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CHE (TSBVI) Purchasing and Acquisition: Vendor Relations

Note: For additional legal requirements applicable to purchases with federal funds, see Policy CBB.

REQUIRED VENDOR DISCLOSURE

Disclosures of Interested Parties

TSBVI may not enter into a contract described below with a business entity unless the business entity submits a “disclosure of interested parties” form to the School at the time the business entity submits the signed contract to the School.

The requirement above applies only to a contract that:

  1. Requires an action or vote by the Board before the contract may be signed; or
  2. Has a value of at least $1 million; or
  3. Is for services that would require a person to register as a lobbyist under Government Code Chapter 305.

Gov’t Code 2252.908

A contract does not require an action or vote by the Board if the Board has legal authority to execute the contract, the Board has delegated this authority, and the Board does not participate in the selection of the business entity with which the contract is entered into. 1 TAC 46.1(c)

Exclusions

The disclosure requirement does not apply to a contract with:

  1. A publicly traded business entity, including a wholly owned subsidiary;
  2. An electric utility, as defined by Utilities Code 31.002; or
  3. A gas utility, as defined by Utilities Code 121.001.

Gov’t Code 2252.908(c) (4)-(6)

Required Form

The “disclosure of interested parties” must be submitted on a form prescribed by the Texas Ethics Commission that includes a list of each interested party for the contract of which the contracting business entity is aware; and a written, unsworn declaration subscribed by the authorized agent of the contracting business entity as true under penalty of perjury that is in substantially the form set out in Government Code 2252.908(e)(2), Gov’t Code 2252.908(e); 1 TAC 46.5(a)

The certification of filing and the completed disclosure of interested parties form generated by Ethic Commission’s electronic filing application must be printed, signed by an authorized agent of the contracting business entity, and submitted to TSBVI. 1 TAC 46.5(b)

Deadline

When TSBVI receives a completed disclosure of interested parties form and certification of filing it shall notify the Ethics Commission, in the electronic required format, of the receipt of those documents not later than the 30th day after the date the Board receives the disclosure. 1 TAC 46.5(c); Gov’t Code 2252.9208(f)

Contract Changes

The disclosure requirements do not apply to a change made to an existing contract, including an amendment, change order, or extension of a contract if;

  1. A disclosure of interested parties form was not filed for the existing contract; and either the changed contract requires an action or vote by the Board or the value of the changed contract is at least $1 million; or
  2. The business entity submitted a disclosure of interested parties form to TSBVI as a party to the existing contract; and whether there is a change to the disclosure; or the changed contract requires an action or vote by the Board; or the value of the changed contract is at least $1 million greater than the value of the existing contract.

1 TAC 46.4

DEFINITIONS

“Contract” means a business entity at the time it is voted on by the Board or at the time it binds the Board, whichever is earlier, and includes an amended extended or renewed contract. 1 TAC 46.3(a)

“Business entity” means any entity recognized by law through which business is conducted, including a sole proprietorship, partnership, corporation. The term includes an entity through which business is conducted with the School, regardless of whether the entity is for-profit or nonprofit entity, and does not include a governmental entity or state agency. Gov’t Code 222.908(a)(1); 1 TAC 46.3(b)

“Interested party” means a person who has a controlling interest in a business entity with who TSBVI contracts or who actively participates in facilitating the contract or negotiating the terms of the contract, including a broker, intermediary, adviser, or attorney for the business entity. Gov’t Code 2252.908(a)(3); 1 TAC 46.3(d), (e)

“Controlling interest” means:

  1. An ownership interest fee regulation by participating interest in a business entity by virtue of units, percentage, shares, stock, or otherwise that exceeds ten percent;
  2. Membership on the board of directors or an agency other governing body of a business entity of which the board or other governing body is composed of not more than ten members; or
  3. Service as an officer of a business entity that has four or fewer officers, or service as one of the four officers most highly compensated by a business entity that has more than four officers. This provision does not apply to an officer of a publicly held business entity of its wholly owned subsidiaries.

1 TAC 46.3 (c)

“Signed” includes any symbol executed or adopted by a person with present intention to authenticate a writing, including an electronic signature. 1 TAC 46.3(f)

“Value” of a contract is based on the amount of consideration received or to be received by the business entity from the School under the contract. 1 TAC 46.3(g)

Note:   See BBFA for additional information applicable to disclosures under Local Government Code Chapter 176, including:

  • Definitions;
  • Conflicts disclosure statements required to be filed by certain government officers, including vendors who are also local government officers; and
  • Internet posting requirements for conflicts disclosure statements and questionnaires.

Conflict of Interest Questionnaire

A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with the School and:

  1. Has an employment of other business relationship with a government officer of the School, or a family member of the officer, described by Local Government Code 176.003(a)(2)(A);
  2. Has given a TSBVI government officer, or a family member of the officer, one or more gifts with the aggregate value specified by Local Government Code 176.003(a)(2)(B), excluding any gift described by Local Government Code 176.003(a-1); or
  3. Has a family relationship with a TSBVI government officer.

