H.B. No. 1185
1-1 AN ACT
1-2 relating to purchasing by local governments.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 252.002, Local Government Code, is
1-5 amended to read as follows:
1-6 Sec. 252.002. Municipal Charter Controls in Case of
1-7 Conflict. Any provision in the charter of a home-rule municipality
1-8 that relates to the notice of contracts, advertisement of the
1-9 notice, requirements for the taking of sealed bids based on
1-10 specifications for public improvements or purchases, <or> the
1-11 manner of publicly opening bids or reading them aloud, or the
1-12 manner of letting contracts and that is in conflict with this
1-13 chapter controls over this chapter unless the governing body of the
1-14 municipality elects to have this chapter supersede the charter.
1-15 SECTION 2. Section 252.021, Local Government Code, is
1-16 amended to read as follows:
1-17 Sec. 252.021. Competitive Bidding and Competitive Proposal
1-18 Requirements. (a) Before a municipality <with 50,000 or more
1-19 inhabitants> may enter into a contract that requires an expenditure
1-20 of more than $15,000 <$10,000> from one or more municipal funds,
1-21 the municipality must comply with the procedure prescribed by this
1-22 chapter for competitive sealed bidding or competitive sealed
1-23 proposals.
1-24 (b) <Before a municipality with fewer than 50,000
2-1 inhabitants may enter into a contract that requires an expenditure
2-2 of more than $5,000, the municipality must comply with the
2-3 procedure prescribed by this chapter for competitive sealed bidding
2-4 or competitive sealed proposals.>
2-5 <(c)> A municipality may use the competitive sealed proposal
2-6 procedure only for high technology procurements.
2-7 SECTION 3. Section 252.022(a), Local Government Code, is
2-8 amended to read as follows:
2-9 (a) This chapter does not apply to an expenditure for:
2-10 (1) a procurement made because of a public calamity
2-11 that requires the immediate appropriation of money to relieve the
2-12 necessity of the municipality's residents or to preserve the
2-13 property of the municipality;
2-14 (2) a procurement necessary to preserve or protect the
2-15 public health or safety of the municipality's residents;
2-16 (3) a procurement necessary because of unforeseen
2-17 damage to public machinery, equipment, or other property;
2-18 (4) a procurement for personal or professional
2-19 services;
2-20 (5) a procurement for work that is performed and paid
2-21 for by the day as the work progresses;
2-22 (6) a purchase of land or a right-of-way;
2-23 (7) a procurement of items that are available from
2-24 only one source, including:
2-25 (A) items that are available from only one
2-26 source because of patents, copyrights, secret processes, or natural
2-27 monopolies;
3-1 (B) films, manuscripts, or books;
3-2 (C) electricity, gas, water, and other utility
3-3 services;
3-4 (D) captive replacement parts or components for
3-5 equipment;
3-6 (E) books, papers, and other library materials
3-7 for a public library that are available only from the persons
3-8 holding exclusive distribution rights to the materials; and
3-9 (F) management services provided by a nonprofit
3-10 organization to a municipal museum, park, zoo, or other facility to
3-11 which the organization has provided significant financial or other
3-12 benefits;
3-13 (8) a purchase of rare books, papers, and other
3-14 library materials for a public library;
3-15 (9) paving drainage, street widening, and other public
3-16 improvements, or related matters, if at least one-third of the cost
3-17 is to be paid by or through special assessments levied on property
3-18 that will benefit from the improvements;
3-19 (10) a public improvement project, authorized by the
3-20 voters of the municipality, for which there is a deficiency of
3-21 funds for completing the project in accordance with the plans and
3-22 purposes authorized by the voters;
3-23 (11) a payment under a contract by which a developer
3-24 participates in the construction of a public improvement as
3-25 provided by Subchapter C, Chapter 212; <and>
3-26 (12) personal property sold:
3-27 (A) at an auction by a state licensed
4-1 auctioneer;
4-2 (B) at a going out of business sale held in
4-3 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
4-4 <or>
4-5 (C) by a political subdivision of this state, a
4-6 state agency of this state, or an entity of the federal government;
4-7 (D) under an interlocal agreement for
4-8 cooperative purchasing administered by a regional planning
4-9 commission established under Chapter 391;
4-10 (13) services performed by blind or severely disabled
4-11 persons; or
4-12 (14) insurance.
