1-1 By: McCall (Senate Sponsor - Shelley) H.B. No. 1185
1-2 (In the Senate - Received from the House May 10, 1993;
1-3 May 11, 1993, read first time and referred to Committee on
1-4 Intergovernmental Relations; May 20, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 11,
1-6 Nays 0; May 20, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Armbrister x
1-10 Leedom x
1-11 Carriker x
1-12 Henderson x
1-13 Madla x
1-14 Moncrief x
1-15 Patterson x
1-16 Rosson x
1-17 Shapiro x
1-18 Wentworth x
1-19 Whitmire x
1-20 COMMITTEE SUBSTITUTE FOR H.B. No. 1185 By: Whitmire
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to purchasing by local governments.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Section 252.002, Local Government Code, is
1-26 amended to read as follows:
1-27 Sec. 252.002. Municipal Charter Controls in Case of
1-28 Conflict. Any provision in the charter of a home-rule municipality
1-29 that relates to the notice of contracts, advertisement of the
1-30 notice, requirements for the taking of sealed bids based on
1-31 specifications for public improvements or purchase, <or> the manner
1-32 of publicly opening bids or reading them aloud, or the manner of
1-33 letting contracts and that is in conflict with this chapter
1-34 controls over this chapter unless the municipality elects to have
1-35 this chapter supersede the charter.
1-36 SECTION 2. Section 252.021, Local Government Code, is
1-37 amended to read as follows:
1-38 Sec. 252.021. Competitive Bidding and Competitive Proposal
1-39 Requirements. (a) Except as provided by Subsection b, before
1-40 <Before> a municipality <with 50,000 or more inhabitants> may enter
1-41 into a contract that requires an expenditure of more than $15,000
1-42 <$10,000> from one or more municipal funds, the municipality must
1-43 comply with the procedure prescribed by this chapter for
1-44 competitive sealed bidding or competitive sealed proposals.
1-45 (b) Before a municipality with a population of less <fewer>
1-46 than 1.5 million <50,000 inhabitants> may enter into a contract for
1-47 insurance that requires an expenditure of more than $5,000 from one
1-48 or more municipal funds, the municipality must comply with the
1-49 procedure prescribed by this chapter for competitive sealed bidding
1-50 or competitive sealed proposals.
1-51 (c) A municipality may use the competitive sealed proposal
1-52 procedure only for the purchase of insurance or for high technology
1-53 procurements.
1-54 SECTION 3. Section 252.022(a), Local Government Code, is
1-55 amended to read as follows:
1-56 (a) This chapter does not apply to an expenditure for:
1-57 (1) a procurement made because of a public calamity
1-58 that requires the immediate appropriation of money to relieve the
1-59 necessity of the municipality's residents or to preserve the
1-60 property of the municipality;
1-61 (2) a procurement necessary to preserve or protect the
1-62 public health or safety of the municipality's residents;
1-63 (3) a procurement necessary because of unforeseen
1-64 damage to public machinery, equipment, or other property;
1-65 (4) a procurement for personal or professional
1-66 services;
1-67 (5) a procurement for work that is performed and paid
1-68 for by the day as the work progresses;
2-1 (6) a purchase of land or a right-of-way;
2-2 (7) a procurement of items that are available from
2-3 only one source, including:
2-4 (A) items that are available from only one
2-5 source because of patents, copyrights, secret processes, or natural
2-6 monopolies;
2-7 (B) films, manuscripts, or books;
2-8 (C) electricity, gas, water, and other utility
2-9 services;
2-10 (D) captive replacement parts or components for
2-11 equipment;
2-12 (E) books, papers, and other library materials
2-13 for a public library that are available only from the persons
2-14 holding exclusive distribution rights to the materials; and
2-15 (F) management services provided by a nonprofit
2-16 organization to a municipal museum, park, zoo, or other facility to
2-17 which the organization has provided significant financial or other
2-18 benefits;
2-19 (8) a purchase of rare books, papers, and other
2-20 library materials for a public library;
2-21 (9) paving drainage, street widening, and other public
2-22 improvements, or related matters, if at least one-third of the cost
2-23 is to be paid by or through special assessments levied on property
2-24 that will benefit from the improvements;
2-25 (10) a public improvement project, authorized by the
2-26 voters of the municipality, for which there is a deficiency of
2-27 funds for completing the project in accordance with the plans and
2-28 purposes authorized by the voters;
2-29 (11) a payment under a contract by which a developer
2-30 participates in the construction of a public improvement as
2-31 provided by Subchapter C, Chapter 212; <and>
2-32 (12) personal property sold:
2-33 (A) at an auction by a state licensed
2-34 auctioneer;
2-35 (B) at a going out of business sale held in
2-36 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
2-37 <or>
2-38 (C) by a political subdivision of this state, a
2-39 state agency of this state, or an entity of the federal government;
2-40 or
2-41 (D) under an interlocal agreement for
2-42 cooperative purchasing administered by a regional planning
2-43 commission established under Chapter 391; and
2-44 (13) services performed by blind or severely disabled
2-45 persons.
