Consulting Services Contract - PowerPoint

							     A Procedure for
Major Consulting Services
        Contracts

        February 8, 2008
 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.
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)
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.”
  Major Consulting Services
Contracts and UT System Policy

                Moreover, U. T. System
       UTS128
                Policy UTS128 contains
                additional requirements
                that must be met by a
                U.T. institution that
                wishes to enter into a
                Major Consulting
                Services Contract.
     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)
     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.
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.
  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 UTS128 that are
applicable to all types of
consulting services
contracts (i.e., not just
major consulting services
contracts.)
  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.
                 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
           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)
               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)
               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)
              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)
              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)
               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)
               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)
               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
      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”).
         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
         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
       STEP 2: Approval by
     Executive Vice Chancellor
U. T. System Administration offices must
obtain such approval from the EVC for
Business Affairs.
         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
         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
         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
         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
         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
  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
  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
  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
  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
  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
   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
  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)
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.
 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:
 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:
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
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)
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
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)
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)
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)
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)
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)
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)
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)
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)
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
STEP 4: Publish an Invitation for
  Offers in the Texas Register
The Office of the Board of Regents has a
website that identifies how to handle such
Consulting Contract Submissions, which is
available at this link.
STEP 4: Publish an Invitation for
  Offers in the Texas Register
The Board of
Regents’ Office will
provide the U. T.
Institution with a
confirmation copy of
the “Texas Register
Submission Form”
under which the
Invitation for Offers
was submitted for
publication.
STEP 4: Publish an Invitation for
  Offers in the Texas Register
Under no
circumstances should
you enter into a Major
Consulting Services
Contract earlier than 30
days after the Board of
Regents’ Office files the
Invitation for Offers with
the Texas Secretary of
State for publication.
Texas Government Code, Section 2254.029 (a)
STEP 4: Publish an Invitation for
  Offers in the Texas Register
                                  Any Major Consulting
                                  Services Contract
                                  entered into without
                                  complying with the
                                  requirements of this
                                  Step 4 concerning
                                  Invitation for Offers is
                                  void under Texas law.

Texas Government Code, Section 2254.034 (a)
STEP 4: Publish an Invitation for
  Offers in the Texas Register
OPTION: During
Step 1, did you
obtain the Finding of
Fact for your Major
Consulting Services
Contract from the
Chancellor or a U. T.
Institution president?
STEP 4: Publish an Invitation for
  Offers in the Texas Register
              If so, you may request
              publication of the
              Invitation for Offers for
              that contract before
              submitting the notices
              identified in Step 3 to
              the Legislative Budget
              Board and the
              Governor’s Office of
              Budget and Planning.
STEP 4: Publish an Invitation for
  Offers in the Texas Register
If you use this option, attach
a copy of the Texas Register
Submission Form for the
Invitation for Offers (received
from the Board of Regents’
Office) to the notices you
send to the Legislative
Budget Board and the
Governor’s Office of Budget
and Planning during Step 3.
STEP 4: Publish an Invitation for
  Offers in the Texas Register
A form for the Texas Register notice
addressed in this Step 4 is available by
clicking the following Microsoft Word icon:
 STEP 4: Publish an Invitation
for Offers in the Texas Register
Also, OGC has an
Invitation for Offers
template that may be
used to procure a
Major Consulting        I
Services Contract.       F
                          O
Such a template is
available from the UT
Purchasing Council
website.
                 Notices
Texas law identifies two
(2) notices that must be
sent after a Major
Consulting Services
Contract is entered into.
These notices are
addressed in Steps 5
and 6 of this procedure.
STEP 5: Notice to the LBB After
   Entering Into Contract
A state agency must
provide written notice to
the Legislative Budget
Board (LBB) after
entering into a
consulting services
contract with an amount
> $14,000.