4-13 SECTION 4. Subsection (a), Section 252.041, Local Government
4-14 Code, is amended to read as follows:
4-15 (a) If the competitive sealed bidding requirement applies to
4-16 the contract, notice of the time and place at which the bids will
4-17 be publicly opened and read aloud <contract will be let> must be
4-18 published at least once a week for two consecutive weeks in a
4-19 newspaper published in the municipality. The date of the first
4-20 publication must be before the 14th day before the date set to
4-21 publicly open the bids and read them aloud <let the contract>. If
4-22 no newspaper is published in the municipality, the notice must be
4-23 posted at the city hall for 14 days before the date set to publicly
4-24 open the bids and read them aloud <let the contract>.
4-25 SECTION 5. Section 262.023(a), Local Government Code, is
4-26 amended to read as follows:
4-27 (a) Before <Except as provided by Subsection (d), before> a
5-1 county may purchase one or more items under a contract that will
5-2 require an expenditure exceeding $15,000 <$10,000>, the
5-3 commissioners court of the county must comply with the competitive
5-4 bidding or competitive proposal procedures prescribed by this
5-5 subchapter. All bids or proposals must be sealed.
5-6 SECTION 6. Section 262.030, Local Government Code, is
5-7 amended to read as follows:
5-8 Sec. 262.030. Alternative Competitive Proposal Procedure for
5-9 Insurance, <or> High Technology Items, AND SPECIAL SERVICES.
5-10 (a) The competitive proposal procedure provided by this section
5-11 may be used for the purchase of insurance, <or> high technology
5-12 items, and any of the following special services:
5-13 (1) janitorial services;
5-14 (2) landscape maintenance;
5-15 (3) travel management;
5-16 (4) recycling; and
5-17 (5) vending, concession, or commissary services.
5-18 (b) Quotations must be solicited through a request for
5-19 proposals. Public notice for the request for proposals must be
5-20 made in the same manner as provided in the competitive bidding
5-21 procedure. The request for proposals must specify the relative
5-22 importance of price and other evaluation factors. The award of the
5-23 contract shall be made to the responsible offeror whose proposal is
5-24 determined to be the lowest evaluated offer resulting from
5-25 negotiation, taking into consideration the relative importance of
5-26 price and other evaluation factors set forth in the request for
5-27 proposals.
6-1 (c) <(b)> If provided in the request for proposals,
6-2 proposals shall be opened so as to avoid disclosure of contents to
6-3 competing offerors and kept secret during the process of
6-4 negotiation. All proposals that have been submitted shall be
6-5 available and open for public inspection after the contract is
6-6 awarded, except for trade secrets and confidential information
6-7 contained in the proposals and identified as such.
6-8 (d) <(c)> As provided in the request for proposals and under
6-9 rules adopted by the commissioners court, discussions may be
6-10 conducted with responsible offerors who submit proposals determined
6-11 to be reasonably susceptible of being selected for award. Offerors
6-12 must be accorded fair and equal treatment with respect to any
6-13 opportunity for discussion and revision of proposals, and revisions
6-14 may be permitted after submission and before award for the purpose
6-15 of obtaining best and final offers.
6-16 SECTION 7. Section 262.031(b), Local Government Code, is
6-17 amended to read as follows:
6-18 (b) If a change order involves an increase or decrease in
6-19 cost of $50,000 <$15,000> or less, the commissioners court may
6-20 grant general authority to an employee to approve the change
6-21 orders. However, the original contract price may not be increased
6-22 by more than 25 percent unless the change order is necessary to
6-23 comply with a federal or state statute, rule, regulation, or
6-24 judicial decision enacted, adopted, or rendered after the contract
6-25 was made. The original contract price may not be decreased by 18
6-26 percent or more without the consent of the contractor.
