1-1 By: McCall, Park, et al. (Senate Sponsor - Shapiro) H.B. No. 52
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 16, 1995, read first time and referred to Committee on
1-4 Intergovernmental Relations; May 19, 1995, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 8, Nays
1-6 0; May 19, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 52 By: Shapiro
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the authority of state and local governments to make
1-11 purchases and contracts and to engage in certain projects.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 252.022(a), Local Government Code, is
1-14 amended to read as follows:
1-15 (a) This chapter does not apply to an expenditure for:
1-16 (1) a procurement made because of a public calamity
1-17 that requires the immediate appropriation of money to relieve the
1-18 necessity of the municipality's residents or to preserve the
1-19 property of the municipality;
1-20 (2) a procurement necessary to preserve or protect the
1-21 public health or safety of the municipality's residents;
1-22 (3) a procurement necessary because of unforeseen
1-23 damage to public machinery, equipment, or other property;
1-24 (4) a procurement for personal or professional
1-25 services;
1-26 (5) a procurement for work that is performed and paid
1-27 for by the day as the work progresses;
1-28 (6) a purchase of land or a right-of-way;
1-29 (7) a procurement of items that are available from
1-30 only one source, including:
1-31 (A) items that are available from only one
1-32 source because of patents, copyrights, secret processes, or natural
1-33 monopolies;
1-34 (B) films, manuscripts, or books;
1-35 (C) electricity, gas, water, and other utility
1-36 services;
1-37 (D) captive replacement parts or components for
1-38 equipment;
1-39 (E) books, papers, and other library materials
1-40 for a public library that are available only from the persons
1-41 holding exclusive distribution rights to the materials; and
1-42 (F) management services provided by a nonprofit
1-43 organization to a municipal museum, park, zoo, or other facility to
1-44 which the organization has provided significant financial or other
1-45 benefits;
1-46 (8) a purchase of rare books, papers, and other
1-47 library materials for a public library;
1-48 (9) paving drainage, street widening, and other public
1-49 improvements, or related matters, if at least one-third of the cost
1-50 is to be paid by or through special assessments levied on property
1-51 that will benefit from the improvements;
1-52 (10) a public improvement project, authorized by the
1-53 voters of the municipality, for which there is a deficiency of
1-54 funds for completing the project in accordance with the plans and
1-55 purposes authorized by the voters;
1-56 (11) a payment under a contract by which a developer
1-57 participates in the construction of a public improvement as
1-58 provided by Subchapter C, Chapter 212;
1-59 (12) personal property sold:
1-60 (A) at an auction by a state licensed
1-61 auctioneer;
1-62 (B) at a going out of business sale held in
1-63 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
1-64 <or>
1-65 (C) by a political subdivision of this state, a
1-66 state agency of this state, or an entity of the federal government;
1-67 or
1-68 (D) under an interlocal contract for cooperative
2-1 purchasing administered by a regional planning commission
2-2 established under Chapter 391; or <and>
2-3 (13) services performed by blind or severely disabled
2-4 persons.
2-5 SECTION 2. Section 262.030, Local Government Code, is
2-6 amended to read as follows:
2-7 Sec. 262.030. Alternative Competitive Proposal Procedure for
2-8 Insurance, <or> High Technology Items, AND SPECIAL SERVICES. (a)
2-9 The competitive proposal procedure provided by this section may be
2-10 used for the purchase of insurance, <or> high technology items, and
2-11 the following special services:
2-12 (1) landscape maintenance;
2-13 (2) travel management; or
2-14 (3) recycling.
2-15 (b) Quotations must be solicited through a request for
2-16 proposals. Public notice for the request for proposals must be
2-17 made in the same manner as provided in the competitive bidding
2-18 procedure. The request for proposals must specify the relative
2-19 importance of price and other evaluation factors. The award of the
2-20 contract shall be made to the responsible offeror whose proposal is
2-21 determined to be the lowest evaluated offer resulting from
2-22 negotiation, taking into consideration the relative importance of
2-23 price and other evaluation factors set forth in the request for
2-24 proposals.
