H.B. No. 52
1-1 AN ACT
1-2 relating to the authority of state and local governments to make
1-3 purchases and contracts and to engage in certain projects.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 252.022(a), Local Government Code, is
1-6 amended to read as follows:
1-7 (a) This chapter does not apply to an expenditure for:
1-8 (1) a procurement made because of a public calamity
1-9 that requires the immediate appropriation of money to relieve the
1-10 necessity of the municipality's residents or to preserve the
1-11 property of the municipality;
1-12 (2) a procurement necessary to preserve or protect the
1-13 public health or safety of the municipality's residents;
1-14 (3) a procurement necessary because of unforeseen
1-15 damage to public machinery, equipment, or other property;
1-16 (4) a procurement for personal or professional
1-17 services;
1-18 (5) a procurement for work that is performed and paid
1-19 for by the day as the work progresses;
1-20 (6) a purchase of land or a right-of-way;
1-21 (7) a procurement of items that are available from
1-22 only one source, including:
1-23 (A) items that are available from only one
1-24 source because of patents, copyrights, secret processes, or natural
2-1 monopolies;
2-2 (B) films, manuscripts, or books;
2-3 (C) electricity, gas, water, and other utility
2-4 services;
2-5 (D) captive replacement parts or components for
2-6 equipment;
2-7 (E) books, papers, and other library materials
2-8 for a public library that are available only from the persons
2-9 holding exclusive distribution rights to the materials; and
2-10 (F) management services provided by a nonprofit
2-11 organization to a municipal museum, park, zoo, or other facility to
2-12 which the organization has provided significant financial or other
2-13 benefits;
2-14 (8) a purchase of rare books, papers, and other
2-15 library materials for a public library;
2-16 (9) paving drainage, street widening, and other public
2-17 improvements, or related matters, if at least one-third of the cost
2-18 is to be paid by or through special assessments levied on property
2-19 that will benefit from the improvements;
2-20 (10) a public improvement project, authorized by the
2-21 voters of the municipality, for which there is a deficiency of
2-22 funds for completing the project in accordance with the plans and
2-23 purposes authorized by the voters;
2-24 (11) a payment under a contract by which a developer
2-25 participates in the construction of a public improvement as
2-26 provided by Subchapter C, Chapter 212;
2-27 (12) personal property sold:
3-1 (A) at an auction by a state licensed
3-2 auctioneer;
3-3 (B) at a going out of business sale held in
3-4 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
3-5 <or>
3-6 (C) by a political subdivision of this state, a
3-7 state agency of this state, or an entity of the federal government;
3-8 or
3-9 (D) under an interlocal contract for cooperative
3-10 purchasing administered by a regional planning commission
3-11 established under Chapter 391; or <and>
3-12 (13) services performed by blind or severely disabled
3-13 persons.
3-14 SECTION 2. Section 252.048(c), Local Government Code, is
3-15 amended to read as follows:
3-16 (c) If a change order involves a decrease or an increase of
3-17 $25,000 <$15,000> or less, the governing body may grant general
3-18 authority to an administrative official of the municipality to
3-19 approve the change orders.
3-20 SECTION 3. Section 262.030, Local Government Code, is
3-21 amended to read as follows:
3-22 Sec. 262.030. Alternative Competitive Proposal Procedure for
3-23 Insurance, <OR> High Technology Items, AND SPECIAL SERVICES. (a)
3-24 The competitive proposal procedure provided by this section may be
3-25 used for the purchase of insurance, <or> high technology items, and
3-26 the following special services:
3-27 (1) landscape maintenance;
4-1 (2) travel management; or
4-2 (3) recycling.
4-3 (b) Quotations must be solicited through a request for
4-4 proposals. Public notice for the request for proposals must be
4-5 made in the same manner as provided in the competitive bidding
4-6 procedure. The request for proposals must specify the relative
4-7 importance of price and other evaluation factors. The award of the
4-8 contract shall be made to the responsible offeror whose proposal is
4-9 determined to be the lowest evaluated offer resulting from
4-10 negotiation, taking into consideration the relative importance of
4-11 price and other evaluation factors set forth in the request for
4-12 proposals.
4-13 (c) <(b)> If provided in the request for proposals,
4-14 proposals shall be opened so as to avoid disclosure of contents to
4-15 competing offerors and kept secret during the process of
4-16 negotiation. All proposals that have been submitted shall be
4-17 available and open for public inspection after the contract is
4-18 awarded, except for trade secrets and confidential information
4-19 contained in the proposals and identified as such.
