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By: West S.B. No. 1544
A BILL TO BE ENTITLED
AN ACT
relating to purchasing practices of public junior college and
community college districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. SHORT TITLE. This Act may be cited as the Public
Junior College and Community College District Purchasing Act.
SECTION 2. Title 2, Subchapter B, Education Code is amended
by changing Section 44.0311 to read:
APPLICABILITY TO JUNIOR COLLEGE DISTRICTS. (a) This
subchapter does not apply [applies] to junior college districts.
SECTION 3. LOCAL GOVERNMENT CODE TITLE 8. ACQUISITION,
SALE, OR LEASE OF PROPERTY, Section 271.023. CONFLICT OF LAWS. is
amended as follows:
To the extent of any conflict:
(a) the provisions of Education Code Subchapter B, Chapter
44, relating to the purchase of goods and services under contract by
a school district prevail over this subchapter; and
(b) the provisions of Education Code Title 3, Higher
Education, Subchapter K, Chapter 130, relating to the purchase of
goods and services under contract by a junior college prevail over
this subchapter.
SECTION 4. Education Code Title 3, HIGHER EDUCATION,
CHAPTER 51. JUNIOR COLLEGE DISTRICTS, Subchapter T, CONSTRUCTION
AND REPAIR OF PERMANENT IMPROVEMENTS Chapter 51.776 (2) definitions
is amended as follows: "Board" means the governing body of an
institution other than a junior college.
SECTION 5. Education Code Title 3, HIGHER EDUCATION,
CHAPTER 130. JUNIOR COLLEGE DISTRICTS, Subchapter G, Chapter 130.
is amended by deleting Section 130.010 and Section 130.0101.
SECTION 6. Education Code Title 3, HIGHER EDUCATION,
CHAPTER 130. JUNIOR COLLEGE DISTRICTS, is amended by adding
Subchapter K, Chapter 130.3, PURCHASING CONTRACTS OTHER THAN
CONSTRUCTION
130.301. Definitions:
(a) "district" means a public junior college or community
college district.
(b) "board of trustees" means the governing board of a
junior college or community college district.
(c) purchase of goods includes:
(1) contracting for the rights to use rather than own
goods,
(2) materials and labor incidental to the delivery and
installation of personal property.
(3) The definition of goods does not include real
property.
(d) "bidder" or "vendor" may be used interchangeably to
identify an entity that responds to a competitive bid, proposal or
qualification. Additionally, the word "bid" may be used to
identify the solicitation of, or response to a competitive bid,
proposal or qualification.
(e) "Services" does not include construction services and
does not apply to a contract for professional services rendered,
including services of an architect, engineer, auditor, accountant,
attorney, or fiscal agent. For other professional services
including those rendered by a financial consultant, auctioneer,
personnel services contractor, travel agent, a technology or
educational consultant, or a business engaged to teach approved
courses, a district may contract for such professional services in
the manner provided by Section 2254.003, Government Code, in lieu
of the methods provided by this section.
130.302. To the extent of any conflict, this subchapter
prevails over any other law relating to the purchasing of goods and
services except a law relating to contracting with historically
underutilized businesses.
130.303. PURCHASING CONTRACTS METHODS
(a) Except as provided by this subchapter, all contracts for
the purchase of goods or services valued at $25,000 or more in the
aggregate for each twelve (12) month fiscal year or other permitted
period shall be made by the method, of the following methods, that
provides the best value for the district:
(1) competitive sealed bids;
(2) competitive sealed proposals;
(3) a catalogue purchase as provided by Subchapter B,
Chapter 2157, Government Code;
(4) an interlocal contract as provided under Chapter
791 Government Code;
(5) the reverse auction procedure as defined by
Section 2155.062(d), Government Code;
(6) the formation of a political subdivision
corporation under Section 304.001, Local Government Code;
(b) Only one of the methods listed in section 130.303(a) may
be used for any individual contract and prior to advertising as
required in Section 130.306, the district must determine which
method provides the best value for the district.
(c) When the method of contracting uses the competitive
sealed proposal method, when the proposals are opened, the district
shall reveal the names of the companies submitting proposals, but
may at its sole option, keep the contents of the proposals
confidential until concluding negotiations and award of a contract.
(d) Contracts for goods or services that will result in an
income of $25,000 or more during the term of the contract, shall be
solicited and awarded in the same manner as a purchase contract.
Such contracts include the sale of personal property.
(e) A district may acquire insurance using a two step
request for proposal process. The first step shall be to determine
which insurance companies are represented by agents interested in
providing insurance for the district. In the second step, the
district shall notify the agents as to which insurance companies
the agents represent and submit offers for providing insurance. In
the first step, should more than one agent indicate a desire to
represent the same company, the agent with the longest and largest
relationship with the insurance company shall be authorized to
submit a proposal for the designated insurance company. When the
notice of the request for proposal for insurance is published as
required under Section 130.306, notice of the second step is not
required to be advertised. However, the interested parties shall
be given notice of the date, time and place where their proposals
are to be submitted. Proposal received after the date and time
stated in the request for proposals shall not be considered.
(f) Without complying with Section 130.303(a), a district
may purchase an item or service that is available from only one
source, including:
(1) an item for which competition is precluded because
of the existence of a patent, copyright, secret process, or
monopoly;
(2) a film, recording, periodical, manuscript, book or
computer software;
(3) a utility service, including gas, or water;
(4) a captive replacement part or component for
equipment;
(5) a product needed to match or work with like
products;
(6) technical or specialized services including
advertising, audio/video production, and the repair and
maintenance of specialized equipment.
