TITLE 1. ADMINISTRATION

§201.1. Definitions.

When used in this chapter, the following words and phrases have the following meanings unless the context clearly indicates otherwise.

(1) ADR--Alternative Dispute Resolution.

(2) Alternative Dispute Resolution Policy--The Alternative Dispute Resolution Policy with Guidelines for State Agencies promulgated by the State Office of Administrative Hearings.

(3) Alternative Dispute Resolution Procedures--Any procedure or combination of procedures described by Texas Civil Practice & Remedies Code Chapter 154.

(4) Board--The department's governing body.

(5) Contract Value--As defined by 34 Texas Administrative Code §20.25(b)(13).

(6) Department--Texas Department of Information Resources.

(7) Emergency Procurement--As defined by 34 Texas Administrative Code §20.25(b)(21) or subsequent successive regulation adopted by the Texas Comptroller of Public Accounts.

(8) Executive Director--The department's executive director.

(9) HUB--Historically Underutilized Business.

(10) Interested Parties--As defined by 34 Texas Administrative Code §1.72(a)(6).

(11) Major Outsourced Contract--A contract the department executes with entities other than this state or a political subdivision of the state that:

(A) is entered into pursuant to authority granted by:

(i) Texas Government Code Chapter 2054, Subchapters I or L; or

(ii) Texas Government Code Chapter 2170; or

(B) exceeds the monetary thresholds established by section 201.7 of this chapter.

(12) Petitioner--Interested person petitioning the department to adopt a rule pursuant to 1 Texas Administrative Code §201.8.

(13) Protest Officer--The person authorized by the Procedures to review and make decisions regarding a protest.

(14) Procedures--The Vendor Protest Procedures posted to the department's website.

(15) Protesting Party--A vendor who submitted a written response to the solicitation they are protesting in accordance with the requirements of this chapter and the Procedures.

§201.2. Vendor Protests.

(a) The department shall maintain Procedures detailing protest requirements on its website.

(b) Vendor protests are subject to the requirements of this section and the Procedures.

(1) Any protesting party may file a protest with the Protest Officer. Protests must be made in writing and received by the Protest Officer within 10 business days after the protesting party knows or should have known of the grounds upon which the protesting party bases their protest.

(2) The protesting party must mail or deliver copies of the protest to the department and other interested parties.

(c) Protests must be sworn and contain:

(1) a specific identification of the statutory or regulatory provision that the protesting party alleges has been violated;

(2) a specific description of each action by the department that the protesting party alleges to be a violation of the statutory or regulatory provision that the protesting party has identified pursuant to paragraph (1) of this subsection;

(3) a precise statement of the relevant facts;

(4) a statement of any issues of law or fact that the protesting party contends must be resolved;

(5) a statement of the argument and authorities that the protesting party offers in support of the protest;

(6) any other specific requirements enumerated by the Procedures; and

(7) a statement that copies of the protest have been mailed or delivered to the department and all other identifiable interested parties.

(d) In the event of a timely protest received under this section where the department has not yet awarded all resulting contracts under the solicitation, the department will address the solicitation or award of the contracts as follows.

(1) Except as provided by paragraph (2) below, the department may not proceed further with the solicitation or award of the contract unless the executive director, after consultation with the Protest Officer, makes a written determination that the contract must be awarded without delay to protect the best interest of the department.

(2) For a solicitation issued pursuant to the department's authority under Texas Government Code § 2157.068 or Texas Government Code Chapter 2170 that may result in multiple awarded contracts, the department may proceed with the solicitation or award of contracts without a written determination by the executive director.

(e) The department shall resolve protests in accordance with this subsection.

(1) The Protest Officer may settle and resolve a protest at any time before the protest is submitted on appeal to the executive director or their designee. The Protest Officer may solicit written responses to the protest from other interested parties.

(2) If the protest is not resolved by mutual agreement, the Protest Officer will issue a written determination resolving the protest.

(A) If the Protest Officer determines the department did not violate a statutory or regulatory provision, they shall inform the protesting party and other interested parties by letter, which must set forth the reasons for the determination.

