Office of Administration > Policy Office >Policy Library > UTS128

UT System Administration Policy Library -- Policy UTS128 Consulting Contracts Policy and Procedures Guide

Responsible Officer: Executive Vice Chancellor for Business Affairs
Sponsoring Office: Office of Business Affairs
Effective Date: August 14, 2003
Last Reviewed: April 28, 2004       
Next Scheduled Review: May 1, 2008                                            
Errors or changes to: policyoffice@utsystem.edu

CONTENTS

 

Policy Statement
Rationale
Scope
Website Address For This Policy
Related Statutes, Policies, Requirements Or Standards
Contacts
Definitions
Responsibilities
Procedures

Forms Tools/Online Processes

Appendix

POLICY STATEMENT

 

It is the policy of The University of Texas System that all contracts for consulting services be awarded in accordance with applicable laws and rules and that those involved in the procurement process perform their responsibilities in a fiscally prudent and ethical manner.

RATIONALE

 

This policy provides requirements and guidelines for entering into contracts for consulting services that are funded with money:

• appropriated by the Legislature; or
• derived from the exercise of the statutory duties of the institution; or
• received from the federal government; provided, however, that the provisions of this policy do not apply to the extent they conflict with federal laws or regulations about the expenditure of federal funds. (See Texas Government Code §2254.023.)

This policy does not apply to the acquisition of professional services or the acquisition of services of legal counsel, investment counselors, actuaries, or medical or dental service providers. (See Texas Government Code § 2254.024.) If a contract involves both consulting and other services, this policy applies if the primary objective of the contract is the acquisition of consulting services. (See Texas Government Code § 2254.038)

SCOPE

 

All institutions and UT System Administration 

WEBSITE ADDRESS FOR THIS POLICY

 

http://www.utsystem.edu/policy/policies/uts128.html

 

RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS

 

 

 

 

 

 

CONTACTS

 

If you have any questions about UT System Administration Policy UTS 128, Consulting Contracts Policy and Procedures Guide, contact the following offices:

 

Subject	Office Name	Telephone Number	Email/URL
	Office of Business Affairs	512. 499.4560	businessaffairs@utsystem.edu http://www.utsystem.edu/bus/

DEFINITIONS  

 

 

Consultant:  A person who provides or who proposes to provide a consulting service. The term includes a political subdivision but does not include the federal government, a state agency, or a state governmental entity. (Texas Government Code § 2254.021(3).)

 

Consulting service:  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 § 2254.021(1).) For more information on what types of services are considered consulting services for purposes of Texas Government Code §§2254.021-.040, refer to Texas Attorney General Opinions Nos. H-1173 (1978), JM-282 (1984), JM-376 (1985), and DM-184 (1992), and the "Explanatory Note" on the Governor's Budget, Planning and Policy Division web site for Consultant Contract Guidelines at:
http://www.governor.state.tx.us/divisions/bpp/guidelines.

Major consulting services contract:  A consulting services contract for which it is reasonably foreseeable that the value of the contract will exceed $25,000. (Texas Government Code § 2254.021(2).)

Professional services:  Those services defined as "professional services" in Texas Government Code § 2254.002(2).

Sponsoring Office:  The Office of the Executive Vice Chancellor for Business Affairs at The University of Texas System, which is the UT office that officially interprets this policy and is responsible for revising it as necessary to meet the changing needs of The University of Texas System and statutory requirements. 

 

RESPONSIBILITIES 

 

Primary Procurement Officer

• Processes all proposals and contracts for consulting services.
• Processes renewals, amendments and extensions of consulting services contracts.
• Designate others to perform processing responsibilities but remains responsible for their performance.