2-25 (c) <(b)> If provided in the request for proposals,
2-26 proposals shall be opened so as to avoid disclosure of contents to
2-27 competing offerors and kept secret during the process of
2-28 negotiation. All proposals that have been submitted shall be
2-29 available and open for public inspection after the contract is
2-30 awarded, except for trade secrets and confidential information
2-31 contained in the proposals and identified as such.
2-32 (d) <(c)> As provided in the request for proposals and under
2-33 rules adopted by the commissioners court, discussions may be
2-34 conducted with responsible offerors who submit proposals determined
2-35 to be reasonably susceptible of being selected for award. Offerors
2-36 must be accorded fair and equal treatment with respect to any
2-37 opportunity for discussion and revision of proposals, and revisions
2-38 may be permitted after submission and before award for the purpose
2-39 of obtaining best and final offers.
2-40 SECTION 3. Section 262.031(b), Local Government Code, is
2-41 amended to read as follows:
2-42 (b) If a change order involves an increase or decrease in
2-43 cost of $50,000 <$15,000> or less, the commissioners court may
2-44 grant general authority to an employee to approve the change
2-45 orders. However, the original contract price may not be increased
2-46 by more than 25 percent unless the change order is necessary to
2-47 comply with a federal or state statute, rule, regulation, or
2-48 judicial decision enacted, adopted, or rendered after the contract
2-49 was made. The original contract price may not be decreased by 18
2-50 percent or more without the consent of the contractor.
2-51 SECTION 4. Section 263.152(a), Local Government Code, is
2-52 amended to read as follows:
2-53 (a) The commissioners court of a county may:
2-54 (1) periodically sell the county's surplus or salvage
2-55 property by competitive bid or auction, except that competitive
2-56 bidding or an auction is not necessary if the purchaser is another
2-57 county;
2-58 (2) offer the property as a trade-in for new property
2-59 of the same general type if the commissioners court considers that
2-60 action to be in the best interests of the county; or
2-61 (3) order any of the property to be destroyed or
2-62 otherwise disposed of as worthless if the commissioners court
2-63 undertakes to sell that property under Subdivision (1) and is
2-64 unable to do so because no bids are made.
2-65 SECTION 5. Section 271.083(a), Local Government Code, is
2-66 amended to read as follows:
2-67 (a) A local government may participate in the purchasing
2-68 program of the commission by filing with the commission a
2-69 resolution adopted by the governing body of the local government
2-70 requesting that the local government be allowed to participate on a
3-1 voluntary basis, and to the extent the commission deems feasible,
3-2 and stating that the local government will:
3-3 (1) designate an official to act for the local
3-4 government in all matters relating to the program, including the
3-5 purchase of items from the vendor under any contract, and that the
3-6 governing body will direct the decisions of the representative;
3-7 (2) be responsible for:
3-8 (A) submitting requisitions to the commission
3-9 under any contract; or
3-10 (B) electronically sending purchase orders
3-11 directly to vendors and electronically sending to the commission
3-12 reports on actual purchases made under this paragraph that provide
3-13 the information and are sent at the times required by the
3-14 commission;
3-15 (3) be responsible <and> for making payment directly
3-16 to the vendor; and
3-17 (4) <(3)> be responsible for the vendor's compliance
3-18 with all conditions of delivery and quality of the purchased item.
3-19 SECTION 6. Chapter 271, Local Government Code, is amended by
3-20 adding Subchapter F to read as follows:
3-21 SUBCHAPTER F. COOPERATIVE PURCHASING PROGRAM
3-22 Sec. 271.101. DEFINITIONS. In this subchapter:
3-23 (1) "Local cooperative organization" means an
3-24 organization of governments established to provide local
3-25 governments access to contracts with vendors for the purchase of
3-26 materials, supplies, services, or equipment.
