77R11324 PAM-F
By Clark H.B. No. 2486
Substitute the following for H.B. No. 2486:
By Carter C.S.H.B. No. 2486
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the purchasing and contracting authority of
1-3 municipalities; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 252, Local Government Code, is reorganized
1-6 and amended to read as follows:
1-7 CHAPTER 252. PURCHASING AND CONTRACTING AUTHORITY OF
1-8 MUNICIPALITIES
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 252.001. DEFINITIONS. In this chapter:
1-11 (1) "Bond funds" includes money in the treasury
1-12 received from the sale of bonds and includes the proceeds of bonds
1-13 that have 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" includes money in the treasury,
1-18 taxes in the process of being collected in the current fiscal [tax]
1-19 year, and all other revenue that may be anticipated with reasonable
1-20 certainty to be deposited in the treasury in the current fiscal
1-21 [tax] year, including revenue derived from bond funds, certificates
1-22 of obligation, or other debt instruments or other general municipal
1-23 funds.
1-24 (4) "Custom manufactured goods" means goods made to
2-1 the specifications of the municipality that are unique to and
2-2 generally usable only for a stated purpose connected with a
2-3 particular specialized industrial or technological operation.
2-4 (5) "Goods" means tangible personal property,
2-5 including machinery, equipment, and supplies.
2-6 (6) "High technology procurement" means the
2-7 procurement of equipment, goods, or services of a highly technical
2-8 nature, including:
2-9 (A) data processing equipment and software and
2-10 firmware used in conjunction with data processing equipment;
2-11 (B) telecommunications equipment and radio and
2-12 microwave systems;
2-13 (C) electronic distributed control systems,
2-14 including building energy management systems; [and]
2-15 (D) a subscription to an Internet service
2-16 provider, a computerized database subscription service, or any
2-17 other Internet-based or computer system-based information storage,
2-18 processing, acquisition, or subscription service; and
2-19 (E) maintenance, training, support, and other
2-20 technical services related to the [those] items described by
2-21 Paragraphs (A)-(D).
2-22 (7) "Normal purchasing practice" means the accepted
2-23 custom, practice, and standard among political subdivisions or
2-24 government agencies in the United States regarding the methods of
2-25 purchasing a particular good or service.
2-26 (8) [(5)] "Planning services" means services primarily
2-27 intended to guide governmental policy to ensure the orderly and
3-1 coordinated development of the state or of municipal, county,
3-2 metropolitan, or regional land areas.
3-3 (9) "Professional services" means:
3-4 (A) the services defined as professional
3-5 services by Section 2254.002, Government Code; and
3-6 (B) the services provided in connection with a
3-7 person employed or trained in a field or occupation that consists
3-8 predominantly of mental or intellectual labor and requiring:
3-9 (i) a high order of intelligence, skill,
3-10 and learning; and
3-11 (ii) the number of years of education and
3-12 practice commonly regarded as necessary in the field or occupation
3-13 to attain competence.
3-14 (10) [(6)] "Separate purchases" means purchases, made
3-15 separately, of items that in normal purchasing practices would be
3-16 purchased in one purchase.
3-17 (11) [(7)] "Sequential purchases" means purchases,
3-18 made over a period, of items that in normal purchasing practices
3-19 would be purchased in one purchase.
3-20 (12) "Specialized industrial or technological
3-21 operation" means:
3-22 (A) an operation of a municipal:
3-23 (i) solid waste or sludge landfill;
3-24 (ii) water or wastewater treatment,
3-25 collection, purification, or distribution plant or process;
3-26 (iii) reservoir;
3-27 (iv) dam;
4-1 (v) electric power plant; or
4-2 (vi) energy recovery facility; or
4-3 (B) any other similar industrial or
4-4 technological process or operation owned by a municipality.
4-5 (13) "Special services contract" means a contract
4-6 requiring an expenditure greater than $25,000 for the purchase of
4-7 any of the following items:
4-8 (A) a high technology item;
4-9 (B) insurance, insurance consulting, or other
4-10 insurance related services;
4-11 (C) management consulting, training, or
4-12 recruiting services;
4-13 (D) administrative services of a third party
4-14 relating to the administration of legal claims, workers'
4-15 compensation benefits, or employee health, life, or dental
4-16 benefits;
4-17 (E) management services provided for a municipal
4-18 vehicle fleet or a municipal building, facility, or utility,
4-19 including management services provided by a nonprofit organization;
4-20 (F) surveillance, robotic, or other highly
4-21 technical equipment for use by a municipal police department for
4-22 law enforcement purposes or by a municipal fire department to fight
4-23 fires more safely and effectively;
4-24 (G) solid waste collection, disposal, or
4-25 management services;
4-26 (H) books, including rare books, and
4-27 manuscripts, papers, magazines, and other library materials for a
5-1 public library;
5-2 (I) films or electronic audio-visual media;
5-3 (J) services performed in connection with a
5-4 community development program established under Chapter 373, if the
5-5 contract funding is derived exclusively from an appropriation,
5-6 loan, or grant received from this state or the federal government
5-7 to conduct the program;
5-8 (K) custom-manufactured goods necessary for a
5-9 specialized industrial or technological operation;
5-10 (L) construction management services;
5-11 (M) municipal code publication services;
5-12 (N) travel services;
5-13 (O) marketing or advertising services for
5-14 municipal facilities, goods, or services;
5-15 (P) an agreement for the temporary use or
5-16 occupancy of hotel, conference, or other business center facilities
5-17 for a municipal conference or seminar, employee training or
5-18 testing, or other municipal events; or
5-19 (Q) any purchase of goods or services for which
5-20 the preparation of detailed specifications to support the award of
5-21 a contract is determined by the governing body to be impractical or
5-22 impossible [(8) "Time warrant" includes any warrant issued by a
5-23 municipality that is not payable from current funds].
