SECTION 20.25. Definitions

(a) As used throughout this chapter, words and terms defined in the State Purchasing and General Services Act, Government Code, Title 10, Subtitle D, and the Code Construction Act, Government Code, Chapter 311 shall have the same meaning as defined therein, and each word or term listed in this chapter shall have the meaning set forth herein, unless:

(1) its use clearly requires a different meaning; or

(2) a different definition is prescribed for a particular chapter or portion thereof.

(b) The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

(1) Act--The State Purchasing and General Services Act, Government Code, Title 10, Subtitle D, Chapter 2151, et seq, including any amendments thereto that may be made from time to time.

(2) Advisory groups--A group that advises and assists the standards and specification program in establishing specifications. The advisory group may include representatives from federal, state and local governments, user groups, manufacturers, vendors and distributors, bidders, associations, colleges, universities, testing laboratories, and others with expertise and specialization in particular product area.

(3) Agent of record--An employee or official designated by a qualified cooperative entity as the individual responsible to represent the qualified entity in all matters relating to the program.

(4) Approved products list--The list is also referred to as the approved brands list or qualified products list. It is a specification developed by evaluation of brands and models of various manufacturers and listing those determined to be acceptable to meet the minimum level of quality. Testing is completed in advance of procurement to determine which products comply with the specifications and standards requirements.

(5) Award--The act of accepting a bid, thereby forming a contract between the state and a bidder.

(6) Bid--An offer to contract with the state, submitted in response to a bid invitation issued by the comptroller.

(7) Bid deposit--A deposit required of bidders to protect the state in the event a low bidder attempts to withdraw its bid or otherwise fails to enter into a contract with the state. Acceptable forms of bid deposits are limited to: cashier's check, certified check, or irrevocable letter of credit issued by a financial institution subject to the laws of Texas and entered on the United States Department of the Treasury's listing of approved sureties; a surety or blanket bond from a company chartered or authorized to do business in Texas.

(8) Bidder--An individual or entity that submits a bid. The term includes anyone acting on behalf of the individual or other entity that submits a bid, such as agents, employees, and representatives.

(9) Blanket bond--A surety bond which provides assurance of a bidder's performance on two or more contracts in lieu of separate bonds for each contract. The amount for a blanket bond shall be established by the comptroller based on the bidder's annual level of participation in the state purchasing program.

(10) Brand name--A trade name or product name which identifies a product as having been made by a particular manufacturer.

(11) Centralized master bidders list (CMBL)--A list maintained by the comptroller containing the names and addresses of prospective bidders and catalog information systems vendors.

(12) Comptroller--The Comptroller of Public Accounts of the State of Texas or the designated and authorized representative of the Comptroller of Public Accounts of the State of Texas.

(13) Contract value or the value of a contract--The estimated dollar amount that a state agency may be obligated to pay pursuant to the contract and all executed and proposed amendments, extensions and renewals of the contract.

(14) Contractor--A vendor that contracts to provide goods or services to the state under the Act and all successors-in-interest to that contractor.

(15) Cooperative purchasing program--A program to provide purchasing services to qualified cooperative entities, as defined herein.

(16) Customer choice--Customer choice as the term is defined under Utilities Code, §31.002(4).

(17) Debarment--An exclusion from contracting or subcontracting with state agencies on the basis of any cause set forth in the Act or these rules, commensurate with the seriousness of the offense, performance failure, or inadequacy to perform.

(18) Director--The director of the division.

(19) Distributor purchase--Purchase of repair parts for a unit of major equipment that are needed immediately or as maintenance contracts for laboratory/medical equipment.

(20) Division--The organizational division within the office of the Comptroller of Public Accounts for the State of Texas performing the responsibilities identified in the Act for and under the direction of the comptroller.

(21) 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.

(22) Environmentally sensitive products--Products that protect or enhance the environment, or provide less risk to the environment than traditionally available products.

(23) Equivalent product--A product that is comparable in performance and quality to the specified product.

