into a consulting services contract with an amount > $14,000.

NOTICE

Such a notice must be filed with the LBB no later than the 10th day after the date that the state agency enters into such a consulting services contract.

Note: Since this notice requirement applies to all consulting services contracts with a value > $14,000, this requirement can also apply to consulting services contracts that are not Major Consulting Services Contracts.

Texas law requires this LBB notice to “be on a form prescribed by” the LBB. This link to the LBB’s website identifies how such a notice should be provided to the LBB.

Any Consulting Services Contract entered into without complying with the requirements of this Step 5 is void under Texas law.

STEP 6: Publish Texas Register Notice After Entering Into ContractFinally, within 20 days after entering into a Major Consulting Services Contract you must post a notice in the Texas Register describing that contract.Texas Government Code, Section 2254.030

STEP 6: Publish Texas Register Notice After Entering Into Contract

The notice must describe the activities that the consultant will conduct under that Major Consulting Services Contract.

The notice must identify the name and business address of the consultant.

The notice must identify the total value and the beginning and ending dates of the Major Consulting Services Contract.

The notice must identify the due dates for any documents, films, recordings, or reports that the consultant is required to present to the U. T. Institution under that Major Consulting Services Contract.

STEP 6: Publish Texas Register Notice After Entering Into ContractIn entering into the Major Consulting Services Contract, did you accept an offer from an individual who was employed at your U. T. Institution or by another state agency at any time during the two (2) years preceding their offer? Texas Government Code, Section 2254.033 (b)

If so, then the notice must also contain a statement about that individual's previous employment with your U. T. Institution or the other state agency and the nature of that employment.

STEP 6: Publish Texas Register Notice After Entering Into ContractDid the Governor grant a limited waiver from the statutory requirements for this Major Consulting Services Contract due to an “Unforeseen Emergency”?

If so, then the notice must also include a detailed description of the emergency on which the request for such a waiver was predicated.

STEP 6: Publish Texas Register Notice After Entering Into ContractThe final version of this notice should be submitted to the Office of the Board of Regents, who will file it with the Texas Secretary of State for publication in the Texas Register.

Again, the Board of Regents Office has a website that identifies how to handle such Consulting Contract Submissions, which is available at this link.

Any Major Consulting Services Contract entered into without complying with the preceding requirements of this Step 6 is void under Texas law.

STEP 6: Publish Texas Register Notice After Entering Into ContractClick the following Microsoft Word icon for a form that you can use to create the Texas Register notice addressed in this Step 6:

Once the notice has been filed with the Texas Secretary of State for publication in the Texas Register, forward copies of it to the Governor’s Office of Budget and Planning and the Legislative Budget Board.Link to Governor's Website

STEP 6: Publish Texas Register Notice After Entering Into ContractThese copies of the notice should reference the “original contract number” that is identified in Section 2 of the “Consultant Contract Notification Form” that you completed during Step 3 of this procedure.

Link to Governor's Website

That’s It!

Don’t Worry!

You can always contact OGC if you need assistance.

Good Luck!

A Procedure for Major Consulting Services Contracts

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