5-24 Sec. 252.002. MUNICIPAL CHARTER SUPERSEDED [CONTROLS] IN
5-25 CASE OF CONFLICT. (a) Except as provided by Subsection (b), any
5-26 [Any] provision in the charter of a home-rule municipality that
5-27 [relates to the notice of contracts, advertisement of the notice,
6-1 requirements for the taking of sealed bids based on specifications
6-2 for public improvements or purchases, the manner of publicly
6-3 opening bids or reading them aloud, or the manner of letting
6-4 contracts and that] is in conflict with this chapter is superseded
6-5 by [controls over] this chapter.
6-6 (b) The [unless the] governing body of a [the] municipality
6-7 may elect [elects] to have its charter supersede the provisions of
6-8 this chapter if the charter provisions are more restrictive than
6-9 the provisions of this chapter [supersede the charter].
6-10 Sec. 252.003. APPLICATION OF OTHER LAW. (a) The purchasing
6-11 requirements of Section 361.426, Health and Safety Code, apply to
6-12 municipal purchases made under this chapter.
6-13 (b) The purchasing requirements of this chapter do not apply
6-14 if another law provides specific procedures for acquiring goods or
6-15 services.
6-16 Sec. 252.004 [252.0215]. COMPETITIVE BIDDING IN RELATION TO
6-17 HISTORICALLY UNDERUTILIZED BUSINESS. A municipality, in making an
6-18 expenditure of more than $5,000 [$3,000] but less than $25,000
6-19 [$15,000], shall contact at least two historically underutilized
6-20 businesses on a rotating basis, based on information provided by
6-21 the General Services Commission pursuant to Chapter 2161,
6-22 Government Code. If the list fails to identify a historically
6-23 underutilized business in the county in which the municipality is
6-24 situated, the municipality is exempt from this section.
6-25 Sec. 252.005 [252.046]. CIRCUMSTANCES IN WHICH CURRENT FUNDS
6-26 TO BE SET ASIDE. An [If an] expenditure under a [the] contract
6-27 subject to this chapter shall be [is] payable from [by warrants on]
7-1 current funds. The[, the] governing body of the municipality by
7-2 order or resolution shall set aside an amount of current funds that
7-3 will discharge the contract obligation [principal and interest of
7-4 the warrants]. Those funds may not be used for any other purpose
7-5 unless the contract is properly completed or terminated and the
7-6 remaining funds are released[, and the warrants must be discharged
7-7 from those funds and may not be refunded].
7-8 Sec. 252.006. CONTRACTS PERMITTED UNDER COMMON LAW.
7-9 Regardless of Section 252.102(d), a municipality is not prohibited
7-10 from procuring goods or services under contracts that would be
7-11 considered severable under common law.
7-12 (Sections 252.007-252.020 reserved for expansion
7-13 SUBCHAPTER B. COMPETITIVE BIDDING PROCEDURES
7-14 [OR COMPETITIVE PROPOSALS REQUIRED]
7-15 Sec. 252.021. COMPETITIVE BIDDING REQUIREMENTS; ALTERNATE
7-16 [AND COMPETITIVE PROPOSAL] REQUIREMENTS. (a) Before a municipality
7-17 may enter into a contract that requires an expenditure of more than
7-18 $25,000 [$15,000] from one or more municipal funds, the
7-19 municipality must comply with the procedure prescribed by this
7-20 subchapter [chapter] for competitive sealed bidding [or competitive
7-21 sealed proposals].
7-22 (b) Before a municipality with a population of less than
7-23 75,000 may enter into a contract for insurance that requires an
7-24 expenditure of more than $5,000 from one or more municipal funds,
7-25 the municipality must comply with the procedure prescribed by this
7-26 subchapter [chapter] for competitive sealed bidding.
7-27 (c) This subchapter does not exempt a municipality from
8-1 complying with the procedures prescribed by Subchapter A, Chapter
8-2 2254, Government Code, to procure professional services subject to
8-3 that subchapter [A municipality may use the competitive sealed
8-4 proposal procedure only for high technology procurements or, in a
8-5 municipality with a population of 75,000 or more, the purchase of
8-6 insurance].
8-7 [(d) This chapter does not apply to the expenditure of
8-8 municipal funds that are derived from an appropriation, loan, or
8-9 grant received by a municipality from the federal or state
8-10 government for conducting a community development program
8-11 established under Chapter 373 if under the program items are
8-12 purchased under the request-for-proposal process described by
8-13 Section 252.042. A municipality using a request-for-proposal
8-14 process under this subsection shall also comply with the
8-15 requirements of Section 252.0215.]
8-16 Sec. 252.022. GENERAL EXEMPTIONS. (a) This subchapter does
8-17 not apply to the following contracts:
8-18 (1) an interlocal or intergovernmental agreement; or
8-19 (2) a special services contract, unless the
8-20 competitive bidding option is chosen under Subchapter E.