(g) Without complying with Section 103.303(a), a district
may purchase advertising services, meeting and catering services,
and travel services including airfare, ground transportation and
lodging. A district shall exercise reasonable and prudent efforts
to determine whether a contract with a company will provide the best
value to the district. The district shall document the process for
selecting the provider of said services including a list of
companies contacted and the basis for selecting the provider. Any
company that has provided written notice to the district that it is
interested in being considered as a supplier of the subject
services shall be given the opportunity to make an offer to provide
the services. After rating and ranking the offers, the district
shall attempt to negotiate a contract with the highest ranked
company. If a contract cannot be negotiated with the highest ranked
company, the next highest company shall be contacted.
(h) Without complying with Section 103.303(a), a district
may purchase an item or service under:
(1) an interlocal contract;
(2) a contract established by the Texas Building and
Procurement Commission or Department of Information Resources in
accordance with Chapter 2157, Government Code, including travel
services, telephone service, computers and computer-related
equipment and software;
(i) Where the Texas Building and Procurement Commission, an
Institution of higher education, as defined by Education Code
61.003(8), or a Texas political subdivision, county, or
municipality has entered into a contract with a company to provide
goods or services other than construction services, during the term
of the contract a district may purchase such goods or services,
directly from the company if the company agrees to sell such goods
or services to the district at the same or lower costs stated in the
contract. Provided that the original contract was awarded in
compliance with the statutory requirements applicable to the
governmental entity that awarded the contract, purchases made under
such contracts shall satisfy the competitive bid requirements of
this subchapter, provided the district's purchase order references
the original contract and identifies the parties thereto.
130.304. EVALUATION AND AWARDING CONTRACTS:
(a) Except as provided by this subchapter, a contract
awarded by a district shall be to the lowest responsible vendor
offering the best value to the district according to the selection
criteria that were established by the district. The district shall
publish in the request for bids, proposals, or qualifications the
criteria that will be used to evaluate the offer's and the relative
weights given to the criteria that are known at the time of the
publication.
(b) In determining the lowest responsible vendor to whom to
award a contract, the district may consider:
(1) the purchase price;
(2) the reputation of the vendor and of the vendor's
goods or services;
(3) the quality of the vendor's goods or services;
(4) the extent to which the offered goods or services
meet the district's needs;
(5) the vendor's past relationship with the district;
(6) the total long-term cost to the district to
acquire the vendor's goods or services;
(7) the extent to which the offers comply with the
requirements of the request for bid, proposal or qualifications.
(8) the sufficiency of the bidder's financial
resources and ability to perform the contract or provide the
service;
(9) the bidder's ability to provide future
maintenance, repair parts, and service for the use of the
contract's subject.
(10) the installation cost;
(11) the cost of operation and maintenance of the
contract's subject;
(12) any other relevant factor specifically listed in
the request for bids or proposals;
(13) the impact on the ability of the district to
comply with laws and rules relating to historically underutilized
businesses;
(14) compliance with a requirement for attendance at a
mandatory site visit or pre-bid conference.
(15) the bidders safety record, if the district:
(a) has adopted a written definition and criteria
for accurately determining the safety record of a bidder;
(b) has given notice to prospective bidders in
the bid specifications that the safety record of a bidder may be
considered in determining the responsibility of the bidder; and
(c) the determinations are not arbitrary and
capricious.
(c) A district may reject all bids, proposals or parts
thereof if the rejection serves the district's interest.
(d) In the method used under 130.303 (a), the district shall
provide all bidders with the opportunity to bid on the same items on
equal terms and have bids judged according to the same standards as
set forth in the specifications.
(e) A district shall receive bids under this subchapter in a
fair and confidential manner.
(f) Bids may be opened only by the district at a public
meeting in a district owned or controlled facility. At the time a
competitive bid is opened, the name of the bidder and the total bid
amount shall be read out loud if a member of the public is present.
At least two district employees or trustees must be present at the
bid opening. When proposals or qualifications are opened, only the
name of the respondents shall be read and the district shall avoid
disclosing the contents of each proposal on opening the proposal
and during negotiations with competing offerors.
(g) A bid that has been opened may not be changed for the
purpose of correcting an error in the bid price.
(h) This subchapter does not change the common law right of
a bidder to withdraw a bid due to a material mistake in the bid.
(i) The district shall document the basis of its selection
and shall make the evaluations public not later than the seventh day
after the date the contract is awarded. The district shall state in
writing in the contract file the reasons for making an award.
(j) A contract awarded in violation of this subchapter is
void.
(k) The state auditor may audit purchases of goods or
services by the district.
(l) If a purchase is made at the campus level in a community
college district with independently accredited colleges, and the
district delegates purchasing decisions to the campus level, this
section applies only to the campus and does not require the district
to aggregate and jointly award purchasing contracts. A district
that adopts site-based purchasing under this subsection shall adopt
a policy to ensure that campus purchases achieve the best value to
the district and are not intended or used to avoid the requirement
that a district aggregate purchases under Subsection (a).
(m) If district property is destroyed, stolen or severely
damaged or a building or equipment, undergoes major operational or
structural failure, or a contractor is unable to fulfill its
obligations in providing goods or services, and the board of
trustees determines that the delay posed by the methods provided
for in this section would pose material threat to personal safety or
potential damage to other property, prevent or substantially impair
the conduct of classes or other essential district activities, then
contracts for the replacement or repair of the property may be made
by methods other than those required by section 103.303(a).
