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A Procedure for Major Consulting Services Contracts

A Procedure for Major Consulting Services Contracts

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A Procedure for Major Consulting Services Contracts

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  1. A Procedure forMajor Consulting Services Contracts February 8, 2008

  2. 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.

  3. 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)

  4. 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.”

  5. 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

  6. 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. Texas Government Code, Section 2254.021 (2)

  7. 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.

  8. 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.

  9. 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 UTS128that areapplicable to all types of consulting services contracts (i.e., not just major consulting services contracts.)

  10. 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.

  11. 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

  12. 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)

  13. 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)

  14. STEP 1:Obtaining a Finding of Fact 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: Texas Government Code, Section 2254.028 (c)

  15. 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. Texas Government Code, Section 2254.028 (c)

  16. 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: Texas Government Code, Section 2254.028 (c)

  17. STEP 1:Obtaining a Finding of Fact 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)

  18. STEP 1:Obtaining a Finding of Fact 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: Texas Government Code, Section 2254.028 (a)(3)

  19. STEP 1:Obtaining a Finding of Fact 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

  20. 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”).

  21. STEP 2: Approval by Executive Vice Chancellor U. T. Academic Institutions must obtain such approval from the EVC for Academic Affairs. UT System Policy UTS128

  22. STEP 2: Approval by Executive Vice Chancellor U. T. Health Institutions must obtain such approval from the EVC for Health Affairs. UT System Policy UTS128

  23. STEP 2: Approval by Executive Vice Chancellor U. T. System Administration offices must obtain such approval from the EVC for Business Affairs.

  24. STEP 2: Approval by Executive Vice Chancellor 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. UT System Policy UTS128

  25. STEP 2: Approval by Executive Vice Chancellor During Step 1, did a U.T. Institution President or the Chancellor make the Finding of Fact for the Major Consulting Services Contract? UT System Policy UTS128

  26. STEP 2: Approval by Executive Vice Chancellor If so, attach the Finding of Fact to the Major Consulting Services Contract Approval Request Form that is submitted to the EVC. UT System Policy UTS128

  27. STEP 2: Approval by Executive Vice Chancellor Will the Governor’s Office of Budget and Planning be asked to make the Finding of Fact for the Major Consulting Services Contract? UT System Policy UTS128

  28. STEP 2: Approval by Executive Vice Chancellor 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. UT System Policy UTS128

  29. 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

  30. STEP 3: Notices to Governor & Legislative Budget Board 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

  31. STEP 3: Notices to Governor & Legislative Budget Board These notices must demonstrate that the U. T. Institution cannot adequately perform the consulting services with its own personnel. Texas Government Code, Sections 2254.026, 2254.028

  32. STEP 3: Notices to Governor & Legislative Budget Board These notices must demonstrate that the U. T. Institution cannot obtain the consulting services through a contract with a state governmental entity. Texas Government Code, Sections 2254.026, 2254.028

  33. STEP 3: Notices to Governor & Legislative Budget Board 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. Texas Government Code, Sections 2254.027, 2254.028

  34. STEP 3: Notices to Governor & Legislative Budget Board 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. Texas Government Code, Sections 2254.027, 2254.028

  35. STEP 3: Notices to Governor & Legislative Budget Board 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)

  36. STEP 3: Notices to Governor & Legislative Budget Board 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.

  37. STEP 3: Notices to Governor & Legislative Budget Board Click the following Microsoft Word icon to obtain a form for the notice sent to the Governor’s Office of Budget and Planning:

  38. STEP 3: Notices to Governor & Legislative Budget Board Click the following Microsoft Word icon to obtain a form for the notice sent to the Legislative Budget Board:

  39. 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

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

  41. STEP 4: Publish an Invitation for Offers in the Texas Register In identifying the U. T. individual, please provide their: • Title • Phone Number • Email Address • Mailing Address

  42. STEP 4: Publish an Invitation for Offers in the Texas Register The Invitation for Offers must identify the closing date for receipt of offers from consultants to perform the Major Consulting Services Contract. Texas Government Code, Section 2254.029 (a) (3)

  43. STEP 4: Publish an Invitation for Offers in the Texas Register The Invitation for Offers must identify the procedure by which the Major Consulting Services Contract will be awarded. Texas Government Code, Section 2254.029 (a) (4)

  44. STEP 4: Publish an Invitation for Offers in the Texas Register 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. Texas Government Code, Section 2254.029 (b)

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

  46. STEP 4: Publish an Invitation for Offers in the Texas Register Has the Governor granted a limited waiver from the statutory requirements for this Major Consulting Services Contract due to an “Unforeseen Emergency”? Texas Government Code, Section 2254.025 (c)

  47. STEP 4: Publish an Invitation for Offers in the Texas Register If so, then the Invitation for Offers must include a detailed description of the emergency on which the waiver request was predicated. Texas Government Code, Section 2254.025 (c)

  48. STEP 4: Publish an Invitation for Offers in the Texas Register Has the Finding of Fact for this Major Consulting Services Contract been obtained from the Chancellor or a U. T. Institution President? Texas Government Code, Section 2254.028 (c)

  49. STEP 4: Publish an Invitation for Offers in the Texas Register If so, then the Invitation for Offers must include the Finding of Fact and an explanation of that finding. Texas Government Code, Section 2254.028 (c)

  50. STEP 4: Publish an Invitation for Offers in the Texas Register 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. UT System Policy UTS128