By: Eckels H.B. No. 939
73R710 LGF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procurement of public improvements at the least cost.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 271, Local Government Code, is amended by
1-5 adding Subchapter E to read as follows:
1-6 SUBCHAPTER E. LEAST COST REVIEW PROGRAM
1-7 Sec. 271.101. PURPOSE. (a) This subchapter creates the
1-8 least cost review program to assist governmental entities in
1-9 determining the least cost of public improvements performed by a
1-10 governmental entity within the state. Governmental entities
1-11 performing public improvements not within an exemption of this
1-12 subchapter shall participate in the program and shall apply the
1-13 policies and requirements established under this subchapter.
1-14 (b) This subchapter is adopted to ensure that public
1-15 improvements are procured at the least cost.
1-16 Sec. 271.102. DEFINITIONS. In this subchapter:
1-17 (1) "Component purchases" means purchases of the
1-18 component parts of an item that in normal purchasing practices
1-19 would be purchased in one purchase.
1-20 (2) "Cost comparison statement" means a statement by a
1-21 governmental entity that compares the cost of purchasing a public
1-22 improvement with the cost of providing the improvement by the
1-23 governmental entity.
1-24 (3) "Governmental entity" means:
2-1 (A) a county with a population of 50,000 or
2-2 more;
2-3 (B) a municipality;
2-4 (C) a common or independent school district;
2-5 (D) a hospital district or authority;
2-6 (E) a housing authority;
2-7 (F) a water district or authority;
2-8 (G) a utility district or authority;
2-9 (H) a road utility district; or
2-10 (I) an agency or instrumentality of a
2-11 governmental entity described by this subdivision.
2-12 (4) "In-house cost estimate" means a report by a
2-13 governmental entity that contains the computations of probable cost
2-14 to the governmental entity to provide a public improvement using
2-15 the personnel, equipment, or facilities of the governmental entity.
2-16 (5) "Public improvement" means the construction,
2-17 alteration, repair, or renovation (including all materials,
2-18 machinery, fixtures, tools, labor, or a combination of those items,
2-19 incorporated into or consumed in the prosecution of the work) of a
2-20 facility owned and operated by a governmental entity, including a
2-21 building, structure, site improvement, road, street, highway,
2-22 bridge, drainage structure, storm sewer, sanitary sewer, wastewater
2-23 treatment or pumping facility, water main, and water storage
2-24 facility.
2-25 (6) "Separate purchases" means purchases, made
2-26 separately, of items that in normal purchasing practices would be
2-27 purchased in one purchase.
3-1 (7) "Sequential purchases" means purchases, over a
3-2 period, of items that in normal purchasing practices would be
3-3 purchased in one purchase.
3-4 Sec. 271.103. EXEMPT PURCHASES. This subchapter does not
3-5 apply to a purchase by a governmental entity, if the purchase:
3-6 (1) is exempt from competitive bidding under the
3-7 Professional Services Procurement Act (Article 664-4, Vernon's
3-8 Texas Civil Statutes);
3-9 (2) is for an amount less than $10,000 including all
3-10 other component purchases, separate purchases, and sequential
3-11 purchases by the governmental entity;
3-12 (3) is for a public improvement necessitated by public
3-13 calamity in which the use of personnel, equipment, or facilities of
3-14 the governmental entity will more expediently relieve the necessity
3-15 of its citizens or preserve the property of its citizens; or
3-16 (4) is a public improvement purchased under the
3-17 competitive bidding requirements of Subchapter B.
3-18 Sec. 271.104. LEAST COST REVIEW. (a) Each year, before the
3-19 30th day before adoption of a budget by a governmental entity, the
3-20 governmental entity shall submit a least cost review for
3-21 consideration and approval at a public meeting of the governing
3-22 body of the governmental entity if the governmental entity will be
3-23 providing nonexempt public improvements proposed to be constructed
3-24 by use of personnel, equipment, or facilities of the governmental
3-25 entity.
3-26 (b) Before the 14th day before consideration and approval of
3-27 the governing body at a public meeting, the governmental entity
4-1 shall furnish to any citizen within the jurisdictional limits of
4-2 the governmental entity a copy of the least cost review upon
4-3 payment of a reasonable fee to reimburse for copying costs.