UT Institution

• Acquires consulting services.
• Submits all Texas Register notices required by applicable law, rule or regulation to the Board of Regents.
• Submits all notices to the Legislative Budget Board and the governor's Budget and Planning Office that are required by applicable law, rule or regulation.
• Obtains any required findings of fact that consulting services are necessary from either (a) the Governor's Budget and Planning Office or (b) the UT Institution President.
• Obtains the approval of the appropriate Executive Vice Chancellor before submitting the notice of intent to contract with a consultant, and the request for a finding of fact.
• If a consulting services contract has a value of  $100,000 or more, ensures that contract is in compliance with all Historically Underused Business (HUB) laws, rules, and regulations. (UT Institution HUB Office)

UT Institution President

• Authorized to make a finding of that consulting services that the UT Institution wishes to procure are necessary, which should include an explanation of that finding.  (Texas Government Code, §2254.028 (c)) 

UT System and UT Institution employees involved in the procurement of consulting services

• Comply with the Ethics Policy (Board of Regents' Rules and Regulations, Rule 30104) and the Purchasing Ethics Administrative Rule Regents' Rules and Regulations. (Please reference UTS159, Purchasing.)

Board of Regents

• Files the notices with the Texas Secretary of State for publication in the Texas Register.
• Approves Consulting Services Contract if it has a cost or value of more than $1,000,000;  is with a foreign government or agency thereof; or  is with a Chancellor, a president, a former Chancellor or president, an Executive Vice Chancellor, a Vice Chancellor, the Counsel and Secretary to the Board, or Director of Audits; or is identified by an executive officer or institutional president as a contract of such significance as to require Regental approval.

 

PROCEDURES  

 

All Consulting Services Contracts Processing by the Primary Procurement Officer.

All proposals and contracts for consulting services shall be processed through the primary procurement officer of the institution, who shall determine what documentation shall be submitted by the requesting office or department, including the documentation needed to obtain the statutorily required finding of fact for major consulting services contracts.

The primary procurement officer shall process the proposal and contract in accordance with applicable laws, rules, regulations, policies and procedures, shall implement procedures for the processing of contracts for consulting services, and shall establish training requirements for personnel who procure consulting services contracts in accordance with UTS156, Purchaser Training and Certification.  The primary procurement officer may designate others to perform these responsibilities but shall remain responsible for their performance.

Summary of Selected Statutory Requirements for Consulting Services Contracts.   

A “Summary of Selected Statutory Requirements for Consulting Services Contracts” is attached as an appendix to this policy. Note that if a finding of fact or the filing of a notice is required by Texas Government Code §§ 2254.028-.031, the contract is void if the institution fails to comply with those requirements. (See Texas Government Code §§ 2254.028(b) and 2254.034.) More detailed information about complying with the statutory requirements will be found on the web site for the Budget, Planning and Policy, Division of the Governor's Office and in the Comptroller's 2002 Purchase Policies and Procedures Guide, Section 5.006.

 

Notices Published in the Texas Register: 
Each institution shall submit to the Office of the Board of Regents all notices required by applicable law, rule or regulation to be filed with the Texas Secretary of State for publication in the Texas Register.
The Office of the Board of Regents shall file the notices with the Texas Secretary of State.

Ethical Behavior in Contracting. All employees involved in the procurement of consulting services shall comply with the Ethics Policy, Board of Regents' Rules and Regulations, Rule 30104 and the UTS159, Purchasing.

No Special Consideration or Favoritism. No proposed consultant may receive special consideration or favoritism. A consultant that is paid to assist an institution in developing (1) a procurement solicitation or (2) specifications for a procurement solicitation may not be awarded the contract for the services the institution is procuring. A consultant may provide free technical assistance, however. Based on applicable legal authority, it appears that free technical assistance is assistance that will not give the providing consultant an advantage over other consultants. (See Sterrett v. Bell, 240 S.W.2d 516, 520 (Tex. Civ. App.--Dallas 1951, no writ); Texas Highway Commission v. Texas Association of Steel Importers, 372 S.W.2d 525, 527 (Tex. 1963); Texas Attorney General Opinions Nos. JM-940 (1988) and JM-282 (1984); Regents' Rules and Regulations, Part Two, Ch. IV, § 1; Texas Government Code § 2155.004.)

