By: West S.B. No. 857
(In the Senate - Filed February 16, 2009; March 9, 2009,
read first time and referred to Committee on Higher Education;
April 20, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; April 20, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 857 By: West
A BILL TO BE ENTITLED
AN ACT
relating to the purchasing and contracting practices of junior
college districts; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 44.0311, Education Code,
is amended to read as follows:
(a) This subchapter does not apply [applies] to junior
college districts.
SECTION 2. Subdivision (2), Section 51.776, Education Code,
is amended to read as follows:
(2) "Board" means the governing body of an institution
other than the governing board of a junior college district.
SECTION 3. Subchapter A, Chapter 130, Education Code, is
amended by adding Sections 130.0104, 130.0105, 130.0106, and
130.0107 to read as follows:
Sec. 130.0104. POLICY AND REPORT REGARDING HISTORICALLY
UNDERUTILIZED BUSINESSES. (a) In this section, "historically
underutilized business" has the meaning assigned by Section
2161.001, Government Code.
(b) This section applies only to a junior college district
that:
(1) is located wholly or partially in a county with a
population of one million or more; and
(2) had an annual enrollment of 20,000 or more
full-time or part-time students in one or more of the most recent
five academic years.
(c) Each junior college district shall adopt a policy
stating its commitment to developing, maintaining, and enhancing
participation by historically underutilized businesses in all
phases of the district's procurement processes in order to support,
to the greatest extent feasible, the efforts of historically
underutilized businesses to compete for purchases of equipment,
supplies, services, including professional services, and
construction contracts.
(d) Annually, each junior college district shall publish a
report of the total number and total value of contracts awarded by
the district in the preceding fiscal year and the number and total
value of those contracts awarded to historically underutilized
businesses. The report must be published in a newspaper of general
circulation in the county in which the majority of the territory or
population of the district is located not later than the 60th day
following the last day of the district's fiscal year.
Sec. 130.0105. RIGHT TO WORK. (a) This section applies to
a junior college district while the district is engaged in:
(1) procuring goods or services;
(2) awarding a contract; or
(3) overseeing procurement or construction for a
public work or public improvement.
(b) Notwithstanding any other provision of this chapter, a
junior college district:
(1) may not consider whether a vendor is a member of or
has another relationship with an organization; and
(2) shall ensure that its bid specifications and any
subsequent contract or other agreement do not deny or diminish the
right of a person to work because of the person's membership in or
other relationship status with respect to an organization.
Sec. 130.0106. CONTRACT WITH PERSON INDEBTED TO DISTRICT.
(a) The board of trustees of a junior college district by
resolution may establish rules permitting the district to refuse to
enter into a contract or other transaction with a person indebted to
the district.
(b) It is not a violation of this subchapter for a junior
college district, under rules adopted under Subsection (a), to
refuse to award a contract to, or refuse to enter into a transaction
with, an apparent low bidder or successful proposer that is
indebted to the district.
Sec. 130.0107. EFFICIENCY AND SAVINGS. In order to
increase efficiency of operations and to achieve savings through
volume purchases, on an annual basis a junior college district
shall identify common types of goods and services to be purchased
from the district's budget and, to the extent the district
determines practicable, consolidate the purchase of those goods or
services under contracts entered into under this subchapter.
SECTION 4. Chapter 130, Education Code, is amended by
adding Subchapters K, L, M, and N to read as follows:
SUBCHAPTER K. PURCHASING CONTRACTS FOR GOODS AND SERVICES OTHER
THAN CONSTRUCTION OR PROFESSIONAL SERVICES
Sec. 130.251. DEFINITIONS. In this subchapter:
(1) "Board of trustees" means the governing board of a
district.
(2) "District" means a junior college district.
(3) "Purchase of goods":
(A) includes:
(i) contracting for the rights to use
rather than own goods; and
(ii) purchase of the materials and labor
incidental to the delivery and installation of personal property;
and
(B) does not include the purchase or lease of
real property.
(4) "Services" does not include:
(A) construction services; or
(B) professional services, including services of
a consultant, to which Subchapter N applies.
Sec. 130.2511. USE OF TERMS "BIDDER," "VENDOR," AND "BID."
(a) In this subchapter, the terms "bidder" and "vendor" are used
interchangeably to identify an entity that responds to a request
for competitive bids, proposals, or qualifications.
(b) In this subchapter, the term "bid" is used to refer to a
competitive bid, proposal, or statement of qualifications.
Sec. 130.252. CONFLICT WITH OTHER LAW. To the extent of any
conflict, this subchapter prevails over any other law relating to
the purchase of goods and services by a district other than a law
relating to:
(1) contracting with historically underutilized
businesses; or
(2) the procurement of goods and services from persons
with disabilities.
Sec. 130.253. PURCHASE METHODS. (a) Except as otherwise
provided by this subchapter and subject to Section 130.264, each
contract by a district with a value of $50,000 or more that covers
one or more fiscal years shall be made by the method, of the
following methods, that provides the best value for the district:
(1) competitive sealed bids;
(2) competitive sealed proposals;
(3) the reverse auction procedure defined by Section
2155.062(d), Government Code; or
(4) the formation of a political subdivision
corporation under Section 304.001, Local Government Code.
(b) Only one of the methods listed in Subsection (a) may be
used for any individual contract. The district must determine
which method provides the best value for the district before
publishing the notice required by Section 130.258.
(c) If the district uses the competitive sealed proposal
method, the district shall:
(1) reveal when the proposals are opened the names of
the companies submitting proposals; and
(2) keep the contents of the proposals confidential
until the district concludes negotiations and awards a contract.
(d) Without complying with Subsection (a), a district may
purchase a good or service that is available from only one source,
including:
(1) an item for which competition is precluded because
of the existence of a patent, copyright, secret process, or
monopoly;
(2) a film, recording, periodical, manuscript, book,
or computer software;
(3) a utility service, including gas or water;
(4) a captive replacement part or component for
equipment;
(5) a product needed to match or work with like
products; and
(6) technical or specialized services, including
advertising, audio/video production, and the repair and
maintenance of specialized equipment.
(e) Without complying with Subsection (a), a district may
purchase perishable goods, advertising services, meeting and
catering services, and travel services, including airfare, ground
transportation, and all lodging. The district shall exercise
reasonable and prudent care to determine whether a contract with a
provider will provide the best value to the district. The district
shall document the process for selecting the provider of the goods
or services and shall maintain a list of prospective providers
contacted and the basis for selecting the provider. To the extent
practicable, the district shall state its requirements in writing
and require written proposals or quotations from prospective
providers. After rating and ranking all offers received, the
district shall attempt to negotiate a contract with the highest
ranked vendor. If a contract cannot be negotiated with the highest
ranked vendor, the next-highest-ranked vendor shall be contacted.
If the value of a purchase to be made under this section is
estimated to be $50,000 or greater, the district shall publish
notice of the intent to purchase as provided under Section 130.258.
If the value of a purchase to be made under this section is
estimated to be $10,000 or more but less than $50,000 during a
fiscal year, the award of a contract must be made in accordance with
a policy established by the board of trustees.
(f) Without complying with Subsection (a), a district may
purchase a good or service under:
(1) an interlocal contract under Chapter 791,
Government Code;
(2) a contract established by the comptroller or
Department of Information Resources, including a contract for the
purchase of travel services, telephone service, computers, and
computer-related equipment, service, and software; or
(3) a purchase made under Subchapter D, F, or G,
Chapter 271, Local Government Code.
(g) Contracts for services that result in no cost to the
district or that provide income to a district must be based on bids,
proposals, or qualifications that are solicited and awarded in the
same manner as a contract for the purchase of goods or services.
Such contracts include contracts for bookstore services, food
services, and vending services.
(h) If district property is destroyed, stolen, severely
damaged, or unusable, or a contractor is unable to fulfill its
obligations in providing goods or services, and the board of
trustees, or its designee, determines that the delay posed by using
the methods required by Subsection (a) would pose a material threat
to personal safety or potential damage to other property or would
prevent or substantially impair the conduct of classes or other
essential district activities, then contracts for the replacement
or repair of the property may be made by methods other than those
required by Subsection (a).
Sec. 130.254. PURCHASE OF INSURANCE. (a) A district may
acquire insurance using a two-step process to obtain competitive
sealed proposals. In the first step, the district shall determine
which insurance providers are represented by agents interested in
providing insurance for the district. If more than one agent
indicates a desire to represent the same provider, the agent with
the longest and most substantial relationship with the insurance
provider shall be authorized to submit a proposal for the
designated insurance provider. In the second step, the district
shall notify the interested agents in writing as to which insurance
providers the agents represent and request the agents to submit
proposals for providing insurance.
(b) In notifying the interested agents to begin the second
step, the district is not required to comply with Section 130.258.
However, the district in the request for proposals shall give the
interested agents notice of the date, time, and place where
proposals are to be submitted. Proposals received after the date
and time stated in the request for proposals may not be considered.
Sec. 130.255. MULTIYEAR CONTRACT. A contract that extends
past the end of a district's fiscal year must include a provision
that permits termination at the end of each fiscal year. Contracts
solely for the purchase of goods may not exceed five years in
duration.
Sec. 130.256. EVALUATION AND AWARD OF CONTRACT.
(a) Except as otherwise provided by this subchapter, a district
shall award a contract to the lowest responsible bidder offering
the best value to the district according to the selection criteria
established by the district. The district shall publish in the
request for bids, proposals, or qualifications the criteria the
district will use to evaluate the offers and the relative weights
given to the criteria that are known at the time of the publication.
(b) In determining the lowest responsible bidder, the
district shall consider:
(1) the purchase price, including delivery and
installation charges;
(2) the reputation of the bidder and of the bidder's
goods or services;
(3) the quality of the bidder's goods or services;
(4) the extent to which the offered goods or services
meet the district's needs;
(5) the bidder's past relationship with the district;
(6) the total long-term cost to the district to
acquire the bidder's goods or services;
(7) the extent to which the offers comply with the
requirements of the request for bids, proposals, or qualifications;
(8) any other relevant factor specifically listed in
the request for bids or proposals; and
(9) the impact on the ability of the district to comply
with laws and rules relating to historically underutilized
businesses.
(c) A district may reject any or all bids, proposals, or
qualifications, or parts of bids, proposals, or qualifications if
the rejection serves the district's interest.
(d) The district shall provide all bidders with the
opportunity to bid to provide the same goods or services on equal
terms and to have bids judged according to the same standards as
those set forth in the request for bids.
(e) Bids may be opened only by the district in a
district-owned or district-controlled facility. The meeting or
other occasion at which bids are opened shall be open to the public.
At the time the district opens a bid, if one or more members of the
public are present, the appropriate employee or officer of the
district shall read aloud the name of the bidder and the total bid
amount, if the bid is of a type that should contain a single bid
amount. When opening proposals or qualifications, the appropriate
employee or officer shall read aloud only the name of the
respondents and may not disclose the contents of a proposal or
qualification on opening or during negotiations with competing
bidders. At least two district employees or members of the
district's board of trustees must be present at the bid, proposal,
or qualification opening.
(f) A bid that has been opened may not be changed for the
purpose of correcting an error in the bid price. If there is a
discrepancy between the total price and the unit price of a bid, the
unit price prevails. If there is a discrepancy between the written
price and the numerical price of a bid, the written price prevails.
(g) This subchapter does not change the common law right of
a bidder to withdraw a bid due to a material mistake in the bid.
(h) The district shall document the basis of its selection
and shall make its evaluations public not later than the seventh day
after the date the contract is awarded. The district shall state in
writing in the contract file the reasons for making an award.
(i) A contract awarded in violation of this subchapter is
void.
(j) In awarding a contract by competitive sealed bid under
this section, a district that has its central administrative office
located in a municipality with a population of less than 250,000 may
consider a bidder's principal place of business in the manner
provided by Section 271.9051, Local Government Code. This
subsection does not apply to the purchase of telecommunications
services or information services, as those terms are defined by 47
U.S.C. Section 153.
Sec. 130.257. RULES AND PROCEDURES; AUDITS BY STATE
AUDITOR. (a) The board of trustees may adopt rules and procedures
for the acquisition of goods or services by the district.
(b) District purchases of goods or services are subject to
audit by the state auditor in accordance with Chapter 321,
Government Code.
Sec. 130.258. NOTICE. (a) Except as otherwise provided by
this subchapter, for any method of contracting selected under
Section 130.253(a), the district shall, within a seven-day period,
publish the notice required by this section in at least two issues
of any newspaper of general circulation in the county in which the
district's central administrative office is located. The deadline
for receiving bids or proposals may not be less than 10 business
days after the date of the publication of the first newspaper
notice. The deadline for receiving responses to a request for
qualifications may not be less than five business days after the
date of the publication of the last newspaper notice. If there is
not a newspaper of general circulation in the county in which the
district's central administrative office is located, the notice
shall be published in a newspaper of general circulation in a
location nearest the district's central administrative office. In
a two-step procurement process, the time and place where the
second-step bids, proposals, or responses will be received are not
required to be included in the notice.
(b) The district may, as an alternative to publishing notice
in a newspaper exclusively under Subsection (a), publish on a
publicly accessible Internet site the notice required by this
section. Before or at the same time the district first publishes
the Internet notice, the district shall publish a notice in a
newspaper of general circulation, as described by Subsection (a),
that includes the name of the goods or services to be purchased, the
date, time, and place for receiving and opening bids, proposals, or
statements of qualifications, and the Internet address of the
Internet site where detailed requirements may be found. The notice
posted on the Internet under this subsection must be posted every
day for at least:
(1) 10 business days before the deadline for receiving
the bids or proposals; or
(2) five business days before the deadline for
receiving responses to a request for qualifications.
(c) Except as otherwise provided by Subsection (b) for the
newspaper notice required by that subsection, the notice required
by this section must include:
(1) the location where the request for bid, proposal,
or qualification documents may be obtained or examined;
(2) the date, time, and place for receiving and
opening bids, proposals, or statements of qualifications;
(3) a general description of the goods or services;
(4) the location and time of any mandatory site
inspections or pre-bid meetings; and
(5) the amount of any required bid bond, payment bond,
or performance bond.
Sec. 130.259. DISCUSSION AND REVISION OF PROPOSALS.
(a) As provided in a request for proposals and under rules adopted
by the district, the district may discuss acceptable or potentially
acceptable proposals with bidders to assess a bidder's ability to
meet the solicitation requirements.
(b) After receiving a proposal but before making an award,
the district may permit the three highest-ranking bidders to revise
their proposals, within the scope of the published specifications,
to obtain the best final offer.
(c) Before an award, the district may not disclose
information derived from proposals submitted from competing
bidders in conducting discussions under this section.
Sec. 130.260. PRE-BID CONFERENCE OR SITE VISIT. (a) The
district may require a principal, officer, or employee of each
prospective bidder to attend a mandatory pre-bid conference or site
visit, or both, as a condition of a request for bid or proposal.
Notice of a requirement under this subsection must be included in
the notice published under Section 130.258.
(b) After the district conducts a mandatory pre-bid
conference or site visit, the district may send any additional
required notice for the proposed contract only to prospective
bidders who attended or were represented at the conference or who
are documented as having visited the site.
Sec. 130.261. IDENTICAL BIDS. If, after considering the
factors described by Section 130.256, the district determines that
the district has received identical bids, the district shall cast
lots to determine which bidder will be awarded the contract. The
district shall invite the bidders to witness the selection process
under this section. The selection process must be conducted by at
least two district employees or members of the district's board of
trustees.
Sec. 130.262. BID DEPOSIT. (a) The district may, as the
district determines necessary, require a bid deposit in an amount
determined by the district. The amount of the deposit, if any, must
be stated in the notice required by Section 130.258 of the
invitation to bid.
(b) On the award of a contract or the rejection of all bids,
the district shall return the bid deposit of an unsuccessful
bidder. The bid deposit of the successful bidder may be retained
until the contract is signed by the district. A bid deposit may not
be held longer than 90 days.
(c) The bid deposit required by the district, if any, must
be in the form of a cashier's check, certified check, or bid bond
written by a surety authorized to conduct business in this state. A
district may elect to require a bid deposit to be in the form of a
bid bond.
Sec. 130.263. PERFORMANCE BOND. A district may require a
contractor to provide a performance bond in the amount of the
contract before executing a contract for the purchase of goods or
services with a value of $100,000 or more. The bond must be written
by a surety authorized to conduct business in this state and
generally comply with the performance bond requirements of Chapter
2253, Government Code.
Sec. 130.264. ENFORCEMENT OF PURCHASING PROCEDURES:
CRIMINAL PENALTIES; REMOVAL; INELIGIBILITY; INJUNCTION. (a) In
this section:
(1) "Component purchases" means purchases of the
component parts of an item that in normal purchasing practices
would be purchased in one purchase.
(2) "Separate purchases" means purchases, made
separately, of goods or services that in normal purchasing
practices would be purchased in one purchase.
(3) "Sequential purchases" means purchases, made over
a period, of goods or services that in normal purchasing practices
would be purchased in one purchase.
(b) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence makes or authorizes
separate, sequential, or component purchases for the purpose of
avoiding the requirements of Section 130.253, 130.256, or 130.266.
An offense under this subsection is a Class B misdemeanor and is an
offense involving moral turpitude that results in a forfeiture of
an officer's public office.
(c) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence violates Section
130.253, 130.256, or 130.266 other than by conduct described by
Subsection (b). An offense under this subsection is a Class B
misdemeanor and is an offense involving moral turpitude that
results in a forfeiture of an officer's public office.
(d) An officer or employee of a district commits an offense
if the officer or employee knowingly violates Section 130.253,
130.256, or 130.266 other than by conduct described by Subsection
(b) or (c). An offense under this subsection is a Class C
misdemeanor.
(e) The final conviction of a person other than a member of
the board of trustees for an offense under Subsection (b) or (c)
results in the immediate removal from office or employment of that
person. A trustee who is convicted of an offense under this section
is subject to removal as provided by Chapter 66, Civil Practice and
Remedies Code. For four years after the date of the final
conviction, the removed person is ineligible to be a candidate for
or to be appointed or elected to a public office in this state, is
ineligible to be employed by or act as an agent for this state or a
political subdivision of this state, and is ineligible to receive
any compensation through a contract with this state or a political
subdivision of this state. This subsection does not prohibit the
payment of retirement benefits to the removed person or the payment
of workers' compensation benefits to the removed person for an
injury that occurred before the commission of the offense for which
the person was removed. This subsection does not make a person
ineligible for an office for which the federal or state
constitution prescribes exclusive eligibility requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, district
attorney, criminal district attorney, citizen of the county in
which the district is located, or an interested party may bring an
action for an injunction. A party who prevails in an action brought
under this subsection is entitled to reasonable attorney's fees as
approved by the court.
Sec. 130.265. PURCHASE AGREEMENTS AND VENDOR LISTS FOR
MISCELLANEOUS PURCHASES. (a) This section applies only to the
selection and engagement of vendors from which a district may
purchase goods or services, including produce, gasoline, and fuel
oil, where the total cost of the goods and services is expected to
be $50,000 or more during a fiscal year but the selling price must
be determined at the time the need for the goods and services
arises.
(b) The notice requirements of Section 130.258 apply to
purchases made under this section, except that the notice must
specify the categories of goods or services to be purchased under
this section and solicit the names, addresses, and telephone
numbers of bidders who are interested in supplying the goods or
services to the district. The district shall create and provide a
proposal form to be used by interested bidders. The form must
describe the goods or services that may be required and the terms
and conditions of, and method for, determining the price of the
bidders' products and services. Bidders desiring to be included on
the list must complete and sign the district's form. The district
shall determine which bidders are qualified to be included on a list
of bidders from which goods and services may be purchased during the
applicable fiscal year.
(c) Before the district makes a purchase covered by this
section, the district must obtain written price quotations from at
least three bidders from the list created by the district for that
category. If fewer than three bidders are on the list, the district
shall contact each bidder on the list. If more than three bidders
are on the list, the district may invite all bidders to provide a
quotation or may select three bidders on a rotational basis each
time a purchase is to be made. The bidding records must be retained
with the district's competitive bidding records and are subject to
audit. In determining from whom to purchase the goods or services,
the district may consider the provisions of Section 130.256.
Sec. 130.266. PURCHASES MADE WITHOUT ADVERTISING.
(a) Except as provided under Sections 130.253(d), (f), (g), and
(h), a purchase of goods or services with a cost of $10,000 or more
but less than $50,000 must be made by written competitive bids or
proposals. A minimum of three bids or proposals must be considered
before the award of a contract or order for the specified goods or
services. A district is not required to advertise the purchase.
(b) In determining from whom to purchase the goods or
services under this section, the district shall consider the
provisions of Section 130.256.
(c) A person may not use the process described by this
section to knowingly violate Section 130.264.
Sec. 130.267. NOTIFICATION OF CRIMINAL HISTORY OF
CONTRACTOR. (a) A person or business entity that enters into a
contract with a district must give advance notice to the district if
the person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a felony.
(b) A district may refuse to enter into a contract or other
transaction with a person who has been convicted of a felony or with
a business entity if an owner or operator of the entity has been
convicted of a felony.
(c) A district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection (a)
or misrepresented the conduct resulting in the conviction. The
district must compensate the person or business entity for goods
delivered or services performed before the termination of the
contract.
(d) This section does not apply to a publicly held
corporation.
Sec. 130.268. PREFERENCE TO TEXAS AND UNITED STATES
PRODUCTS. (a) A district that purchases agricultural products
shall give preference to those products produced, processed, or
grown in this state if the cost to the district for those products
is equal to or less than the cost of other products and the quality
of those products is equal to or exceeds the quality of other
products.
(b) If a district determines that agricultural products
produced, processed, or grown in this state are not entitled to a
preference under Subsection (a), the district shall give preference
to agricultural products produced, processed, or grown in other
states of the United States over foreign products if the cost to the
district for those products is equal to or less than the cost of
foreign products and the quality of those products is equal to or
exceeds the quality of the foreign products.
(c) A district that purchases vegetation for landscaping
purposes, including plants, shall give preference to Texas
vegetation if the cost to the district for that vegetation is equal
to or less than the cost of other vegetation and the quality of that
vegetation is not inferior to the quality of other vegetation.
(d) In implementing this section, a district may receive
assistance from and use the resources of the Department of
Agriculture, including information on the availability of
agricultural products.
(e) A district may not adopt product purchasing
specifications that unnecessarily exclude agricultural products
produced, processed, or grown in this state.
Sec. 130.269. EFFICIENCY AND SAVINGS. In order to increase
efficiency of operations and to achieve savings through volume
purchases, on an annual basis a district shall identify common
types of goods and services to be purchased from the district's
budget and, to the extent the district determines practicable,
consolidate the purchase of those goods or services under contracts
entered into under this subchapter.
Sec. 130.270. DELEGATION. (a) Except as provided by
Subsection (b), the board of trustees may, as appropriate, delegate
its authority under this subchapter to a designated person,
representative, or committee. In procuring goods or services other
than construction services, the district shall provide notice of
the delegation and the limits of the delegation in the request for
bids, proposals, or qualifications or in an addendum to the
request. If the district fails to provide that notice, a ranking,
selection, or evaluation of bids, proposals, or qualifications
other than by the board of trustees in an open public meeting is
advisory only.
(b) The board may not delegate the authority to act
regarding an action specifically authorized or required by this
subchapter to be taken by the board of trustees.
[Sections 130.271-130.300 reserved for expansion]
SUBCHAPTER L. CONSTRUCTION CONTRACTS
Sec. 130.301. DEFINITIONS. In this subchapter:
(1) "Architect" means an individual registered as an
architect under Chapter 1051, Occupations Code.
(2) "Board of trustees" means the governing board of a
district.
(3) "Construction" means the construction,
rehabilitation, alteration, or repair of a facility, including all
goods and labor incidental to the construction.
(4) "Contractor" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means a sole proprietorship, partnership, corporation, or other
legal entity that assumes the risk for constructing,
rehabilitating, altering, or repairing all or part of the facility
at the contracted price.
(5) "District" means a junior college district.
(6) "Engineer" means an individual licensed as a
professional engineer under Chapter 1001, Occupations Code.
(7) "Facility" means real property or a public work,
including buildings and associated systems, structures, and
components, and improved or unimproved land.
(8) "Fee" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means the payment a construction manager receives for its overhead
and profit in performing its services.
(9) "General conditions" in the context of a contract
for the construction, rehabilitation, alteration, or repair of a
facility means on-site management, administrative personnel,
insurance, bonds, equipment, utilities, and incidental work,
including minor field labor and materials.
Sec. 130.302. USE OF TERMS "BIDDER," "OFFEROR," "VENDOR,"
AND "BID." (a) In this subchapter, the terms "bidder," "offeror,"
and "vendor" are used interchangeably to identify an entity that
responds to a request for competitive bids or proposals, or for
offers or qualifications.
(b) In this subchapter, the term "bid" is used to refer to a
competitive bid or proposal or to a statement of qualifications.
Sec. 130.303. METHODS OF CONTRACTING. (a) Except as
otherwise provided by this subchapter and subject to Section
130.313, all contracts for construction, rehabilitation,
alteration, or repair of facilities valued at $50,000 or more shall
be made by the method, of the following methods, that provides the
best value for the district:
(1) competitive sealed bids;
(2) competitive sealed proposals;
(3) a design-build contract;
(4) a construction manager-at-risk; or
(5) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility.
(b) Only one of the methods listed in Subsection (a) may be
used for any individual contract. A district must determine which
method provides the best value for the district before providing
the notice required by Section 130.306.
(c) If the district uses the competitive sealed proposal
method, the district shall:
(1) reveal when the proposals are opened the names of
the companies submitting proposals; and
(2) keep the contents of the proposals confidential
until the district concludes negotiations and awards a contract.
(d) A district may contract for the services of a
construction manager-agent as provided by Section 130.318 in
conjunction with the method of contracting selected under
Subsection (a).
(e) If district property is destroyed, stolen, severely
damaged, unusable, or undergoes major operational or structural
failure, or a contractor is unable to fulfill its obligations in
providing goods or services, and the board of trustees, or its
designee, determines that the delay posed by using the methods
required by Subsection (a) would pose a material threat to personal
safety or potential damage to other property or would prevent or
substantially impair the conduct of classes or other essential
district activities, then contracts for the replacement or repair
of the property may be made by methods other than those required by
Subsection (a).
Sec. 130.304. EVALUATION AND AWARD OF CONTRACT.
(a) Except as otherwise provided by this subchapter, a district
shall award a contract to the lowest responsible bidder offering
the best value to the district according to the selection criteria
established by the district. The district shall publish in the
request for bids, proposals, or qualifications the criteria the
district will use to evaluate the offers and the relative weights
given to the criteria that are known at the time of the publication.
(b) In determining the lowest responsible bidder, the
district may consider:
(1) the immediate and long-term cost of the service;
(2) the reputation of the bidder;
(3) the quality of the bidder's services;
(4) the extent to which the offered services meet the
district's needs;
(5) the bidder's past relationship with the district;
(6) the extent to which the offers comply with the
requirements of the request for bids, proposals, or qualifications;
(7) any other relevant factor specifically listed in
the request for bids or proposals;
(8) the impact on the ability of the district to comply
with laws and rules relating to historically underutilized
businesses; and
(9) the bidder's safety record, if:
(A) the district has adopted a written definition
and criteria for accurately determining the safety record of a
bidder;
(B) the district has given notice to prospective
bidders in the request for bids that the safety record of a bidder
may be considered in determining the responsibility of the bidder;
and
(C) the district's determinations are not
arbitrary and capricious.
(c) A district may reject any or all bids, proposals,
qualifications, or parts of bids, proposals, or qualifications if
the rejection serves the district's interest.
(d) The district shall provide all bidders with the
opportunity to submit a bid or proposal to provide the same items or
services on equal terms and have bids judged according to the same
standards as those set forth in the request for bids.
(e) Bids may be opened only by the district in a
district-owned or district-controlled facility. The meeting or
other occasion at which bids are opened must be open to the public.
At the time the district opens a bid, if one or more members of the
public are present, the appropriate employee or officer of the
district shall read aloud the name of the bidder and the total bid
amount if the bid is of a type that should contain a single bid
amount. At least two district employees or members of the board of
trustees must be present at the bid opening. When opening proposals
or qualifications, the appropriate employee or officer shall read
aloud only the names of the respondents and may not disclose the
contents of a proposal or qualification on opening the proposal or
qualification or during negotiations with competing bidders.
(f) A bid that has been opened may not be changed for the
purpose of correcting an error in the bid price.
(g) This subchapter does not change the common law right of
a bidder to withdraw a bid due to a material mistake in the bid.
(h) The district shall document the basis of its selection
and shall make its evaluations public not later than the seventh day
after the date the contract is awarded. The district shall state in
writing in the contract file the reasons for making an award.
(i) A contract awarded in violation of this subchapter is
void.
(j) In awarding a contract by competitive sealed bid under
this section, a district that has its central administrative office
located in a municipality with a population of less than 250,000 may
consider a bidder's principal place of business in the manner
provided by Section 271.9051, Local Government Code. This
subsection does not apply to the purchase of telecommunications
services or information services, as those terms are defined by 47
U.S.C. Section 153.
Sec. 130.305. RULES AND PROCEDURES; AUDITS BY STATE
AUDITOR. (a) The board of trustees may adopt rules and procedures
for the acquisition of construction services by the district.
(b) District construction contracts are subject to audit by
the state auditor in accordance with Chapter 321, Government Code.
Sec. 130.306. NOTICE. (a) For any method of contracting
selected under Section 130.303(a), the district shall, within a
seven-day period, publish the notice required by this section in at
least two issues of any newspaper of general circulation in the
county in which the district's central administrative office is
located. The deadline for receiving bids, proposals, or responses
to a request for qualifications may not be less than 10 business
days after the date of the publication of the first newspaper
notice. If there is not a newspaper of general circulation in the
county in which the district's central administrative office is
located, the notice shall be published in a newspaper of general
circulation in a location nearest the district's central
administrative office. In a two-step procurement process, the time
and place where the second-step bids, proposals, or responses will
be received are not required to be included in the notice.
(b) The notice required by this section must include:
(1) the location where the request for bid, proposal,
or qualification documents may be obtained or examined;
(2) the date, time, and place for receiving and
opening bids, proposals, or statements of qualifications;
(3) a general description of the work to be performed;
(4) the location and time of any mandatory site
inspections or pre-bid meetings; and
(5) the amount of any required bid bond, payment bond,
or performance bond.
Sec. 130.307. DISCUSSION AND REVISION OF PROPOSALS.
(a) After receipt of proposals, under rules adopted by the
district, the district may discuss acceptable or potentially
acceptable proposals with bidders to assess a bidder's ability to
meet the solicitation requirements.
(b) After receiving a proposal but before making an award,
the district may permit the three highest-ranking bidders to revise
their proposals, within the scope of the published specifications,
to obtain the best final offer.
(c) Before an award, the district may not disclose
information derived from proposals submitted from competing
bidders in conducting discussions under this section.
Sec. 130.308. PRE-BID CONFERENCE OR SITE VISIT. (a) The
district may require a principal, officer, or employee of each
prospective bidder to attend a mandatory pre-bid conference or site
visit, or both, as a condition of a request for bid or proposal.
Notice of a requirement under this subsection must be included in
the notice published under Section 130.306.
(b) After the district conducts a mandatory pre-bid
conference or site visit, the district may send any additional
required notice for the proposed contract only to prospective
bidders who attended or were represented at the conference or who
are documented as having visited the site.
Sec. 130.309. IDENTICAL BIDS. If, after considering the
factors described by Section 130.304, the district determines that
the district has received identical bids, the district shall cast
lots to determine which bidder will be awarded the contract. The
district shall invite the bidders to witness the selection process
under this section. The selection process must be conducted by at
least two district employees or members of the district's board of
trustees.
Sec. 130.310. BID DEPOSIT. (a) The district may, as the
district determines necessary, require a bid deposit in an amount
determined by the district. The amount of the deposit, if any, must
be stated in the notice required by Section 130.306 of the
invitation to bid.
(b) Within 10 days from the date of the award of a contract
or the rejection of all bids, the district shall refund the bid
deposit of an unsuccessful bidder. The bid bonds may not be held
for more than 90 days. Before the award of a contract, the district
may return bid bonds of bidders that are not being considered for
award of a contract.
(c) For public work contracts, the bid deposit required by
the district, if any, may only be in the form of a bid bond written
by a surety authorized to conduct business in this state.
Sec. 130.311. PERFORMANCE AND PAYMENT BONDS. For a
contract for construction, the contractor must execute a good and
sufficient payment bond and a performance bond in accordance with
Chapter 2253, Government Code.
Sec. 130.312. DELEGATION. (a) Except as provided by
Subsection (b), the board of trustees may, as appropriate, delegate
its authority under this subchapter to a designated person,
representative, or committee. In procuring construction services,
the district shall provide notice of the delegation and the limits
of the delegation in the request for bids, proposals, or
qualifications or in an addendum to the request. If the district
fails to provide that notice, a ranking, selection, or evaluation
of bids, proposals, or qualifications for construction services
other than by the board of trustees in an open public meeting is
advisory only.
(b) The board may not delegate the authority to act
regarding an action specifically authorized or required by this
subchapter to be taken by the board of trustees.
Sec. 130.313. ENFORCEMENT OF CONTRACT SOLICITATION
PROCEDURES: CRIMINAL PENALTIES; REMOVAL; INELIGIBILITY;
INJUNCTION. (a) In this section:
(1) "Component procurements" means procuring the
component parts of an item or service that in normal practice would
be made in one procurement.
(2) "Separate procurements" means procurements, made
separately, of goods or services that in normal practice would be
made in one procurement.
(3) "Sequential procurement" means procurements, made
over a period, of goods or services that in normal practice would be
made in one procurement.
(b) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence makes or authorizes
separate, sequential, or component procurements for the purpose of
avoiding the requirements of Section 130.303 or 130.304. An
offense under this subsection is a Class B misdemeanor and is an
offense involving moral turpitude that results in a forfeiture of
an officer's public office.
(c) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence violates Section
130.303, 130.304, or 130.315 other than by conduct described by
Subsection (b). An offense under this subsection is a Class B
misdemeanor and is an offense involving moral turpitude that
results in a forfeiture of an officer's public office.
(d) An officer or employee of a district commits an offense
if the officer or employee knowingly violates Section 130.303,
130.304, or 130.315 other than by conduct described by Subsection
(b) or (c). An offense under this subsection is a Class C
misdemeanor.
(e) The final conviction of a person other than a member of
the board of trustees for an offense under Subsection (b) or (c)
results in the immediate removal from office or employment of that
person. A member of the board of trustees who is convicted of an
offense under this section is subject to removal as provided by
Chapter 66, Civil Practice and Remedies Code. For four years after
the date of the final conviction, the removed person is ineligible
to be a candidate for or to be appointed or elected to a public
office in this state, is ineligible to be employed by or act as an
agent for this state or a political subdivision of this state, and
is ineligible to receive any compensation through a contract with
this state or a political subdivision of this state. This
subsection does not prohibit the payment of retirement benefits to
the removed person or the payment of workers' compensation benefits
to the removed person for an injury that occurred before the
commission of the offense for which the person was removed. This
subsection does not make a person ineligible for an office for which
the federal or state constitution prescribes exclusive eligibility
requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, district
attorney, criminal district attorney, citizen of the county in
which the district is located, or an interested party may bring an
action for an injunction. A party who prevails in an action brought
under this subsection is entitled to reasonable attorney's fees as
approved by the court.
Sec. 130.314. NOTIFICATION OF CRIMINAL HISTORY OF
CONTRACTOR. (a) A person or business entity that enters into a
contract with a district must give advance notice to the district if
the person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a felony.
(b) A district may refuse to enter into a contract or other
transaction with a person who has been convicted of a felony or with
a business entity if an owner or operator of the entity has been
convicted of a felony.
(c) A district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection (a)
or misrepresented the conduct resulting in the conviction. The
district must compensate the person or business entity for goods
delivered or services performed before the termination of the
contract.
(d) This section does not apply to a publicly held
corporation.
Sec. 130.315. CHANGE ORDERS. (a) After performance of a
construction contract begins, a district may approve change orders
if necessary to:
(1) make changes in plans or specifications; or
(2) decrease or increase the quantity of work to be
performed or materials, equipment, or supplies to be furnished.
(b) The total price of a contract may not be increased by a
change order unless provision has been made for the payment of the
added cost by the appropriation of current funds or bond funds for
that purpose, by the authorization of the issuance of certificates,
or by a combination of those procedures. The original contract
price may not be increased by more than 25 percent unless the board
of trustees determines the change is due to causes beyond the
reasonable control of the district or contractor.
(c) Except as provided by Subsection (b) or Section
130.303(e), a person, including a member of the board of trustees,
who knowingly authorizes one or more change orders that, in the
aggregate, exceed 25 percent of the original contract price is
subject to Section 130.313.
Sec. 130.316. ERRORS AND OMISSIONS INSURANCE. For any
public work contract awarded under this subchapter, to protect the
interest of the district, the architect or engineer that prepared
the plans and specifications for the public work shall, at the
architect's or engineer's expense, carry an errors and omissions
insurance policy in an amount not less than $1 million or the value
of the work if the work has a value of less than $1 million.
Sec. 130.317. DESIGN-BUILD CONTRACTS FOR FACILITIES.
(a) In this section:
(1) "Design-build contract" means a single contract
with a design-build firm for the design and construction of a
facility.
(2) "Design-build firm" means a partnership,
corporation, or other legal entity or team that includes an
engineer or architect and a builder qualified to engage in building
construction in this state.
(3) "Design criteria package" means a set of documents
that provides sufficient information, including criteria for
selection, to permit a design-build firm to prepare a response to a
district's request for qualifications and to the district's request
for any additional information. The design criteria package must
specify criteria the district considers necessary to describe the
project and may include, as appropriate, the legal description of
the site, survey information concerning the site, interior space
requirements, special material requirements, material quality
standards, conceptual criteria for the project, special equipment
requirements, cost or budget estimates, time schedules, quality
assurance and quality control requirements, site development
requirements, applicable codes and ordinances, provisions for
utilities, parking requirements, or any other requirement, as
applicable.
(b) A district may use the design-build method for the
construction, rehabilitation, alteration, or repair of a facility.
In using that method and in entering into a contract for the
services of a design-build firm, the contracting district and the
design-build firm shall follow the procedures provided by
Subsections (c)-(j).
(c) The district may designate an engineer or architect to
act as its representative. If the district's engineer or architect
is not a full-time employee of the district, any engineer or
architect designated shall be selected on the basis of demonstrated
competence and qualifications in accordance with Subchapter A,
Chapter 2254, Government Code.
(d) The district shall prepare a request for qualifications
that includes general information on the project site, project
scope, budget, special systems, selection criteria, and other
information that may assist potential design-build firms in
submitting proposals for the project. The district shall also
prepare a design criteria package that includes more detailed
information on the project. If the preparation of the design
criteria package requires engineering or architectural services
that constitute the practice of engineering within the meaning of
Chapter 1001, Occupations Code, or the practice of architecture
within the meaning of Chapter 1051, Occupations Code, those
services shall be provided in accordance with the applicable law.
(e) The district shall evaluate statements of
qualifications and select a design-build firm in two phases:
(1) In phase one, the district shall prepare a request
for qualifications and evaluate each offeror's experience,
technical competence, and capability to perform, the past
performance of the offeror's team and members of the team, and other
appropriate factors submitted by the team or firm in response to the
request for qualifications, except that cost-related or
price-related evaluation factors are not permitted. Each offeror
must certify to the district that each engineer or architect who is
a member of its team was selected based on demonstrated competence
and qualifications. The district shall qualify a maximum of five
offerors to submit additional information and, if the district
chooses, to interview for final selection.
(2) In phase two, the district shall evaluate the
information submitted by the offerors on the basis of the selection
criteria stated in the request for qualifications and the results
of any interview. The district may request additional information
regarding demonstrated competence and qualifications,
considerations of the safety and long-term durability of the
project, the feasibility of implementing the project as proposed,
the ability of the offeror to meet schedules, costing methodology,
or other factors as appropriate. The district may not require
offerors to submit detailed engineering or architectural designs as
part of the proposal. The district shall rank each proposal
submitted on the basis of the criteria set forth in the request for
qualifications. The district shall select the design-build firm
that submits the proposal offering the best value for the district
on the basis of the published selection criteria and on its ranking
evaluations. The district shall first attempt to negotiate a
contract with the selected offeror. If the district is unable to
negotiate a satisfactory contract with the selected offeror, the
district shall, formally and in writing, end negotiations with that
offeror and proceed to negotiate with the next offeror in the order
of the selection ranking until a contract is reached or
negotiations with all ranked offerors end.
(f) Following selection of a design-build firm under
Subsection (e), that firm's engineers or architects shall complete
the design, submitting all design elements for review and
determination of scope compliance to the district or to the
district's engineer or architect before or concurrently with
construction.
(g) An engineer shall have responsibility for compliance
with the engineering design requirements and all other applicable
requirements of Chapter 1001, Occupations Code. An architect shall
have responsibility for compliance with the requirements of Chapter
1051, Occupations Code.
(h) The district shall provide or contract for,
independently of the design-build firm, the inspection services,
testing of construction materials engineering, and verification
testing services necessary for acceptance of the facility by the
district. The district shall select those services for which it
contracts in accordance with Section 2254.004, Government Code.
(i) The design-build firm shall supply a signed and sealed
set of construction documents for the project to the district at the
conclusion of construction.
(j) A payment or performance bond is not required for, and
may not provide coverage for, the portion of a design-build
contract under this section that includes design services only. If
a fixed contract amount or guaranteed maximum price has not been
determined at the time a design-build contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget, as
specified in the design criteria package. The design-build firm
shall deliver the bonds not later than the 10th day after the date
the design-build firm executes the contract unless the design-build
firm furnishes a bid bond or other financial security acceptable to
the district to ensure that the design-build firm will furnish the
required performance and payment bonds when a guaranteed maximum
price is established.
Sec. 130.318. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT. (a) A district may contract with a construction
manager-agent in conjunction with a contract for the construction,
rehabilitation, alteration, or repair of a facility. In entering
into a contract for the services of a construction manager-agent, a
district shall follow the procedures prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that provides
consultation to the district regarding construction,
rehabilitation, alteration, or repair of a facility. A district
using the services of a construction manager-agent may, under the
contract between the district and the construction manager-agent,
require the construction manager-agent to provide administrative
personnel, equipment necessary to perform duties under this
section, and on-site management and other services specified in the
contract. A construction manager-agent represents the district in
a fiduciary capacity.
(c) Before or concurrently with selecting a construction
manager-agent, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with Chapter
1001 or 1051, Occupations Code, as applicable. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code. The district's engineer or architect may not
serve, alone or in combination with another person, as the
construction manager-agent unless the engineer or architect is
hired to serve as the construction manager-agent under a separate
or concurrent procurement conducted in accordance with this
subchapter. This subsection does not prohibit the district's
engineer or architect from providing customary construction phase
services under the engineer's or architect's original professional
service agreement with the district and in accordance with
applicable licensing laws.
(d) A district shall select a construction manager-agent on
the basis of demonstrated competence and qualifications in the same
manner as provided for the selection of engineers or architects
under Section 2254.004, Government Code.
(e) A district using the services of a construction
manager-agent shall procure, in accordance with applicable law and
in any manner authorized by this chapter, a general contractor,
trade contractors, or subcontractors who will serve as the prime
contractor for their specific portion of the work.
(f) The district or the construction manager-agent shall
procure in accordance with Section 2254.004, Government Code, all
of the testing of construction materials engineering, the
inspection services, and the verification testing services
necessary for acceptance of the facility by the district.
Sec. 130.319. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) A district may use the construction
manager-at-risk method for the construction, rehabilitation,
alteration, or repair of a facility. In using that method and in
entering into a contract for the services of a construction
manager-at-risk, a district shall follow the procedures prescribed
by this section.
(b) A construction manager-at-risk is a sole
proprietorship, partnership, corporation, or other legal entity
that assumes the risk for construction, rehabilitation,
alteration, or repair of a facility at the contracted price as a
general contractor and provides consultation to the district
regarding construction during and after the design of the facility.
(c) Before or concurrently with selecting a construction
manager-at-risk, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with Chapter
1001 or 1051, Occupations Code, as applicable. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code. The district's engineer, architect, or
construction manager-agent for a project may not serve, alone or in
combination with another, as the construction manager-at-risk.
(d) The district shall provide or contract for,
independently of the construction manager-at-risk, the inspection
services, testing of construction materials engineering, and
verification testing services necessary for acceptance of the
facility by the district. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code.
(e) The district shall select the construction
manager-at-risk in either a one-step or two-step process. The
district shall prepare a request for competitive sealed proposals,
in the case of a one-step process, or a request for qualifications,
in the case of a two-step process, that includes general
information on the project site, project scope, schedule, selection
criteria, estimated budget, the time and place for receipt of, as
applicable, proposals or qualifications, a statement as to whether
the selection process is a one-step or two-step process, and other
information that may assist the district in its selection of a
construction manager-at-risk. The district shall state the
selection criteria in the request for proposals or qualifications,
as applicable. The selection criteria may include the offeror's
experience, past performance, safety record, proposed personnel
and methodology, and other appropriate factors that demonstrate the
capability of the construction manager-at-risk. If a one-step
process is used, the district may request, as part of the offeror's
proposal, proposed fees and prices for fulfilling the general
conditions. If a two-step process is used, the district may not
request fees or prices in step one. In step two, the district may
request that five or fewer offerors, selected solely on the basis of
qualifications, provide additional information, including the
construction manager-at-risk's proposed fee and its price for
fulfilling the general conditions.
(f) At each step, the district shall receive, publicly open,
and read aloud the names of the offerors. Within 45 days after the
date of opening the proposals, the district shall evaluate and rank
each proposal submitted in relation to the criteria set forth in the
request for proposals. Within seven days from the date of the award
of the contract, the district shall make public all proposals,
including the fees and prices stated in each proposal.
(g) The district shall select the offeror that submits the
proposal that offers the best value for the district based on the
published selection criteria and on its ranking evaluation. The
district shall first attempt to negotiate a contract with the
selected offeror. If the district is unable to negotiate a
satisfactory contract with the selected offeror, the district
shall, formally and in writing, end negotiations with that offeror
and proceed to negotiate with the next offeror in the order of the
selection ranking until a contract is reached or negotiations with
all ranked offerors end.
(h) A construction manager-at-risk shall publicize notice,
in accordance with Section 130.306, and receive bids or proposals
from trade contractors or subcontractors for the performance of all
major elements of the work other than the minor work that may be
included in the general conditions. A construction manager-at-risk
may seek to perform portions of the work itself if the construction
manager-at-risk submits its bid or proposal for those portions of
the work in the same manner as all other trade contractors or
subcontractors and if the district determines that the construction
manager-at-risk's bid or proposal provides the best value for the
district.
(i) The construction manager-at-risk and the district or
its representative shall review all trade contractor or
subcontractor bids or proposals in a manner that does not disclose
the contents of the bid or proposal during the selection process to
a person not employed by the construction manager-at-risk,
engineer, architect, or district. All bids or proposals shall be
made public after the award of the contract or within seven days
after the date of final selection of bids or proposals, whichever is
later.
(j) If the construction manager-at-risk reviews, evaluates,
and recommends to the district a bid or proposal from a trade
contractor or subcontractor but the district requires another bid
or proposal to be accepted, the district shall compensate the
construction manager-at-risk by a change in price, time, or
guaranteed maximum cost for any additional cost and risk that the
construction manager-at-risk may incur because of the district's
requirement that another bid or proposal be accepted.
(k) If a selected trade contractor or subcontractor
defaults in the performance of its work or fails to execute a
subcontract after being selected in accordance with this section,
the construction manager-at-risk may, without advertising, fulfill
the contract requirements or select a replacement trade contractor
or subcontractor to fulfill the contract requirements.
(l) If a fixed contract amount or guaranteed maximum price
has not been determined at the time the contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget, as
specified in the request for qualifications. The construction
manager-at-risk shall deliver the bonds not later than the 10th day
after the date the construction manager-at-risk executes the
contract unless the construction manager-at-risk furnishes a bid
bond acceptable to the district to ensure that the construction
manager will furnish the required performance and payment bonds
when a guaranteed maximum price is established.
Sec. 130.320. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
contractor for construction, rehabilitation, alteration, or repair
services for a facility through competitive sealed proposals, a
district shall follow the procedures prescribed by this section.
(b) The district shall select or designate an engineer or
architect to prepare construction documents for the project. The
selected or designated engineer or architect has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the district, the district shall select the
engineer or architect on the basis of demonstrated competence and
qualifications as provided by Section 2254.004, Government Code.
(c) The district shall provide or contract for,
independently of the contractor, the inspection services, testing
of construction materials engineering, and verification testing
services necessary for acceptance of the facility by the district.
The district shall select those services for which it contracts in
accordance with Section 2254.004, Government Code, and shall
identify them in the request for proposals.
(d) The district shall prepare a request for competitive
sealed proposals that includes construction documents, selection
criteria, estimated budget, project scope, schedule, and other
information that contractors may require to respond to the request.
(e) The district shall receive, publicly open, and read
aloud the names of the offerors. Within 45 days after the date of
opening the proposals, the district shall evaluate and rank each
proposal submitted in relation to the published selection criteria.
(f) The district shall first attempt to negotiate a contract
with the highest-ranked offeror. The district and its engineer or
architect may discuss with the selected offeror options for a scope
or time modification and any price change associated with the
modification. If the district is unable to negotiate a contract
with the selected offeror, the district shall, formally and in
writing, end negotiations with that offeror and proceed to the next
offeror in the order of the selection ranking until a contract is
reached or all proposals are rejected.
Sec. 130.321. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE BIDDING. Except to the extent
prohibited by other law and to the extent consistent with this
subchapter, a district may use competitive bidding to select a
contractor to perform construction, rehabilitation, alteration, or
repair services for a facility.
Sec. 130.322. JOB ORDER CONTRACTS FOR FACILITIES
CONSTRUCTION OR REPAIR. (a) A district may award job order
contracts for the minor construction, repair, rehabilitation, or
alteration of a facility if the work is of a recurring nature but
the delivery times are indefinite and indefinite quantities and
orders are awarded substantially on the basis of predescribed and
prepriced tasks.
(b) The district may establish contractual unit prices for a
job order contract by:
(1) specifying one or more published construction unit
price books and the applicable divisions or line items; or
(2) providing a list of work items and requiring the
offerors to bid or propose one or more coefficients or multipliers
to be applied to the price book or work items as the price proposal.
(c) The district shall advertise for, receive, and publicly
open sealed proposals for job order contracts. For the purposes of
this section, notice must be published as required under Section
130.306.
(d) The district may require offerors to submit additional
information besides rates, including experience, past performance,
and proposed personnel and methodology.
(e) The district may award job order contracts to one or
more job order contractors in connection with each solicitation of
bids or proposals.
(f) An order for a job or project under the job order
contract must be signed by the district's representative and the
contractor. The order may be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities or may be a unit price order based on the quantities and
line items delivered.
(g) The contractor shall provide payment and performance
bonds, if required by law, based on the amount or estimated amount
of any order.
(h) The base term of a job order contract is for the period
and with any renewal option that the district sets forth in the
request for proposals. If the district fails to advertise that
term, the base term may not exceed two years and is not renewable
without further advertisement and solicitation of proposals.
(i) If a job order contract or an order issued under the
contract requires engineering or architectural services that
constitute the practice of engineering within the meaning of
Chapter 1001, Occupations Code, or the practice of architecture
within the meaning of Chapter 1051, Occupations Code, the district
shall select or designate an architect or engineer to prepare the
construction documents for the facility. If the architect or
engineer is not a full-time employee of the district, the district
shall select the architect or engineer on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code. The request for qualifications for the architect
or engineer shall be advertised in the manner provided for giving
notice under Section 130.306.
Sec. 130.323. CONTRACTS MADE WITHOUT ADVERTISING.
(a) Except as provided by Subsection (d) and Section 130.303(e), a
contract for construction with a cost of $10,000 or more but less
than $50,000, including contingency or reserve amounts, must be
made through written competitive bids or proposals. A minimum of
three bids or proposals must be considered before awarding a
contract. A district is not required to advertise the contract.
(b) In determining to whom to award a contract under this
section, the district shall consider the factors described by
Section 130.304(b).
(c) A person may not use this section to knowingly violate
Section 130.313.
(d) A contract is not required to be made through
competitive bids or proposals under this section if the contract is
for the repair or replacement of a captive replacement part or
component for equipment or a specialized service that is available
from only one source.
[Sections 130.324-130.350 reserved for expansion]
SUBCHAPTER M. DISPOSAL OF SURPLUS PERSONAL PROPERTY
Sec. 130.351. SALE OF PERSONAL PROPERTY. A junior college
district shall dispose of surplus personal property in an
accountable manner that best serves the interest of the district. A
sale of personal property that is not covered by Chapter 791,
Government Code, must be solicited and awarded in the same manner as
a contract for the purchase of goods or services under Subchapter K.
Sec. 130.352. METHODS OF DISPOSAL. (a) A junior college
district may use any of the following methods to dispose of surplus
personal property:
(1) the use of a licensed auctioneer to conduct live or
Internet-based auctions;
(2) a direct sale by the district to a person
submitting the highest and best bid through a competitive process,
including an Internet-based bidding system;
(3) the trade-in of items when purchasing new items;
(4) a sale or transfer to another governmental entity
at a mutually agreed price; or
(5) a donation to a public school in this state.
(b) If the junior college district is unable to find a buyer
for surplus property, the property may be:
(1) discarded in accordance with applicable federal,
state, and local laws, ordinances, and rules; or
(2) removed by an interested party at no charge or for
a nominal charge.
(c) Except as provided by this section, a junior college
district may not give, donate, loan, or transfer surplus property
to any person or entity.
[Sections 130.353-130.400 reserved for expansion]
SUBCHAPTER N. PROFESSIONAL SERVICES AND CONSULTANT SERVICES
Sec. 130.401. PROFESSIONAL SERVICES. (a) For purposes of
this section, "professional service provider" means a person who
provides services of a predominantly mental or intellectual matter
and who is a member of a discipline requiring special knowledge or
the attainment of a high order of learning, skill, or intelligence.
The term includes a person who provides professional services, as
defined by Section 2254.002, Government Code.
(b) A junior college district shall select and enter into
contracts for professional services in accordance with Subchapter
A, Chapter 2254, Government Code. If the estimated value of a
contract for professional services is $50,000 or more during a
fiscal year, or during the contract's term if the contract is a
multiple year contract, the district shall publish notice of the
request for qualifications as provided by Section 130.258.
(c) If the estimated value of a contract for professional
services is $10,000 or more but less than $50,000 during a fiscal
year or during the contract's term if the contract is a multiple
year contract, requests for qualifications must be solicited from
at least three professional service providers and the publication
of notice is not required.
(d) A professional service provider selected by the junior
college district may be selected for a specific project or for
various projects that arise during the term of the provider's
contract. The term of a contract with a professional service
provider may not exceed five years, except that the professional
service provider shall complete services for projects started
before the end of the contract term.
Sec. 130.402. CONSULTANTS. (a) For purposes of this
section, "consultant" includes a financial advisor, fiscal agent,
auctioneer, personnel services provider, travel agent, technology
or educational services provider or advisor, and a business engaged
to teach approved courses.
(b) A junior college district shall select and enter into
contracts with consultants in accordance with Section 130.253 or
Subchapter B, Chapter 2254, Government Code. If the estimated
value of a contract for consulting services is $50,000 or more
during a fiscal year, or during the contract's term if the contract
is a multiple year contract, the district shall advertise the
request for qualifications, bids, or proposals as provided by
Section 130.258.
(c) If the estimated value of a contract for consulting
services is $10,000 or more but less than $50,000 during a fiscal
year, or during the contract's term if the contract is a multiple
year contract, requests for qualifications, bids, or proposals must
be solicited from at least three consultants and the publication of
notice is not required.
(d) A consultant selected by the junior college district may
be selected for a specific project or for various projects that
arise during the term of the consultant's contract. The term of a
contract with a consultant may not exceed five years, except that
the consultant shall complete services for projects started before
the end of the contract term.
Sec. 130.403. RULES AND PROCEDURES; AUDITS BY STATE
AUDITOR. (a) The board of trustees of a junior college district
may adopt rules and procedures for the acquisition of professional
services and consultants by the district.
(b) Junior college district contracts for professional
services or consultants are subject to audit by the state auditor in
accordance with Chapter 321, Government Code.
SECTION 5. Section 271.023, Local Government Code, is
amended to read as follows:
Sec. 271.023. CONFLICT OF LAWS. To the extent of any
conflict, the provisions of Subchapter B, Chapter 44, Education
Code, relating to the purchase of goods and services under contract
by a school district and the provisions of Subchapters K and L,
Chapter 130, Education Code, relating to the purchase of goods and
services and construction services under contract by a junior
college prevail over this subchapter.
SECTION 6. Subsection (b), Section 44.0311, and Sections
130.010 and 130.0101, Education Code, are repealed.
SECTION 7. The change in law made by this Act applies only
to a contract for which requests for bids, requests for proposals,
or requests for qualifications are published or distributed on or
after the effective date of this Act. A contract for which requests
for bids, requests for proposals, or requests for qualifications
are published or distributed before the effective date of this Act
is covered by the law in effect when the requests were published or
distributed, and the former law is continued in effect for that
purpose.
SECTION 8. This Act does not make an appropriation. A
provision in this Act that creates a new governmental program,
creates a new entitlement, or imposes a new duty on a governmental
entity is not mandatory during a fiscal period for which the
legislature has not made a specific appropriation to implement the
provision.
SECTION 9. This Act takes effect September 1, 2009.
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