GOVERNMENT CODE
CHAPTER 2161. HISTORICALLY UNDERUTILIZED BUSINESSES
SUBCHAPTER A. GENERAL PROVISIONS
§ 2161.001. DEFINITIONS. In this chapter:
(1) "Goods" means supplies, materials, or equipment.
(2) "Historically underutilized business" means an
entity with its principal place of business in this state that is:
(A) a corporation formed for the purpose of
making a profit in which 51 percent or more of all classes of the
shares of stock or other equitable securities are owned by one or
more economically disadvantaged persons who have a proportionate
interest and actively participate in the corporation's control,
operation, and management;
(B) a sole proprietorship created for the purpose
of making a profit that is completely owned, operated, and
controlled by an economically disadvantaged person;
(C) a partnership formed for the purpose of
making a profit in which 51 percent or more of the assets and
interest in the partnership are owned by one or more economically
disadvantaged persons who have a proportionate interest and
actively participate in the partnership's control, operation, and
management;
(D) a joint venture in which each entity in the
venture is a historically underutilized business, as determined
under another paragraph of this subdivision; or
(E) a supplier contract between a historically
underutilized business as determined under another paragraph of
this subdivision and a prime contractor under which the
historically underutilized business is directly involved in the
manufacture or distribution of the goods or otherwise warehouses
and ships the goods.
(3) "Economically disadvantaged person" means a
person who is economically disadvantaged because of the person's
identification as a member of a certain group, including Black
Americans, Hispanic Americans, women, Asian Pacific Americans, and
Native Americans, and who has suffered the effects of
discriminatory practices or other similar insidious circumstances
over which the person has no control.
(4) "Contract" includes an arrangement under which a
state agency receives professional or investment brokerage
services.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.21, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1261, § 1, eff. Sept. 1, 2003.
§ 2161.0015. DETERMINING SIZE STANDARDS FOR HISTORICALLY
UNDERUTILIZED BUSINESSES. The commission may establish size
standards that a business may not exceed if it is to be considered a
historically underutilized business under this chapter. In
determining the size standards, the commission shall determine the
size at which a business should be considered sufficiently large
that the business probably does not significantly suffer from the
effects of past discriminatory practices.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.02, eff. Sept. 1,
1999.
§ 2161.002. COMMISSION ADMINISTRATION; COMPTROLLER
ASSISTANCE. (a) To administer Subchapters B and C, the commission
may:
(1) require information from a state agency; and
(2) adopt rules.
(b) The comptroller shall provide information to the
commission that will assist the commission in performing its duties
under Subchapters B and C.
(c) In adopting rules to administer this chapter, the
commission shall adopt rules that are based on the results of the
"State of Texas Disparity Study, A Report to the Texas Legislature
as Mandated by H.B. 2626, 73rd Legislature, December 1994"
(prepared by National Economic Research Associates, Inc.). The
commission shall revise the rules in response to the findings of any
updates of the study that are prepared on behalf of the state.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.22, eff. Sept. 1,
1999.
§ 2161.003. AGENCY RULES. A state agency, including an
institution of higher education, shall adopt the commission's rules
under Section 2161.002 as the agency's or institution's own rules.
Those rules apply to the agency's construction projects and
purchases of goods and services paid for with appropriated money
without regard to whether a project or purchase is otherwise
subject to this subtitle.
Added by Acts 1999, 76th Leg., ch. 1499, § 1.23, eff. Sept. 1,
1999.
§ 2161.004. APPLICABILITY; INTENT. (a) This chapter and
rules adopted by the commission under this chapter apply to state
agency construction projects and purchases of goods and services
that are paid for with appropriated money and made under the
authority of this subtitle or other law.
(b) The legislature intends that all qualified businesses
have access to compete for business from the state.
(c) Section 2161.003 and Subsections (a) and (b) of this
section do not apply to a project or contract subject to Section
201.702, Transportation Code.
Added by Acts 1999, 76th Leg., ch. 1499, § 1.23, eff. Sept. 1,
1999.