Local Gov’t Code 176.006(a)

The completed conflict of interest questionnaire is required and must be filed with the TSBVI Director of Procurement not later than seventh business day after the later of:

  1. Begins discussions or negotiations to enter into a contract with TSBVI;
    1. Submits to TSBVI an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with TSBVI; or
  2. The date the vendor becomes aware:
    • ft. Of an employment or other business relationship with a TSBVI government officer, or a family member of the officer described by Local Gov’t Code 176.006(a);
    • fu. That the person has given one or more gifts”; or
    • fv. Of a family relationship with a TSBVI government officer.

Local Gov’t Code 176.006(a-1)

Updating Incomplete or Inaccurate Questionnaires

A vendor shall file an updated completed questionnaire with the Director of Procurement not later than the seventh business day after the date on which the vendor becomes aware of an event that would make a statement in the questionnaire incomplete or inaccurate. Local Gov’t Code 176.006(d)

CONTACTING BOARD MEMBERS PROHIBITED

Vendors shall not contact Board members individually for the purpose of soliciting a purchase or contract during the restricted contact period. If a vendor violates this prohibition during this time frame, consideration of the vendor for award shall be invalidated. Board members shall be notified of possible violations and actions taken.

Restricted Contact Period

The restricted contact period shall begin upon the date of issuance of solicitation and shall end upon execution of the awarded contract by all parties.

In an effort to demonstrate its commitment to ethical procurement and contracting standards, and to improve accountability and public confidence, all School purchases of goods and service through competitive methods as provided herein and in Policy CH shall be subject to a restricted contact period. Except as provided in this policy, communication between a vendor or vendor’s representative is prohibited with a Board member, the Superintendent, a principal, department head, director, manager, project manager, or any other TSBVI representative who has influence on or is participating in the evaluation or selection process.

Prohibited Communications

A vendor and vendor’s representative are prohibited from communications regarding the particular solicitation at issue that are intended or reasonably likely to:

  1. Provide substantive information regarding the subject of the solicitation;
  2. Advance the interests of the vendor;
  3. Discredit the response of any other vendor;
  4. Encourage TSBVI to reject a response by a bidder;
  5. Convey a complaint about the solicitation; or
  6. Directly or indirectly ask, influence, or persuade a Board member, the Superintendent, principal, department head, director, manager, project manager, or any other TSBVI representative who has influence on or is participating in the evaluation or selection process, to take action or refrain from taking action on any vote, decision, or agenda item regarding the solicitation at issue.

Permissible Communications

A Vendor and vendor’s representative are permitted to communicate with the School regarding the following:

  1. Communication to the extent the contact relates solely to a non-substantive, procedural matter related to a response or solicitation;
  2. Communication that relates solely to an existing contract between a respondent and TSBVI, even when the scope, products, or services of the current contract are the same or similar to those contained in an active solicitation;
  3. Communication with the TSBVI Procurement Office;
  4. Communication with TSBVI’s Historically Underutilized Business (HUB) Program to the extent the communication relates to obtaining a listing of HUB subcontractors and general questions regarding HUB program compliance requirements;
  5. Communication between an attorney representing a vendor and an attorney representing TSBVI;
  6. Communication with the School in the course of attendance at a vendor conference;
  7. Communication with TSBVI for the purpose of the School’s evaluation of the bidder’s proposal, negotiating the scope of work, or engaging in contract negotiations;
  8. Communication with the School for the purpose of making a public presentation to the Board;
  9. Communication made during the course of a formal protest hearing related to the solicitation.

Request for Proposal and Bid Invitation

Each request for proposal and bid invitation shall include a copy of this policy.

Validity of Contract

The validity of a contract between a vendor and TSBVI is not affected solely because the vendor fails to comply with these requirements. Local Gov’t Code 176.006(i) [See Policy BBFA]

ELECTRONIC FILING

The required questionnaire, including signature requirements, may be filed electronically in a form approved by the Ethics Commission. Local Gov’t Code 176.002, .008

REQUIRED CONTRACT PROVISIONS

No Israel Boycott

TSBVI may not enter into a contract with a company for goods and services unless the contract contains a written verification from the company that it does not boycott Israel and will not during the term of the contract.

The requirement above applies only to a contract that:

  1. Is between TSBVI and a company with ten or more full-time employees; and
  2. Has a value of $100,000 or more that is to be paid wholly or partly from public funds of the School.

Gov’t Code 2271.002

“Company” has the meaning assigned by Government Code 808.001, except that the term does not include a sole proprietorship. Gov’t Code 2271.001(2)

Retention of Contracting Information

Application

These provisions apply to a contract that:

  1. Has a stated expenditure of at least $1 million in public funds for the purchase of goods or services by the district; or
  2. Results in the expenditure of at least $1 million in public funds for the purchase of goods or services by the district in a fiscal year of the district.

The Board may not accept a bid for a contract described above or award the contract to an entity that the board has determined has knowingly or intentionally failed to comply with Government Code Chapter 552, Subchapter J (Additional Provisions Relating to Contracting Information) in a previous bid or contract described above unless the board determines and documents that the entity has taken adequate steps to ensure future compliance with the requirements of that subchapter. [For additional information and requirements, see Policy GBA and GBAA.]