4-4 (c) The least cost review shall contain the following
4-5 elements:
4-6 (1) a list of every nonexempt public improvement to be
4-7 provided during the budget year by the use of the personnel,
4-8 equipment, or facilities of the governmental entity;
4-9 (2) an estimate of the quantities for each
4-10 classification of the work in each nonexempt public improvement,
4-11 according to classifications normally used on competitively bid
4-12 public improvements;
4-13 (3) a cost estimate of probable costs for providing
4-14 each nonexempt public improvement by competitive bid, as determined
4-15 by multiplying the quantities of each classification of the work by
4-16 unit costs established by comparable bid data within the locale of
4-17 the governmental entity;
4-18 (4) an in-house cost estimate of probable costs of
4-19 providing each nonexempt public improvement using the personnel,
4-20 equipment, or facilities of the governmental entity, including all
4-21 direct and indirect costs of labor, materials, administration,
4-22 investment, and maintenance of equipment, under the state auditor's
4-23 cost accounting procedures and instructions relating to in-house
4-24 cost estimates as provided in Section 13.04, State Purchasing and
4-25 General Services Act (Article 601b, Vernon's Texas Civil Statutes);
4-26 (5) a cost comparison statement for each nonexempt
4-27 public improvement listed in the least cost review; and
5-1 (6) a determination as to whether the standard of
5-2 quality of the public improvement using personnel, equipment, or
5-3 facilities of the governmental entity will be the same as if the
5-4 public improvement were purchased pursuant to competitive bidding
5-5 requirements of Subchapter B.
5-6 Sec. 271.105. REDUCTION OF COSTS. If the least cost review
5-7 for any public improvement by the governmental entity indicates
5-8 that the least cost to the entity would be by purchase under the
5-9 competitive bidding requirements of Subchapter B, the governmental
5-10 entity shall purchase the public improvement by competitive bid
5-11 unless the additional cost is less than 10 percent and the
5-12 governing body of the governmental entity passes a resolution
5-13 specifically describing:
5-14 (1) the non-cost advantages of providing the public
5-15 improvement using personnel, equipment, or facilities of the
5-16 governmental entity; and
5-17 (2) a proposal for reducing costs of the personnel,
5-18 equipment, or facilities used in the public improvement so that the
5-19 total costs are reduced to the costs of a competitively bid public
5-20 improvement.
5-21 Sec. 271.106. MAINTENANCE OF COST RECORDS. For each public
5-22 improvement purchased using the personnel, equipment, or facilities
5-23 of a governmental entity, the governmental entity shall maintain
5-24 and preserve as a public record a true and accurate account of all
5-25 direct and indirect actual costs of labor, materials,
5-26 administration, investment, and maintenance of equipment under the
5-27 state auditor's accounting procedures and instructions as provided
6-1 in Section 13.04, State Purchasing and General Services Act
6-2 (Article 601b, Vernon's Texas Civil Statutes).
6-3 Sec. 271.107. CRIMINAL PENALTIES. (a) An officer or
6-4 employee of a governmental entity commits an offense if the officer
6-5 or employee intentionally or knowingly makes or authorizes
6-6 separate, sequential, or component purchases to avoid requirements
6-7 of a least cost review described by Section 271.104. An offense
6-8 under this subsection is a Class B misdemeanor.
6-9 (b) An officer or employee of a governmental entity commits
6-10 an offense if the officer or employee intentionally or knowingly
6-11 violates the least cost review requirements of Section 271.104. An
6-12 offense under this subsection is a Class B misdemeanor.
6-13 (c) An officer or employee of a governmental entity commits
6-14 an offense if the officer or employee intentionally or knowingly
6-15 violates this subchapter, other than by conduct described in
6-16 Subsection (a) or (b). An offense under this subsection is a Class
6-17 C misdemeanor.
6-18 Sec. 271.108. REMOVAL; INELIGIBILITY. (a) The final
6-19 conviction of an officer or employee of a governmental entity for
6-20 an offense under Section 271.107(a) or (b) results in the immediate
6-21 removal from office or employment of that person.
6-22 (b) For four years after the date of the final conviction,
6-23 the removed officer or employee is ineligible:
6-24 (1) to be a candidate for or to be appointed or
6-25 elected to a public office in this state;
6-26 (2) to be employed by the governmental entity with
6-27 which the person served when the offense occurred; and
7-1 (3) to receive any compensation through a contract
7-2 with that governmental entity.
7-3 (c) This section does not prohibit the payment of retirement
7-4 or workers' compensation benefits to the removed officer or
7-5 employee.
7-6 Sec. 271.109. INJUNCTIVE RELIEF. Any citizen within the
7-7 jurisdictional limits of the governmental entity may enjoin the
7-8 actions of a governmental entity in violation of this subchapter.
7-9 SECTION 2. The importance of this legislation and the
7-10 crowded condition of the calendars in both houses create an
7-11 emergency and an imperative public necessity that the
7-12 constitutional rule requiring bills to be read on three several
7-13 days in each house be suspended, and this rule is hereby suspended.