2-46 SECTION 4. Subsection (a), Section 252.041, Local Government
2-47 Code, is amended to read as follows:
2-48 (a) If the competitive sealed bidding requirement applies to
2-49 the contract, notice of the time and place at which the bids will
2-50 be publicly opened and read aloud <contract will be let> must be
2-51 published at least once a week for two consecutive weeks in a
2-52 newspaper published in the municipality. The date of the first
2-53 publication must be before the 14th day before the date set to
2-54 publicly open the bids and read them aloud <let the contract>. If
2-55 no newspaper is published in the municipality, the notice must be
2-56 posted at the city hall for 14 days before the date set to publicly
2-57 open the bids and read them aloud <let the contract>.
2-58 SECTION 5. The heading of Section 252.042, Local Government
2-59 Code, is amended to read as follows:
2-60 Sec. 252.042. REQUESTS FOR PROPOSALS FOR INSURANCE AND HIGH
2-61 TECHNOLOGY PROCUREMENTS.
2-62 SECTION 6. Subchapter B, Chapter 252, Local Government Code,
2-63 is amended by adding Section 252.0215 to read as follows:
2-64 Sec. 252.0215. COMPETITIVE BIDDING IN RELATION TO
2-65 HISTORICALLY UNDERUTILIZED BUSINESSES. A municipality, in making
2-66 an expenditure of more than $3,000 but less than $15,000, shall
2-67 contact at least two disadvantaged businesses on a rotating basis,
2-68 based on information provided by the Office of Small Business
2-69 Assistance of the Texas Department of Commerce pursuant to Section
2-70 1.03, State Purchasing and General Services Act (Article 601b,
3-1 Vernon's Texas Civil Statutes). If the list fails to identify a
3-2 disadvantaged business in the county in which the city is situated,
3-3 the city is exempt from this section.
3-4 SECTION 7. Section 262.023(a), Local Government Code, is
3-5 amended to read as follows:
3-6 (a) Before <Except as provided by Subsection (d), before> a
3-7 county may purchase one or more items under a contract that will
3-8 require an expenditure exceeding $15,000 <$10,000>, the
3-9 commissioners court of the county must comply with the competitive
3-10 bidding or competitive proposal procedures prescribed by this
3-11 subchapter. All bids or proposals must be sealed.
3-12 SECTION 8. Section 262.030, Local Government Code, is
3-13 amended to read as follows:
3-14 Sec. 262.030. ALTERNATIVE COMPETITIVE PROPOSAL PROCEDURE FOR
3-15 INSURANCE, <OR> HIGH TECHNOLOGY ITEMS, AND SPECIAL SERVICES.
3-16 (a) The competitive proposal procedure provided by this section
3-17 may be used for the purchase of insurance, <or> high technology
3-18 items, and any of the following special services:
3-19 (1) janitorial services;
3-20 (2) landscape maintenance;
3-21 (3) travel management;
3-22 (4) recycling; and
3-23 (5) vending, concession, or commissary services.
3-24 (b) Quotations must be solicited through a request for
3-25 proposals. Public notice for the request for proposals must be
3-26 made in the same manner as provided in the competitive bidding
3-27 procedure. The request for proposals must specify the relative
3-28 importance of price and other evaluation factors. The award of the
3-29 contract shall be made to the responsible offeror whose proposal is
3-30 determined to be the lowest evaluated offer resulting from
3-31 negotiation, taking into consideration the relative importance of
3-32 price and other evaluation factors set forth in the request for
3-33 proposals.
3-34 (c) <(b)> If provided in the request for proposals,
3-35 proposals shall be opened so as to avoid disclosure of contents to
3-36 competing offerors and kept secret during the process of
3-37 negotiation. All proposals that have been submitted shall be
3-38 available and open for public inspection after the contract is
3-39 awarded, except for trade secrets and confidential information
3-40 contained in the proposals and identified as such.
3-41 (d) <(c)> As provided in the request for proposals and under
3-42 rules adopted by the commissioners court, discussions may be
3-43 conducted with responsible offerors who submit proposals determined
3-44 to be reasonably susceptible of being selected for award. Offerors
3-45 must be accorded fair and equal treatment with respect to any
3-46 opportunity for discussion and revision of proposals, and revisions
3-47 may be permitted after submission and before award for the purpose
3-48 of obtaining best and final offers.
3-49 SECTION 9. Section 262.031(b), Local Government Code, is
3-50 amended to read as follows:
3-51 (b) If a change order involves an increase or decrease in
3-52 cost of $50,000 <$15,000> or less, the commissioners court may
3-53 grant general authority to an employee to approve the change
3-54 orders. However, the original contract price may not be increased
3-55 by more than 25 percent unless the change order is necessary to
3-56 comply with a federal or state statute, rule, regulation, or
3-57 judicial decision enacted, adopted, or rendered after the contract
3-58 was made. The original contract price may not be decreased by 18
3-59 percent or more without the consent of the contractor.
3-60 SECTION 10. Subchapter C, Chapter 262, Local Government
3-61 Code, is amended by adding Section 262.0235 to read as follows:
3-62 Sec. 262.0235. COMPETITIVE BIDDING IN RELATION TO
3-63 HISTORICALLY UNDERUTILIZED BUSINESS. A county, in making an
3-64 expenditure of more than $3,000 but less than $15,000, shall
3-65 contact at least two disadvantaged businesses on a rotating basis,
3-66 based on information provided by the Office of Small Business
3-67 Assistance of the Texas Department of Commerce pursuant to Section
3-68 1.03, State Purchasing and General Services Act (Article 601b,
3-69 Vernon's Texas Civil Statutes). If the list fails to identify a
3-70 disadvantaged business in the county, the county is exempt from
4-1 this section.
4-2 SECTION 11. Section 263.152(a), Local Government Code, is
4-3 amended to read as follows:
4-4 (a) The commissioners court of a county may:
4-5 (1) periodically sell the county's surplus or salvage
4-6 property by competitive bid or auction, except that competitive
4-7 bids or an auction is not necessary if the purchaser is another
4-8 county;
4-9 (2) offer the property as a trade-in for new property
4-10 of the same general type if the commissioners court considers that
4-11 action to be in the best interests of the county; or
4-12 (3) order any of the property to be destroyed or
4-13 otherwise disposed of as worthless if the commissioners court
4-14 undertakes to sell that property under Subdivision (1) and is
4-15 unable to do so because no bids are made.
4-16 SECTION 12. Section 271.024, Local Government Code, is
4-17 amended to read as follows:
4-18 Sec. 271.024. Competitive Bidding Procedure Applicable to
4-19 Contract. If a governmental entity is required by statute to award
4-20 a contract for the construction, repair, or renovation of a
4-21 structure, road, highway, or other improvement or addition to real
4-22 property on the basis of competitive bids, and if the contract
4-23 requires the expenditure of more than $15,000 <$10,000> from the
4-24 funds of the entity, the bidding on the contract must be
4-25 accomplished in the manner provided by this subchapter.
4-26 SECTION 13. Subsections (a) and (b), Section 271.055, Local
4-27 Government Code, are amended to read as follows:
4-28 (a) An issuer must give notice of the time, date, and place
4-29 at which the issuer will publicly open the bids on a contract <let
4-30 a contract> for which competitive bidding is required by this
4-31 subchapter and read the bids aloud. The notice must be given in
4-32 accordance with Subsection (b) or in accordance with:
4-33 (1) Chapter 252, if the issuer is a municipality;
4-34 (2) the municipal charter of the issuer, if the issuer
4-35 is a home-rule municipality; or
4-36 (3) the County Purchasing Act (Subchapter C, Chapter
4-37 262), if the issuer is a county.
4-38 (b) If an issuer gives notice under this subsection, the
4-39 notice must:
4-40 (1) be published once a week for two consecutive weeks
4-41 in a newspaper, as defined by Chapter 84, Acts of the 43rd
4-42 Legislature, 1st Called Session, 1933 (Article 28a, Vernon's Texas
4-43 Civil Statutes), that is of general circulation in the area of the
4-44 issuer, with the date of the first publication to be before the
4-45 14th day before the date set for the public opening of the bids and
4-46 the reading of the bids aloud <receipt of bids>; and
4-47 (2) state that plans and specifications for the work
4-48 to be done or specifications for the machinery, supplies,
4-49 equipment, or materials to be purchased are on file with a
4-50 designated official of the issuer and may be examined without
4-51 charge.
4-52 SECTION 14. Chapter 271, Local Government Code, is amended
4-53 by adding Subchapter E to read as follows:
4-54 SUBCHAPTER E. COOPERATIVE PURCHASING PROGRAM
4-55 Sec. 271.091. DEFINITIONS. In this subchapter:
4-56 (1) "Local cooperative organization" means an
4-57 organization established to provide local governments access to
4-58 contracts with vendors for the purchase of materials, supplies,
4-59 services, or equipment.
4-60 (2) "Local government" means a county, municipality,
4-61 special district, school district, junior college district, or
4-62 other legally constituted political subdivision of the state.
4-63 Sec. 271.092. COOPERATIVE PURCHASING PROGRAM PARTICIPATION.
4-64 (a) A local government may participate in a cooperative purchasing
4-65 program with another local government or a local cooperative
4-66 organization.
4-67 (b) A participating local government may sign an agreement
4-68 with the other local government or cooperative organization, as
4-69 applicable, stating that the signing local government will:
4-70 (1) designate a person to act under the direction of,
5-1 and on behalf of, that governmental body in all matters relating to
5-2 the program;
5-3 (2) make payments to the other local government or
5-4 cooperative organization or directly to a vendor under a contract
5-5 made under this subchapter, as provided in the agreement between
5-6 the participating local government and the other local government
5-7 or cooperative organization; and
5-8 (3) be responsible for a vendor's compliance with
5-9 provisions relating to the quality of items and terms of delivery,
5-10 to the extent provided in the agreement between the participating
5-11 local government and the other local government or cooperative
5-12 organization.
5-13 (c) A local government that purchases under this program
5-14 complies with the competitive bidding requirements of this title or
5-15 other state law if the applicable competitive bidding requirements
5-16 are followed by the entity awarding the contract.
5-17 SECTION 15. Subchapter Z, Chapter 271, Local Government
5-18 Code, is amended by adding Section 271.903 to read as follows:
5-19 Sec. 271.903. COMMITMENT OF CURRENT REVENUE. (a) If a
5-20 contract for the acquisition, including lease, of real or personal
5-21 property retains to the governing body of a local government the
5-22 continuing right to terminate at the expiration of each budget
5-23 period of the local government during the term of the contract, is
5-24 conditioned on a best efforts attempt by the governing body to
5-25 obtain and appropriate funds for payment of the contract, or
5-26 contains both the continuing right to terminate and the best
5-27 efforts conditions, the contract is a commitment of the local
5-28 government's current revenues only.
5-29 (b) In this section, "local government" means a
5-30 municipality, county, school district, special purpose district or
5-31 authority, or other political subdivision of this state.
5-32 SECTION 16. Subchapter Z, Chapter 271, Local Government
5-33 Code, is amended by adding a new Section 271.904 to read as
5-34 follows:
5-35 Sec. 271.904. INDEMNIFICATION. (a) A contract for design
5-36 or engineering services to which a governmental agency is a party
5-37 may not include a provision requiring a design professional
5-38 registered under Act. 3271a, V.A.C.S. to indemnify the governmental
5-39 agency for damages arising from the sole negligence of the
5-40 governmental agency. A provision in violation of this section is
5-41 void.
5-42 (b) In this section, "governmental agency" has the meaning
5-43 assigned by Section 271.003.
5-44 SECTION 17. Section 1.03, State Purchasing and General
5-45 Services Art (Article 601b, Vernon's Texas Civil Statutes), is
5-46 amended by adding Subsection (e) to read as follows:
5-47 (e) The office shall provide a copy of the directory to each
5-48 county and incorporated city twice annually, in January and July.
5-49 SECTION 18. Sections 262.023(d) and 271.005(b), Local
5-50 Government Code, are repealed.
5-51 SECTION 19. The change in law made by this Act relating to
5-52 the contractual amount that requires a county or a municipality to
5-53 solicit competitive bids or proposals, applies only to a contract
5-54 for which the notice soliciting bids or proposals is first
5-55 published or posted on or after September 1, 1993. A contract for
5-56 which the notice is first published or posted before September 1,
5-57 1993, is subject to the law as it existed at the time the notice
5-58 was first published or posted, and the former law is continued in
5-59 effect for that purpose.
5-60 SECTION 20. This Act takes effect September 1, 1993.
5-61 SECTION 21. The importance of this legislation and the
5-62 crowded condition of the calendars in both houses create an
5-63 emergency and an imperative public necessity that the
5-64 constitutional rule requiring bills to be read on three several
5-65 days in each house be suspended, and this rule is hereby suspended.
5-66 * * * * *
5-67 Austin,
5-68 Texas
5-69 May 20, 1993
5-70 Hon. Bob Bullock
6-1 President of the Senate
6-2 Sir:
6-3 We, your Committee on Intergovernmental Relations to which was
6-4 referred H.B. No. 1185, have had the same under consideration, and
6-5 I am instructed to report it back to the Senate with the
6-6 recommendation that it do not pass, but that the Committee
6-7 Substitute adopted in lieu thereof do pass and be printed.
6-8 Armbrister,
6-9 Chairman
6-10 * * * * *
6-11 WITNESSES
6-12 FOR AGAINST ON
6-13 ___________________________________________________________________
6-14 Name: Donald Lee x
6-15 Representing: Harris Co. Judge Jon Lindsay
6-16 City: Houston
6-17 -------------------------------------------------------------------
6-18 Name: Joe Paniagua x
6-19 Representing: City of Fort Worth
6-20 City: Fort Worth
6-21 -------------------------------------------------------------------
6-22 Name: Barbara Stephen x
6-23 Representing: Collin County
6-24 City: McKinney
6-25 -------------------------------------------------------------------
6-26 Name: Steve Stagner x
6-27 Representing: Consulting
6-28 City: Austin
6-29 -------------------------------------------------------------------
6-30 Name: Jim Ray x
6-31 Representing: Councils of Governments
6-32 City: Austin
6-33 -------------------------------------------------------------------
6-34 Name: Karen Kennard x
6-35 Representing: TML
6-36 City: Austin
6-37 -------------------------------------------------------------------