(24) Electronic State Business Daily (ESBD)--A business daily made available on the Internet at an electronic procurement marketplace to which state agencies post contract opportunities that will exceed $25,000 in value.

(25) Formal bid--A written bid submitted in a sealed envelope in accordance with a prescribed format, or an electronic data interchange transmitted to the comptroller in accordance with procedures established by the comptroller.

(26) Group purchasing program--A purchasing program that offers discount prices to two or more state agencies, which is formed as a result of interagency or interlocal cooperation and follows all applicable statutory standards for purchases.

(27) Historically Underutilized Business or HUB--A historically underutilized business as defined by Government Code, Chapter 2161 and Subchapter D, Division 1 of these rules.

(28) Informal bid--An unsealed, competitive bid submitted by letter, telephone, or other means.

(29) Invitation for bids (IFB)--A written request for submission of a bid; also referred to as a bid invitation.

(30) Invoice--A document presented by a contractor for payment, which includes information necessary for payment processing, and is received by mail, hand delivery, electronically, or by facsimile transmission.

(31) Late bid--A bid that is received at the place designated in the bid invitation after the time set for bid opening.

(32) Level of quality--The ranking of an item, article, or product in regard to its properties, performance, and purity.

(33) Local government--A county, municipality, special district, school district, junior college district, regional planning commission, or other political subdivision of the state pursuant to Local Government Code, §271.101.

(34) Manufacturer's price list--A price list published in some form by the manufacturer and available to and recognized by the trade. The term does not include a price list prepared especially for a given bid.

(35) Multiple award contract (as it applies to Multiple Award Schedule Contracts)--An award of a contract for an indefinite amount of one or more similar goods or services from a vendor.

(36) Multiple award contract procedure--A purchasing procedure by which the comptroller establishes one or more levels of quality and performance and makes more than one award at each level.

(37) Non-competitive purchase--A purchase of goods or services (also referred to as "spot purchase") that does not exceed the amount stated in §20.82 of this title (relating to Delegated Purchases).

(38) Notice of award--A letter signed by the comptroller or the designee which awards and creates a term contract.

(39) Open market purchase--A purchase of goods, usually of a specified quantity, made by buying from any available source in response to an open market requisition.

(40) Performance bond--A surety bond which provides assurance of a bidder's performance of a certain contract. The amount for the performance bond shall be based on the bidder's annual level of potential monetary volume in the state purchasing program. Acceptable forms of bonds are those described in the definition for "bid deposit."

(41) Perishable goods--Goods that are subject to spoilage within a relatively short time and that may be purchased by agencies under delegated authority.

(42) Post-consumer materials--Finished products, packages, or materials generated by a business entity or consumer that have served their intended end uses, and that have been recovered or otherwise diverted from the waste stream for the purpose of recycling.

(43) Pre-consumer materials--Materials or by-products that have not reached a business entity or consumer for an intended end use, including industrial scrap material, and overstock or obsolete inventories from distributors, wholesalers, and other companies. The term does not include materials and by-products generated from, and commonly reused within, an original manufacturing process or separate operation within the same or a parent company.

(44) Prescribed form--The entry screens available in the ESBD.

(45) Proprietary--Products or services manufactured or offered under exclusive rights of ownership, including rights under patent, copyright, or trade secret law. A product or service is proprietary if it has a distinctive feature or characteristic which is not shared or provided by competing or similar products or services.

(46) Public utility or utility--A public utility or utility as the term is defined under Utilities Code, §11.004.

(47) Purchase orders--A document issued by a qualified ordering entity to make a purchase under a term contract issued by the comptroller by these rules.

(48) Purchasing functions--The development of specifications, receipt and processing of requisitions, review of specifications, advertising for bids, bid evaluation, award of contracts, and inspection of merchandise received. The term does not include invoice, audit, or contract administration functions.

