(a) Except as otherwise provided herein, OCP-Ds shall be selected through a fair and competitive process that takes into consideration the amount of support being offered and the needs of the department. Provided, however, the department's executive director, or designee may waive competitive process requirement if such a waiver is in the best interest of the department.
(b) OCP-Ls shall be selected through a fair process that takes into consideration the availability of other possible OCP-Ls for the program, project or site, the amount of support being offered and the needs of the site or program.
(c) An entity shall not be considered an OCP until it has been designated as an OCP by order of the department's executive director, or designee.
(d) The department may select multiple OCP-Ds and/or OCP-Ls. The department will determine, in its sole discretion whether an OCP should be classified as an OCP-D or OCP-L.
(e) The department may define the specific business category within which an OCP is designated. An OCP will not be designated in a business category regulated by the department.
(f) The department shall designate each OCP-D within a specific business category and will not select another OCP for the same business category within the term of the OCP-D's designation.
(g) The department may designate one or more OCP-Ls within a specific business category for the program, project or site for which the OCP-L is designated.
(h) The designation of an OCP-L shall be subject to cancellation by the department in the event an OCP-D is designated within the same business category. The department will provide reasonable advanced written notice to the OCP-L of such cancellation and shall inform all OCP-Ls of the possibility of cancellation under this subsection.
(i) The department shall establish minimum criteria that must be met by an entity to be considered for designation as an OCP-D. Such criteria may include, but are not limited to the following:
  (1) commitment of a minimum amount in cash, goods, and/or services established by the department;
  (2) a presence in the state that is sufficiently broad for the type of OCP-D designation and the ability of the entity to engage in joint promotional campaigns and/or cooperative ventures utilizing technology and/or systems belonging to the entity;
  (3) a mission or purpose that does not conflict with the mission of the department; and
  (4) other criteria established by the department based on the needs of the department.
(j) The department may establish criteria, as appropriate, to be met by an entity to be considered for designation as an OCP-L, which may include some or all of the criteria listed in subsection (i) of this section.
(k) The designation of an OCP shall be for a specified period of time.
(l) The designation of an OCP shall not constitute an endorsement by the department of the OCP or the OCP's products and/or services.
(m) The department will not designate an entity as an OCP if the designation would result in a conflict with the department's regulatory, contractual or other obligations, or would otherwise create the appearance of a conflict of interest.
(n) Notwithstanding the designation of an entity as an OCP and unless otherwise expressly agreed by the department in writing:
  (1) the department and an OCP are independent entities and are not agents, partners, joint venture participants or otherwise responsible for the acts, omissions, or conduct of the other party; and
  (2) the legal relationship of the department and an OCP shall not be considered a "partnership" and neither the department nor an OCP shall be considered a "partner" of the other as those terms are defined and used in the Business Organizations Code.

Source Note: The provisions of this §51.701 adopted to be effective May 3, 2012, 37 TexReg 3164; amended to be effective January 2, 2013, 37 TexReg 10228