130.305. RULES AND PROCEDURES ADOPTED BY A DISTRICT
(a) The board of trustees of the district may adopt rules
and procedures for the acquisition of goods or services.
(b) Except as provided in this subchapter, to increase
efficiency of operations, the rules and procedures must include a
requirement for the district to purchase like goods or services on a
scheduled basis.
(c) To achieve efficiencies of operations, contracts for
the purchase of goods may cover a period of up to three years and
contracts for the purchase of services may cover a term of up to
five years. Such multi-year contracts must include a provision
that permits termination at the end on each fiscal year.
130.306. NOTICES
(a) Except as provided in this subchapter, for the method of
contracting selected under section 130.303(a), notice of the time
by when and place where the bids, proposals or the responses to a
request for qualifications will be received and opened shall be
published in the county in which the district's central
administrative office is located, in at least two successive issues
of any newspaper of general circulation in the county in which the
district is located. The deadline for receiving bids, proposals,
or responses to a request for qualifications shall not be less than
ten (10) business days after the date of the last newspaper notice.
If there is not a newspaper in that county, the advertising shall be
published in a newspaper in the county nearest the county seat of
the county in which the district's central administrative office is
located. In a two-step procurement process, the time and place
where the second-step bids, proposals, or responses will be
received are not required to be published separately.
(b) As an alternative to publishing individual notices in a
newspaper, provided at least one time per week the district
publishes in a newspaper of general circulation, the internet
address where notices may be found, the district may publish on a
public accessible Internet site, notice of bids, proposals, or
responses to a request for qualifications. Such publication shall
be posted every day for at least ten (10) business days prior to the
deadline.
(c) The notice must include the date, time and place for
receiving bids, proposals or request for qualifications, a
description of the goods or services, any mandatory site
inspections or pre-bid meetings, where bid, proposal or
qualification documents may be obtained or examined, and any
required bid bond, payment bond or performance bond.
130.307. DISCUSSION AND REVISION OF PROPOSALS.
(a) As provided in a request for proposals and under rules
adopted by a district, the district may discuss acceptable or
potentially acceptable proposals with offerors to assess an
offeror's ability to meet the solicitation requirements.
(b) After receiving a proposal but before making an award,
the district may permit the offeror to revise the proposal to obtain
the best final offer.
(c) The district may not disclose information derived from
proposals submitted from competing offerors in conducting
discussions under this section.
(d) The district shall provide each offeror an equal
opportunity to discuss and revise proposals.
130.308. PRE-BID CONFERENCE
(a) The district may require a principal, officer, or
employee of each prospective bidder to attend a mandatory pre-bid
conference conducted for the purpose of discussing contract
requirements and answering questions of prospective bidders.
Notice under this subsection must be included in the notice
published under Section 130.306
(b) After a mandatory pre-bid conference is conducted, any
additional required notice for the proposed contract may be sent
only to prospective bidders who attended the conference.
130.309. TIE BIDS
(a) In the case of tie bids with all factors being equal, a
contract shall be awarded under rules established by the board of
trustees.
130.310. BID DEPOSIT.
(a) The district, as considered necessary, may require a bid
deposit in an amount determined by the district. The amount of the
deposit, if any, must be stated in the public notice and the
invitation to bid.
(b) On the award of a bid or the rejection of all bids, the
district shall refund the bid deposit of an unsuccessful bidder.
(c) For public work contracts, the bid deposit required by
the district, if any, may only be in the in the form of a bid bond
written by a surety authorized to conduct business in this state.
130.310. PERFORMANCE BOND FOR CONTRACTS OTHER THAN
CONSTRUCTION.
(a) A district may require a contractor to provide a
performance bond in the amount of the contract before executing a
contract for the purchase goods or services with a value of $100,000
or more. The bond must be written by a surety authorized to conduct
business in this state.
130.311. DELEGATION.
(a) The board of trustees of a district may, as appropriate,
delegate its authority under this subchapter regarding an action
authorized or required by this subchapter to be taken by a district
to a designated person, representative, or committee. The district
shall provide notice of the delegation and the limits of the
delegation in the request for bids, proposals, or qualifications or
in an addendum to the request. If the district fails to provide
that notice, a ranking, selection, or evaluation of bids,
proposals, or qualifications other than by the board of trustees in
an open public meeting is advisory only.
(b) The board may not delegate the authority to act
regarding an action authorized or required by this subchapter to be
taken by the board of trustees of a district.
130.312. ENFORCEMENT OF PURCHASE PROCEDURES: CRIMINAL
PENALTIES; REMOVAL; INELIGIBILITY.
(a) In this section:
(1) "Component purchases" means purchases of the
component parts of an item that in normal purchasing practices
would be purchased in one purchase.
(2) "Separate purchases" means purchases, made
separately, of items that in normal purchasing practices would be
purchased in one purchase.
(3) "Sequential purchases" means purchases, made over
a period, of items that in normal purchasing practices would be
purchased in one purchase.
(b) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence makes or authorizes
separate, sequential, or component purchases to avoid the
requirements of Sections 130.303 or 130.304. An offense under this
subsection is a Class B misdemeanor and is an offense involving
moral turpitude.
(c) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence violates Sections
130.303 or 130.304 other than by conduct described by Subsection
(b). An offense under this subsection is a Class B misdemeanor and
is an offense involving moral turpitude.
(d) An officer or employee of a district commits an offense
if the officer or employee knowingly violates Section 130.010,
other than by conduct described by Subsection (b) or (c). An
offense under this subsection is a Class C misdemeanor.