8-21 (b) This subchapter [chapter] does not apply to an
8-22 expenditure for:
8-23 (1) a procurement made because of a public calamity
8-24 that requires the immediate expenditure [appropriation] of money to
8-25 relieve the necessity of the municipality's residents or to
8-26 preserve the property of the municipality;
8-27 (2) a procurement that the governing body finds is
9-1 necessary to preserve or protect the public health or safety of the
9-2 municipality's residents;
9-3 (3) a procurement necessary because of unforeseen
9-4 damage to real property, public machinery, equipment, or other
9-5 tangible personal property;
9-6 (4) a procurement for personal, professional, or
9-7 planning services;
9-8 (5) a procurement for work that is performed and paid
9-9 for by the day as the work progresses;
9-10 (6) a purchase or lease of land or any other purchase
9-11 of a temporary right to use or occupy land or a purchase of a
9-12 right-of-way;
9-13 (7) a procurement of items that are available from
9-14 only one source, including:
9-15 (A) items that are available from only one
9-16 source because of patents, copyrights, secret processes, [or]
9-17 natural monopolies, or exclusive distribution rights;
9-18 (B) films, manuscripts, [or books;]
9-19 [(C) gas, water, and other utility services;]
9-20 [(D) captive replacement parts or components for
9-21 equipment;]
9-22 [(E)] books, papers, software, and other similar
9-23 audio and visual [library] materials [for a public library] that
9-24 are owned by or available only from a person [the persons] holding
9-25 exclusive distribution rights to the materials; and
9-26 (C) captive replacement parts or components for
9-27 equipment;
10-1 [(F) management services provided by a nonprofit
10-2 organization to a municipal museum, park, zoo, or other facility to
10-3 which the organization has provided significant financial or other
10-4 benefits;]
10-5 (8) [a purchase of rare books, papers, and other
10-6 library materials for a public library;]
10-7 [(9) paving drainage, street widening, and other
10-8 public improvements, or related matters, if at least one-third of
10-9 the cost is to be paid by or through special assessments levied on
10-10 property that will benefit from the improvements;]
10-11 [(10)] a public improvement project, already in
10-12 progress, authorized by the voters of the municipality, for which
10-13 there is a deficiency of funds for completing the project in
10-14 accordance with the plans and purposes authorized by the voters;
10-15 (9) [(11)] a payment under a contract by which a
10-16 developer participates in the construction of a public improvement
10-17 as provided by Subchapter C, Chapter 212;
10-18 (10) a purchase of [(12)] personal property sold:
10-19 (A) at an auction by a state licensed
10-20 auctioneer;
10-21 (B) at a going out of business sale held in
10-22 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
10-23 (C) by a political subdivision of this state, a
10-24 state agency of this state, or an entity of the federal government;
10-25 or
10-26 (D) under an interlocal contract for cooperative
10-27 purchasing administered by a regional planning commission
11-1 established under Chapter 391;
11-2 (11) a purchase of goods or [(13)] services produced
11-3 or furnished [performed] by blind or severely disabled persons;
11-4 (12) [(14)] goods purchased by a municipality for
11-5 subsequent retail sale by the municipality; [or]
11-6 (13) a purchase of natural gas, water, wastewater, or
11-7 other utility services;
11-8 (14) a purchase of food;
11-9 (15) a purchase of retail electrical power and service
11-10 related to providing retail electrical power to the municipality;
11-11 or
11-12 (16) a purchase [electricity.]
11-13 [(b) This chapter does not apply to bonds or warrants issued
11-14 under Title 118, Revised Statutes, relating to seawalls.]
11-15 [(c) This chapter does not apply to expenditures] by a
11-16 municipally owned electric or gas utility, including a division of
11-17 the utility, or an unbundled division [divisions] of a municipally
11-18 owned electric or gas utility if the purchase is [in connection
11-19 with any purchases by the municipally owned utility or divisions of
11-20 a municipally owned utility] made in accordance with procurement
11-21 procedures adopted by a resolution of the body vested with
11-22 authority for management and operation of the municipally owned
11-23 electric or gas utility or its divisions that sets out the public
11-24 purpose to be achieved by those procedures.
11-25 (c) The exemption provided by Subsection (b)(16) does [This
11-26 subsection may] not [be deemed to] exempt a municipally owned
11-27 utility from any other applicable statute, charter provision, or
12-1 ordinance.
12-2 (d) Contracts exempted under Subsection (b) may be procured
12-3 under rules prescribed by the governing body of a municipality to
12-4 meet the needs of the municipality at the most reasonable price,
12-5 subject to the requirements of other applicable law or municipal
12-6 charter provisions.
12-7 Sec. 252.023. [EXEMPTIONS FROM REFERENDUM PROVISIONS. The
12-8 referendum provisions prescribed by Section 252.045 do not apply to
12-9 expenditures that are payable:]
12-10 [(1) from current funds;]
12-11 [(2) from bond funds; or]
12-12 [(3) by time warrants unless the amount of the time
12-13 warrants issued by the municipality for all purposes during the
12-14 current calendar year exceeds:]
12-15 [(A) $7,500 if the municipality's population is
12-16 5,000 or less;]
12-17 [(B) $10,000 if the municipality's population is
12-18 5,001 to 24,999;]
12-19 [(C) $25,000 if the municipality's population is
12-20 25,001 to 49,999; or]
12-21 [(D) $100,000 if the municipality's population
12-22 is more than 50,000.]
12-23 [Sec. 252.041.] NOTICE REQUIREMENT. (a) Notice [If the
12-24 competitive sealed bidding requirement applies to the contract,
12-25 notice] of the time and place at which the bids are scheduled to
12-26 [will] be publicly opened and read aloud:
12-27 (1) must be:
13-1 (A) published at least once a week for two
13-2 consecutive weeks in a newspaper of general circulation published
13-3 in the municipality, with the[. The] date of the first publication
13-4 to [must] be before the 14th day before the date set to publicly
13-5 open the bids and read them aloud; or
13-6 (B) continuously [. If no newspaper is published
13-7 in the municipality, the notice must be] posted in a conspicuous
13-8 place at the city hall for 14 days before the date set to publicly
13-9 open the bids and read them aloud, if a newspaper of general
13-10 circulation is not published in the municipality; and
13-11 (2) must be continuously posted on the municipality's
13-12 Internet website, if the municipality has an Internet website, for
13-13 14 days before the date set to publicly open the bids and read them
13-14 aloud.
13-15 (b) The [If the competitive sealed proposals requirement
13-16 applies to the contract, notice of the request for proposals must
13-17 be given in the same manner as that prescribed by Subsection (a)
13-18 for the notice for competitive sealed bids.]