Texas Government Code, Section 2254.0301
STEP 5: Notice to the LBB After
   Entering Into Contract
                                      Such a notice must
                                      be filed with the LBB
                                      no later than the 10th
                                      day after the date
                                      that the state agency
                                      enters into such a
                                      consulting services
                                      contract.

Texas Government Code, Section 2254.0301
STEP 5: Notice to the LBB After
   Entering Into Contract
Note: Since this notice
requirement applies to all
consulting services
contracts with a value >
$14,000, this requirement
can also apply to consulting
services contracts that are
not Major Consulting
Services Contracts.
Texas Government Code, Section 2254.0301
STEP 5: Notice to the LBB After
   Entering Into Contract
Texas law requires this
LBB notice to “be on a
form prescribed by”
the LBB. This link to
the LBB’s website
identifies how such a
notice should be
provided to the LBB.

Texas Government Code, Section 2254.0301
STEP 5: Notice to the LBB After
   Entering Into Contract
Any Consulting
Services Contract
entered into without
complying with the
requirements of this
Step 5 is void under
Texas law.

Texas Government Code, Section 2254.034 (a)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
Finally, within 20
days after entering
into a Major
Consulting Services
Contract you must
post a notice in the
Texas Register
describing that
contract.
Texas Government Code, Section 2254.030
 STEP 6: Publish Texas Register
Notice After Entering Into Contract

The notice must
describe the activities
that the consultant
will conduct under
that Major Consulting
Services Contract.


Texas Government Code, Section 2254.030 (1)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract

                                    The notice must
                                    identify the name and
                                    business address of
                                    the consultant.




Texas Government Code, Section 2254.030 (2)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
The notice must
identify the total value
and the beginning
and ending dates of
the Major Consulting
Services Contract.



Texas Government Code, Section 2254.030 (3)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
                                     The notice must
                                     identify the due dates
                                     for any documents,
                                     films, recordings, or
                                     reports that the
                                     consultant is required
                                     to present to the U. T.
                                     Institution under that
                                     Major Consulting
                                     Services Contract.
Texas Government Code, Section 2254.030 (4)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
In entering into the Major
Consulting Services
Contract, did you accept
an offer from an individual
who was employed at
your U. T. Institution or by
another state agency at
any time during the two
(2) years preceding their
offer?
Texas Government Code, Section 2254.033 (b)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
                                     If so, then the notice
                                     must also contain a
                                     statement about that
                                     individual's previous
                                     employment with
                                     your U. T. Institution
                                     or the other state
                                     agency and the
                                     nature of that
                                     employment.
Texas Government Code, Section 2254.033 (b)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
Did the Governor
grant 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)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
                                     If so, then the notice
                                     must also include a
                                     detailed description
                                     of the emergency on
                                     which the request for
                                     such a waiver was
                                     predicated.


Texas Government Code, Section 2254.025 (c)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
The final version of
this notice 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.
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
 Again, the Board of Regents Office has a
 website that identifies how to handle such
 Consulting Contract Submissions, which is
 available at this link.
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
Any Major Consulting
Services Contract
entered into without
complying with
the preceding
requirements of this
Step 6 is void under
Texas law.
Texas Government Code, Section 2254.034 (a)
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
Click the following
Microsoft Word icon
for a form that you
can use to create the
Texas Register notice
addressed in this
Step 6:
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
                             Once the notice has
                             been filed with the
                             Texas Secretary of
                             State for publication in
                             the Texas Register,
                             forward copies of it to
                             the Governor’s Office of
                             Budget and Planning
                             and the Legislative
Link to Governor's Website   Budget Board.
 STEP 6: Publish Texas Register
Notice After Entering Into Contract
These copies of the
notice should reference
the “original contract
number” that is
identified in Section 2 of
the “Consultant
Contract Notification
Form” that you
completed during Step
3 of this procedure.
                             Link to Governor's Website
               That’s It!


Don’t Worry!
You can always
contact OGC if you
need assistance.
Good Luck!