HB5061 - Relating to prohibiting certain activities by contractors and vendors of state agencies; providing administrative penalties.

      H.B. No. 5061         AN ACT   relating to prohibiting certain activities by contractors and   vendors of state agencies; providing administrative penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act shall be known as the Texas Integrity in   State Contracting and Privacy Protection Act.          SECTION 2.  Chapter 2261, Government Code, is amended by   adding Subchapter G to read as follows:   SUBCHAPTER G. CERTAIN PROHIBITED ACTIVITIES BY CONTRACTORS AND   VENDORS           Sec. 2261.301.  DEFINITIONS. In this subchapter:                 (1)     "State agency employee" includes an independent   contractor who contracts with a state agency to perform work or   provide a service.                 (2)     "Surveillance" means monitoring, investigating,   tracking, or collecting information about an individual without the   individual's express or contractual authorization, including   physical surveillance, electronic tracking, and data mining. The   term does not include collecting information that is publicly   available or available to the public through a subscription   service.                 (3)     "Undue influence" means an improper use of power,   position, or information to manipulate a decision-making process,   including the use of private or confidential information for   personal or organizational gain.           Sec.   2261.3015.     APPLICABILITY. Notwithstanding Sections   2261.001(a) and (d), this subchapter applies to each procurement of   goods or services made by a state agency, including a procurement   made:                 (1)  by the comptroller;                 (2)     under purchasing authority delegated to the agency   by or under Section 51.9335 or 73.115, Education Code, or Section   2155.131 or 2155.132 of this code; or                 (3)     by the Texas Department of Transportation or a   procurement paid for by local or institutional funds of an   institution of higher education.           Sec.   2261.302.     PROHIBITED ACTIVITIES. A contractor or   subcontractor of a state agency or a vendor responding to a contract   solicitation may not directly or indirectly through a third party:                 (1)  engage in surveillance targeting:                       (A)     a member of the state legislature or a person   employed to support the state legislature in any capacity;                       (B)     a family member of a person described by   Paragraph (A);                       (C)  a state agency employee; or                       (D)     an individual making a complaint or raising   concerns regarding state agency operations or contracting;                 (2)     engage in an act of intimidation, coercion,   extortion, undue influence, or other similar conduct intended to   influence, silence, or retaliate against a person described by   Subdivision (1)(A), (B), (C), or (D); or                 (3)     use private or confidential information to   manipulate or influence a state contracting decision or proceeding.           Sec.   2261.303.     OVERSIGHT AND ENFORCEMENT. (a) The state   auditor's office shall oversee and enforce this subchapter.           (b)     The state auditor's office may collaborate with the   Texas Ethics Commission to ensure compliance with this subchapter   and transparency of oversight and enforcement actions.           (c)     The Texas Rangers division of the Department of Public   Safety shall investigate any alleged criminal offense related to a   violation of this subchapter.           Sec.   2261.304.     COMPLAINT PROCESS. (a) A person who   believes that a prohibited activity under Section 2261.302 has   occurred may file a complaint with the state auditor's office.           (b)     The state auditor's office shall establish and maintain   a confidential reporting hotline and an online portal for   submitting a complaint under Subsection (a).           Sec.   2261.305.     INVESTIGATION. (a) The state auditor's   office shall investigate a complaint submitted under Section   2261.304 and determine whether a violation of this subchapter   occurred not later than the 90th day after the date the office   receives the complaint.           (b)     If during an investigation of a complaint the state   auditor's office suspects that a criminal offense has been   committed, the office shall refer the matter to the Texas Rangers   division of the Department of Public Safety for a comprehensive   criminal investigation. The Texas Rangers division of the   Department of Public Safety shall investigate the complaint and, if   appropriate, refer the matter to the attorney general's office for   prosecution.           Sec.   2261.306.     ENFORCEMENT: CONTRACT TERMINATION; BARRING   FROM STATE CONTRACTS; ADMINISTRATIVE PENALTIES. (a) On a final   determination by the state auditor's office that a person violated   this subchapter, the person is:                 (1)  for a first violation:                       (A)     subject to immediate termination of any state   contracts without further obligation;                       (B)     liable for an administrative penalty in an   amount not to exceed:                             (i)  $500,000; or                               (ii)     $2 million if the violation involved   undue influence or the misuse of private or confidential   information; and                       (C)     barred from responding to a solicitation for   or being awarded a state contract until:                             (i)     the tenth anniversary of the date the   person receives the final determination; or                               (ii)     the fifteenth anniversary of the date   the person receives the final determination if the violation   involved undue influence or the misuse of private or confidential   information; and                 (2)  for a second or subsequent violation:                       (A)     subject to immediate termination of all state   contracts without further obligation;                       (B)     liable for an administrative penalty in an   amount not to exceed:                             (i)  $1 million; or                               (ii)     $2 million if the violation involved   undue influence or the misuse of private or confidential   information; and                       (C)     barred permanently from responding to a   solicitation for or being awarded a state contract.           (b)     An individual who authorizes or directs an entity to   violate this subchapter may be subject to a penalty under this   section in the same manner as an entity that is determined to have   violated this subchapter.           (c)     A violation of this subchapter committed by or involving   the following individuals or entities is considered a violation of   this subchapter by a contractor, subcontractor, vendor, or   respondent to a contract solicitation by a state agency:                 (1)     a parent company of the contractor, subcontractor,   vendor, or respondent;                 (2)     a subsidiary wholly or partially owned by the   contractor, subcontractor, vendor, or respondent;                 (3)     a sister or affiliate entity under common   ownership or control of the contractor, subcontractor, vendor, or   respondent;                 (4)     a subdivision, division, or operational branch of   the contractor, subcontractor, vendor, or respondent;                 (5)     a subcontractor, agent, representative, or third   party acting on behalf of or in coordination with the contractor,   subcontractor, vendor, or respondent;                 (6)     a joint venture, consortium, or partnership in   which the contractor, subcontractor, vendor, or respondent has an   interest;                 (7)     an employee, officer, or executive of the   contractor, subcontractor, vendor, or respondent acting within the   employee's, officer's, or executive's scope of employment; and                 (8)     an entity with which the contractor,   subcontractor, vendor, or respondent shares significant   operational control, decision-making authority, financial   interest, or business goals.           (d)     Subsection (c) applies regardless of whether an   individual or entity described by that subsection is a direct party   to a contract or procurement agreement. An individual or entity   described by Subsections (c)(1) through (8) is subject to the   enforcement actions, penalties, and disqualifications provided by   this subchapter.           (e)     The state auditor's office shall notify the comptroller   of each final determination that a person violated this subchapter.   The comptroller shall distribute information to state agencies   regarding the final determination to assist state agencies in   carrying out the intent of this subchapter. Each state agency shall   review the information distributed by the comptroller to ensure   that the agency does not award a contract in violation of this   section.           Sec.   2261.307.     RETALIATION AGAINST EMPLOYEES AND   WHISTLEBLOWERS PROHIBITED. (a) In this section, "employee" means   a person who is an employee of a:                 (1)  contractor or subcontractor of a state agency;                 (2)     vendor responding to a contract solicitation by a   state agency; or                 (3)  provider or recipient of state services.           (b)     An employee or other person with knowledge of a   violation of this subchapter has a cause of action against an   employer or entity who suspends or terminates services, contracts,   or employment [Text truncated for display. Full text available on Congress.gov.]