(e) The final conviction of a person other than a trustee of
a district for an offense under Subsection (b) or (c) results in the
immediate removal from office or employment of that person. A
trustee who is convicted of an offense under this section is
considered to have committed official misconduct for purposes of
Chapter 87, Local Government Code, and is subject to removal as
provided by that chapter and Section 24, Article V, Texas
Constitution. For four years after the date of the final
conviction, the removed person is ineligible to be a candidate for
or to be appointed or elected to a public office in this state, is
ineligible to be employed by or act as an agent for the state or a
political subdivision of the state, and is ineligible to receive
any compensation through a contract with the state or a political
subdivision of the state. This subsection does not prohibit the
payment of retirement benefits to the removed person or the payment
of workers' compensation benefits to the removed person for an
injury that occurred before the commission of the offense for which
the person was removed. This subsection does not make a person
ineligible for an office for which the federal or state
constitution prescribes exclusive eligibility requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, a district
attorney, a criminal district attorney, a citizen of the county in
which the district is located, or any interested party may bring an
action for an injunction. A party who prevails in an action brought
under this subsection is entitled to reasonable attorney's fees as
approved by the court.
130.313. MISCELLANEOUS COMMODITY PURCHASES.
(a) This section shall apply to the purchase of tangible
personal property, including produce, gasoline and fuel oil where
the price of the commodity must be determined at the time the need
arises. This section shall also apply to services other than
construction services job order contracts.
(b) The notice requirements under section 130.306 shall
apply to this section. The notices shall specify the categories of
personal property or services to be purchased under this section
and soliciting the names, addresses, and telephone numbers of
vendors that are interested in supplying any of the categories to
the district. For each category, the district shall create a vendor
list consisting of each qualified vendor that responds to the
published notice and any additional vendors the district elects to
include.
(c) Before the district makes a purchase from a category of
personal property or service, the district must obtain written or
telephone price quotations from at least three vendors from the
list for that category. If fewer than three vendors are on the
list, the district shall contact each vendor on the list. Whenever
possible, telephone quotes should be confirmed in writing,
including email or facsimile. The bidding records must be retained
with the district's competitive bidding records and are subject to
audit. In determining from whom to purchase the products or
services, the district may consider the provisions of section
130.304.
130.314. NOTIFICATION OF CRIMINAL HISTORY OF CONTRACTOR.
(a) A person or business entity that enters into a contract
with a district must give advance notice to the district if the
person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a felony.
(b) A district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection (a)
or misrepresented the conduct resulting in the conviction. The
district must compensate the person or business entity for services
performed before the termination of the contract.
(c) This section does not apply to a publicly held
corporation.
SECTION 7. Education Code Title 3, HIGHER EDUCATION,
CHAPTER 130. JUNIOR COLLEGE DISTRICTS, is amended by adding
Subchapter L, Chapter 130.4, CONSTRUCTION CONTRACTS.
130.401. Definitions in this Subchapter L:
(a) "district" means a public junior college or community
college district.
(b) "board of trustees" means the governing board of a
junior college or community college district.
(c) "Construction" means the construction, rehabilitation,
alteration, or repair of a facility, including all goods and labor
incidental to the construction.
(d) "Architect" means an individual registered as an
architect under Chapter 478, Acts of the 45th Legislature, Regular
Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
(e) "Engineer" means an individual registered as a
professional engineer under The Texas Engineering Practice Act
(Article 3271a, Vernon's Texas Civil Statutes).
(f) "bidder" or "vendor" may be used interchangeably to
identify an entity that responds to a competitive bid, proposal or
qualification. Additionally, the word "bid" may be used to
identify the solicitation of, or response to a competitive bid,
proposal or qualification.
(g) "Contractor" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means a sole proprietorship, partnership, corporation, or other
legal entity that assumes the risk for constructing,
rehabilitating, altering, or repairing all or part of the facility
at the contracted price.
(h) "Facility" means real property or public work,
including buildings and associated systems, structures and
components, and improved or unimproved land.
(i) "Fee" in the context of a contract for the construction,
rehabilitation, alteration, or repair of a facility means the
payment a construction manager receives for its overhead and profit
in performing its services.
(j) "General conditions" in the context of a contract for
the construction, rehabilitation, alteration, or repair of a
facility means on-site management, administrative personnel,
insurance, bonds, equipment, utilities, and incidental work,
including minor field labor and materials.
130.402. METHODS OF CONSTRUCTION CONTRACTING
(a) Except as provided by this subchapter, all contracts for
construction valued at $25,000 or more in the aggregate shall be
made by the method, of the following methods, that provides the best
value for the district:
(1) competitive sealed bids;
(2) competitive sealed proposals;
(3) a design/build contract;
(4) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager agent;
(5) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager at
risk ; or
(6) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility;
(b) Only one of the methods listed in section 130.402(a) may
be used for any individual contract and prior to advertising as
required in Section 130.306, a district must determine which method
provides the best value for the district.
(c) When the method of contracting uses the competitive
sealed proposal method, when the proposals are opened, the district
shall reveal the names of the companies submitting proposals, but
may at its sole option, keep the contents of the proposals
confidential until concluding negotiations and award of a contract.
(d) Job order contracts that will or may result in spending
$25,000 or more with a contractor or to the district during the term
of the contract, shall be solicited and awarded in the same manner
as a purchase contract.
(e) This section does not apply to a contract for
consultants or professional services rendered, including services
of an architect, engineer, auditor, accountant, attorney, or fiscal
agent. For other professional services and consultants, a district
may contract for such professional services in the manner provided
by Section 2254.003, Government Code. or Education Code chapter
130, Subchapter K, 130.3.