6-27 SECTION 8. Section 263.152(a), Local Government Code, is
7-1 amended to read as follows:
7-2 (a) The commissioners court of a county may:
7-3 (1) periodically sell the county's surplus or salvage
7-4 property by competitive bid or auction, except that competitive
7-5 bids or an auction is not necessary if the purchaser is another
7-6 county;
7-7 (2) offer the property as a trade-in for new property
7-8 of the same general type if the commissioners court considers that
7-9 action to be in the best interests of the county; or
7-10 (3) order any of the property to be destroyed or
7-11 otherwise disposed of as worthless if the commissioners court
7-12 undertakes to sell that property under Subdivision (1) and is
7-13 unable to do so because no bids are made.
7-14 SECTION 9. Section 271.024, Local Government Code, is
7-15 amended to read as follows:
7-16 Sec. 271.024. Competitive Bidding Procedure Applicable to
7-17 Contract. If a governmental entity is required by statute to award
7-18 a contract for the construction, repair, or renovation of a
7-19 structure, road, highway, or other improvement or addition to real
7-20 property on the basis of competitive bids, and if the contract
7-21 requires the expenditure of more than $15,000 <$10,000> from the
7-22 funds of the entity, the bidding on the contract must be
7-23 accomplished in the manner provided by this subchapter.
7-24 SECTION 10. Subsections (a) and (b), Section 271.055, Local
7-25 Government Code, are amended to read as follows:
7-26 (a) An issuer must give notice of the time, date, and place
7-27 at which the issuer will publicly open the bids on a contract <let
8-1 a contract> for which competitive bidding is required by this
8-2 subchapter and read the bids aloud. The notice must be given in
8-3 accordance with Subsection (b) or in accordance with:
8-4 (1) Chapter 252, if the issuer is a municipality;
8-5 (2) the municipal charter of the issuer, if the issuer
8-6 is a home-rule municipality; or
8-7 (3) the County Purchasing Act (Subchapter C, Chapter
8-8 262), if the issuer is a county.
8-9 (b) If an issuer gives notice under this subsection, the
8-10 notice must:
8-11 (1) be published once a week for two consecutive weeks
8-12 in a newspaper, as defined by Chapter 84, Acts of the 43rd
8-13 Legislature, 1st Called Session, 1933 (Article 28a, Vernon's Texas
8-14 Civil Statutes), that is of general circulation in the area of the
8-15 issuer, with the date of the first publication to be before the
8-16 14th day before the date set for the public opening of the bids and
8-17 the reading of the bids aloud <receipt of bids>; and
8-18 (2) state that plans and specifications for the work
8-19 to be done or specifications for the machinery, supplies,
8-20 equipment, or materials to be purchased are on file with a
8-21 designated official of the issuer and may be examined without
8-22 charge.
8-23 SECTION 11. Chapter 271, Local Government Code, is amended
8-24 by adding Subchapter E to read as follows:
8-25 SUBCHAPTER E. COOPERATIVE PURCHASING PROGRAM
8-26 Sec. 271.091. DEFINITIONS. In this subchapter:
8-27 (1) "Local cooperative organization" means an
9-1 organization established to provide local governments access to
9-2 contracts with vendors for the purchase of materials, supplies,
9-3 services, or equipment.
9-4 (2) "Local government" means a county, municipality,
9-5 special district, school district, junior college district, or
9-6 other legally constituted political subdivision of the state.
9-7 Sec. 271.092. COOPERATIVE PURCHASING PROGRAM PARTICIPATION.
9-8 (a) A local government may participate in a cooperative purchasing
9-9 program with another local government or a local cooperative
9-10 organization.
9-11 (b) A participating local government may sign an agreement
9-12 with the other local government or cooperative organization, as
9-13 applicable, stating that the signing local government will:
9-14 (1) designate a person to act under the direction of,
9-15 and on behalf of, that governmental body in all matters relating to
9-16 the program;
9-17 (2) make payments to the other local government or
9-18 cooperative organization or directly to a vendor under a contract
9-19 made under this subchapter, as provided in the agreement between
9-20 the participating local government and the other local government
9-21 or cooperative organization; and
9-22 (3) be responsible for a vendor's compliance with
9-23 provisions relating to the quality of items and terms of delivery,
9-24 to the extent provided in the agreement between the participating
9-25 local government and the other local government or cooperative
9-26 organization.
9-27 (c) A local government that purchases under this program
10-1 complies with the competitive bidding requirements of this title or
10-2 other state law if the applicable competitive bidding requirements
10-3 are followed by the entity awarding the contract.
10-4 SECTION 12. Subchapter Z, Chapter 271, Local Government
10-5 Code, is amended by adding Section 271.903 to read as follows:
10-6 Sec. 271.903. COMMITMENT OF CURRENT REVENUE. (a) If a
10-7 contract for the acquisition, including lease, of real or personal
10-8 property retains to the governing body of a local government the
10-9 continuing right to terminate at the expiration of each budget
10-10 period of the local government during the term of the contract, is
10-11 conditioned on a best efforts attempt by the governing body to
10-12 obtain and appropriate funds for payment of the contract, or
10-13 contains both the continuing right to terminate and the best
10-14 efforts conditions, the contract is a commitment of the local
10-15 government's current revenues only.
10-16 (b) In this section, "local government" means a
10-17 municipality, county, school district, special purpose district or
10-18 authority, or other political subdivision of this state.
10-19 SECTION 13. Subchapter Z, Chapter 271, Local Government
10-20 Code, is amended by adding Section 271.904 to read as follows:
10-21 Sec. 271.904. INDEMNIFICATION. (a) A contract for design
10-22 or engineering services to which a governmental agency is a party
10-23 may not include a provision requiring a design professional
10-24 registered under The Texas Engineering Practice Act (Article 3271a,
10-25 Vernon's Texas Civil Statutes) to indemnify the governmental agency
10-26 for damages arising from the sole negligence of the governmental
10-27 agency. A provision in violation of this section is void.
11-1 (b) In this section, "governmental agency" has the meaning
11-2 assigned by Section 271.003.
11-3 SECTION 14. Section 19(a), The Texas Engineering Practice
11-4 Act (Article 3271a, Vernon's Texas Civil Statutes), is amended to
11-5 read as follows:
11-6 (a) It is unlawful for this State or for any of its
11-7 political subdivisions, including any county, city, or town, to
11-8 engage in the construction of any public work involving
11-9 professional engineering, where public health, public welfare or
11-10 public safety is involved, unless the engineering plans and
11-11 specifications and estimates have been prepared by, and the
11-12 engineering construction is to be executed under the direct
11-13 supervision of a registered professional engineer. However nothing
11-14 in this Act shall be held to apply to any public work involving
11-15 structural, electrical, or mechanical engineering wherein the
11-16 contemplated expenditure for the completed project does not exceed
11-17 Eight Thousand ($8,000.00) Dollars. Nothing in this Act shall be
11-18 held to apply to other public work wherein the contemplated
11-19 expenditure for the completed project does not exceed Twenty
11-20 Thousand ($20,000.00) Dollars.
11-21 SECTION 15. Sections 262.023(d), 271.005(b), and 252.021(d),
11-22 Local Government Code, are repealed.
11-23 SECTION 16. The change in law made by this Act relating to
11-24 the contractual amount that requires a county or a municipality to
11-25 solicit competitive bids or proposals applies only to a contract
11-26 for which the notice soliciting bids or proposals is first
11-27 published or posted on or after September 1, 1993. A contract for
12-1 which the notice is first published or posted before September 1,
12-2 1993, is subject to the law as it existed at the time the notice
12-3 was first published or posted, and the former law is continued in
12-4 effect for that purpose.
12-5 SECTION 17. This Act takes effect September 1, 1993.
12-6 SECTION 18. The importance of this legislation and the
12-7 crowded condition of the calendars in both houses create an
12-8 emergency and an imperative public necessity that the
12-9 constitutional rule requiring bills to be read on three several
12-10 days in each house be suspended, and this rule is hereby suspended.