13-19 [(c) If the contract is for the purchase of machinery for
13-20 the construction or maintenance of roads or streets, the] notice
13-21 for bids [and the order for purchase] must include a general
13-22 specification of the goods or services [machinery] desired. The
13-23 general specifications are sufficient if a reasonable bidder is
13-24 able to:
13-25 (1) understand the requirements of the bid request;
13-26 and
13-27 (2) bid on the same terms and conditions as other
14-1 reasonable bidders.
14-2 (c) The municipality may not write specifications in a
14-3 manner that unreasonably prevents or restricts competition, favors
14-4 a particular bidder, or unreasonably increases the cost of work or
14-5 other items that are part of the goods or services requested. This
14-6 subsection does not prevent a municipality from:
14-7 (1) specifying patented or copyrighted items as part
14-8 of the bid; or
14-9 (2) waiving minor irregularities or defects in the bid
14-10 as provided by Section 252.024.
14-11 [(d) If the governing body of the municipality intends to
14-12 issue time warrants for the payment of any part of the contract,
14-13 the notice must include a statement of:]
14-14 [(1) the governing body's intention;]
14-15 [(2) the maximum amount of the proposed time warrant
14-16 indebtedness;]
14-17 [(3) the rate of interest the time warrants will bear;
14-18 and]
14-19 [(4) the maximum maturity date of the time warrants.]
14-20 Sec. 252.024. BID CONFORMITY. (a) A bid that materially
14-21 varies from the requirements of the municipality's specifications
14-22 is a nonresponsive bid and may not be considered by the
14-23 municipality for any purpose.
14-24 (b) The municipality may waive minor irregularities or
14-25 defects in a bid. [SELECTION OF INSURANCE BROKER. This chapter does
14-26 not prevent a municipality from selecting a licensed insurance
14-27 broker as the sole broker of record to obtain proposals and
15-1 coverages for excess or surplus insurance that provides necessary
15-2 coverage and adequate limits of coverage in structuring layered
15-3 excess coverages in all areas of risk requiring special
15-4 consideration, including public official liability, police
15-5 professional liability, and airport liability. The broker may be
15-6 retained only on a fee basis and may not receive any other
15-7 remuneration from any other source.]
15-8 Sec. 252.025 [252.043]. AWARD OF CONTRACT. (a) After
15-9 opening and evaluating the bids received [If the competitive sealed
15-10 bidding requirement applies to the contract], the contract must be
15-11 awarded to the lowest responsible bidder. The governing body of
15-12 the municipality may reject any and all bids.
15-13 (b) A bid that has been opened may not be changed for the
15-14 purpose of correcting an error in the bid price. This subsection
15-15 [chapter] does not change the common law right of a bidder to
15-16 withdraw a bid due to a material mistake in the bid.
15-17 [(b) If the competitive sealed proposals requirement applies
15-18 to the contract, the contract must be awarded to the responsible
15-19 offeror whose proposal is determined to be the most advantageous to
15-20 the municipality considering the relative importance of price and
15-21 the other evaluation factors included in the request for
15-22 proposals.]
15-23 Sec. 252.026 [252.0435]. CONSIDERATION OF BIDDER
15-24 RESPONSIBILITY [SAFETY RECORD OF BIDDER CONSIDERED]. (a) In
15-25 determining which bidder is the lowest responsible bidder, the
15-26 governing body of the municipality may consider the bidder's:
15-27 (1) performance on previous or ongoing contracts with
16-1 the municipality, another political subdivision, a state agency, or
16-2 a private business entity for similar goods or services, including
16-3 issues relating to:
16-4 (A) nonconformity of goods or services to
16-5 standard specifications;
16-6 (B) inability or refusal to honor warranties;
16-7 (C) timeliness of contract completion;
16-8 (D) poor workmanship;
16-9 (E) filing of fraudulent or meritless claims; or
16-10 (F) incompetence or dishonesty in the
16-11 administration or performance of a contract;
16-12 (2) financial resources;
16-13 (3) competence;
16-14 (4) experience;
16-15 (5) ability; or
16-16 (6) integrity.
16-17 (b) In determining who is a responsible bidder on a project
16-18 for the construction of public improvements, the governing body of
16-19 the municipality may take into account the safety record of the
16-20 bidder or any officer, partner, associate, permanent or temporary
16-21 employee, agent, or other representative of [the firm, corporation,
16-22 partnership, or institution represented by] the bidder[, or of
16-23 anyone acting for such a firm, corporation, partnership, or
16-24 institution] if:
16-25 (1) the governing body has adopted a written
16-26 definition and criteria for accurately determining the safety
16-27 record of a bidder;
17-1 (2) the governing body has given notice to prospective
17-2 bidders in the bid specifications that the safety record of a
17-3 bidder may be considered in determining the responsibility of the
17-4 bidder; and
17-5 (3) the determinations are not arbitrary and
17-6 capricious.
17-7 (c) The municipality is not required to award a contract to
17-8 the lowest bidder if the municipality determines that the bidder:
17-9 (1) does not meet the criteria for responsibility
17-10 established by the municipality under this section; or
17-11 (2) has been disqualified from bidding under the
17-12 procedures established under Section 252.027.
17-13 (d) The municipality may require a bidder to submit any
17-14 information relevant and necessary to make a determination of
17-15 responsibility under this section.
17-16 Sec. 252.027. DISQUALIFICATION PROCEDURES. (a) The governing
17-17 body of the municipality may establish procedures for disqualifying
17-18 a person from bidding on a contract under this subchapter if the
17-19 person in the previous five years has:
17-20 (1) defaulted on a contract with the municipality;
17-21 (2) demonstrated a history of poor or untimely
17-22 performance; or
17-23 (3) persistently violated the safety record standards
17-24 established under Section 252.026(b).
17-25 (b) The governing body of the municipality may provide that
17-26 the person disqualified may not submit a bid to the municipality
17-27 for a period of:
18-1 (1) not more than one year for the first
18-2 disqualification; and
18-3 (2) not more than three years for each subsequent
18-4 disqualification.
