By Hamric H.B. No. 2092
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to purchasing procedures of certain local governments;
1-3 providing criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 8, Local Government Code, is
1-6 amended by adding Chapter 274 to read as follows:
1-7 CHAPTER 274. COMPETITIVE BIDDING IN PURCHASING
1-8 BY LOCAL GOVERNMENTS
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 274.001. DEFINITIONS. In this chapter:
1-11 (1) "Bond funds" means money in the treasury received
1-12 from the sale of bonds and includes the proceeds of bonds that have
1-13 been voted but have not been issued and delivered.
1-14 (2) "Component purchases" means purchases of the
1-15 component parts of an item that in normal purchasing practices
1-16 would be purchased in one purchase.
1-17 (3) "Current funds" means money in the treasury, taxes
1-18 in the process of being collected in the current tax year, and all
1-19 other revenue, including grants and donations, that may be
1-20 anticipated with reasonable certainty in the current tax year.
1-21 (4) "High technology item" means equipment, goods, or
1-22 services of a highly technical nature, including:
1-23 (A) data processing equipment and software and
1-24 firmware used in conjunction with data processing equipment;
2-1 (B) telecommunications equipment and radio and
2-2 microwave systems;
2-3 (C) electronic distributed control systems,
2-4 including building energy management systems; and
2-5 (D) technical services related to those items.
2-6 (5) "Item" means a service, equipment, a good, or
2-7 other tangible or intangible personal property, including insurance
2-8 or a high technology item.
2-9 (6) "Purchase" means any kind of acquisition,
2-10 including a lease, of an item.
2-11 (7) "Local government" means a municipality, county,
2-12 special district, or other political subdivision of the state but
2-13 does not include a river authority.
2-14 (8) "Separate purchases" means purchases, made
2-15 separately, of items that in normal purchasing practices would be
2-16 purchased in one purchase.
2-17 (9) "Sequential purchases" means purchases, made over
2-18 a period, of items that in normal purchasing practices would be
2-19 purchased in one purchase.
2-20 (10) "Time warrant" includes any warrant issued by a
2-21 local government that is not payable from current funds.
2-22 Sec. 274.002. APPLICATION. (a) This chapter applies only
2-23 to a local government contract for which competitive bidding or
2-24 competitive proposals are not required by another statute.
2-25 (b) The purchasing requirements of Section 361.426, Health
2-26 and Safety Code, apply to local government purchases made under
2-27 this chapter.
3-1 (c) Any provision in the charter of a home-rule municipality
3-2 that relates to the notice of contracts, advertisement of the
3-3 notice, requirements for the taking of sealed bids based on
3-4 specifications for public improvements or purchases, or the manner
3-5 of letting contracts and that is in conflict with this chapter
3-6 controls over this chapter.
3-7 (d) This chapter does not apply to a joint powers agency
3-8 created under Chapter 166, Acts of the 63rd Legislature, Regular
3-9 Session, 1973 (Article 1435a, Vernon's Texas Civil Statutes).
3-10 (Sections 274.003-274.010 reserved for expansion
3-11 SUBCHAPTER B. COMPETITIVE BIDDING
3-12 Sec. 274.011. COMPETITIVE BIDDING AND COMPETITIVE PROPOSAL
3-13 REQUIREMENTS. (a) Before making a contract that requires an
3-14 expenditure of more than $15,000, a local government must comply
3-15 with the competitive sealed bidding or competitive sealed proposal
3-16 requirements of this chapter.
3-17 (b) A local government may use the competitive sealed
3-18 proposal procedure only for the purchase of:
3-19 (1) a high technology item; or
3-20 (2) another item if the officer who makes purchases
3-21 for the local government determines that it is impractical to
3-22 prepare detailed specifications and notifies the local government's
3-23 governing body of this determination.
3-24 (c) The competitive bidding and competitive proposal
3-25 requirements established by Subsection (a) apply only to contracts
3-26 for which payment will be made from current funds or bond funds or
3-27 through time warrants. However, contracts for which payments will
4-1 be made through certificates of obligation are governed by
4-2 Subchapter C, Chapter 271.