§ 2161.005. TRANSFER OF FUNDS FOR PURCHASING. If the
state auditor reports to the commission under Section 2161.123(d)
that a state agency is not complying with Section 2161.123, the
commission shall report that fact to the Legislative Budget Board.
If the Legislative Budget Board determines that, one year after the
date of the state auditor's report to the commission, the agency is
still not complying with Section 2161.123, the budget board may,
under Section 69, Article XVI, Texas Constitution, direct the
emergency transfer of the agency's appropriated funds for making
purchases under purchasing authority delegated under Section
2155.131 or 2155.133 to the appropriate state agency. The amount
transferred from the agency's funds to the appropriate agency shall
be an amount determined by the Legislative Budget Board.
Added by Acts 1999, 76th Leg., ch. 1499, § 1.23, eff. Sept. 1,
1999.
SUBCHAPTER B. GENERAL POWERS AND DUTIES OF COMMISSION
§ 2161.061. COMMISSION CERTIFICATION OF HISTORICALLY
UNDERUTILIZED BUSINESSES. (a) The commission shall certify
historically underutilized businesses.
(b) As one of its certification procedures, the commission
may:
(1) approve the certification program of one or more
local governments or nonprofit organizations in this state that
certify historically underutilized businesses, minority business
enterprises, women's business enterprises, or disadvantaged
business enterprises under substantially the same definition, to
the extent applicable, used by Section 2161.001, if the local
government or nonprofit organization meets or exceeds the standards
established by the commission; and
(2) certify a business that is certified by a local
government or by a nonprofit organization as a historically
underutilized business under this chapter.
(c) To maximize the number of certified historically
underutilized businesses, the commission shall enter into
agreements with local governments in this state that conduct
certification programs described by Subsection (b) and with
nonprofit organizations. The commission may terminate an agreement
if a local government or nonprofit organization fails to meet the
standards established by the commission for certifying
historically underutilized businesses. The agreements must take
effect immediately and:
(1) allow for automatic certification of businesses
certified by the local government or nonprofit organization;
(2) provide for the efficient updating of the
commission database containing information about historically
underutilized businesses and potential historically underutilized
businesses; and
(3) provide for a method by which the commission may
efficiently communicate with businesses certified by the local
government or nonprofit organization and provide those businesses
with information about the state historically underutilized
business program.
(d) A local government or a nonprofit organization that
certifies historically underutilized businesses, minority business
enterprises, women's business enterprises, or disadvantaged
business enterprises as described in Subsections (b) and (c) shall
complete the certification of an applicant or provide an applicant
with written justification of its certification denial within the
period established by the commission in its rules for certification
activities.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 165, § 17.03(a), eff. Sept.
1, 1997; Acts 1999, 76th Leg., ch. 1499, § 2.03, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 1422, § 13.01, eff. Sept. 1,
2001.
§ 2161.062. ASSISTANCE TO HISTORICALLY UNDERUTILIZED
BUSINESSES. (a) The commission shall seek the advice of the
governor, legislature, and state agencies in identifying and
developing opportunities for historically underutilized
businesses.
(b) The commission shall offer historically underutilized
businesses assistance and training regarding state procurement
procedures.
(c) The commission shall advise historically underutilized
businesses of available state contracts and shall advise
historically underutilized businesses to apply for registration on
the commission's master bidders list.
(d) The commission shall send historically underutilized
businesses an orientation package on certification or
recertification. The package shall include:
(1) a certificate issued in the historically
underutilized business's name;
(2) a description of the significance and value of
certification;
(3) a list of state purchasing personnel;
(4) information regarding electronic commerce
opportunities;
(5) information regarding the Texas Marketplace
website; and
(6) additional information about the state
procurement process.