 

Compliance with HUB Requirements.  If the consulting services contract will have a value of $100,000 or more, compliance with UTS137, Historically Underutilized Business Program, is required.

 

Compliance with UTS145  
All consulting contracts must be processed in accordance with the provisions of UTS145, Processing of Contracts.

Finding of Fact.  Effective June 21, 2003, an institution has the option to obtain the statutorily mandated finding of fact from the Governor's Budget and Planning Office or from the chief executive officer of the institution.  If the finding of fact is issued by the institution's chief executive officer, the institution must include that finding and an explanation of the finding in the invitation required to be published in the Texas Register.  The finding of fact is to determine that the consulting services are necessary and is required for those major consulting services contracts that are subject to Texas Government Code §§ 2254.021-.040 (see the Introduction in the “Summary of Selected Statutory Requirements for Consulting Services Contracts” attached as an Appendix to this policy).

 

Approval by Executive Vice Chancellor. The institution must obtain the approval of the appropriate Executive Vice Chancellor before the institution submits to the Legislative Budget Board and the Governor's Office of Budget and Planning (1) the notice of intent to contract with a consultant, and (2) the request for a finding of fact, if applicable (applicable if the institution elects to obtain the finding of fact from the Governor's Office of Budget and Planning) and before the institution submits the invitation required to be published in the Texas Register.  The institution shall send its request for approval to the appropriate Executive Vice Chancellor; the request for approval shall include (a) the completed Approval Request Form (attached), and (b) a copy of the finding of fact issued by the institution's chief executive officer, if applicable (applicable if the institution elects to obtain the finding of fact from its chief executive officer). For purposes of this paragraph, the "appropriate Executive Vice Chancellor" for a consulting contract entered into by (a) a U.T. health institution is the U.T. System Executive Vice Chancellor for Health Affairs; (b) a U.T. System academic institution is the U.T. System Executive Vice Chancellor for Business Affairs; and (c) U.T. System Administration is the U. T. System Executive Vice Chancellor for Business Affairs.

 

All renewals, amendments and extensions of consulting services contracts must be submitted to the institution's primary procurement officer for processing in accordance with applicable laws, rules, regulations, policies and procedures.

 

Renewal, Amendment or Extension of a Major Consulting Services Contract.  If the institution proposes to renew, amend or extend a major consulting services contract and the renewal, amendment or extension has a reasonably foreseeable value of more than $25,000, the institution shall comply with the requirements for Major Consulting Services Contracts as set forth above in this policy.

 

Renewal, Amendment or Extension of a Consulting Services Contract That Was Not Originally a Major Consulting Services Contract.  If the original consulting services contract was not a Major Consulting Services Contract but the original contract and the proposed renewal, amendment or extension together have a reasonably foreseeable value of more than $25,000, the institution shall comply with the requirements for Major Consulting Services Contracts as set forth above in this policy.

 

Consulting Services Provided by Another Institution. An institution may acquire consulting services from another institution in accordance with Texas Education Code § 51.928.

 

Consulting Services Provided by Another State Agency. An institution may acquire consulting services from a state agency in accordance with Texas Government Code Chapter 771.
Regental approval of a consulting services contract is required by Board of Regents' Rules and Regulations, Rule 10501, if the contract:

• Has a cost or value of more than $1,000,000;  or
  
• Is with a foreign government or agency thereof; or
   
• Is with a Chancellor, a president, a former Chancellor or president, an Executive Vice Chancellor, a Vice Chancellor, the Counsel and Secretary to the Board, or Director of Audits; or
  
• Is identified by an executive officer or institutional president as a contract of such significance as to require Regental approval.

FORMS AND TOOLS/ONLINE PROCESSES

 

Approval Request Form

 

Procedure for Major Consulting Services Contracts  (password required)

Major Consulting Services Contract Forms (password required):

• Finding of Fact Made by UT System Chancellor
• Finding of Fact Made by UT Institution President
• Finding of Fact Made by Governor's Office of Budget and Planning
• Notice to Governor's Office of Budget and Planning of New Major Consulting Services Contract
• Notice to Legislative Budget Board of New Major Consulting Services Contract
• Notice to Governor's Office of Budget and Planning of Amended Consulting Services Contract
• Notice to Legislative Budget Board of Amended Consulting Services Contract
• Texas Register Notice - 30 Days Before Entering Into Major Consulting Services Contract
• Texas Register Notice - 30 Days Before Entering Into Amended Consulting Services Contract
• Texas Register Notice - 20 Days After Entering Into Major Consulting Services Contract

Appendix

 

Summary of Selected Statutory Requirements for Consulting Services Contracts

 

Introduction.

Texas Government Code §§ 2254.021 – .040 are the key statutory provisions applicable to the acquisition of consulting services.  Texas Education Code § 73.115 (f) provides that Chapter 2254 of the Texas Government Code does not apply to purchases of goods and service by The University of Texas M. D. Anderson Cancer Center made pursuant to §73.115.  Texas Education Code §§ 74.008 and 51.9335 contain provisions that preempt other laws on the acquisition of goods and services only to the extent of a conflict.  Questions about the applicability of Texas Government Code §§ 2254.021 – .040 and other statutory provisions should be addressed to The University of Texas System Office of General Counsel.

 

This Appendix contains a summary of selected statutory provisions, but the reader should review all of the key statutory provisions before commencing the process to obtain consulting services. 

 

When a Consultant May Be Used.

• An institution may use a consultant only if:
• there is a substantial need for the consulting services; and
• the institution cannot adequately perform the services with its own personnel or obtain consulting services through a contract with a state governmental entity

Source: Tex. Gov’t Code § 2254.026

 

• An institution may not use appropriated funds to contract for a consultant or other private assistance in performing a study required by the Legislature that includes statistical or demographic analysis of data until the institution determines if the resources of the Texas Legislative Council or The University of Texas at San Antonio are available to assist the institution in designing or conducting that component of the study.  Source:  General Appropriations Act Art. IX, § 6.32 (a).

 

Limitation on Who May Be a Consultant.

•  An individual who has been employed previously by the institution within the past twelve months may not be hired as a consultant if appropriated funds are used to pay the consultant.  Source:  Tex. Gov’t Code § 2252.901.

•  In addition, there are certain disclosure requirements applicable to a proposed     consultant who was previously employed by the institution during the preceding two     years.  Source:  Tex. Gov’t Code § 2254.033.

 

Emergency Procurements of Consulting Services.

•  If an institution requires the services of a consultant before compliance with the statutory requirements can be completed because of an unforeseen emergency, the institution may request a waiver from the Governor’s Office in accordance with the Governor’s rules for such requests.  An unforeseen emergency means a situation that suddenly and unexpectedly causes the institution to need the services of a consultant, including the issuance of a court order, an actual or imminent natural disaster, and new state or federal legislation.  An emergency is not unforeseen if the institution was negligent in foreseeing the occurrence of the emergency.  Source:     Tex. Gov’t Code § 2254.025.

 

Finding of Fact, Notices and Other Required Filings.

• The table on the following pages describes the finding of fact, notices and other required filings that must be given or made in connection with the acquisition of consulting services contracts.  Failure to obtain the requisite finding of fact or to file the requisite notices in accordance with Texas Government Code §§ 2254.028 - .031 makes the contract void.  (See Tex. Gov’t Code §§ 2254.028(b) & 2254.034.) More detailed information about these requirements may be obtained from ;Governor’s Budget, Planning and Policy Division.

• For the State Comptroller rules cited in the table, see the Texas Administrative Code, Title 34, Part 1, Chapter 5, Subchapter E, Section 5.54.