4-3 (d) In a county with a population of less than 20,000 that
4-4 does not have a county purchasing agent, contracts for $15,000 or
4-5 less may be entered into without the competitive bidding process
4-6 otherwise required by law if the commissioners court publicly finds
4-7 it to be in the public interest.
4-8 Sec. 274.012. GENERAL EXEMPTIONS. (a) A contract that
4-9 requires an expenditure for any of the following items is exempt
4-10 from the requirement established by Section 274.011 if the
4-11 governing body of the local government by order grants the
4-12 exemption:
4-13 (1) a purchase that, because of a public calamity,
4-14 must be made immediately to relieve the necessity of the local
4-15 government's residents or to preserve the local government's
4-16 property;
4-17 (2) a purchase necessary to preserve or protect the
4-18 public health or safety;
4-19 (3) a purchase necessary because of unforeseen damage
4-20 to public property;
4-21 (4) work performed and paid for by the day as the work
4-22 progresses;
4-23 (5) the purchase of land or a right-of-way;
4-24 (6) an item available from only one source, including:
4-25 (A) an item available from only one source
4-26 because of a patent, copyright, secret process, or natural
4-27 monopoly;
5-1 (B) a film, manuscript, or book;
5-2 (C) electricity, gas, water, or other utility
5-3 service;
5-4 (D) a captive replacement part or component for
5-5 equipment;
5-6 (E) books, papers, or other library material for
5-7 a public library available only from a person holding exclusive
5-8 distribution rights to the material; and
5-9 (F) management services provided by a nonprofit
5-10 organization to a museum, park, zoo, or other local government
5-11 facility to which the organization has provided significant
5-12 financial or other benefits;
5-13 (7) rare books, rare papers, or other rare library
5-14 material for a public library;
5-15 (8) an item of food;
5-16 (9) paving drainage, street widening, other public
5-17 improvements, or matters related to the improvements, if at least
5-18 one-third of the cost is to be paid by or through special
5-19 assessments levied on property that will benefit from the
5-20 improvements;
5-21 (10) a public improvement project, authorized by the
5-22 voters of the local government, for which there is not enough money
5-23 to complete the project according to the plans and purposes the
5-24 voters authorized;
5-25 (11) a payment under a contract by which a developer
5-26 participates in construction of a public improvement as provided by
5-27 Subchapter C, Chapter 212;
6-1 (12) personal property sold:
6-2 (A) at an auction by a state licensed
6-3 auctioneer;
6-4 (B) at a going out of business sale complying
6-5 with Subchapter F, Chapter 17, Business & Commerce Code;
6-6 (C) by an agency or political subdivision of the
6-7 state or an entity of the federal government; or
6-8 (D) under an interlocal agreement for
6-9 cooperative purchasing administered by a regional planning
6-10 commission established under Chapter 391; or
6-11 (13) work performed under a contract for community and
6-12 economic development under Section 381.004.
6-13 (b) This chapter does not apply to:
6-14 (1) personal or professional services;
6-15 (2) bonds or warrants issued under Title 118, Revised
6-16 Statutes, relating to seawalls; or
6-17 (3) a renewal or extension of a contract if the
6-18 governing body of the local government by order grants the
6-19 exemption and if:
6-20 (A) the following conditions exist:
6-21 (i) the contract has gone through the
6-22 competitive bidding procedure within the preceding year;
6-23 (ii) the renewal or extension does not
6-24 exceed one year; and
6-25 (iii) the renewal or extension is the
6-26 first renewal or extension of the contract; or
6-27 (B) an annual renewal or annual extension was
7-1 stated in the bid or proposal documents, requiring that the
7-2 provisions of the renewal or extension be submitted in detail,
7-3 except that a renewal or extension is not allowed under this
7-4 paragraph after the fifth anniversary of the date the contract is
7-5 awarded.