3-27 (2) "Local government" means a county, municipality,
3-28 special district, school district, junior college district,
3-29 regional planning commission, or other political subdivision of the
3-30 state.
3-31 Sec. 271.102. COOPERATIVE PURCHASING PROGRAM PARTICIPATION.
3-32 (a) A local government may participate in a cooperative purchasing
3-33 program with another local government or a local cooperative
3-34 organization.
3-35 (b) A local government that is participating in a
3-36 cooperative purchasing program may sign an agreement with another
3-37 participating local government or a local cooperative organization
3-38 stating that the signing local government will:
3-39 (1) designate a person to act under the direction of,
3-40 and on behalf of, that local government in all matters relating to
3-41 the program;
3-42 (2) make payments to another participating local
3-43 government or a local cooperative organization or directly to a
3-44 vendor under a contract made under this subchapter, as provided in
3-45 the agreement between the participating local governments or
3-46 between a local government and a local cooperative organization;
3-47 and
3-48 (3) be responsible for a vendor's compliance with
3-49 provisions relating to the quality of items and terms of delivery,
3-50 to the extent provided in the agreement between the participating
3-51 local governments or between a local government and a local
3-52 cooperative organization.
3-53 (c) A local government that purchases goods or services
3-54 under this subchapter satisfies any state law requiring the local
3-55 government to seek competitive bids for the purchase of the goods
3-56 or services.
3-57 SECTION 7. Subchapter Z, Chapter 271, Local Government Code,
3-58 is amended by adding Section 271.904 to read as follows:
3-59 Sec. 271.904. INDEMNIFICATION. (a) A contract for design
3-60 or engineering services to which a governmental agency is a party
3-61 may not include a provision requiring a design professional
3-62 registered under The Texas Engineering Practice Act (Article 3271a,
3-63 Vernon's Texas Civil Statutes) to indemnify the governmental agency
3-64 for damages arising from the sole negligence of the governmental
3-65 agency.
3-66 (b) A provision in violation of this section is void.
3-67 (c) In this section, "governmental agency" has the meaning
3-68 assigned by Section 271.003.
3-69 SECTION 8. Section 19, The Texas Engineering Practice Act
3-70 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
4-1 as follows:
4-2 Sec. 19. PUBLIC WORK. (a) It is unlawful for this State or
4-3 for any of its political subdivisions, including any county, city,
4-4 or town, to engage in the construction of any public work involving
4-5 professional engineering, where public health, public welfare or
4-6 public safety is involved, unless the engineering plans and
4-7 specifications and estimates have been prepared by, and the
4-8 engineering construction is to be executed under the direct
4-9 supervision of a registered professional engineer. <However
4-10 nothing in this Act shall be held to apply to any public work
4-11 wherein the contemplated expenditure for the completed project does
4-12 not exceed Eight Thousand ($8,000.00) Dollars.>
4-13 (b) This Act shall not apply to:
4-14 (1) a public work that involves structural,
4-15 electrical, or mechanical engineering and for which the
4-16 contemplated expenditure for the completed project does not exceed
4-17 $8,000;
4-18 (2) a public work that does not involve structural,
4-19 electrical, or mechanical engineering and for which the
4-20 contemplated expenditure for the completed project does not exceed
4-21 $20,000; and
4-22 (3) <any> road maintenance or betterment work
4-23 undertaken by the commissioners court of a county <the County
4-24 Commissioners' Court>.
4-25 SECTION 9. Chapter 122, Human Resources Code, is amended by
4-26 adding Section 122.020 to read as follows:
4-27 Sec. 122.020. APPLICATION OF OTHER LAW. Chapters 252, 262,
4-28 and 271, Local Government Code, do not supersede this chapter.