4-20 (d) <(c)> As provided in the request for proposals and under
4-21 rules adopted by the commissioners court, discussions may be
4-22 conducted with responsible offerors who submit proposals determined
4-23 to be reasonably susceptible of being selected for award. Offerors
4-24 must be accorded fair and equal treatment with respect to any
4-25 opportunity for discussion and revision of proposals, and revisions
4-26 may be permitted after submission and before award for the purpose
4-27 of obtaining best and final offers.
5-1 SECTION 4. Section 262.031(b), Local Government Code, is
5-2 amended to read as follows:
5-3 (b) If a change order involves an increase or decrease in
5-4 cost of $50,000 <$15,000> or less, the commissioners court may
5-5 grant general authority to an employee to approve the change
5-6 orders. However, the original contract price may not be increased
5-7 by more than 25 percent unless the change order is necessary to
5-8 comply with a federal or state statute, rule, regulation, or
5-9 judicial decision enacted, adopted, or rendered after the contract
5-10 was made. The original contract price may not be decreased by 18
5-11 percent or more without the consent of the contractor.
5-12 SECTION 5. Section 263.152(a), Local Government Code, is
5-13 amended to read as follows:
5-14 (a) The commissioners court of a county may:
5-15 (1) periodically sell the county's surplus or salvage
5-16 property by competitive bid or auction, except that competitive
5-17 bidding or an auction is not necessary if the purchaser is another
5-18 county;
5-19 (2) offer the property as a trade-in for new property
5-20 of the same general type if the commissioners court considers that
5-21 action to be in the best interests of the county; or
5-22 (3) order any of the property to be destroyed or
5-23 otherwise disposed of as worthless if the commissioners court
5-24 undertakes to sell that property under Subdivision (1) and is
5-25 unable to do so because no bids are made.
5-26 SECTION 6. Section 271.083(a), Local Government Code, is
5-27 amended to read as follows:
6-1 (a) A local government may participate in the purchasing
6-2 program of the commission by filing with the commission a
6-3 resolution adopted by the governing body of the local government
6-4 requesting that the local government be allowed to participate on a
6-5 voluntary basis, and to the extent the commission deems feasible,
6-6 and stating that the local government will:
6-7 (1) designate an official to act for the local
6-8 government in all matters relating to the program, including the
6-9 purchase of items from the vendor under any contract, and that the
6-10 governing body will direct the decisions of the representative;
6-11 (2) be responsible for:
6-12 (A) submitting requisitions to the commission
6-13 under any contract; or
6-14 (B) electronically sending purchase orders
6-15 directly to vendors and electronically sending to the commission
6-16 reports on actual purchases made under this paragraph that provide
6-17 the information and are sent at the times required by the
6-18 commission;
6-19 (3) be responsible <and> for making payment directly
6-20 to the vendor; and
6-21 (4) <(3)> be responsible for the vendor's compliance
6-22 with all conditions of delivery and quality of the purchased item.
6-23 SECTION 7. Chapter 271, Local Government Code, is amended by
6-24 adding Subchapter F to read as follows:
6-25 SUBCHAPTER F. COOPERATIVE PURCHASING PROGRAM
6-26 Sec. 271.101. DEFINITIONS. In this subchapter:
6-27 (1) "Local cooperative organization" means an
7-1 organization of governments established to provide local
7-2 governments access to contracts with vendors for the purchase of
7-3 materials, supplies, services, or equipment.
7-4 (2) "Local government" means a county, municipality,
7-5 special district, school district, junior college district,
7-6 regional planning commission, or other political subdivision of the
7-7 state.
7-8 Sec. 271.102. COOPERATIVE PURCHASING PROGRAM PARTICIPATION.
7-9 (a) A local government may participate in a cooperative purchasing
7-10 program with another local government or a local cooperative
7-11 organization.
7-12 (b) A local government that is participating in a
7-13 cooperative purchasing program may sign an agreement with another
7-14 participating local government or a local cooperative organization
7-15 stating that the signing local government will:
7-16 (1) designate a person to act under the direction of,
7-17 and on behalf of, that local government in all matters relating to
7-18 the program;
7-19 (2) make payments to another participating local
7-20 government or a local cooperative organization or directly to a
7-21 vendor under a contract made under this subchapter, as provided in
7-22 the agreement between the participating local governments or
7-23 between a local government and a local cooperative organization;
7-24 and
7-25 (3) be responsible for a vendor's compliance with
7-26 provisions relating to the quality of items and terms of delivery,
7-27 to the extent provided in the agreement between the participating
8-1 local governments or between a local government and a local
8-2 cooperative organization.