(e) A state agency with a biennial budget that exceeds $10
million shall designate a staff member to serve as the historically
underutilized businesses coordinator for the agency during the
fiscal year. The procurement director may serve as the
coordinator. In agencies that employ a historically underutilized
businesses coordinator, the position of coordinator, within the
agency's structure, must be at least equal to the position of
procurement director. In addition to any other responsibilities,
the coordinator shall:
(1) coordinate training programs for the recruitment
and retention of historically underutilized businesses;
(2) report required information to the commission;
and
(3) match historically underutilized businesses with
key staff within the agency.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 2.04, eff. Sept. 1,
1999.
§ 2161.063. ASSISTING STATE AGENCIES. (a) The commission
shall encourage state agencies to use historically underutilized
businesses by:
(1) working with state agencies to establish a
statewide policy for increasing the use of historically
underutilized businesses;
(2) assisting state agencies in seeking historically
underutilized businesses capable of supplying required goods or
services;
(3) assisting state agencies in identifying and
advising historically underutilized businesses on the types of
goods and services the agencies need; and
(4) assisting state agencies in increasing the amount
of business placed with historically underutilized businesses.
(b) The commission shall assist the Texas Department of
Economic Development in performing the department's duties under
Section 481.0068.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 2.05, eff. Sept. 1,
1999.
§ 2161.064. DIRECTORY. (a) The commission shall compile,
in the most cost-efficient form, a directory of businesses
certified as historically underutilized businesses under Section
2161.061.
(b) The commission at least semiannually shall update the
directory and provide access to the directory electronically or in
another form to each state agency.
(c) Depending on the needs of a state agency, the commission
shall provide access to the directory electronically or in another
form.
(d) The commission shall provide a copy of the directory to
every municipality in January and July of each year. On request,
the commission shall make the directory available to other local
governments and the public.
(e) A state agency, including the commission, shall use the
directory in determining awards of state purchasing and public
works contracts.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 2.06, eff. Sept. 1,
1999.
§ 2161.065. MENTOR-PROTEGE PROGRAM. (a) The commission
shall design a mentor-protege program to foster long-term
relationships between prime contractors and historically
underutilized businesses and to increase the ability of
historically underutilized businesses to contract with the state or
to receive subcontracts under a state contract. Each state agency
with a biennial appropriation that exceeds $10 million shall
implement the program designed by the commission.
(b) Participation in the program must be voluntary for both
the contractor and the historically underutilized business
subcontractor.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.08, eff. Sept. 1,
1999.
§ 2161.066. HISTORICALLY UNDERUTILIZED BUSINESS
FORUMS. (a) The commission shall design a program of forums in
which historically underutilized businesses are invited by state
agencies to deliver technical and business presentations that
demonstrate their capability to do business with the agency:
(1) to senior managers and procurement personnel at
state agencies that acquire goods and services of a type supplied by
the historically underutilized businesses; and
(2) to contractors with the state who may be
subcontracting for goods and services of a type supplied by the
historically underutilized businesses.
(b) The forums shall be held at state agency offices.
(c) Each state agency with a biennial appropriation that
exceeds $10 million shall participate in the program by sending
senior managers and procurement personnel to attend relevant
presentations and by informing the agency's contractors about
presentations that may be relevant to anticipated subcontracting
opportunities.
(d) Each state agency that has a historically underutilized
businesses coordinator shall:
(1) design its own program and model the program to the
extent appropriate on the program developed by the commission under
this section; and
(2) sponsor presentations by historically
underutilized businesses at the agency.
(e) The commission and each state agency that has a
historically underutilized businesses coordinator shall
aggressively identify and notify individual historically
underutilized businesses regarding opportunities to make a
presentation regarding the types of goods and services supplied by
the historically underutilized business and shall advertise in
appropriate trade publications that target historically
underutilized businesses regarding opportunities to make a
presentation.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.08, eff. Sept. 1,
1999.
SUBCHAPTER C. PLANNING AND REPORTING REQUIREMENTS
§ 2161.121. COMMISSION REPORT OF CONTRACTS AWARDED TO
HISTORICALLY UNDERUTILIZED BUSINESSES. (a) The commission shall
prepare a consolidated report that:
(1) includes the number and dollar amount of contracts
awarded and paid to historically underutilized businesses
certified by the commission;
(2) analyzes the relative level of opportunity for
historically underutilized businesses for various categories of
acquired goods and services; and
(3) tracks, by vendor identification number and, to
the extent allowed by federal law, by social security number, the
graduation rates for historically underutilized businesses that
grew to exceed the size standards determined by the commission.
(b) Each state agency shall send to the commission
information required by Section 2161.122 and the commission for the
preparation of the commission's report not later than March 15 and
September 15 of each year.
(c) The commission shall base its report on the compilation
and analysis of reports received under Subsection (b) and
information received from the comptroller.
(d) The commission shall send on April 15 of each year a
report on the previous six-month period to the joint committee
charged with monitoring the implementation of the historically
underutilized business goals.
(e) The commission shall send on October 15 of each year a
report on the preceding fiscal year to the presiding officer of each
house of the legislature and the joint committee.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 2.07, eff. Sept. 1,
1999.
§ 2161.122. INFORMATION GATHERING BY STATE AGENCY. (a)
To ensure accuracy in reporting, a state agency shall maintain and
compile monthly information relating to the use by the agency and
each of its operating divisions of historically underutilized
businesses, including information regarding subcontractors and
suppliers required by Subsection (b).
(b) A contractor or supplier awarded a contract by a state
agency shall report to the agency the identity of each historically
underutilized business to whom the contractor or supplier awarded a
subcontract for the purchase of goods or services.
(c) Each state agency shall report to the commission in
accordance with Section 2161.125 the following information with
regard to the expenditure of both treasury and nontreasury funds:
(1) the total dollar amount of purchases and payments
made under contracts awarded to historically underutilized
businesses;
(2) the number of businesses participating in any
issuance of state bonds by the agency;
(3) the number of contracts awarded to businesses with
regard to the agency's acquisition, construction, or equipping of a
facility or implementation of a program; and
(4) the number of bids, proposals, or other applicable
expressions of interest made by historically underutilized
businesses with regard to the agency's acquisition, construction,
or equipping of a facility or implementation of a program.
(d) A state agency participating in a group purchasing
program shall send to the commission in the agency's report under
Section 2161.121 a separate list of purchases from historically
underutilized businesses that are made through the group purchasing
program, including the dollar amount of each purchase allocated to
the reporting agency.
(e) A state agency's report is a record of the agency's
purchases for which the agency selected the vendor. If the vendor
was selected by the commission as part of its state contract
program, the commission shall include the purchase in the
commission's report of its own purchases unless the commission made
a sole source purchase for the agency under Section 2155.067. The
state agency for which the purchase was made shall report the
selection of the vendor on its report as if the agency selected the
vendor when the agency drew specifications for goods or services
that are proprietary to one vendor.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.24, eff. Sept. 1,
1999.
§ 2161.123. STRATEGIC PLANNING. (a) Each state agency,
including the commission, that is required to have a strategic plan
under Chapter 2056 shall include in its strategic plan a written
plan for increasing the agency's use of historically underutilized
businesses in purchasing and public works contracting. The
governing board of each university system or institution of higher
education not included in a university system, other than a public
junior college, shall prepare a written plan for increasing the use
of historically underutilized businesses in purchasing and public
works contracting by the system or institution.
(b) The plan must include:
(1) a policy or mission statement relating to
increasing the use of historically underutilized businesses by the
state agency;
(2) goals to be met by the agency in carrying out the
policy or mission; and
(3) specific programs to be conducted by the agency to
meet the goals stated in the plan, including a specific program to
encourage contractors to use historically underutilized businesses
as partners and subcontractors.
(c) On request, the commission shall provide technical
assistance to a state agency that is preparing its plan.
(d) The commission and the state auditor shall cooperate to
develop procedures providing for random periodic monitoring of
state agency compliance with this section. The state auditor shall
report to the commission a state agency that is not complying with
this section. In determining whether a state agency is making a
good faith effort to comply, the state auditor shall consider
whether the agency:
(1) has adopted rules under Section 2161.003;
(2) has used the commission's directory under Section
2161.064 and other resources to identify historically
underutilized businesses that are able and available to contract
with the agency;
(3) made good faith, timely efforts to contact
identified historically underutilized businesses regarding
contracting opportunities; and
(4) conducted its procurement program in accordance
with the good faith effort methodology set out in commission rules.
(e) In conducting an audit of an agency's compliance with
this section or an agency's making of a good faith effort to
implement the plan adopted under this section, the state auditor
shall not consider the success or failure of the agency to contract
with historically underutilized businesses in any specific
quantity. The state auditor's review shall be restricted to the
agency's procedural compliance with Subsection (d).
(f) If the state auditor reports to the commission that a
state agency is not complying with this section, the commission
shall assist the agency in complying.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.25, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 785, § 36, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1266, § 4.08, eff. June 20, 2003.
§ 2161.124. STATE AGENCY PROGRESS REPORTS. (a) Each
state agency, including the commission, shall prepare a report for
each fiscal year documenting progress under its plan for increasing
use of historically underutilized businesses.
(b) The commission shall develop a standard form for the
report.
(c) The state agency shall file the report with the
governor, lieutenant governor, and the speaker of the house of
representatives not later than December 31 of each year.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 785, § 37, eff. Sept. 1,
2003.
§ 2161.125. CATEGORIZATION BY SEX, RACE, AND
ETHNICITY. The commission, in cooperation with the comptroller
and each state agency reporting under this subchapter, shall
categorize each historically underutilized business included in a
report under this subchapter by sex, race, and ethnicity.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
§ 2161.126. EDUCATION AND OUTREACH BY COMMISSION. Before
September 1 of each year, the commission shall report to the
governor, the lieutenant governor, and the speaker of the house of
representatives on the education and training efforts that the
commission has made toward historically underutilized businesses.
The report must include the following as related to historically
underutilized businesses:
(1) the commission's vision, mission, and philosophy;
(2) marketing materials and other educational
materials distributed by the commission;
(3) the commission's policy regarding education,
outreach, and dissemination of information;
(4) goals that the commission has attained during the
fiscal year;
(5) the commission's goals, objectives, and expected
outcome measures for each outreach and education event; and
(6) the commission's planned future initiatives on
education and outreach.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.09, eff. Sept. 1,
1999.
§ 2161.127. LEGISLATIVE APPROPRIATIONS REQUESTS. Each
state agency must include as part of its legislative appropriations
request a detailed report for consideration by the budget
committees of the legislature that shows the extent to which the
agency complied with this chapter and rules of the commission
adopted under this chapter during the two calendar years preceding
the calendar year in which the request is submitted. To the extent
the state agency did not comply, the report must demonstrate the
reasons for that fact. The extent to which a state agency complies
with this chapter and rules of the commission adopted under this
chapter is considered a performance measure for purposes of the
appropriations process.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.09, eff. Sept. 1,
1999.
SUBCHAPTER D. PURCHASING GOALS
§ 2161.181. GOALS FOR PURCHASES OF GOODS AND SERVICES. A
state agency, including the commission, shall make a good faith
effort to increase the contract awards for the purchase of goods or
services that the agency expects to make during a fiscal year to
historically underutilized businesses based on rules adopted by the
commission to implement the disparity study described by Section
2161.002(c).
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.26, eff. Sept. 1,
1999.
§ 2161.182. GOALS FOR CONSTRUCTION CONTRACTS. (a) A
state agency that contracts for a construction project, including a
project under Section 2166.003, shall make a good faith effort to
increase the construction contract awards that the agency expects
to make during a fiscal year to historically underutilized
businesses based on rules adopted by the commission to implement
the disparity study described by Section 2161.002(c).
(b) In this section, "project" has the meaning assigned by
Section 2166.001.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
Amended by Acts 1999, 76th Leg., ch. 1499, § 1.27, eff. Sept. 1,
1999.