(f) In the method used under 130.402 (a), the district shall
provide all bidders with the opportunity to bid on the same items on
equal terms and have bids judged according to the same standards as
set forth in the specifications.
(g) A district shall receive bids under this subchapter in a
fair and confidential manner.
(h) Bids may be opened only by the district at a public
meeting in a district owned or controlled facility. At the time a
competitive bid is opened, the name of the bidder and the total bid
amount shall be read out loud if a member of the public is present.
At least two district employees or trustees must be present at the
bid opening. When proposals or qualifications are opened, only the
name of the respondents shall be read and the district shall avoid
disclosing the contents of each proposal on opening the proposal
and during negotiations with competing offerors.
(i) A bid that has been opened may not be changed for the
purpose of correcting an error in the bid price.
(j) This subchapter does not change the common law right of
a bidder to withdraw a bid due to a material mistake in the bid.
(k) The state auditor may audit purchases of goods or
services by the district.
130.403. EVALUATION AND AWARDING CONTRACTS:
(a) Except as provided by this subchapter, a contract
awarded by a district shall be to the lowest responsible vendor
offering the best value to the district according to the selection
criteria that were established by the district. The district shall
publish in the request for bids, proposals, or qualifications the
criteria that will be used to evaluate the offer's and the relative
weights given to the criteria that are known at the time of the
publication.
(b) In determining the lowest responsible bidder to whom to
award a contract, the district may consider:
(1) the immediate and long term cost of the service;
(2) the reputation of the bidder;
(3) the quality of the bidder's services;
(4) the extent to which the offered services meet the
district's needs;
(5) the bidder's past relationship with the district;
(6) the extent to which the offer complies with the
requirements of the request for bid, proposal or qualifications.
(7) the sufficiency of the bidder's financial
resources and ability to perform the contract or provide the
service;
(8) the bidder's ability to provide future
maintenance, repair parts, and service for the use of the
contract's subject.
(9) the installation cost;
(10) the cost of operation and maintenance of the
contract's subject;
(11) any other relevant factor specifically listed in
the request for bids or proposals;
(12) the impact on the ability of the district to
comply with laws and rules relating to historically underutilized
businesses;
(13) compliance with a requirement for attendance at a
mandatory site visit or pre-bid conference.
(14) the bidders safety record, if the district:
(a) has adopted a written definition and criteria
for accurately determining the safety record of a bidder;
(b) has given notice to prospective bidders in
the bid specifications that the safety record of a bidder may be
considered in determining the responsibility of the bidder; and
(c) the determinations are not arbitrary and
capricious.
(c) A district may reject all bids, proposals,
qualifications or parts thereof if the rejection serves the
district's interest.
(d) The district shall document the basis of its selection
and shall make the evaluations public not later than the seventh day
after the date the contract is awarded. The district shall state in
writing in the contract file the reasons for making an award.
(e) A contract awarded in violation of this subchapter is
void.
(f) If district property is destroyed, stolen or severely
damaged or a building or equipment, undergoes major operational or
structural failure, or a contractor is unable to fulfill its
obligations in providing goods or services, and the board of
trustees determines that the delay posed by the methods provided
for in Section 103.402(a) would pose material threat to personal
safety or potential damage to other property, prevent or
substantially impair the conduct of classes or other essential
district activities, then contracts for the replacement or repair
of the property may be made by methods other than those required by
Section 103.402(a).
130.404. RULES AND PROCEDURES ADOPTED BY A DISTRICT
(a) The board of trustees of the district may adopt rules
and procedures for the acquisition of construction services.
130.405. NOTICES
(a) Except as provided in this subchapter, for the method of
contracting selected under section 130.402(a), notice of the time
by when and place where the bids, proposals or the responses to a
request for qualifications will be received and opened shall be
published in the county in which the district's central
administrative office is located, in at least two successive issues
of any newspaper of general circulation in the county in which the
district is located. The deadline for receiving bids, proposals,
or responses to a request for qualifications shall not be less than
ten (10) business days after the date of the last newspaper notice.
If there is not a newspaper in that county, the advertising shall be
published in a newspaper in the county nearest the county seat of
the county in which the district's central administrative office is
located. In a two-step procurement process, the time and place
where the second-step bids, proposals, or responses will be
received are not required to be published separately.
(b) As an alternative to publishing individual notices in a
newspaper, provided at least one time per week the district
publishes in a newspaper of general circulation, the internet
address where notices may be found, the district may publish on a
public accessible Internet site, notice of bids, proposals, or
responses to a request for qualifications. Such publication shall
be posted every day for at least ten (10) business days prior to the
deadline.
(c) The notice must include the date, time and place for
receiving bids, proposals or request for qualifications, a
description of the goods or services, any mandatory site
inspections or pre-bid meetings, where bid, proposal or
qualification documents may be obtained or examined, and any
required bid bond, payment bond or performance bond.
130.406. DISCUSSION AND REVISION OF PROPOSALS.
(a) As provided in a request for proposals and under rules
adopted by a district, the district may discuss acceptable or
potentially acceptable proposals with offerors to assess an
offeror's ability to meet the solicitation requirements.
(b) After receiving a proposal but before making an award,
the district may permit the offeror to revise the proposal to obtain
the best final offer.
(c) The district may not disclose information derived from
proposals submitted from competing offerors in conducting
discussions under this section.
(d) The district shall provide each offeror an equal
opportunity to discuss and revise proposals.