(B) If no contract has been awarded and the Protest Officer determines a violation of any statutory or regulatory provision has occurred, they shall inform the protesting party and other interested parties by a letter detailing the reasons for the determination and the appropriate remedy.

(C) If one or more contracts have been awarded and the Protest Officer determines a violation of any statutory or regulatory provision has occurred, they shall inform the protesting party and other interested parties by a letter detailing the reasons for the determination and may include an order that declares one or more of the contracts void.

(f) The protesting party may appeal a protest determination made by the Protest Officer to the executive director or their designee.

(1) A protesting party must submit their appeal in writing to the department's Executive Director no later than 10 business days after the date of the determination and include all information required by the Procedures.

(2) If the department does not receive an appeal from the protesting party within ten business days after the date of the Protest Officer's determination, then the Protest Officer's determination is considered the department's final administrative action on the protest.

(3) The protesting party must mail or deliver to the department and all other interested parties a copy of the appeal, which must contain a certified statement that such copies have been provided.

(4) The executive director or their designee's review of a protesting party's appeal is limited to a review of the Protest Officer's determination and will not review issues newly raised in the appeal or that are otherwise not pertinent to the Protest Officer's determination.

(5) The executive director or their designee may either issue a written decision on the appeal or refer the appeal to the board for consideration at a regularly scheduled open meeting. The decision of the executive director or their designee, or the board upon referral of the decision to the board by the executive director, is considered the department's final administrative action on the protest.

(g) The department will not consider a protest or appeal that is not filed timely unless the protesting party shows good cause for delay or the executive director or their designee determines the appeal raises issues that are significant to department procurement practices or procedures in general.

(h) The department will maintain all documentation on the purchasing process that is the subject of a protest or appeal in accordance with the department retention schedule.

§201.3. HUB Program.

Pursuant to Texas Government Code § 2161.003, the department adopts by reference the HUB Program rules established by the Texas Comptroller of Public Accounts, including the provisions relating to veteran-owned businesses (VetHUB), as found at 34 Texas Administrative Code Chapter 20, Subchapter D, or any successor rules.

§201.4. Department Vehicle Assignment.

(a) The department may assign a vehicle to specific field employees or make a department vehicle available for checkout by employees conducting official department business.

(b) The department may assign a vehicle to an individual administrative or executive employee on a regular or everyday basis if the department determines the assignment is critical to the department's mission and needs. The department must document this determination in writing and maintain such in alignment with the required retention series.

§201.5. Board Policies.

(a) Compliance Waivers.

(1) The Board delegates authority to the executive director to grant a requesting state agency a compliance waiver from a department enforced administrative rule, statewide standard, or other Board policy.

(2) A state agency may request a compliance waiver under this section by having the administrative head of the agency or their designee submit a written waiver request in the manner and form required by the department that clearly demonstrates:

(A) any performance or cost advantages to be gained; and

(B) that the overall economic interests of the state are best served by granting the compliance waiver.

(3) The executive director will notify the board once the department has determined the appropriate disposition for a compliance waiver request.

(b) Leave Pool Programs.

(1) The board delegates authority to the executive director to establish and administer a sick leave pool program for department employees in accordance with Texas Government Code Chapter 661, Subchapter A.

(A) The executive director is appointed as the sick leave pool administrator but may designate another department employee to serve as the pool administrator under the executive director's supervision.

(B) The pool administrator shall prescribe procedures relating to the operation of the sick leave pool program.

(2) The board delegates authority to the executive director to establish and administer a family leave pool program for department employees in accordance with Texas Government Code Chapter 661, Subchapter A-1.

(A) The executive director is appointed as the family leave pool administrator but may designate another employee of the department to serve as the pool administrator under the executive director's supervision.

(B) The pool administrator shall prescribe procedures relating to the operation of the family leave pool program.

(c) Donations to the department.

(1) The department may accept a donation or gift offered by a private donor if the department determines it is in the public interest to accept the gift or donation as a result of:

(A) an emergency, including both natural and manmade disasters; or

(B) a technology benefit including education, assessment or innovation.