(49) Qualified cooperative entity--An entity that qualifies for participation in the cooperative purchasing program and includes:

(A) a local government;

(B) a mental health and mental retardation community center identified in Government Code, §2155.202, that receive grants-in-aid under the provisions of Health and Safety Code, Chapter 534, Subchapter B;

(C) an assistance organization as defined in Government Code, §2175.001, that receive any state funds; and

(D) a political subdivision, as defined by Government Code, Chapter 791.

(50) Qualified Ordering Entity--An entity that is either:

(A) a state agency; or

(B) a qualified cooperative entity that has registered with the comptroller to participate in the cooperative purchasing program as defined in Local Government Code, Subchapter D, §271.081.

(51) Recycled material content--The portion of a product made with recycled materials consisting of pre-consumer materials (waste), post-consumer materials (waste), or both.

(52) Recycled materials--Materials, goods, or products that contain recyclable material, industrial waste, or hazardous waste that may be used in place of raw or virgin materials in manufacturing a new product.

(53) Recycled product--A product, including recycled steel that meets the requirements for recycled material content as prescribed by the rules established by the Texas Commission on Environmental Quality in consultation with the comptroller.

(54) Registered agent--A representative designated by each state agency responsible for posting eligible procurement opportunities in the ESB.

(55) Remanufactured product--A product that has been repaired, rebuilt, or otherwise restored to meet or exceed the original equipment manufacturer's (OEM) performance specifications; provided, however, the warranty period for a remanufactured product may differ from the OEM warranty period.

(56) Request for proposal--A written request for offers concerning goods or services the state intends to acquire by means of the competitive sealed proposal procedure.

(57) Requisition--

(A) Open market purchase requisition. An initiating request from an agency describing needs and requesting the comptroller to purchase goods or services to satisfy those needs.

(B) Term contract purchase requisition. A request from a qualified ordering entity for delivery of goods under an existing term contract.

(58) Resolution--Document of legal intent adopted by the governing body of a qualified cooperative entity that evidences the qualified cooperative entity's participation in the cooperative purchasing program.

(59) Respondent--A person that submits a response to a solicitation.

(60) Retail electric provider--A retail electric provider as the term is defined under Utilities Code, §31.002(17).

(61) Reverse auction--A real time bidding procedure that is Internet dependent and which is conducted at a pre-scheduled time and Internet location in which multiple suppliers, anonymous to each other, submit bids for designated goods or services.

(62) Schedule--A list of multiple award contracts from which agencies may purchase goods and services.

(63) Sealed bid--A formal written bid.

(64) Solicitation--An invitation for bids or a request for proposals or any other document issued by a state agency for the purpose of soliciting offers in any form from a vendor to sell goods or services to the state and that includes at a minimum the information identified in Government Code, §2155.083(g).

(65) Specification--A concise statement of a set of requirements to be satisfied by a product, material or service, indicating whenever appropriate the procedures to determine whether the requirements are satisfied.

(66) Standard specification--A description of what the purchaser requires and what a bidder or proposer must offer.

(67) State agency--A state agency as the term is defined under Government Code, Title 10, §2151.002.

(68) Successor-in-interest--Any business entity that acquires or otherwise obtains the controlling ownership of a business entity.

(69) Tabulation of bids--The recording of bids and bidding data for purposes of bid evaluation and recordkeeping.

(70) Term contract purchase--A purchase by a qualified ordering entity under a term contract, which established a source of supply for particular goods at a given price for a specified period of time.

(71) Testing--An element of inspection involving the determination, by technical means, of the properties or elements of item(s) or component(s), including function operation.

(72) Texas uniform standards and specifications--Standards and specifications prepared and published by the standards and specifications program of the comptroller.

(73) Unit price--The price of a selected unit of a good or service, e.g., price per ton, per labor hour, or per foot.

(74) Using agency--An agency of government that requisitions goods or services through the comptroller.

(75) Vendor--A person that offers goods and services in the state.

Source Note: The provisions of this §20.25 adopted to be effective January 24, 2017, 42 TexReg 228; amended to be effective August 2, 2020, 45 TexReg 5203; amended to be effective March 14, 2021, 46 TexReg 1508