8-3 (c) A local government that purchases goods or services
8-4 under this subchapter satisfies any state law requiring the local
8-5 government to seek competitive bids for the purchase of the goods
8-6 or services.
8-7 SECTION 8. Subchapter Z, Chapter 271, Local Government Code,
8-8 is amended by adding Section 271.904 to read as follows:
8-9 Sec. 271.904. INDEMNIFICATION. (a) Except as provided by
8-10 Subsection (b), a covenant or promise in, in connection with, or
8-11 collateral to a contract for engineering or architectural services
8-12 to which a governmental agency is a party is void and unenforceable
8-13 if the covenant or promise provides that a registered engineer or
8-14 registered architect whose work product is the subject of the
8-15 contract must indemnify or hold harmless the governmental agency
8-16 against liability for damage that:
8-17 (1) is caused by or results from the negligence of the
8-18 governmental agency or its agent or employee; and
8-19 (2) arises from:
8-20 (A) personal injury or death;
8-21 (B) property injury; or
8-22 (C) any other expense that arises from personal
8-23 injury, death, or property injury.
8-24 (b) A covenant under which a registered engineer or
8-25 registered architect agrees to indemnify or hold harmless a
8-26 governmental agency or its agent or employees against liability
8-27 arising from the personal injury or death of the architect or
9-1 engineer or the employees of the architect or engineer is
9-2 enforceable.
9-3 (c) In this section, "governmental agency" has the meaning
9-4 assigned by Section 271.003.
9-5 SECTION 9. Section 19, The Texas Engineering Practice Act
9-6 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
9-7 as follows:
9-8 Sec. 19. PUBLIC WORK. (a) It is unlawful for this State or
9-9 for any of its political subdivisions, including any county, city,
9-10 or town, to engage in the construction of any public work involving
9-11 professional engineering, where public health, public welfare or
9-12 public safety is involved, unless the engineering plans and
9-13 specifications and estimates have been prepared by, and the
9-14 engineering construction is to be executed under the direct
9-15 supervision of a registered professional engineer. <However
9-16 nothing in this Act shall be held to apply to any public work
9-17 wherein the contemplated expenditure for the completed project does
9-18 not exceed Eight Thousand ($8,000.00) Dollars.>
9-19 (b) This Act shall not apply to:
9-20 (1) a public work that involves structural,
9-21 electrical, or mechanical engineering and for which the
9-22 contemplated expenditure for the completed project does not exceed
9-23 $8,000;
9-24 (2) a public work that does not involve structural,
9-25 electrical, or mechanical engineering and for which the
9-26 contemplated expenditure for the completed project does not exceed
9-27 $20,000; and
10-1 (3) <any> road maintenance or betterment work
10-2 undertaken by the commissioners court of a county <the County
10-3 Commissioners' Court>.
10-4 SECTION 10. Chapter 122, Human Resources Code, is amended by
10-5 adding Section 122.020 to read as follows:
10-6 Sec. 122.020. APPLICATION OF OTHER LAW. Chapters 252, 262,
10-7 and 271, Local Government Code, do not supersede this chapter.
10-8 SECTION 11. Section 1.03(a), State Purchasing and General
10-9 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
10-10 amended to read as follows:
10-11 (a) The commission shall certify businesses that are
10-12 historically underutilized businesses. As part of its
10-13 certification procedures, the commission may approve another
10-14 certification <a municipal> program that certifies historically
10-15 underutilized businesses under substantially the same definition
10-16 prescribed by Section 1.02(3) of this Act, and municipalities may
10-17 adopt the certification program of the commission, the federal
10-18 Small Business Administration, a political subdivision, or another
10-19 governmental entity <certify businesses certified by the
10-20 municipality as historically underutilized businesses under this
10-21 Act>.
10-22 SECTION 12. The importance of this legislation and the
10-23 crowded condition of the calendars in both houses create an
10-24 emergency and an imperative public necessity that the
10-25 constitutional rule requiring bills to be read on three several
10-26 days in each house be suspended, and this rule is hereby suspended,
10-27 and that this Act take effect and be in force from and after its
11-1 passage, and it is so enacted.