130.407. PRE-BID CONFERENCE
(a) The district may require a principal, officer, or
employee of each prospective bidder to attend a mandatory pre-bid
conference conducted for the purpose of discussing contract
requirements and answering questions of prospective bidders.
Notice under this subsection must be included in the notice
published under Section 130.405
(b) After a mandatory pre-bid conference is conducted, any
additional required notice for the proposed contract may be sent
only to prospective bidders who attended the conference.
130.408. TIE BIDS
(a) In the case of tie bids with all factors being equal, a
contract shall be awarded under rules established by the board of
trustees.
130.309. BID DEPOSIT.
(a) The district, as considered necessary, may require a bid
deposit in an amount determined by the district. The amount of the
deposit, if any, must be stated in the public notice and the
invitation to bid.
(b) On the award of a bid or the rejection of all bids, the
district shall refund the bid deposit of an unsuccessful bidder.
(c) For public work contracts, the bid deposit required by
the district, if any, may only be in the in the form of a bid bond
written by a surety authorized to conduct business in this state.
130.410. PERFORMANCE AND PAYMENT BONDS FOR CONSTRUCTION
(a) For a contract for construction, the contractor must
execute a good and sufficient payment bond if the contract is for
$25,000 or greater and a performance bond if the contract is
$100,000 or greater. The bonds must each be executed, in accordance
with Chapter 2253, Government Code, with a surety company
authorized to conduct business in this state.
130.411. DELEGATION.
(a) The board of trustees of a district may, as appropriate,
delegate its authority under this subchapter regarding an action
authorized or required by this subchapter to be taken by a district
to a designated person, representative, or committee. In procuring
construction services, the district shall provide notice of the
delegation and the limits of the delegation in the request for bids,
proposals, or qualifications or in an addendum to the request. If
the district fails to provide that notice, a ranking, selection, or
evaluation of bids, proposals, or qualifications for construction
services other than by the board of trustees in an open public
meeting is advisory only.
(b) The board may not delegate the authority to act
regarding an action authorized or required by this subchapter to be
taken by the board of trustees of a district.
130.412. ENFORCEMENT OF PURCHASE PROCEDURES: CRIMINAL
PENALTIES; REMOVAL; INELIGIBILITY.
(a) In this section:
(1) "Component purchases" means purchases of the
component parts of an item or service that in normal purchasing
practices would be purchased in one purchase.
(2) "Separate purchases" means purchases, made
separately, of items or services that in normal purchasing
practices would be purchased in one purchase.
(3) "Sequential purchases" means purchases, made over
a period, of items that in normal purchasing practices would be
purchased in one purchase.
(b) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence makes or authorizes
separate, sequential, or component purchases to avoid the
requirements of Section 130.011(a) or (b). An offense under this
subsection is a Class B misdemeanor and is an offense involving
moral turpitude.
(c) An officer, employee, or agent of a district commits an
offense if the person with criminal negligence violates Section
130.011(a) or (b) other than by conduct described by Subsection
(b). An offense under this subsection is a Class B misdemeanor and
is an offense involving moral turpitude.
(d) An officer or employee of a district commits an offense
if the officer or employee knowingly violates Section 130.010,
other than by conduct described by Subsection (b) or (c). An
offense under this subsection is a Class C misdemeanor.
(e) The final conviction of a person other than a trustee of
a district for an offense under Subsection (b) or (c) results in the
immediate removal from office or employment of that person. A
trustee who is convicted of an offense under this section is
considered to have committed official misconduct for purposes of
Chapter 87, Local Government Code, and is subject to removal as
provided by that chapter and Section 24, Article V, Texas
Constitution. For four years after the date of the final
conviction, the removed person is ineligible to be a candidate for
or to be appointed or elected to a public office in this state, is
ineligible to be employed by or act as an agent for the state or a
political subdivision of the state, and is ineligible to receive
any compensation through a contract with the state or a political
subdivision of the state. This subsection does not prohibit the
payment of retirement benefits to the removed person or the payment
of workers' compensation benefits to the removed person for an
injury that occurred before the commission of the offense for which
the person was removed. This subsection does not make a person
ineligible for an office for which the federal or state
constitution prescribes exclusive eligibility requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, a district
attorney, a criminal district attorney, a citizen of the county in
which the district is located, or any interested party may bring an
action for an injunction. A party who prevails in an action brought
under this subsection is entitled to reasonable attorney's fees as
approved by the court.
130.413. NOTIFICATION OF CRIMINAL HISTORY OF CONTRACTOR.
(a) A person or business entity that enters into a contract
with a district must give advance notice to the district if the
person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a felony.
(b) A district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection (a)
or misrepresented the conduct resulting in the conviction. The
district must compensate the person or business entity for services
performed before the termination of the contract.
(c) This section does not apply to a publicly held
corporation.
130.414. CHANGE ORDERS.
(a) After performance of a construction contract begins, a
district may approve change orders if necessary to:
(1) make changes in plans or specifications; or
(2) decrease or increase the quantity of work to be
performed or materials, equipment, or supplies to be furnished.
(b) The total price of a contract may not be increased by a
change order unless provision has been made for the payment of the
added cost by the appropriation of current funds or bond funds for
that purpose, by the authorization of the issuance of certificates,
or by a combination of those procedures. The original contract
price may not be increased by more than 25 percent. The original
price may not be decreased by more than 25 percent without the
consent of the contractor.
130.415. ERRORS & OMISSION INSURANCE
(a) For any public work contract awarded under this
subchapter, to protect the interest of the district, the architect
or engineer that prepared the plans and specification for the
public work, shall, at its expense, carry errors and omissions
insurance in an amount not less than the amount of the public work
contract.