(2) If the department accepts a private donation or gift, the department must spend any monetary donation in accordance with the department's own mission and duties and deposit it in the state treasury unless statutorily exempted.

(3) If a donation exceeds $10,000, the department and the donor must execute a donation agreement:

(A) describing the donation, including a determination of its value;

(B) attesting the donor is the rightful owner of the donation;

(C) establishing any and all donor restrictions and all department-required terms and conditions for use of the donation;

(D) indemnifying the department as to the donor's rightful ownership of the donation prior to the department's acceptance of the donation;

(E) preventing potential claims that could result from the department's use of the donation;

(F) describing how the donation will further the department's mission or duties, provides a significant public benefit, and is not made in an effort to influence action on the part of the department;

(G) providing the donor's contact information;

(H) disclaiming department responsibility for tax-related representations made by the donor;

(I) signed by the executive director and the donor or the donor's authorized representative.

(4) The Board delegates authority to the executive director to coordinate all donations.

(A) The executive director may accept donations not exceeding $250,000 in value on the department's behalf. The executive director or their designee must report each donation accepted by the department to the Board at the open meeting following the department's acceptance of the donation. If a donation exceeds $250,000 in value, the Board must approve the donation before the department may accept it.

(B) If either the board or the executive director of the department accepts a donation, it must be recorded in the minutes for an open meeting of the Board and reflect the action taken, including;

(i) name of the donor;

(ii) a description of the donation;

(iii) a statement of the purpose of the donation; and

(iv) if the donation is less than $250,000, the executive director's report of acceptance, or, if the proposed donation is greater than $250,000, the Board's vote during the open meeting.

(d) Department Strategic Direction.

(1) The board shall set a strategic direction for the department by:

(A) establishing subcommittees for each major program area to monitor department activities, major outsourced contracts, audit resource needs, and service offerings; and

(B) evaluating and approving new initiatives for or categories of services offered by the department under the department's various programs.

(2) The board shall carry out the oversight and evaluation duties required by Texas Government Code § 2054.040 and § 2054.041.

(e) Conflicts of Interest.

(1) Department officers and employees shall comply with the conflict of interest, disclosure, and contract prohibitions prescribed by Texas Government Code § 2054.552, § 2054.022, and § 2261.252, which are adopted by reference. A department employee who violates these requirements is subject to disciplinary action including dismissal or removal as required by Texas Government Code § 2054.022(e).

(2) The department shall train staff in the requirements of subparagraph (1) and incorporate ethical and conflict of interest disclosure requirements into the contract management guide and the department's internal policies.

§201.6. Advisory Committees.

(a) All advisory committee members shall:

(1) Comply with all statutory and policy ethical requirements of their employing organization;

(2) Disclose to the department any actual or potential conflicts of interest relating to matters before the committee; and

(3) Abstain from advisory committee discussions on issues related to their conflict of interest.

(b) The State Strategic Plan for Information Resources Management Advisory Committee advises the department on the development of the State Strategic Plan for Information Resources Management, pursuant to Texas Government Code Chapter 2054, Subchapter E, and reviews the prepared draft before its distribution to the board.

(1) This advisory committee shall develop a strategic direction of what the future of computing and telecommunications technology is for state government as a whole;

(2) The committee is comprised of at least nine and not more than 21 members including:

(A) At least one employee of a state agency of any size;

(B) At least one employee of a state agency with 500 or fewer full-time employees;

(C) two information resources managers or a designee from Texas state agencies other than a university system or institution of higher education as defined by Texas Education Code § 61.003;

(D) one representative from a state university system or institution of higher education as defined by Texas Education Code § 61.003;

(E) one member of the public;

(F) one Texas local government organization representative knowledgeable about information resources or telecommunications;

(G) three representatives from the information resources or telecommunications industry;

(H) one federal agency representative knowledgeable about information resources or telecommunications.

