28 TAC §§19.1101 - 19.1104
The Commissioner of Insurance adopts new Subchapter L, §§19.1101 - 19.1104, concerning the selection of a testing services vendor for the administration of licensing examinations. The sections are adopted without changes to the proposed text as published in the November 5, 2004 issue of the Texas Register (29 TexReg 10215).
The new subchapter sets forth an appropriate examination testing vendor selection process implementing the authority granted in Article 21.01-1, §1(a). The new vendor selection process complies with state procurement laws and regulations and establishes that the department shall determine the bid document requirements, including contract specifications and evaluation criteria at the time the bid document is prepared. The process contained in these sections allows the department to develop bid requirements and evaluation criteria at the time of preparation of the bid document, rather than being bound to requirements and standards developed years in advance. In addition to complying with state procurement laws and regulations, th e new selection process will thus allow for preparation of a bid document that is more responsive to current license applicant needs, evolving industry practices, and changing technology.
Article 21.01-1, §1(a) requires a Government Code, Chapter 2001 hearing prior to the adoption of rules establishing appropriate standards to implement the authority granted in Article 21.01-1, §1(a). The hearing on this proposal was held on November 30, 2004. In addition to this requirement, the adoption provides that the department shall continue to select the successful vendor at a public hearing called for that purpose. Accordingly, the department will continue to prepare a public bid document stating its requirements for an examination testing services vendor, invite vendor bids on that document, evaluate the vendor bids in accordance with the terms of the bid document, and then select the successful vendor at a public hearing.
The adoption of the repeal of §§19.1101 - 19.1110 is published elsewhere in this issue of the Texas Register .
Adopted §19.1101 sets forth the vendor selection process and provides that the department will act in compliance with state procurement statutes, the Insurance Code and the requirements specified in the bid document; that any vendor desiring to be considered must submit a qualifying proposal in response to the bid document; and that the department shall review each proposal to determine its compliance with the bid document's requirements. Adopted §19.1102 directs the department, or its evaluation committee, to evaluate the merits of the qualifying proposals. Adopted §19.1103 states that following the evaluation of vendor bids, the commissioner shall conduct a public hearing and select the successful vendor. Following the hearing the department may negotiate and execute a final written contract with the successful vendor as authorized in Article 21.01-1, §1(a). Adopted §19.1104 clarifies that objections to bid process or vendor selection under this subchapter must comply with the department's vendor procurement protest procedures at §§ 1.1101 - 1.1107 (Procedures for Vendor Protest of Procurement) .
§19.1102: A commenter suggested modifying this section by adding language to require that all examination vendor bids be predicated on the examination vendor providing convincing data to the department that it had the ability to develop examination questions that did not have the effect of unlawfully discriminating against individuals, or class of individuals, taking the examination on the basis of race, color, national origin, or sex; and further that the examination vendor be required to survey, on a voluntary basis, persons taking the examination and to report the survey results annually to the department, both under fixed criteria.
Response: The department appreciates the commenter's concern and agrees that it is extremely important that licensing examinations, or any process regulated by the department, not have the effect of unlawfully discriminating against any individual or class of individuals. Accordingly, the department already has procedures to develop examinations that are nondiscriminatory. This includes reviewing each examination, at least annually, with the examination vendor, using methods of psychometric review to reasonably determine the validity of each examination. In addition to this annual review cycle, the department may also require the examination vendor to conduct additional specific analyses to investigate potential problems. The department also notes that a purpose of this rule is to create a contracting process that is more responsive to current license applicant needs, evolving industry practices, and changing technology and not bound to fixed rule requirements. The department has not made changes to the rule based on this comment.
For with changes: Primerica Life Insurance Company.
These sections are adopted under Insurance Code Article 21.01-1 and §36.001. Article 21.01-1, §1(a) authorizes the commissioner to contract with a licensing examinations testing vendor for testing services and adopt such rules and standards as may be deemed appropriate by the commissioner to implement that authority. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.
§19.1101. Vendor Selection Process.
(a) The department shall select a t esting services vendor in accordance with Insurance Code Article 21.01-1, state procurement statutes and regulations, the provisions of this subchapter, and the requirements specified in any bid document issued by the department for selecting a licensing examination testing services vendor.
(b) The department shall issue a bid document setting forth its requirements for a testing services vendor contract. Any testing service vendor that would like to be considered for selection by the department for administration of license examinations must submit a qualifying proposal to the department in response to the bid document the department has issued in the manner and by the deadline required in the bid document.
(c) The department shall review each proposal for compliance with this subchapter and other necessary requirements as contained in related statutes, rules, and the bid document.
(a) The department shall evaluate each qualifying proposal based on the evaluation criteria set forth in the bid document.
(b) The department may establish an evaluation committee to conduct or assist in the evaluation process. Such committee may consist entirely of department staff with responsibility in areas affected by the various license types or knowledge of the technical areas covered in the bid document. The department may also include technical testing experts in the evaluation committee. Committee members may not have a direct or indirect financial relationship to potential vendors or be related to an employee of a vendor within the second degree of affinity or consanguinity.
(c) An evaluation committee established under this section shall not be considered to be an advisory committee as that term is defined in Government Code, Chapter 2110.
§19.1103. Selection of Vendor.
(a) The commissioner shall conduct a public hearing for the purpose of selecting a licensing examination testing vendor in accordance with the bid document and state procurement statutes and regulations.
(b) After selection of the vendor, the department may engage in contract negotiations and execute a final written contract with the successful vendor.
§19.1104. Objection to Selection Process. Any objection to the examination testing vendor selection or bid process under this subchapter, must comply with §§ 1.1101 - 1.1107 of this title (relating to Procedures For Vendor Protest of Procurement) .