§ 2161.183. ESTIMATE OF EXPECTED CONTRACT AWARDS. (a)
Not later than the 60th day of its fiscal year, a state agency,
including the commission:
(1) shall estimate the total value of contract awards
the agency expects to make for that fiscal year that are subject to
Section 2161.181; and
(2) shall estimate the total value of contract awards
the agency expects to make for that fiscal year under Chapter 2166.
(b) The state agency may revise an estimate as new
information requires.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
SUBCHAPTER E. PENALTY
§ 2161.231. PENALTY. (a) A person commits an offense if
the person:
(1) intentionally applies as a historically
underutilized business for an award of a purchasing contract or
public works contract under this subtitle; and
(2) knows the person is not a historically
underutilized business.
(b) An offense under this section is a third degree felony.
Added by Acts 1995, 74th Leg., ch. 41, § 1, eff. Sept. 1, 1995.
SUBCHAPTER F. SUBCONTRACTING
§ 2161.251. APPLICABILITY. (a) This subchapter applies
to all contracts entered into by a state agency with an expected
value of $100,000 or more, including:
(1) contracts for the acquisition of a good or
service; and
(2) contracts for or related to the construction of a
public building, road, or other public work.
(b) This subchapter applies to the contract without regard
to:
(1) whether the contract is otherwise subject to this
subtitle; or
(2) the source of funds for the contract, except that
to the extent federal funds are used to pay for the contract, this
subchapter does not apply if federal law prohibits the application
of this subchapter in relation to the expenditure of federal funds.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.10, eff. Sept. 1,
1999.
§ 2161.252. AGENCY DETERMINATION REGARDING
SUBCONTRACTING OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN. (a)
Each state agency that considers entering into a contract with an
expected value of $100,000 or more shall, before the agency
solicits bids, proposals, offers, or other applicable expressions
of interest for the contract, determine whether there will be
subcontracting opportunities under the contract. If the state
agency determines that there is that probability, the agency shall
require that each bid, proposal, offer, or other applicable
expression of interest for the contract include a historically
underutilized business subcontracting plan.
(b) When a state agency requires a historically
underutilized business subcontracting plan under Subsection (a), a
bid, proposal, offer, or other applicable expression of interest
for the contract must contain a plan to be considered responsive.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.10, eff. Sept. 1,
1999.
§ 2161.253. GOOD FAITH COMPLIANCE WITH BUSINESS
SUBCONTRACTING PLAN. (a) When a state agency requires a
historically underutilized business subcontracting plan under
Section 2161.252, the awarded contract shall contain, as a
provision of the contract that must be fulfilled, the plan that the
contractor submitted in its bid, proposal, offer, or other
applicable expression of interest for the contract. The contractor
shall make good faith efforts to implement the plan. A contractor's
participation in a mentor-protege program under Section 2161.065
and submission of a protege as a subcontractor in the contractor's
historically underutilized business subcontracting plan
constitutes a good faith effort under this section for the
particular area of the subcontracting plan involving the protege.
(b) To the extent that subcontracts are not contracted for
as originally submitted in the historically underutilized business
subcontracting plan, the contractor shall report to the state
agency all the circumstances that explain that fact and describe
the good faith efforts made to find and subcontract with another
historically underutilized business.
(c) The state agency shall audit the contractor's
compliance with the historically underutilized business
subcontracting plan. In determining whether the contractor made
the required good faith effort, the agency may not consider the
success or failure of the contractor to subcontract with
historically underutilized businesses in any specific quantity.
The agency's determination is restricted to considering factors
indicating good faith.
(d) If a determination is made that the contractor failed to
implement the plan in good faith, the agency, in addition to any
other remedies, may bar the contractor from further contracting
opportunities with the agency.
(e) The commission shall adopt rules to administer this
subchapter.
Added by Acts 1999, 76th Leg., ch. 1499, § 2.10, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1422, § 13.02, eff.
Sept. 1, 2001.