| (C) An RFQ will be used when the agency wants to procure
professional services and evaluate proposers solely on their qualifications.
(2) The agency will advertise formal competitive solicitations,
whether by IFB, RFP, or RFQ on the Electronic State Business Daily
in accordance with the Comptroller of Public Accounts posting time
requirements. The agency may advertise such solicitations in other
media determined appropriate by the agency.
(3) For all formal competitive solicitations, the agency
will award a contract to the most qualified bidder or proposer as
determined during the evaluation of the bids or proposals. The agency
may reject all bids or proposals if it is determined to be in the
best interest of the agency. At the time a purchase order is issued
or a contract is executed, the agency will notify, in writing, all
other bidders or proposers of the contract award by facsimile, email
or by certified mail. Any information relating to the solicitation
not made privileged from disclosure by law will be made available
for public disclosure, after award of a contract, pursuant to the
Texas Public Information Act.
(4) For those formal competitive solicitations where
fewer than two bids or proposals are received, the agency will document
the reasons, if known, for the lack of two bids or proposals. If fewer
than two bids or proposals are received, the agency may cancel the
solicitation and conduct another solicitation, or it may award a contract
if one acceptable bid or proposal is received.
(5) For formal competitive solicitations where an IFB
is used, the agency will award a contract to the qualified bidder
submitting the lowest cost responsible bid meeting all specifications
and providing the best value for the agency, as determined during
the evaluation of the bids. Negotiations are not authorized when utilizing
an IFB procurement method; however, if only one response is received,
negotiations are allowed, provided, negotiations may not result in
a material change to the advertised specifications.
(f) RFP.
(1) Submission. When an RFP is used by the agency,
the RFP will contain, at a minimum, the following:
(A) a general description of the goods and/or services
to be provided, and a specific identification of the goals or objectives
to be achieved;
(B) a description of the format proposals must follow
and the elements they must contain;
(C) the time and date proposals are due, and the location
and person to whom they are to be submitted;
(D) an identification of the process to be utilized
in evaluating proposals; and
(E) a listing of the factors to be utilized in evaluating
proposals and awarding a contract. At a minimum, the factors should
include:
(i) the proposer's price to provide the goods or services;
(ii) the probable quality of the offered goods or services;
(iii) the agency's evaluation of the likelihood of
the proposal to produce the desired outcome for the agency, considering,
among other criteria:
(I) the quality of the proposer's past performance
in contracting with the agency, with other state entities, or with
private sector entities;
(II) the qualifications of the proposer's personnel;
(III) the experience of the proposer in providing
the requested goods or services;
(IV) the financial status of the proposer; and
(iv) whether the proposer performed the good faith
effort required by the HUB subcontracting plan, when the agency has
determined that subcontracting is probable.
(2) Evaluation Process. The agency will, prior to the
deadline for receipt of proposals, develop and establish comprehensive
evaluation criteria to be utilized by an evaluation committee in evaluating
the proposals. All proposals that are responsive to the RFP will be
reviewed by the evaluation committee. Part of the initial evaluation
process may include an inspection trip to the proposer's facilities,
and/or proposers may be requested to make an oral presentation to
the committee. The evaluation committee may seek advice from consultants.
If consultants are employed, they may be provided all information
provided by the proposers. The evaluation committee will evaluate
and score all proposals in accordance with the evaluation criteria.
(3) Best and Final Offers (BAFO). The agency may select
top proposers, which may each be given an opportunity to discuss,
clarify, and negotiate with the agency, and submit revisions to their
respective proposals to the agency through a BAFO process. During
discussions between the proposers and the agency, no information from
a competing proposal may be revealed by the agency to another competitor.
Any type of auction practice or allowing the transfer of technical
information is specifically prohibited. At the conclusion of the discussions,
BAFOs may be formally requested from the proposers and a deadline
will be set for submission. BAFOs will be submitted by supplemental
pages and not a complete resubmission of the proposal. All BAFOs will
be reviewed by the evaluation committee. The evaluation committee
will evaluate and score the BAFO response together with the original
proposal in accordance with the evaluation criteria.