7-6 (c) If an item exempted under Subsection (a)(6) is to be
7-7 purchased, the governing body of the local government, after
7-8 accepting a signed statement from the official who makes purchases
7-9 for the local government about the existence of only one source,
7-10 must enter in its minutes a statement to that effect.
7-11 (Sections 274.013-274.030 reserved for expansion
7-12 SUBCHAPTER C. PROCEDURES
7-13 Sec. 274.031. NOTICE. (a) A notice of a proposed purchase
7-14 must be published at least once a week in a newspaper of general
7-15 circulation within the boundaries of the local government, with the
7-16 first day of publication occurring before the 14th day before the
7-17 date of the bid opening. If a newspaper of general circulation is
7-18 not published within the boundaries of the local government, the
7-19 notice must be posted for 14 days before the date of the bid
7-20 opening:
7-21 (1) at the city hall, if the local government is a
7-22 municipality;
7-23 (2) at the county courthouse if the local government
7-24 is a county; or
7-25 (3) in its administrative offices if the local
7-26 government is a special district or other political subdivision of
7-27 the state.
8-1 (b) If the competitive sealed proposals requirement applies
8-2 to the contract, notice of the request for proposals must be given
8-3 in the same manner as that prescribed by Subsection (a) for the
8-4 notice for competitive sealed bids.
8-5 (c) The notice required by Subsections (a) and (b) must
8-6 include:
8-7 (1) the specifications describing the item to be
8-8 purchased or a statement of the place where the specifications may
8-9 be obtained; and
8-10 (2) the time and place for receiving and opening bids
8-11 and the name and position of the official or employee to whom the
8-12 bids are to be sent.
8-13 (d) If the contract is for the purchase of machinery for the
8-14 construction or maintenance of roads or streets, the notice for
8-15 bids and the order for purchase must include a specification of the
8-16 machinery desired or a statement of the place where the
8-17 specifications may be obtained.
8-18 (e) If the governing body intends to issue time warrants for
8-19 the payment of any part of the contract, the notice must include a
8-20 statement of:
8-21 (1) the governing body's intention;
8-22 (2) the maximum amount of the proposed time warrant
8-23 indebtedness;
8-24 (3) the rate of interest the time warrants will bear;
8-25 and
8-26 (4) the maximum maturity date of the time warrants.
8-27 (f) In a county with a population of 2.2 million or more,
9-1 the county and any district or authority created under Article XVI,
9-2 Section 59, of the Texas Constitution of which the governing body
9-3 is the commissioners court may require that a minimum of 25 percent
9-4 of the work be performed by the bidder.
9-5 (g) Notwithstanding any other law to the contrary, a
9-6 governing body of a local government may establish financial
9-7 criteria for the surety companies that provide payment and
9-8 performance bonds.
9-9 Sec. 274.032. REQUESTS FOR PROPOSALS. (a) Requests for
9-10 competitive sealed proposals must solicit quotations and must
9-11 specify the relative importance of price and other evaluation
9-12 factors.
9-13 (b) Discussions in accordance with the terms of a request
9-14 for proposals and with regulations adopted by the governing body
9-15 may be conducted with offerors who submit proposals and who are
9-16 determined to be reasonably qualified for the award of the
9-17 contract. Offerors shall be treated fairly and equally with
9-18 respect to any opportunity for discussion and revision of
9-19 proposals. To obtain the best final offers, revisions may be
9-20 permitted after submissions and before the award of the contract.
9-21 Sec. 274.033. PROCEDURE FOR PURCHASE OF FOOD. (a) A local
9-22 government purchasing food items shall solicit at least three bids
9-23 by telephone or written quotations at intervals the governing body
9-24 specifies.
9-25 (b) The local government shall award the food purchase
9-26 contract to the responsible bidder who submits the lowest and best
9-27 bid or shall reject all bids and repeat the bidding process
10-1 provided by this section.
10-2 (c) The local government shall:
10-3 (1) maintain a record of all bids solicited and
10-4 vendors contacted; and
10-5 (2) keep the record for at least one year or until
10-6 audited by the local government's auditor.