130.416. DESIGN-BUILD CONTRACTS FOR FACILITIES.
(a) In this section:
(1) "Design-build contract" means a single contract
with a design-build firm for the design and construction of a
facility.
(2) "Design-build firm" means a partnership,
corporation, or other legal entity or team that includes an
engineer or architect and builder qualified to engage in building
construction in Texas.
(3) "Design criteria package" means a set of documents
that provides sufficient information to permit a design-build firm
to prepare a response to a district's request for qualifications
and any additional information requested, including criteria for
selection. The design criteria package must specify criteria the
district considers necessary to describe the project and may
include, as appropriate, the legal description of the site, survey
information concerning the site, interior space requirements,
special material requirements, material quality standards,
conceptual criteria for the project, special equipment
requirements, cost or budget estimates, time schedules, quality
assurance and quality control requirements, site development
requirements, applicable codes and ordinances, provisions for
utilities, parking requirements, or any other requirement, as
applicable.
(b) A district may use the design-build method for the
construction, rehabilitation, alteration, or repair of a facility.
In using that method and in entering into a contract for the
services of a design-build firm, the contracting district and the
design-build firm shall follow the procedures provided by
Subsections (c)-(j).
(c) The district may designate an engineer or architect to
act as its representative. If the district's engineer or architect
is not a full-time employee of the district, any engineer or
architect designated shall be selected on the basis of demonstrated
competence and qualifications in accordance with Subchapter A,
Chapter 2254, Government Code.
(d) The district shall prepare a request for qualifications
that includes general information on the project site, project
scope, budget, special systems, selection criteria, and other
information that may assist potential design-build firms in
submitting proposals for the project. The district shall also
prepare the design criteria package that includes more detailed
information on the project. If the preparation of the design
criteria package requires engineering or architectural services
that constitute the practice of engineering within the meaning of
The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
Civil Statutes) or the practice of architecture within the meaning
of Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
(Article 249a, Vernon's Texas Civil Statutes), those services shall
be provided in accordance with the applicable law.
(e) The district shall evaluate statements of
qualifications and select a design-build firm in two phases:
(1) In phase one, the district shall prepare a request
for qualifications and evaluate each offeror's experience,
technical competence, and capability to perform, the past
performance of the offeror's team and members of the team, and other
appropriate factors submitted by the team or firm in response to the
request for qualifications, except that cost-related or
price-related evaluation factors are not permitted. Each offeror
must certify to the district that each engineer or architect that is
a member of its team was selected based on demonstrated competence
and qualifications. The district shall qualify a maximum of five
offerors to submit additional information and, if the district
chooses, to interview for final selection.
(2) In phase two, the district shall evaluate the
information submitted by the offerors on the basis of the selection
criteria stated in the request for qualifications and the results
of any interview. The district may request additional information
regarding demonstrated competence and qualifications,
considerations of the safety and long-term durability of the
project, the feasibility of implementing the project as proposed,
the ability of the offeror to meet schedules, costing methodology,
or other factors as appropriate. The district may not require
offerors to submit detailed engineering or architectural designs as
part of the proposal. The district shall rank each proposal
submitted on the basis of the criteria set forth in the request for
qualifications. The district shall select the design-build firm
that submits the proposal offering the best value for the district
on the basis of the published selection criteria and on its ranking
evaluations. The district shall first attempt to negotiate with
the selected offeror a contract. If the district is unable to
negotiate a satisfactory contract with the selected offeror, the
district shall, formally and in writing, end negotiations with that
offeror and proceed to negotiate with the next offeror in the order
of the selection ranking until a contract is reached or
negotiations with all ranked offerors end.
(f) Following selection of a design-build firm under
Subsection (e), that firm's engineers or architects shall complete
the design, submitting all design elements for review and
determination of scope compliance to the district or district's
engineer or architect before or concurrently with construction.
(g) An engineer shall have responsibility for compliance
with the engineering design requirements and all other applicable
requirements of The Texas Engineering Practice Act (Article 3271a,
Vernon's Texas Civil Statutes). An architect shall have
responsibility for compliance with the requirements of Chapter 478,
Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
Vernon's Texas Civil Statutes).
(h) The district shall provide or contract for,
independently of the design-build firm, the inspection services,
the testing of construction materials engineering, and the
verification testing services necessary for acceptance of the
facility by the district. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code.
(i) The design-build firm shall supply a signed and sealed
set of construction documents for the project to the district at the
conclusion of construction.
(j) A payment or performance bond is not required for, and
may not provide coverage for, the portion of a design-build
contract under this section that includes design services only. If
a fixed contract amount or guaranteed maximum price has not been
determined at the time a design-build contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget, as
specified in the design criteria package. The design-build firm
shall deliver the bonds not later than the 10th day after the date
the design-build firm executes the contract unless the design-build
firm furnishes a bid bond or other financial security acceptable to
the district to ensure that the design-build firm will furnish the
required performance and payment bonds when a guaranteed maximum
price is established.
130.417. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT.
(a) A district may use the construction manager-agent
method for the construction, rehabilitation, alteration, or repair
of a facility. In using that method and in entering into a contract
for the services of a construction manager-agent, a district shall
follow the procedures prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that provides
consultation to the district regarding construction,
rehabilitation, alteration, or repair of the facility. A district
using the construction manager-agent method may, under the contract
between the district and the construction manager-agent, require
the construction manager-agent to provide administrative
personnel, equipment necessary to perform duties under this
section, and on-site management and other services specified in the
contract. A construction manager-agent represents the district in
a fiduciary capacity.