(3) Advisory committee members must have a demonstrated ability to think strategically and work towards consensus building in a committee setting.

(4) The executive director shall recommend and the board shall appoint advisory committee members by no later than November 30 of every odd-numbered year with a term to expire on November 30 of the following odd-numbered year.

(A) The Executive Director may not recommend a greater number of representatives from the private sector than the public sector.

(B) Once the board approves the membership of the advisory committee, the department may not add any additional members without board approval.

(C) If the department is unable to identify an appropriate candidate in any of the categories outlined by paragraph (b)(2)(A) - (H) of this subsection, the Executive Director may select and recommend to the board additional candidates from paragraph (b)(2)(A) - (H) of this subsection.

(5) The advisory committee shall:

(A) appoint a presiding officer from among its members, who shall report to the board at least once during the advisory committee's term; and

(B) meet at least once during its term.

(6) The advisory committee requires at least a majority of its members in attendance to convene a meeting.

(c) The Customer Advisory Committee provides strategic, customer driven guidance to improve the department's development, delivery, and performance of statewide technology services, serves as a formal communication channel between the department and its customers, and provides a forum for discussion of customer issues.

(1) This advisory committee shall:

(A) Provide experience-based input on DIR services and programs.

(B) Elevate customer and constituent perspectives into agency decision making.

(C) Advise on priorities that balance innovation with efficiency and fiscal responsibility.

(D) Support continuous improvement of service delivery, usability, and customer experience.

(E) Provide input on reports, policies, and other deliverables required of DIR.

(2) The advisory committee is composed of a cross-section of DIR customers who use DIR services and programs and must include at least the below members:

(A) Three employees of state agencies with fewer than 150 employees;

(B) One employee of a state agency with fewer than 500 employees;

(C) One employee of a state agency with greater than 500 employees;

(D) One representative from a state university system or institution of higher education as defined by Texas Education Code § 61.003;

(E) One representative from a school district;

(F) One representative from a local government as defined by Texas Government Code § 2054.003(9);

(G) One representative of an organization that is an eligible customer under Texas Government Code § 2054.0525 and not represented by another member of the advisory committee;

(H) One representative specializing in telecommunications matters who serves as an employee of a governmental entity; and

(I) One representative from a state agency of any size who has knowledge of DIR and subject matter expertise in one of the below disciplines:

(i) Finance;

(ii) Contracting and procurement;

(iii) Legal; or

(iv) Digital accessibility.

(3) Advisory committee members must have a demonstrated ability to think strategically and to work in a consensus-driven committee setting. Committee members must meet the following qualifications:

(A) Have professional experience, knowledge, or subject-matter expertise in information technology, digital services, governance, customer experience, accessibility, cybersecurity, procurement, or service delivery;

(B) Demonstrate the ability to think strategically and consider the statewide impact of technology initiatives beyond the interests of a single organization;

(C) Be willing and able to actively participate in committee meetings, working groups, and related engagement activities;

(D) Have the authority or appropriate organizational standing to represent their sector and communicate committee insights back to relevant stakeholders.

(4) The executive director shall recommend and the board shall appoint advisory committee members by no later than November 30 of every odd-numbered year with a term to expire on November 30 of the following odd-numbered year.

(A) The department may recommend to the Board candidates not listed by (c)(2) of this section that represent customers who use department services.

(B) A member of this advisory committee may also be a member of another department advisory committee with the approval of the board.

(C) If the department is unable to identify an appropriate candidate in any of the categories outlined by paragraph (a)(2)(A) - (I) of this subsection, the Executive Director may select and recommend to the board additional candidates from paragraph (a)(2)(A) - (I) of this subsection.

(D) Once the board approves the membership of the advisory committee, the department may not add any additional members without board approval.

(5) The advisory committee shall:

(A) appoint a presiding officer from among its members;

(B) report to the department's board at least once per fiscal year by way of a presentation by the presiding officer or their designee; and

(C) meet at least once a fiscal year.

(6) This advisory committee does not require a quorum to convene a meeting.