Requirements

A contract described above must require a contracting entity to:

  1. Preserve all contracting information related to the contract as provided by the TSBVI records retention requirements for the duration of the contract;
  2. Upon request, promptly provide to TSBVI any contracting information related to the contract that is in the custody or possession of the entity; and
  3. On completion of the contract, either:
    1. Provide at no cost to TSBVI contracting information related to the contract that is in the custody or possession of the entity; or
    2. Preserve the contracting information related to the contract as provided by the TSBVI records retention requirements.

Bid and Contract Language

Except as described at Exception, below, a bid for a contract described above and the contract must include the following statement: “The requirements of Subchapter J, Chapter 552, Government Code, may apply to this (include “bid” or “contract” as applicable) and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter.”

Notice of Noncompliance

The Board shall provide notice to the entity that is a party to the contract if the entity fails to comply with a requirement of Government Code Chapter 552, Subchapter J. The notice must:

  1. Be in writing;
  2. State the requirement that the entity has violated; and
  3. Unless the exception described below applies, advise the entity that the Board may terminate the contract without further obligation to the entity if the entity does not cure the violation on or before the tenth business day after the date the Board provides the notice.

Contract Termination

Except as provided below, a governmental body may terminate a contract described above if:

  1. The Board provides the required notice to the entity that is party to the contract;
  2. The contracting entity does not cure the violation in the prescribed period;
  3. The Board determines that the contracting entity has intention-ally or knowingly failed to comply with a requirement of Government Code Chapter 552, Subchapter J; and
  4. The Board determines that the entity has not taken adequate steps to ensure future compliance with the requirements of that subchapter.

An entity has taken adequate steps to ensure future compliance with Government Code Chapter 552, Subchapter J if:

  1. The entity produces contracting information requested by the Board that is in the custody or possession of the entity not later than the tenth business day after the date the Board makes the request; and
  2. The entity establishes a records management program to enable the entity to comply with Government Code Chapter 552, Subchapter J.

Exception

The Board may not terminate a contract under these provisions if the contract is related to the purchase or underwriting of a public security, the contract is or may be used as collateral on a loan, or the contract’s proceeds are used to pay debt service of a public security or loan.

Gov’t Code 552.371(a), .372–.374 [See Policy GBA]

PROHIBITIONS

Entertainment Event Contracts

A person, including a board, may not include a provision in a contract related to a parade, concert, or other entertainment event paid for in whole or in part with public funds that prohibits or would otherwise prevent the disclosure of information relating to the receipt or expenditure of public or other funds by a board for the event. A contract provision that violates Government Code 552.104(c) is void. Gov’t Code 552.104(c) [See Policy GBA for information related to competition or bidding.]

Taxpayer Resource Transactions

TSBVI may not enter into a taxpayer resource transaction with an abortion provider or an affiliate of an abortion provider. Gov’t Code 2272.003(a)

“Taxpayer resource transaction” means a sale, purchase, lease, donation of money, goods, services, or real property, or any other transaction between a governmental entity and a private entity that provides to the private entity something of value derived from state or local tax revenue, regardless of whether the governmental entity receives something of value in return.

“Affiliate” means a person or entity who enters into with another person or entity a legal relationship created or governed by at least one written instrument, including a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a license, that demonstrates:

  1. Common ownership, management, or control between the parties to the relationship;
  2. A franchise granted by the person or entity to the affiliate; or
  3. The granting or extension of a license or other agreement authorizing the affiliate to use the other person’s or entity’s brand name, trademark, service mark, or other registered identification mark.

Gov’t Code 2272.001(3), (5)

Lobbying Restriction—Tobacco Education Grant Funds

The School receiving funds or grants from the Permanent Fund for Health and Tobacco Education and

Enforcement may not use the funds to pay:

  1. Lobbying expenses incurred by TSBVI;
  2. A person or entity that is required to register with the Texas Ethics Commission under Government Code Chapter 305 (Registration of Lobbyists);
  3. Any partner, employee, employer, relative, contractor, consultant, or related entity of a person or entity described by item 2; or
  4. A person or entity who has been hired to represent associations or other entities for the purpose of affecting the outcome of legislation, agency rules, ordinances, or other government policies.

Gov’t Code 403.1067(a)

Prohibited Contracts

TSBVI may not enter into a governmental contract with a company identified on a list prepared and maintained under Government Code 806.051 (now Government Code 2270.0201) (companies with business operations in Sudan), 807.051 (now Government Code 2270.0102) (companies with business operations in Iran), and 2252.153 (companies known to have contracts with or provide supplies or services to foreign terrorist organization). Gov’t Code 2252.152

“Governmental contract” means a contract awarded by a governmental entity for general construction, an improvement, a service, or a public works project or for a purchase of supplies, materials, or equipment. The term includes a contract to obtain professional services subject to Government Code 2254. Gov’t Code 2252.151(3)

Adopted:         4/9/21

Amended:        10/01/21

Reviewed: