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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: December 19, 2008     
Next Scheduled Review: April 30, 2010                                           
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, regulations and rules and that those involved in the procurement and contracting 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 (except The University of Texas M.D. Anderson Cancer Center) 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/
	Office of General Counsel	512-499-4462	http://www.utsystem.edu/ogc/contracts.htm

 

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://governor.state.tx.us/bpp/guidelines

Major consulting services contract:  In the case of an institution of higher education, 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 procurement solicitations and contracts for consulting services.
• Processes all renewals, amendments and extensions of consulting services contracts.
• May designate others to perform procurement and contract processing responsibilities but remains responsible for their performance.

UT Institution

• Obtains any required findings of fact that consulting services are necessary from either (a) the Governor’s Budget, Planning and Policy Division or (b) the UT Institution President.
• Obtains the approval of the appropriate Executive Vice Chancellor (if finding of fact will be obtained from the Governor’s Budget, Planning and Policy Division, then Executive Vice Chancellor approval must be obtained before submitting the notice of intent and the request for a finding of fact to the Governor’s Budget, Planning and Policy Division).
• Submits all notices to the Legislative Budget Board and the Governor's Budget Planning and Policy Division that are required by applicable law, regulation or rule.
• Submits all Texas Register notices required by applicable law, regulation or rule to the Board of Regents.
• If a consulting services contract has an anticipated value of $100,000 or more, ensures that contract is in compliance with all Historically Underutilized Business (HUB) laws, regulations and rules.
• Obtains Board of Regents approval as required by the Board of Regents’ Rules and Regulations.
• Contracts for consulting services.

UT Institution President
Authorized to make a finding of fact that consulting services the UT Institution intends to procure are necessary. The finding of fact should include an explanation of the facts on which the finding is based.  (Texas Government Code, §2254.028 (c)) 

UT System Chancellor

Authorized to make a finding of fact that consulting services the UT System intends to procure are necessary. The finding of fact should include an explanation of the facts on which the finding is based.  (Texas Government Code, §2254.028 (c)) 

 

Office of the Board of Regents
Files notices with the Texas Secretary of State for publication in the Texas Register.

 

Board of Regents

Approves Consulting Services Contract as required by the Board of Regents’ Rules and Regulations.

PROCEDURES  

 

All Consulting Services Contracts Processing by the Primary Procurement Officer
All solicitations and contracts for consulting services will be processed through the primary procurement officer of the institution, who will determine what documentation must 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 will process the solicitation and contract in accordance with applicable laws, regulations, rules, policies and procedures, will implement procedures for the processing of contracts for consulting services, and will establish training requirements for purchasing 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 will 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 may be found on the web site for the Governor’s Budget, Planning and Policy Division and in the Comptroller's Purchase Policies and Procedures Guide (July 2004), Section 5.006.

 

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

 

Ethical Behavior in Contracting
All employees involved in the procurement of consulting services will comply with the Ethics Policy, Board of Regents' Rules and Regulations, Rule 30104, UTS134, Code of Ethics for Financial Officers and Employees, and 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); Texas Government Code § 2155.004.)

 

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

 

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

Finding of Fact 
An institution has the option to obtain the statutorily mandated finding of fact that the consulting services are necessary from the Governor’s Budget, Planning and Policy Division 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 that the consulting services are necessary includes a determination that there is a substantial need for the consulting services and the institution cannot adequately perform the services with its own personnel or obtain the consulting services through a contract with a state governmental entity, 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 (1) the institution submits to the Office of the Board of Regents the invitation required to be published in the Texas Register; and (2) the institution submits to the Legislative Budget Board and the Governor’s Budget, Planning and Policy Division (a) the notice of intent to contract with a consultant, and (b) the request for a finding of fact (only applicable if the institution elects to obtain the finding of fact from the Governor’s Budget, Planning and Policy Division).  The institution will send its request for approval to the appropriate Executive Vice Chancellor. The request for approval will include (1) the completed Approval Request Form (attached), (2) a copy of the finding of fact issued by the institution's chief executive officer (only applicable if the institution elects to obtain the finding of fact from its chief executive officer), (3) a copy of the proposed notice to be published in the Texas Register, and (4) a copy of the proposed solicitation for consulting services.

 

The "appropriate Executive Vice Chancellor" for a consulting contract entered into by (a) a UT health institution is the UT System Executive Vice Chancellor for Health Affairs; (b) a UT System academic institution is the UT System Executive Vice Chancellor for Business Affairs; and (c) UT System Administration is the U. T. System Executive Vice Chancellor for Business Affairs.

 

Renewal, Amendment or Extension of Contract
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, regulations, rules, 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, the institution must comply with the requirements for Major Consulting Services Contracts as set forth in this policy.

 

Renewal, Amendment or Extension of a Consulting Services Contract That Was Not Originally a Major Consulting Services Contract
If the institution proposes to renew, amend or extend any consulting services contract and 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 must comply with the requirements for Major Consulting Services Contracts as set forth 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 and Texas Government Code, Chapter 771.

 

Consulting Services Provided by Another State Agency
An institution may acquire consulting services from another state agency in accordance with Texas Government Code, Chapter 771.

Approval of Consulting Services Contract by the Board of Regents
Regental approval of a consulting services contract may be required by Board of Regents' Rules and Regulations, Rule 10501.

FORMS AND TOOLS/ONLINE PROCESSES

 

Office of the Board of Regents, Procedures & Operations, Consultant Contract Submissions

 

UT System, Office of Business Affairs Contract Processing Checklist

 

Major Consulting Contract Approval Request Form

 

Procedure for Major Consulting Services Contracts  (UT authentication required)

 

Major Consulting Services Contract Forms (UT authentication required):

• Finding of Fact Made by UT System Chancellor
• Finding of Fact Made by UT Institution President
• Finding of Fact Made by Governor’s Budget, Planning and Policy Division
• Notice to Governor’s Budget, Planning and Policy Division (New Major Consulting Services Contract)
• Notice to Governor’s Budget, Planning and Policy Division (Amended Consulting Services Contract)
• Notice to Legislative Budget Board (New Major Consulting Services Contract)
• Notice to Legislative Budget Board (Amended Consulting Services Contract)
• Texas Register Notice - 30 Days Before Entering Into New 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 primary statutes 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 primary statutes before beginning the process to procure 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

 

Limitation on Who May Be a Consultant

• An individual who has been employed previously by the institution within the past twelve (12) 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 (2) years.  Source:  Tex. Gov’t Code § 2254.033.

 Emergency Procurements of Consulting Services
 If an unforeseen emergency causes an institution to need the services of a consultant before compliance with the statutory requirements can be completed, the institution may request a waiver from the Governor’s Budget, Planning and Policy Division in accordance with the Governor’s rules for emergency waiver requests.  An unforeseen emergency means a situation that suddenly and unexpectedly causes the institution to require the services of a consultant, including the issuance of a court order, an actual or imminent natural disaster, or new state or federal legislation.  An emergency is not unforeseen if the institution was negligent in failing to foresee 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 the 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.  

 

 

 

 

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