(d) The Information Technology Commodities Procurement Advisory Committee provides a platform for customers, including small and mid-sized state agencies, to share feedback with the department on its information technology commodities program.

(1) The advisory committee shall provide advisory input to the department that strengthens cooperative IT procurement by promoting transparency, efficiency and value, while ensuring smaller agencies have engagement with the cooperative purchasing process.

(2) The advisory committee shall include at least the below members:

(A) Three employees of state agencies with fewer than 150 employees;

(B) One employee of a state agency with fewer than 500 employees;

(C) One employee of a state agency with greater than 500 employees;

(D) One representative from a state university system or institution of higher education as defined by Texas Education Code § 61.003; and

(E) One representative from either:

(i) a local government as defined by Texas Government Code § 2054.003(9); or

(ii) an assistance organization as defined by Texas Government Code § 2175.001.

(3) The executive director appoints advisory committee members for a staggered two-year term with their term ending on the second anniversary of their date of appointment.

(A) At the department's discretion, the executive director may reappoint the member.

(B) There are no term limits upon membership.

(4) Advisory committee members must possess experience or knowledge in information technology procurement, contract management, technology deployment, cybersecurity, or related technical or legal fields.

(5) The board delegates the authority to appoint members of this advisory committee to the executive director.

(6) The advisory committee shall:

(A) appoint a presiding officer from among its members;

(B) report to the department's board at least once per fiscal year by way of a presentation by the presiding officer or their designee; and

(C) meet at least once a fiscal year.

(7) This advisory committee does not require a quorum to convene a meeting.

(e) The Data Management Advisory Committee provides input to the department's Chief Data Officer to assist in the development and maturation of the state's data management program and offer collaborative opportunities for state agency Data Management Officers.

(1) The advisory committee shall meet the goals specified by Texas Government Code § 2054.0332(c).

(2) The advisory committee is composed in alignment with Texas Government Code § 2054.0332(b).

(3) Advisory committee members must have:

(A) the experience required by Texas Government Code § 2054.137; or

(B) otherwise be a Data Management Officer designated by a state agency.

(4) The advisory committee's presiding officer is the department's Chief Data Officer. At least once per year, the Chief Data Officer shall report to the Board on matters before the advisory committee.

(5) The advisory committee shall meet at least once per fiscal year and does not require a quorum to convene a meeting.

§201.7. Contract Authority and Responsibilities.

(a) The executive director or their designee shall present the below contracts and amendments to the board for final approval:

(1) any award, including of a major outsourced contract, with a contract value exceeding $1,000,000;

(2) an amendment to a contract the value for which will either:

(A) exceed $1,000,000; or

(B) brings the total contract value to over $1,000,000;

(3) A major outsourced contract or any amendment to a major outsourced contract if the amendment has significant statewide impact including:

(A) Contract renewals; and

(B) Vendor changes;

(4) Any other contract or amendment at the executive director's discretion.

(b) The board delegates authority to the executive director to approve a purchase request or a contract listed in subsection (a) of this section for an emergency procurement.

(c) The board delegates contract approval authority to the executive director or their designee for:

(1) All contracts not listed in paragraph (a) of this subsection.

(2) Purchases from contracts authorized under Government Code Chapter 2170 with a total contract value of less than $1,000,000. If a purchase is made in this way, then the executive director or their designee shall report the purchase at the first open meeting following the purchase.

(3) Purchase requests or contracts listed in paragraph (a) of this subsection for an emergency procurement or to avoid undue material additional cost to the state. If a purchase is made subject to this authority, then the executive director or their designee shall report the purchase request or contract executed in such a way to the board chair prior to its execution.

(d) The board delegates authority to the executive director to execute all contracts for the department. The executive director may delegate this authority to their designee, as necessary.

(e) The department will present to the board for its approval a contract plan for the next fiscal year that outlines the department's anticipated contracting actions exceeding $100,000. The department will share any updates to this contract plan with the board at the executive director's discretion.

(f) The department shall subject every contract identified by the department as a major outsourced contract to enhanced contract and performance monitoring.

