The Texas Building and Procurement Commission adopts new rules in 1 TAC §§115.2 - 115.4, §115.6, §115.8 and §115.10 concerning the facilities leasing program, with changes to the text as published in the September 5, 2003, edition of the Texas Register (28 TexReg 7520).

The new rules with changes relate to leased space, leasing from private and public sources, lease amendments, lease services, agency compliance requirements and required reports. The new rules support the public interest by clarifying statutory changes.

Sections 115.2 -115.4 and §115.6 establish procedures for a state entity to request lease space or lease services. Section 115.8 prohibits a conflict of interest in any private entity that provides lease services to the agency. Section 115.10 relates to actions of an occupying agency and statutorily required reports on noncompliance.

The commission received written comments on the proposed new rules from the Texas Department of Banking (TDOB) and from the Texas Department of Transportation (TxDOT).

TDOB Comment on Rule 115.2(d): The proposals frequently require agencies to make written applications to TBPC. For example, §115.2(d) relates to a request for a leased space exemption. However, a time frame by which TBPC must respond is not mandated. This uncertainty can lead to an agency feeling as if it is in the dark for an extended period of time. We suggest that TBPC include in these proposals a specific timeframe by which a request will be answered or a necessary delay explained. This will ensure the approval or denial process is timely handled and agencies can better plan for future events.

Response: The new rule does not specify a timetable because it is currently unknown; therefore setting up a timetable with no quantative information to support it would unnecessarily bind the Commission to an arbitrary schedule. Given the nature of lease documents, times will vary depending on the lease renewal date and other variables. Staff declines to make the requested change at this time; however any agency that applies for an exemption should include the agency's perceived deadlines in the application, and §115.2(c) has been changed to reflect this criterion.

TxDOT Comment on §115.2: The changes to §115.2 include language that is vague and ambiguous. Specifically, undefined terms such as "chief administrative officer", whether these phrases refer to the same person or different persons within the same organization. If these terms and phrases refer to the same persons or idea, uniformity in language would be of great benefit to the reader. More substantively, the "chief administrative officer" is charged with personally certifying information about funding and Full Time Employees (FTEs). Previously, this duty could be delegated to an "authorized official" in the agency. Allowing state agencies to delegate certification and verification of this information would benefit both the requesting agency and TBPC by allowing the requesting agency to be flexible in assigning tasks while retaining ultimate responsibility for accuracy of the information provided.

Response: Staff agrees that clarity and flexibility is needed for the rules governing requests, and has modified the language.

TxDOT Comments on §115.6. Subsection (a) does not specify which exemptions to leasing requirements are being discussed. Subsection (b) requires a state agency to agree to pay an unspecified "standard charge" before leasing services will be provided. Requiring a state agency to enter such an agreement may conflict with §115.2 wherein the chief administrative officer is charged with certifying that available funds exist to enter into the lease. State agencies, including the department, will need a set figure for the standard charge or some flexibility in certifying that sufficient funds exist. Alternatively, some description of what cost factors are included in the standard charge would allow the department to retain sufficient reserves to make the required §115.2 certifications.

Response in the order addressed by TxDOT: Specification of the exemptions being discussed: agencies that are statutorily excluded from Commission leasing requirements. Payment of standard charge: the language has been changed to require the requesting agency to pay actual cost of the services to the Commission. Conflict with §115.2 referencing the chief administrative officer: The rule has been changed to require that the requesting agency to certify funds. Description of cost factors: to recover the cost of providing services as authorized by §2167.007(c) of the Texas Government Code; with regard to reserve funds, requesting agency will know how much in reserve funds is available, and should look to that figure before making a request for an exemption.

TxDOT Comments on §115.10. Language in §115.10 is unclear and it is difficult to see how this section follows the requirement of Texas Government Code, §2167.102 which appears to protect state agencies from misdeeds by their lessors. Further, this section appears to place greater restrictions on the state agencies than are included in the lease contract. It is not readily apparent why TBPC would extend greater protections to lessors of property than what lessors have demanded for themselves.

Response: Staff agrees that the subtitle is misleading and has been changed. The intent of the rule was to conform agency activities to §2167.105, Texas Government Code.

The new rules are authorized under the Texas Government Code, Title 10, Subtitle D, §2152.003 and §2167.008.

The following code is affected by these rules: Government Code, Title 10, Subtitle D, Chapters 2165 and 2167.