18-5 (c) The procedures adopted by the governing body of the
18-6 municipality must provide reasonable notice and an opportunity for
18-7 a hearing for a person who is disqualified and for a person who
18-8 seeks reinstatement from disqualification.
18-9 Sec. 252.028. PERSONS PROHIBITED FROM BIDDING. (a) A person
18-10 may not submit a bid in response to a bid request if the person
18-11 volunteers or is hired by the municipality to:
18-12 (1) draft the municipality's bid specifications for
18-13 the bid request;
18-14 (2) evaluate the specifications for the bid request;
18-15 or
18-16 (3) evaluate the bids received in response to the bid
18-17 request.
18-18 (b) In this subsection, "bidder" includes an officer,
18-19 partner, associate, permanent or temporary employee, agent, or
18-20 other representative of the bidder. A municipality may refuse to
18-21 award a contract to a bidder who during the previous five years has
18-22 violated a state or federal law applicable to the bidder in the
18-23 course of the bidder's performance under a contract with a
18-24 political subdivision or state agency as determined by:
18-25 (1) the judgment of a court; or
18-26 (2) a formal decision of a state or federal agency
18-27 after notice and hearing.
19-1 Sec. 252.029 [252.044]. CONTRACTOR'S BOND. [(a)] If the
19-2 contract is for the construction of public improvements [works],
19-3 the bidder to whom the contract is awarded must execute a payment
19-4 bond and, if necessary, a performance [good and sufficient] bond[.
19-5 The bond must be:]
19-6 [(1) in the full amount of the contract price;]
19-7 [(2) conditioned that the contractor will faithfully
19-8 perform the contract; and]
19-9 [(3) executed,] in accordance with Chapter 2253,
19-10 Government Code, executed by a surety company authorized to do
19-11 business in the state.
19-12 [(c) The governing body of a home-rule municipality by
19-13 ordinance may adopt the provisions of this section and Chapter
19-14 2253, Government Code, relating to contractors' surety bonds,
19-15 regardless of a conflicting provision in the municipality's
19-16 charter.]
19-17 Sec. 252.030 [252.047]. PAYMENT METHOD FOR CERTAIN
19-18 CONTRACTS. The [If the contract is for the construction of public
19-19 works or for the purchase of materials, equipment, and supplies,
19-20 the] municipality may award a [let] the contract under this
19-21 subchapter on a lump-sum basis or unit price basis as the governing
19-22 body of the municipality determines. If the contract is awarded
19-23 [let] on a unit price basis, the information furnished in the
19-24 notice to bidders must specify the approximate quantity needed,
19-25 based on the best available information, but payment to the
19-26 contractor must be based on the actual quantity constructed or
19-27 supplied.
20-1 Sec. 252.031 [252.048]. CHANGE ORDERS. (a) If changes in
20-2 plans or specifications are necessary after the performance of the
20-3 contract is begun or if it is necessary to decrease or increase the
20-4 quantity of work to be performed or of materials, equipment, or
20-5 supplies to be furnished, the governing body of the municipality
20-6 may approve change orders making the changes.
20-7 (b) The total contract price may not be increased because of
20-8 the changes unless additional money for increased costs is
20-9 appropriated for that purpose from available current funds [or is
20-10 provided for by the authorization of the issuance of time
20-11 warrants].
20-12 (c) If a change order involves a decrease or an increase of
20-13 $25,000 or less, the governing body may grant general authority to
20-14 an administrative official of the municipality to approve the
20-15 change orders.
20-16 (d) The original contract price may not be increased under
20-17 this section by more than 25 percent. [The original contract price
20-18 may not be decreased under this section by more than 25 percent
20-19 without the consent of the contractor.]
20-20 Sec. 252.032 [252.049]. CONFIDENTIALITY OF INFORMATION IN
20-21 BIDS [OR PROPOSALS]. [(a)] Trade secrets and confidential
20-22 information in competitive sealed bids are not open for public
20-23 inspection. All other contents of a bid received, including the
20-24 bid specifications, are considered public records available for
20-25 public inspection after the bids are publically opened and read
20-26 aloud
20-27 [(b) If provided in a request for proposals, proposals shall
21-1 be opened in a manner that avoids disclosure of the contents to
21-2 competing offerors and keeps the proposals secret during
21-3 negotiations. All proposals are open for public inspection after
21-4 the contract is awarded, but trade secrets and confidential
21-5 information in the proposals are not open for public inspection].
21-6 (Sections 252.033-252.040 reserved for expansion
21-7 SUBCHAPTER C. ELECTRONIC ONLINE COMPETITIVE BIDDING PROCEDURES
21-8 Sec. 252.041. PURPOSE. The purpose of this subchapter is to:
21-9 (1) provide an alternative medium for conducting
21-10 competitive sealed bidding; and
21-11 (2) optimize the efficient technology offered by
21-12 Internet-based resources.
21-13 Sec. 252.042. APPLICABILITY. (a) This subchapter applies to
21-14 contracts and expenditures described by Subchapter B.
21-15 (b) Except as provided by this subchapter, the procedures of
21-16 this subchapter may be used in place of the procedures provided by
21-17 Subchapter B for competitive sealed bidding.
21-18 Sec. 252.043. APPLICABILITY OF GENERAL COMPETITIVE BIDDING
21-19 PROCEDURES. Sections 252.024-252.031 apply to the procedures for
21-20 awarding a contract under this subchapter.
21-21 Sec. 252.044. AUTHORITY TO CONDUCT OR CONTRACT FOR ONLINE
21-22 BIDDING. (a) If the competitive sealed bidding requirements of
21-23 Subchapter B apply to the contract, a municipality may:
21-24 (1) conduct the bidding process online on its Internet
21-25 website, if the municipality has an Internet website; or
21-26 (2) enter into an agreement with an online bidding or
21-27 auction service to conduct the bidding process online on behalf of
22-1 the municipality.