(1) The department shall regularly present information about contracts subject to this type of monitoring to the board.

(2) The department will immediately notify the board of any serious issue or risk to a contract subject to this type of monitoring.

§201.8. Negotiated Rulemaking and Alternative Dispute Resolution.

(a) If the department anticipates a proposed rule is likely to be complex, controversial, or affect disparate groups, the department may propose engaging in negotiated rulemaking in accordance with Texas Government Code Chapter 2008 with the department's General Counsel or their designee serving as the department's convener to:

(1) Assist in identifying persons likely to be affected by the proposed rule;

(2) Consider whether negotiated rulemaking is feasible or will unreasonably delay the rulemaking; and

(3) Recommend to the department whether to proceed in accordance with Texas Government Code Chapter 2008 and Texas Government Code § 2054.121(c).

(b) The department encourages fair and expeditious resolution of disputes through ADR procedures.

(1) Upon receipt of notice of a dispute, the Executive Director, in consultation with the department's General Counsel, shall determine whether an alternative dispute resolution procedure is an appropriate method for resolving the dispute.

(2) If ADR is appropriate, the department will collaborate with the claimant to select and implement an appropriate procedure consistent with the Alternative Dispute Resolution Policy.

§201.9. Petition for the Adoption of a Rule.

(a) A petitioner may request the department adopt a rule by submitting their petition electronically as prescribed by the department on its website, by mail, or hand delivered to the department and include:

(1) The petitioner's name, address, organization or affiliation, if any, and the name of the person or entity upon whose behalf the petition is filed if different than the individual submitting the petition;

(2) A brief statement about why a new rule or a rule change is necessary, including information regarding the public good served by the proposed rule and any effect upon those who would be required to comply with the proposed rule;

(3) As described below, the estimates, if known, and the facts, assumptions, and methodology used to prepare them:

(A) An estimate of the fiscal impact, if known, to state and local government as a result of enforcing or administering the proposed rule;

(B) An estimate of the economic impact, if known, on persons required to comply with the proposed rule; and

(C) Whether there may be an effect on local employment;

(4) The proposed text of the new or amended rules;

(5) A list of individuals, organizations, or affiliations that may be interested in or affected by the proposed rule, if known; and

(6) If any of the above required information is not included in or with the petition, a reason why the petitioner has not provided the required information.

(b) A petition is submitted on the date the department receives it.

(c) Upon receipt of a petition complying with the requirements of this section, the department will deny or accept the petition, in whole or in part, within 60 days from the date of submission.

(1) If the department denies the petition, it will notify the petitioner in writing and state the reason(s) for the denial.

(2) If the department accepts the petition in whole, the department will refer the accepted petition to agency staff to initiate the rulemaking process.

(3) If the department accepts the petition for rulemaking in part, the department will notify the petitioner in writing of the parts denied, state the reason(s) for the denial, and refer the accepted portions to agency staff to initiate the rulemaking process.

(d) The department may alter the petitioner's proposed text to conform to agency policy decisions, style, and format as necessary.

(e) Prior to the end of each fiscal year, the department will present to the Board a report of all petitions received during that fiscal year. If the department did not receive any petitions in a fiscal year, it is not required to submit a report unless requested by the board.

§201.10. Plans and Reports Required of Institutions of Higher Education.

(a) An institution of higher education shall prepare and submit the following plans and reports to the department:

(1) Reports required by or collected pursuant to the requirements of Texas Government Code § 2054.052;

(2) Information Resources Managers' training and continuing education compliance reports as set forth in Texas Government Code § 2054.076;

(3) Information Resources Deployment Review established by Texas Government Code § 2054.0965 subject to the reporting limitation in Texas Education Code § 51.406;

(4) Network configuration information as set forth in Texas Government Code § 2054.203;

(5) Accessibility Survey established by Texas Government Code § 2054.464.

(b) The department will coordinate with the Information Technology Council for Higher Education regarding the preparation or submission of such plans and reports by institutions of higher education and may allow for the use of existing data where available and applicable.