10-7 Sec. 274.034. OPENING OF BIDS. (a) The official who makes
10-8 purchases for the local government shall open the bids on the date
10-9 specified in the notice. The date specified in the notice may be
10-10 extended by the governing body if an error is discovered in the
10-11 original specifications or the nature of the item to be purchased
10-12 requires an extension.
10-13 (b) Opened bids shall be kept on file and available for
10-14 inspection on request of any person.
10-15 Sec. 274.035. AWARD OF CONTRACT. (a) The officer in charge
10-16 of opening the bids shall present them to the governing body at a
10-17 meeting of the governing body. The governing body shall:
10-18 (1) award the contract to the responsible bidder who
10-19 submits the lowest and best bid; or
10-20 (2) reject all bids and publish a new notice.
10-21 (b) If the competitive sealed proposals requirement applies
10-22 to the contract, the award of the contract shall be made to the
10-23 responsible offeror whose proposal is determined to be the most
10-24 advantageous evaluated offer resulting from negotiation, taking
10-25 into consideration the relative importance of price and the other
10-26 evaluation factors included in the request for proposals.
10-27 (c) If two responsible bidders submit the lowest and best
11-1 bid, the governing body shall decide between the two by drawing
11-2 lots.
11-3 (d) A contract may not be awarded to a bidder who is not the
11-4 lowest dollar bidder meeting specifications unless, before the
11-5 award, each lower bidder is given notice of the proposed award and
11-6 is given an opportunity to appear before the governing body and
11-7 present evidence concerning the lower bidder's responsibility.
11-8 (e) The governing body may give preference to a bid, other
11-9 than a bid involving public works or the repair or improvement of
11-10 real property, submitted by a bidder whose principal place of
11-11 business is located within the local government if the bid does not
11-12 exceed the bid of any responsible nonresident bidder by more than
11-13 five percent.
11-14 Sec. 274.036. SAFETY RECORD OF BIDDER. In determining who
11-15 is a responsible bidder, the governing body may take into account
11-16 the safety record of the bidder, of the firm, corporation,
11-17 partnership, or institution represented by the bidder, or of anyone
11-18 acting for such a firm, corporation, partnership, or institution
11-19 if:
11-20 (1) the governing body has adopted a written
11-21 definition and criteria for accurately determining the safety
11-22 record of a bidder;
11-23 (2) the governing body has given notice to prospective
11-24 bidders in the bid specifications that the safety record of a
11-25 bidder may be considered in determining the responsibility of the
11-26 bidder; and
11-27 (3) the determinations are not arbitrary and
12-1 capricious.
12-2 Sec. 274.037. MODIFICATION AFTER AWARD. (a) After award of
12-3 contract but before the contract is made, the official who makes
12-4 purchases for the local government may negotiate a modification of
12-5 the contract if the modification is in the best interests of the
12-6 local government and does not substantially change the scope of the
12-7 contract or cause the contract amount to exceed the next lowest
12-8 bid.
12-9 (b) For the modified contract to be effective, the governing
12-10 body must approve the contract.
12-11 Sec. 274.038. CONTRACTOR'S BONDS. (a) Within 30 days after
12-12 the date of the signing of a contract or issuance of a purchase
12-13 order following the acceptance of a bid or proposal and before
12-14 commencement of the actual work, the bidder or proposal offeror
12-15 shall furnish a performance and payment bond to the local
12-16 government, if required by the local government, for the full
12-17 amount of the contract if that contract exceeds $50,000. This
12-18 subsection does not apply to a performance bond required to be
12-19 furnished by Article 5160, Revised Statutes. Each bond must be:
12-20 (1) in the full amount of the contract price;
12-21 (2) conditioned that the contractor will faithfully
12-22 perform the contract;
12-23 (3) executed, as provided by Article 5160, Revised
12-24 Statutes, by a surety company authorized to do business in the
12-25 state; and
12-26 (4) in a form acceptable to the local government and
12-27 meeting the financial criteria established by the local government
13-1 for surety companies providing performance and payment bonds.
13-2 (b) The governing body of a home-rule municipality by
13-3 ordinance may adopt the provisions of this section and
13-4 Article 5160, Revised Statutes, relating to contractors' surety
13-5 bonds, regardless of a conflicting provision in the municipality's
13-6 charter.
13-7 (c) If a purchase exceeds $50,000, the governing body may
13-8 require a bid bond. A cashier's check may be substituted for the
13-9 bond.
13-10 Sec. 274.039. REFERENDUM ON ISSUANCE OF TIME WARRANTS. (a)
13-11 If, by the time set for letting a contract under this chapter, a
13-12 written petition with the required signatures is filed with the
13-13 local government's secretary or clerk requesting the governing body
13-14 to order a referendum on the question of whether time warrants
13-15 should be issued for an expenditure under the contract, the
13-16 governing body may not authorize the expenditure or finally award
13-17 the contract unless the question is approved by a majority of the
13-18 votes received in the referendum. The petition must be signed by
13-19 at least 10 percent of the qualified voters of the local government
13-20 whose names appear as property taxpayers on the local government's
13-21 most recently approved tax rolls.
13-22 (b) If a petition is not filed, the governing body may
13-23 finally award the contract and issue the time warrants. In the
13-24 absence of a petition, the governing body may order the referendum.
13-25 (c) The provisions of Chapters 1 and 2, Title 22, Revised
13-26 Statutes, relating to elections for the issuance of bonds and to
13-27 the issuance, approval, registration, and sale of bonds govern the
14-1 referendum and the time warrants to the extent those provisions are
14-2 consistent with this chapter and the Bond and Warrant Law of 1931
14-3 (Article 2368a, Vernon's Texas Civil Statutes). However, the time
14-4 warrants mature and are payable as provided by the Bond and Warrant
14-5 Law of 1931 (Article 2368a, Vernon's Texas Civil Statutes) for
14-6 funding bonds.
14-7 (d) This section does not supersede any additional rights
14-8 provided by the charter of a special-law municipality and relating
14-9 to a referendum.
14-10 (e) This section does not apply to expenditures that are
14-11 payable:
14-12 (1) from current funds;
14-13 (2) from bond funds; or
14-14 (3) by time warrants unless the amount of the time
14-15 warrants issued by the local government for all purposes during the
14-16 current calendar year exceeds:
14-17 (A) $7,500 if the local government's population
14-18 is 5,000 or less;
14-19 (B) $10,000 if the local government's population
14-20 is 5,001 to 25,000;
14-21 (C) $25,000 if the local government's population
14-22 is 25,001 to 49,999; or
14-23 (D) $100,000 if the local government's
14-24 population is more than 50,000.
14-25 Sec. 274.040. SET ASIDE OF CURRENT FUNDS. If an expenditure
14-26 under the contract is payable by warrants on current funds, the
14-27 governing body by order shall set aside an amount of current funds
15-1 that will discharge the principal and interest of the warrants.
15-2 Those funds may not be used for any other purpose, and the warrants
15-3 must be discharged from those funds and may not be refunded.
15-4 Sec. 274.041. APPRAISAL IN CERTAIN CONTRACTS. (a) This
15-5 section applies only to a lease-purchase or installment purchase of
15-6 real property financed by the issuance of certificates of
15-7 participation.
15-8 (b) The governing body may not make an agreement under which
15-9 the local government is a lessee in a lease-purchase or is a
15-10 purchaser in an installment purchase unless the governing body
15-11 first obtains an appraisal by a qualified appraiser who is not an
15-12 employee of the local government. The purchase price may not
15-13 exceed the fair market value of the real property, as shown by the
15-14 appraisal.
15-15 Sec. 274.042. PAYMENT METHOD FOR CERTAIN CONTRACTS. A
15-16 purchase may be proposed on a lump-sum or unit-price basis. If the
15-17 contract is let on a unit-price basis, the information furnished to
15-18 bidders must specify the approximate quantity needed, based on the
15-19 best available information, but payment to the contractor must be
15-20 based on the actual quantity constructed or supplied.
15-21 Sec. 274.043. CHANGE ORDERS. (a) If changes in plans or
15-22 specifications are necessary after the contract is made or if it is
15-23 necessary to decrease or increase the quantity of work to be
15-24 performed or of materials, equipment, or supplies to be furnished,
15-25 the governing body may approve change orders making the changes.
15-26 (b) The total contract price may not be increased because of
15-27 the changes unless additional money for increased costs is
16-1 appropriated for that purpose from available funds or is provided
16-2 for by the authorization of the issuance of time warrants.
16-3 (c) If a change order involves a decrease or an increase of
16-4 $15,000 or less, the governing body may grant general authority to
16-5 an administrative official to approve the change orders.
16-6 (d) The original contract price may not be increased or
16-7 decreased under this section by more than 25 percent, unless a
16-8 greater increase or decrease is necessary to comply with a state or
16-9 federal law adopted or judicial decision rendered after the date
16-10 the contract was executed. The original contract price may not be
16-11 decreased under this section by more than 25 percent without the
16-12 consent of the contractor.
16-13 Sec. 274.044. SELECTION OF INSURANCE BROKER. This chapter
16-14 does not prevent a local government from selecting a licensed
16-15 insurance broker as the sole broker of record to obtain proposals
16-16 and coverages for excess or surplus insurance that provides
16-17 necessary coverage and adequate limits of coverage in structuring
16-18 layered excess coverages in all areas of risk requiring special
16-19 consideration, including public official liability, police
16-20 professional liability, and airport liability. The broker may be
16-21 retained only on a fee basis and may not receive any other
16-22 remuneration from any other source.
16-23 Sec. 274.045. CONFIDENTIALITY OF INFORMATION IN BIDS OR
16-24 PROPOSALS. If provided in a request for proposals, proposals shall
16-25 be opened in a manner that avoids disclosure of the contents to
16-26 competing offerors and keeps the proposals secret during
16-27 negotiations. All proposals are open for public inspection after
17-1 the contract is awarded, but trade secrets and confidential
17-2 information designated in the proposals as trade secrets or
17-3 confidential information are not open for public inspection.
17-4 (Sections 274.046-274.070 reserved for expansion
17-5 SUBCHAPTER D. ENFORCEMENT
17-6 Sec. 274.071. INJUNCTION. If the contract is made without
17-7 compliance with this chapter, it is void and the performance of the
17-8 contract, including the payment of any money under the contract,
17-9 may be enjoined by any property tax paying resident of the local
17-10 government.
17-11 Sec. 274.072. CRIMINAL PENALTIES. (a) A local government
17-12 officer or employee commits an offense if the officer or employee
17-13 intentionally or knowingly makes or authorizes separate,
17-14 sequential, or component purchases to avoid the competitive bidding
17-15 requirements of Section 274.011. An offense under this subsection
17-16 is a Class B misdemeanor.
17-17 (b) A local government officer or employee commits an
17-18 offense if the officer or employee intentionally or knowingly
17-19 violates Section 274.011, other than by conduct described by
17-20 Subsection (a). An offense under this subsection is a Class B
17-21 misdemeanor.
17-22 (c) A local government officer or employee commits an
17-23 offense if the officer or employee intentionally or knowingly
17-24 violates this chapter, other than by conduct described by
17-25 Subsection (a) or (b). An offense under this subsection is a Class
17-26 C misdemeanor.
17-27 Sec. 274.073. REMOVAL; INELIGIBILITY. (a) The final
18-1 conviction of a local government officer or employee for an offense
18-2 under Section 274.072(a) or (b) results in the immediate removal
18-3 from office or employment of that person.
18-4 (b) For four years after the date of the final conviction,
18-5 the removed officer or employee is ineligible:
18-6 (1) to be a candidate for or to be appointed or
18-7 elected to a public office in this state;
18-8 (2) to be employed by the local government with which
18-9 the person served when the offense occurred; and
18-10 (3) to receive any compensation through a contract
18-11 with that local government.
18-12 (c) This section does not prohibit the payment of retirement
18-13 or workers' compensation benefits to the removed officer or
18-14 employee.
18-15 SUBCHAPTER E. LEAST COST REVIEW PROGRAM
18-16 Sec. 274.081. ESTABLISHING PROGRAM. A local government may
18-17 establish a least cost review program for public improvements to be
18-18 constructed by use of the local government's personnel, equipment,
18-19 or facilities.
18-20 Sec. 274.082. CONTENT OF PROGRAM. The least cost review
18-21 program must require the local government, before making
18-22 improvements to which the program applies, to make a comparison of
18-23 the cost of the improvements if constructed by use of the local
18-24 government's personnel, equipment, and facilities with the cost of
18-25 the improvements if constructed by a private contractor, as
18-26 determined by competitive bids submitted by private contractors.
18-27 Sec. 274.083. ADOPTION OF FORMS. (a) The state auditor, in
19-1 consultation with the comptroller, shall develop, adopt, and
19-2 distribute to local governments cost accounting forms that local
19-3 governments shall use in the least cost review program. Before
19-4 adopting the forms the state auditor and comptroller shall consult
19-5 with local governments of various sizes and with representatives of
19-6 the construction industry.
19-7 (b) The forms must be simple, concise, and capable of being
19-8 completed by a local government at a minimum cost. The forms must
19-9 include instructions for their use.
19-10 SECTION 2. Subchapter A, Chapter 262, Local Government Code,
19-11 is amended by adding Sections 262.006 and 262.007 to read as
19-12 follows:
19-13 Sec. 262.006. COMPETITIVE BIDDING PROCEDURES ADOPTED BY
19-14 COUNTY PURCHASING AGENTS. A county purchasing agent shall adopt
19-15 procedures that provide for competitive bidding, to the extent
19-16 practicable under the circumstances, for the county purchase of an
19-17 item under a contract that is not subject to competitive bidding
19-18 under Section 274.011.
19-19 Sec. 262.007. ALTERNATIVE MULTISTEP COMPETITIVE PROPOSAL
19-20 PROCEDURE. (a) A county may use the multistep competitive
19-21 proposal procedure provided by this section if:
19-22 (1) the county official who makes purchases for the
19-23 county determines that it is impractical to prepare detailed
19-24 specifications for an item to support the award of a purchase
19-25 contract, and the official notifies the commissioners court of this
19-26 determination; and
19-27 (2) the commissioners court, following notification
20-1 under Subdivision (1), determines that it is impractical to prepare
20-2 detailed specifications for an item to support the award of the
20-3 purchase contract.
20-4 (b) The county shall solicit proposals by giving notice in
20-5 the manner provided for competitive bids by Section 274.031. The
20-6 solicitation may request unpriced proposals.
20-7 (c) The county official shall open the proposals on the date
20-8 specified in the notice. Not later than the 15th day after that
20-9 date, the county official shall solicit by mail priced bids from
20-10 the persons who submitted proposals and who qualified under the
20-11 criteria stated in the first solicitation.
20-12 (d) Negotiations may be conducted with responsible offerors
20-13 who submit reasonable priced bids, as provided by the request for
20-14 proposals and rules of the commissioners court. Each offeror shall
20-15 be given fair and equal opportunity for negotiation and revision of
20-16 a proposal.
20-17 (e) Not later than the 60th day after the date proposals are
20-18 opened under Subsection (c), the county official shall present the
20-19 priced bids to the commissioners court. The commissioners court
20-20 shall award the contract to the responsible offeror whose bid the
20-21 commissioners court determines is the most advantageous evaluated
20-22 offer resulting from negotiation. Each proposal and bid submitted
20-23 is available and open for public inspection after the contract is
20-24 awarded, except trade secrets and confidential information
20-25 designated in the proposal as trade secrets or confidential
20-26 information.
20-27 SECTION 3. Section 271.024, Local Government Code, is
21-1 amended to read as follows:
21-2 Sec. 271.024. Competitive Bidding Procedure Applicable to
21-3 Contract. If a governmental entity is required by statute to award
21-4 a contract for the construction, repair, or renovation of a
21-5 structure, road, highway, or other improvement or addition to real
21-6 property on the basis of competitive bids, and if the contract
21-7 requires the expenditure of more than $15,000 <$10,000> from the
21-8 funds of the entity, the bidding on the contract must be
21-9 accomplished in the manner provided by this subchapter.
21-10 SECTION 4. Chapter 271, Local Government Code, is amended by
21-11 adding Subchapter E to read as follows:
21-12 SUBCHAPTER E. COOPERATIVE PURCHASING PROGRAM
21-13 Sec. 271.091. DEFINITIONS. In this subchapter:
21-14 (1) "Local cooperative organization" means an
21-15 organization established to provide local governments access to
21-16 contracts with vendors for the purchase of materials, supplies,
21-17 services, or equipment.
21-18 (2) "Local government" means a county, municipality,
21-19 special district, school district, junior college district, or
21-20 other legally constituted political subdivision of the state.
21-21 Sec. 271.092. COOPERATIVE PURCHASING PROGRAM PARTICIPATION.
21-22 (a) A local government may participate in a cooperative purchasing
21-23 program with another local government or a local cooperative
21-24 organization.
21-25 (b) A participating local government may sign an agreement
21-26 with the other local government or cooperative organization, as
21-27 applicable, stating that the signing local government will:
22-1 (1) designate a person to act under the direction of,
22-2 and on behalf of, that governmental body in all matters relating to
22-3 the program;
22-4 (2) make payments directly to a vendor under a
22-5 contract made under this subchapter; and
22-6 (3) be responsible for a vendor's compliance with
22-7 provisions relating to the quality of items and terms of delivery.
22-8 (c) A local government that purchases under this program
22-9 complies with the competitive bidding requirements of this title or
22-10 other state law if the applicable competitive bidding requirements
22-11 are followed by the entity awarding the contract.
22-12 SECTION 5. Subchapter Z, Chapter 271, Local Government Code,
22-13 is amended by adding Section 271.903 to read as follows:
22-14 Sec. 271.903. COMMITMENT OF CURRENT REVENUE. (a) If a
22-15 contract for the acquisition, including lease, of real or personal
22-16 property retains to the governing body of a local government the
22-17 continuing right to terminate at the expiration of each budget
22-18 period of the local government during the term of the contract, is
22-19 conditioned on a best efforts attempt by the governing body to
22-20 obtain and appropriate funds for payment of the contract, or
22-21 contains both the continuing right to terminate and the best
22-22 efforts conditions, the contract is a commitment of the local
22-23 government's current revenues only.
22-24 (b) In this section, "local government" means a
22-25 municipality, county, school district, special purpose district or
22-26 authority, or other political subdivision of this state.
22-27 SECTION 6. The following provisions of the Local Government
23-1 Code are repealed:
23-2 (1) Chapter 252;
23-3 (2) Section 262.005;
23-4 (3) Subchapter C, Chapter 262; and
23-5 (4) Section 271.005(b).
23-6 SECTION 7. This Act applies only to a purchase for which the
23-7 first solicitation of bids or proposals is made on or after
23-8 September 1, 1993.
23-9 SECTION 8. The state auditor shall adopt and distribute the
23-10 cost accounting forms required by Section 274.083, Local Government
23-11 Code, as added by this Act, before May 21, 1994.
23-12 SECTION 9. This Act takes effect September 1, 1993.
23-13 SECTION 10. The importance of this legislation and the
23-14 crowded condition of the calendars in both houses create an
23-15 emergency and an imperative public necessity that the
23-16 constitutional rule requiring bills to be read on three several
23-17 days in each house be suspended, and this rule is hereby suspended.