22-2 (b) An agreement with an online bidding or auction service:
22-3 (1) must include a provision that requires the service
22-4 to strictly comply with this subchapter; and
22-5 (2) may not include a provision that requires the
22-6 municipality to indemnify or release the online bidding or auction
22-7 service for or from any type of liability.
22-8 Sec. 252.045. NOTICE REQUIREMENTS. (a) The notice
22-9 requirements of this subchapter apply to a contract awarded using
22-10 the online bidding process provided by this subchapter.
22-11 (b) Notice of the request for online bids must be published:
22-12 (1) on the municipality's Internet website, if the
22-13 municipality has an Internet website, or on the Internet website of
22-14 the online bidding or auction service contracted by the
22-15 municipality to conduct the online bidding process; and
22-16 (2) in a newspaper of general circulation published in
22-17 the municipality.
22-18 (c) The notice required by Subsection (b) must be published
22-19 not later than the 14th day before the date scheduled for the
22-20 online bidding to conclude. The notice published in a newspaper
22-21 must be published once within the period prescribed by this
22-22 subsection. The notice published on an Internet website must
22-23 remain continuously posted until the online bidding concludes.
22-24 (d) The notice required by this section must contain the
22-25 following information:
22-26 (1) a statement informing the bidders that the bidding
22-27 will be conducted online as provided by this subchapter;
23-1 (2) a specific description of the goods or services to
23-2 be procured;
23-3 (3) the date and time of any pre-bid conference
23-4 scheduled by the municipality;
23-5 (4) the date and time that online bidding is scheduled
23-6 to begin and conclude;
23-7 (5) the universal resource locator address of the
23-8 municipality's Internet website, if the municipality has an
23-9 Internet website, or the Internet website of the online bidding or
23-10 auction service contracted by the municipality where:
23-11 (A) the online bidding is scheduled to occur;
23-12 and
23-13 (B) a complete copy of the bid specifications
23-14 and any details and drawings required to prepare a bid are provided
23-15 in a downloadable read-only format that is accessible on any system
23-16 software platform;
23-17 (6) the business address of the municipality where
23-18 potential bidders may obtain a paper copy of the specifications or
23-19 requirements for the request for bids; and
23-20 (7) a sample copy of the proposed online bid form that
23-21 will be used for online bidding and instructions for filling out
23-22 the form during the online bidding process.
23-23 (e) The municipality is not required to comply with
23-24 Subsection (d)(5)(B) if the specifications, details, or drawings
23-25 are of a nature, size, quantity, or format that they cannot be
23-26 provided online in a downloadable read-only format. [REFERENDUM ON
23-27 ISSUANCE OF TIME WARRANTS. (a) If, by the time set for letting a
24-1 contract under this chapter, a written petition with the required
24-2 signatures is filed with the municipal secretary or clerk
24-3 requesting the governing body of the municipality to order a
24-4 referendum on the question of whether time warrants should be
24-5 issued for an expenditure under the contract, the governing body
24-6 may not authorize the expenditure or finally award the contract
24-7 unless the question is approved by a majority of the votes received
24-8 in the referendum. The petition must be signed by at least 10
24-9 percent of the qualified voters of the municipality whose names
24-10 appear as property taxpayers on the municipality's most recently
24-11 approved tax rolls.]
24-12 [(b) If a petition is not filed, the governing body may
24-13 finally award the contract and issue the time warrants. In the
24-14 absence of a petition, the governing body may, at its discretion,
24-15 order the referendum.]
24-16 [(c) The provisions of Subtitles A and C, Title 9,
24-17 Government Code, relating to elections for the issuance of
24-18 municipal bonds and to the issuance, approval, registration, and
24-19 sale of bonds govern the referendum and the time warrants to the
24-20 extent those provisions are consistent with this chapter. However,
24-21 the time warrants may mature over a term exceeding 40 years only if
24-22 the governing body finds that the financial condition of the
24-23 municipality will not permit payment of warrants issued for a term
24-24 of 40 years or less from taxes that are imposed substantially
24-25 uniformly during the term of the warrants.]
24-26 [(d) This section does not supersede any additional rights
24-27 provided by the charter of a special-law municipality and relating
25-1 to a referendum.]
25-2 Sec. 252.046. CONFIDENTIALITY OF ONLINE BIDDING. (a) The
25-3 municipality may not disclose the contents of an online bid to
25-4 other bidders during the online bidding process.
25-5 (b) The contents of an online bid, excluding confidential
25-6 information protected by law, becomes a public record and is
25-7 available for public inspection at the completion of the online
25-8 bidding process. [Sec. 252.050. LEASE-PURCHASE OR INSTALLMENT
25-9 PURCHASE OF REAL PROPERTY. (a) This section applies only to a
25-10 lease-purchase or installment purchase of real property financed by
25-11 the issuance of certificates of participation.]
25-12 [(b) The governing body of a municipality may not make an
25-13 agreement under which the municipality is a lessee in a
25-14 lease-purchase of real property or is a purchaser in an installment
25-15 purchase of real property unless the governing body first obtains
25-16 an appraisal by a qualified appraiser who is not an employee of the
25-17 municipality. The purchase price may not exceed the fair market
25-18 value of the real property, as shown by the appraisal.]
25-19 (Sections 252.047-252.060 reserved for expansion
25-20 SUBCHAPTER D. REVERSE AUCTION PROCEDURES
25-21 Sec. 252.061. APPLICABILITY. (a) This subchapter applies to
25-22 contracts and expenditures described by Subchapter B.
25-23 (b) Except as provided by this subchapter, the procedures of
25-24 this subchapter may be used in place of the procedures provided by
25-25 Subchapter B for competitive sealed bidding.
25-26 Sec. 252.062. APPLICABILITY OF ONLINE BIDDING PROCEDURES.
25-27 (a) A municipality may conduct a reverse auction or contract with
26-1 an online bidding or auction service to conduct a reverse auction
26-2 in the same manner as provided for electronic online bidding under
26-3 Section 252.044.