4-29 SECTION 10. The section heading of Section 791.026,
4-30 Government Code, and Subsection (a), Section 791.026, Government
4-31 Code, are amended to read as follows:
4-32 Sec. 791.026. CONTRACTS BY CERTAIN HOME-RULE MUNICIPALITIES
4-33 FOR WATER SUPPLY AND WASTEWATER TREATMENT FACILITIES. (a) A
4-34 home-rule municipality that has a charter provision requiring an
4-35 election to enter into a contract for water supply or wastewater
4-36 service<, district, or river authority of this state> may contract
4-37 with another municipality, a district, or a river authority of this
4-38 state to obtain or provide part or all of:
4-39 (1) water supply or wastewater treatment facilities;
4-40 or
4-41 (2) a lease or operation of water supply facilities or
4-42 wastewater treatment facilities.
4-43 SECTION 11. Subchapter C, Chapter 791, Government Code, is
4-44 amended by adding Section 791.0265 to read as follows:
4-45 Sec. 791.0265. CONTRACTS BY CERTAIN OTHER POLITICAL
4-46 SUBDIVISIONS FOR WATER SUPPLY AND WASTEWATER TREATMENT FACILITIES.
4-47 (a) A municipality, except a home-rule municipality described by
4-48 Section 791.026(a), a district, a municipally owned utility, or a
4-49 river authority of this state has authority, regardless of any
4-50 other law, to contract on approval by the governing body of the
4-51 municipality, district, or river authority, without the necessity
4-52 of holding an election, with any of the following entities for a
4-53 purpose described by Subsection (b):
4-54 (1) an interstate agency;
4-55 (2) an agency of the United States;
4-56 (3) an agency of this state or a state that borders
4-57 this state;
4-58 (4) a river authority of this state; or
4-59 (5) a local government.
4-60 (b) An interlocal contract may be made to obtain or provide
4-61 part or all of:
4-62 (1) the preparation of plans for, and the
4-63 determination of the feasibility, finance, design, construction,
4-64 operation, maintenance, and provision of, water supply or
4-65 wastewater treatment services or facilities; or
4-66 (2) a lease or operation of water supply facilities or
4-67 wastewater treatment facilities.
4-68 (c) The contract may provide that the municipality,
4-69 district, municipally owned utility, or river authority obtaining
4-70 one of the services may not obtain those services from a source
5-1 other than a contracting party, except as provided by the contract.
5-2 (d) If a contract includes a term described by Subsection
5-3 (c), payments made under the contract are the paying party's
5-4 operating expenses for its water supply system, wastewater
5-5 treatment facilities, or both.
5-6 (e) The contract may:
5-7 (1) contain terms and extend for any period on which
5-8 the parties agree; and
5-9 (2) provide that it will continue in effect until
5-10 bonds specified by the contract and any refunding bonds issued to
5-11 pay those bonds are paid.
5-12 (f) Tax revenue may not be pledged to the payment of amounts
5-13 agreed to be paid under the contract.
5-14 (g) The powers granted by this section prevail over a
5-15 limitation contained in another law.
5-16 (h) A contract between a local government of this state and
5-17 a local government of a state of the United States that borders
5-18 this state must provide that the laws and judicial decisions of
5-19 this state regarding sovereign immunity or the waiver of sovereign
5-20 immunity apply to any claim brought against a local government of
5-21 this state or its employees arising out of the acts or omissions of
5-22 the local government's employees acting in the employee's scope of
5-23 employment that occurred in the bordering state.
5-24 (i) In this section, "scope of employment" has the meaning
5-25 assigned by Section 101.001, Civil Practice and Remedies Code.
5-26 SECTION 12. The importance of this legislation and the
5-27 crowded condition of the calendars in both houses create an
5-28 emergency and an imperative public necessity that the
5-29 constitutional rule requiring bills to be read on three several
5-30 days in each house be suspended, and this rule is hereby suspended,
5-31 and that this Act take effect and be in force from and after its
5-32 passage, and it is so enacted.
5-33 * * * * *