(4) Negotiation. If a BAFO process is not used, the
agency will attempt to negotiate a contract with the selected proposer.
If a contract cannot be negotiated with the selected proposer on terms
the agency determines reasonable, negotiations with that proposer
will be terminated, and negotiations will be undertaken with the next
highest scored proposer. This process will be continued until a contract
is executed by a proposer and the agency, or negotiations with all
qualified proposers are terminated. If no contract is executed, the
agency may cancel the solicitation.
(5) Multiple Award. The agency may award a contract
to two or more vendors or contractors using a single solicitation
to furnish the same or similar supplies or services, where more than
one vendor or contractor is needed to meet the agency's requirements
for quantity, delivery, or service.
(g) RFQ.
(1) Submission. When an RFQ is used by the agency,
the RFQ will contain, at a minimum, the following:
(A) a general description of the professional services
to be performed, and a specific identification of the goals or objectives
to be achieved;
(B) a description of the format proposals must follow
and the elements they must contain;
(C) the time and date proposals are due, and the location
and person to whom they are to be submitted;
(D) an identification of the process to be utilized
in evaluating proposals and awarding a contract; and
(E) a listing of the factors to be utilized in evaluating
proposals and awarding a contract. At a minimum, the factors should
include:
(i) the demonstrated competence and qualifications
to perform the services;
(ii) the quality of the proposer's past performance
in contracting with the agency, with other state entities, or with
private sector entities;
(iii) the financial status of the proposer;
(iv) the qualifications of the proposer's personnel;
(v) the experience of the proposer in providing the
requested services; and
(vi) whether the proposer performed the good faith
effort required by the HUB subcontracting plan, when the agency has
determined that subcontracting is probable.
(2) Evaluation Process. The agency will, prior to the
deadline for receipt of proposals, develop and establish comprehensive
evaluation criteria to be utilized by an evaluation committee in evaluating
the proposals. All proposals that are responsive to the RFQ will be
reviewed by the evaluation committee. The evaluation committee will
evaluate and score all proposals in accordance with the evaluation
criteria.
(3) Negotiation. The agency will then attempt to negotiate
a contract, for a fair and reasonable price, with the selected proposer;
or, the agency may engage in simultaneous negotiations with multiple
proposers. If a contract cannot be negotiated with the selected proposer
on terms the agency determines reasonable, negotiations with that
proposer will be terminated, and negotiations will be undertaken with
the next highest scored proposer. This process will continue until
a contract is executed by a proposer and the agency, or negotiations
with all qualified proposers are terminated. If no contract is executed,
the agency may cancel the solicitation.
(h) Preferences.
(1) If, after application of the preferences required
by Texas law, a tie continues, the contract award will be made by
the drawing of lots.
(2) A bidder or proposer entitled to a preference(s)
under Texas law shall claim the preference(s) in its bid or proposal.
(i) Contract terms. A contract for the purchase or
lease of goods or services relating to the implementation, operation,
or administration of the lottery will provide that the executive director
may terminate the contract, without penalty, if an investigation
made pursuant to the Act reveals that the person to whom the contract
was awarded would not be eligible to receive a sales agent license
under the State Lottery Act, Texas Government Code, §466.155.
An IFB, RFP or RFQ may require that bidders or proposers provide in
their bids or proposals sufficient information to allow the agency
to determine whether the bidder or proposer meets the eligibility
requirements for a sales agent license.
|
| Source Note: The provisions of this §401.101 adopted to be effective March 16, 2009, 34 TexReg 1841; amended to be effective April 25, 2013, 38 TexReg 2507; amended to be effective February 25, 2015, 40 TexReg 814; amended to be effective December 31, 2015, 40 TexReg 9632; amended to be effective May 2, 2019, 44 TexReg 2156; amended to be effective November 11, 2021, 46 TexReg 7597 |