26-4 (b) A municipality that intends to use a reverse auction
26-5 process to award a contract must provide notice as prescribed by
26-6 Section 252.045.
26-7 Sec. 252.063. CONFIDENTIALITY. (a) The municipality may
26-8 disclose to other bidders during the reverse auction process the
26-9 contents of an online bid, excluding confidential information
26-10 protected by law. The municipality may not disclose to other
26-11 bidders during the reverse auction process the name of the bidder
26-12 who has submitted a specific bid.
26-13 (b) At the completion of the reverse auction process, the
26-14 contents of all online bids, excluding confidential information
26-15 protected by law, become public records and are available for
26-16 public inspection.
26-17 Sec. 252.064. APPLICABILITY OF COMPETITIVE BIDDING
26-18 PROCEDURES. (a) Sections 252.024-252.031 apply to the procedures
26-19 for awarding a contract under this subchapter.
26-20 (b) The following do not apply to the procedures for
26-21 awarding a contract under this subchapter:
26-22 (1) Section 271.905; and
26-23 (2) Subchapter A, Chapter 2252, Government Code.
26-24 (Sections 252.065-252.080 reserved for expansion
26-25 SUBCHAPTER E. SPECIAL SERVICES CONTRACT PROCEDURES
26-26 Sec. 252.081. APPLICABILITY. (a) This subchapter applies
26-27 only to special services contracts.
27-1 (b) This subchapter does not apply to a contract for
27-2 professional services.
27-3 Sec. 252.082. APPLICABILITY OF COMPETITIVE BIDDING
27-4 PROCEDURES. Unless a municipality uses the competitive bidding
27-5 procedures prescribed by Subchapter B or C, the following do not
27-6 apply to the procedures for awarding a contract under this
27-7 subchapter:
27-8 (1) Section 271.905; and
27-9 (2) Subchapter A, Chapter 2252, Government Code.
27-10 Sec. 252.083. PURCHASING PROCEDURE OPTIONS; BEST VALUE
27-11 STANDARD. (a) In entering into a special services contract, a
27-12 municipality may use any of the following methods that provides the
27-13 best value for the municipality:
27-14 (1) request for proposal under this subchapter using
27-15 the procedures for:
27-16 (A) competitive sealed proposals by public
27-17 notice under Section 252.084; or
27-18 (B) proposals by direct solicitation under
27-19 Section 252.085;
27-20 (2) competitive bidding under Subchapter B or C;
27-21 (3) reverse auction under Subchapter D;
27-22 (4) a cooperative purchasing agreement under
27-23 Subchapter D, Chapter 271;
27-24 (5) an interlocal agreement authorized by Chapter 791,
27-25 Government Code, or any other intergovernmental agreement
27-26 authorized by law; or
27-27 (6) a catalog purchase under Subchapter B, Chapter
28-1 2157, Government Code, if authorized by Section 2157.067,
28-2 Government Code.
28-3 (b) In determining the best value for the municipality under
28-4 the request for proposal procedures of this subchapter, the
28-5 municipality may consider:
28-6 (1) the purchase price;
28-7 (2) the reputation of the vendor and of the vendor's
28-8 goods or services;
28-9 (3) the quality of the vendor's goods or services;
28-10 (4) the extent to which the goods or services meet the
28-11 municipality's needs;
28-12 (5) the vendor's past history of performance on
28-13 similar contracts and the vendor's past relationship with the
28-14 municipality, including consideration of the responsibility
28-15 standards described by Section 252.026 and the disqualification
28-16 criteria prescribed by Section 252.027;
28-17 (6) the impact on the ability of the municipality to
28-18 comply with laws, rules, and policies relating to historically
28-19 underutilized or disadvantaged businesses;
28-20 (7) the total long-term cost to the municipality to
28-21 acquire the vendor's goods or services, including life cycle costs
28-22 if applicable;
28-23 (8) the reasonableness of the contract terms and
28-24 conditions proposed by the vendor; and
28-25 (9) any other relevant factor that a private business
28-26 entity would consider in selecting a vendor.
28-27 (c) The governing body of the municipality, or an officer or
29-1 employee designated by the governing body, may adopt rules,
29-2 procedures, and guidelines consistent with this chapter and other
29-3 law for acquiring goods or services under this subchapter that
29-4 provide a reasonable and fair opportunity for competitiveness under
29-5 the purchasing methods described by Sections 252.084 and 252.085.
29-6 (d) A municipality may prequalify potential vendors to
29-7 determine the vendors' eligibility to submit proposals under
29-8 Section 252.084 or 252.085 based upon the criteria described by
29-9 Subsection (b). If more than one reasonably qualified entity is
29-10 willing and available to perform a contract, the municipality may
29-11 not purposefully set prequalification criteria that cause only one
29-12 vendor to be considered eligible to participate in the process.
29-13 (e) The municipality shall encourage maximum participation
29-14 by historically underutilized or disadvantaged businesses.
29-15 Sec. 252.084 [252.042]. PROCEDURE FOR COMPETITIVE SEALED
29-16 PROPOSAL BY PUBLIC NOTICE [REQUESTS FOR PROPOSALS FOR CERTAIN
29-17 PROCUREMENTS]. (a) Before a municipality may enter into a special
29-18 services contract to acquire goods or services through competitive
29-19 sealed proposal by public notice, the municipality must comply with
29-20 the procedures prescribed by this section [Requests for proposals
29-21 made under Section 252.021 must solicit quotations and must specify
29-22 the relative importance of price and other evaluation factors].
29-23 (b) The municipality shall comply with the rules,
29-24 procedures, and guidelines adopted under Section 252.083(c).
29-25 Notice of the request for proposal must be given in the same manner
29-26 as prescribed for competitive sealed bids under Section 252.023(a).
