SECTION 20.209. Proprietary Purchases

(a) If the division finds that a state agency has submitted specifications or conditions of purchase which are proprietary to one vendor and do not permit an equivalent good or service to be supplied, the division may require the state agency to provide written justification before processing the procurement. Within 10 days thereafter, it will notify the agency of the need for a written justification. An agency may submit a written justification along with its requisition if it chooses to do so.

(b) A written justification for the use of proprietary specifications or conditions shall:

(1) contain an explanation of the need for the specifications or conditions;

(2) state the reasons why any competing or equivalent products identified by the division are not satisfactory, addressing each such product individually;

(3) contain any other information requested by the division; and

(4) be signed by the agency head, the chairman of its governing body, or a person to whom such signature authority has been properly delegated in the agency's procurement plan, or in the case of an institution of higher education, by a person properly designated as a purchasing officer for the institution.

(c) When a state agency submits a written justification meeting the requirements of subsection (b) of this section, the division shall make the requested purchase.

(d) If a review of the state agency's proposed specifications or conditions by the division shows that competition will be unduly limited and are not proprietary to one vendor, the division shall inform the state agency of the limiting effect caused by the specification or condition and its possible economic effect.

Source Note: The provisions of this §20.209 adopted to be effective January 24, 2017, 42 TexReg 233