29-27 (c) Requests for proposals under this subchapter must
30-1 solicit quotations and must specify the relative importance of
30-2 price and the other evaluation factors described by Section
30-3 252.083(b).
30-4 (d) A person is restricted from submitting a proposal under
30-5 this section in the same manner as a person is restricted from
30-6 submitting a bid under Section 252.028(a).
30-7 (e) Discussions in accordance with the terms of a request
30-8 for proposals and with regulations adopted by the governing body of
30-9 the municipality may be conducted with offerors who submit
30-10 proposals and who are determined to be reasonably qualified for the
30-11 award of the contract. Reasonably qualified offerors [Offerors]
30-12 shall be treated fairly and equally with respect to any opportunity
30-13 for discussion and revision of proposals. To obtain the best final
30-14 offers, revisions may be permitted after submissions and before the
30-15 award of the contract.
30-16 (f) A municipality may not disclose the contents of
30-17 competing offerors' proposals during negotiations. All contents of
30-18 a proposal, excluding information protected by law, are considered
30-19 public records available for public inspection after the contract
30-20 is awarded.
30-21 Sec. 252.085. PROCEDURE FOR REQUEST FOR PROPOSAL BY DIRECT
30-22 SOLICITATION. (a) Before a municipality may enter into a special
30-23 services contract to acquire goods or services through competitive
30-24 sealed proposal by direct solicitation, the municipality must
30-25 comply with the procedures prescribed by this section.
30-26 (b) The municipality shall comply with the rules,
30-27 procedures, and guidelines adopted under Section 252.083(c).
31-1 (c) Notice of the request for proposal by direct
31-2 solicitation is sufficient if the notice informs the offerors
31-3 identified by the municipality of:
31-4 (1) the goods or services required; and
31-5 (2) the municipality's expectations under the
31-6 contract.
31-7 (d) The municipality may negotiate for the award of the
31-8 contract with any of the offerors who submit proposals and who are
31-9 determined by the municipality to be reasonably qualified.
31-10 (e) A person is restricted from submitting a proposal under
31-11 this section in the same manner as a person is restricted from
31-12 submitting a bid under Section 252.028(a).
31-13 (f) The municipality must award the contract to the most
31-14 responsible, most qualified offeror whose proposal is determined to
31-15 be the most advantageous to the municipality.
31-16 (Sections 252.086-252.100 reserved for expansion
31-17 SUBCHAPTER F [D]. ENFORCEMENT
31-18 Sec. 252.101 [252.061]. INJUNCTION. If a [the] contract is
31-19 made without compliance with this chapter, the contract [it] is
31-20 void and the performance of the contract, including the payment of
31-21 any money under the contract, may be enjoined by any property tax
31-22 paying resident of the municipality.
31-23 Sec. 252.102 [252.062]. CRIMINAL PENALTIES. (a) A person
31-24 commits an offense if the person intentionally or knowingly:
31-25 (1) damages, tampers or interferes with, transmits a
31-26 computer software virus into, prevents the effective operation of,
31-27 or otherwise harms a municipality's online bidding document or
32-1 online bidding process under Subchapter C or D; or
32-2 (2) enters into or participates in a municipal online
32-3 bidding process under Subchapter C or D with the intent to damage,
32-4 tamper or interfere with, transmit a computer software virus into,
32-5 prevent the effective operation of, or otherwise harm any portion
32-6 of a municipality's computer hardware or software or the
32-7 municipality's computer system.
32-8 (b) An offense under Subsection (a) is a third degree
32-9 felony.
32-10 (c) A person commits an offense if the person intentionally
32-11 or knowingly violates Section 252.028(a). An offense under this
32-12 subsection is a Class B misdemeanor.
32-13 (d) A municipal officer or employee commits an offense if
32-14 the officer or employee intentionally or knowingly makes or
32-15 authorizes separate, sequential, or component purchases to avoid
32-16 the procurement [competitive bidding] requirements of this chapter
32-17 [Section 252.021]. An offense under this subsection is a Class B
32-18 misdemeanor.
32-19 (e) [(b)] A municipal officer or employee commits an offense
32-20 if the officer or employee intentionally or knowingly violates
32-21 Section 252.021, other than by conduct described by Subsection (d)
32-22 [(a)]. An offense under this subsection is a Class B misdemeanor.
32-23 (f) [(c)] A municipal officer or employee commits an offense
32-24 if the officer or employee intentionally or knowingly violates this
32-25 chapter, other than by conduct described by another subsection of
32-26 this section [Subsection (a) or (b)]. An offense under this
32-27 subsection is a Class C misdemeanor.
33-1 Sec. 252.103 [252.063]. REMOVAL; INELIGIBILITY. (a) The
33-2 final conviction of a municipal officer or employee for an offense
33-3 under Section 252.102(d) or (e) [252.062(a) or (b)] results in the
33-4 immediate removal from office or employment of that person.
33-5 (b) For four years after the date of the final conviction,
33-6 the removed officer or employee is ineligible:
33-7 (1) to be a candidate for or to be appointed or
33-8 elected to a public office in this state;
33-9 (2) to be employed by the municipality with which the
33-10 person served when the offense occurred; and
33-11 (3) to receive any compensation through a contract
33-12 with that municipality.
33-13 (c) This section does not prohibit the payment of retirement
33-14 or workers' compensation benefits to the removed officer or
33-15 employee.
33-16 SECTION 2. The changes in law made by Chapter 252, Local
33-17 Government Code, as reorganized and amended by this Act, apply only
33-18 to a contract for which the notice soliciting bids or proposals is
33-19 first published or posted on or after September 1, 2001. A
33-20 contract for which the notice soliciting bids or proposals is first
33-21 published or posted before September 1, 2001, is subject to the law
33-22 as it existed at the time the notice was first published or posted,
33-23 and the former law is continued in effect for that purpose.
33-24 SECTION 3. This Act takes effect September 1, 2001.