(c) Before or concurrently with selecting a construction
manager-agent, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with The
Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
applicable. If the engineer or architect is not a full-time
employee of the district, the district shall select the engineer or
architect on the basis of demonstrated competence and
qualifications as provided by Section 2254.004, Government Code.
The district's engineer or architect may not serve, alone or in
combination with another person, as the construction manager-agent
unless the engineer or architect is hired to serve as the
construction manager-agent under a separate or concurrent
procurement conducted in accordance with this subchapter. This
subsection does not prohibit the district's engineer or architect
from providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable licensing laws.
(d) A district shall select a construction manager-agent on
the basis of demonstrated competence and qualifications in the same
manner as provided for the selection of
engineers or architects under Section 2254.004, Government
Code.
(e) A district using the construction manager-agent method
shall procure, in accordance with applicable law and in any manner
authorized by this chapter, a general contractor, trade
contractors, or subcontractors who will serve as the prime
contractor for their specific portion of the work.
(f) The district or the construction manager-agent shall
procure in accordance with Section 2254.004, Government Code, all
of the testing of construction materials engineering, the
inspection services, and the verification testing services
necessary for acceptance of the facility by the district.
130.418. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK.
(a) A district may use the construction manager-at-risk
method for the construction, rehabilitation, alteration, or repair
of a facility. In using that method and in entering into a contract
for the services of a construction manager-at-risk, a district
shall follow the procedures prescribed by this section.
(b) A construction manager-at-risk is a sole
proprietorship, partnership, corporation, or other legal entity
that assumes the risk for construction, rehabilitation,
alteration, or repair of a facility at the contracted price as a
general contractor and provides consultation to the district
regarding construction during and after the design of the facility.
(c) Before or concurrently with selecting a construction
manager-at-risk, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with The
Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
applicable. If the engineer or architect is not a full-time
employee of the district, the district shall select the engineer or
architect on the basis of demonstrated competence and
qualifications as provided by Section 2254.004, Government Code.
The district's engineer, architect, or construction manager-agent
for a project may not serve, alone or in combination with another,
as the construction manager-at-risk.
(d) The district shall provide or contract for,
independently of the construction manager-at-risk, the inspection
services, the testing of construction materials engineering, and
the verification testing services necessary for acceptance of the
facility by the district. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code.
(e) The district shall select the construction
manager-at-risk in either a one-step or two-step process. The
district shall prepare a request for proposals, in the case of a
one-step process, or a request for qualifications, in the case of a
two-step process, that includes general information on the project
site, project scope, schedule, selection criteria, estimated
budget, and the time and place for receipt of proposals or
qualifications, as applicable, a statement as to whether the
selection process is a one-step or two-step process, and other
information that may assist the district in its selection of a
construction manager-at-risk. The district shall state the
selection criteria in the request for proposals or qualifications,
as applicable. The selection criteria may include the offeror's
experience, past performance, safety record, proposed personnel
and methodology, and other appropriate factors that demonstrate the
capability of the construction manager-at-risk. If a one-step
process is used, the district may request, as part of the offeror's
proposal, proposed fees and prices for fulfilling the general
conditions. If a two-step process is used, the district may not
request fees or prices in step one. In step two, the district may
request that five or fewer offerors, selected solely on the basis of
qualifications, provide additional information, including the
construction manager-at-risk's proposed fee and its price for
fulfilling the general conditions.
(f) At each step, the district shall receive, publicly open,
and read aloud the names of the offerors. At the appropriate step,
the district shall also read aloud the fees and prices, if any,
stated in each proposal as the proposal is opened. Within 45 days
after the date of opening the proposals, the district shall
evaluate and rank each proposal submitted in relation to the
criteria set forth in the request for proposals.
(g) The district shall select the offeror that submits the
proposal that offers the best value for the district based on the
published selection criteria and on its ranking evaluation. The
district shall first attempt to negotiate with the selected offeror
a contract. If the district is unable to negotiate a satisfactory
contract with the selected offeror, the district shall, formally
and in writing, end negotiations with that offeror and proceed to
negotiate with the next offeror in the order of the selection
ranking until a contract is reached or negotiations with all ranked
offerors end.
(h) A construction manager-at-risk shall publicly
advertise, in accordance with Section 130.405, and receive bids or
proposals from trade contractors or subcontractors for the
performance of all major elements of the work other than the minor
work that may be included in the general conditions. A construction
manager-at-risk may seek to perform portions of the work itself if
the construction manager-at-risk submits its bid or proposal for
those portions of the work in the same manner as all other trade
contractors or subcontractors and if the district determines that
the construction manager-at-risk's bid or proposal provides the
best value for the district.
(i) The construction manager-at-risk and the district or
its representative shall review all trade contractor or
subcontractor bids or proposals in a manner that does not disclose
the contents of the bid or proposal during the selection process to
a person not employed by the construction manager-at-risk,
engineer, architect, or district. All bids or proposals shall be
made public after the award of the contract or within seven days
after the date of final selection of bids or proposals, whichever is
later.
(j) If the construction manager-at-risk reviews, evaluates,
and recommends to the district a bid or proposal from a trade
contractor or subcontractor but the district requires another bid
or proposal to be accepted, the district shall compensate the
construction manager-at-risk by a change in price, time, or
guaranteed maximum cost for any additional cost and risk that the
construction manager-at-risk may incur because of the district's
requirement that another bid or proposal be accepted.
(k) If a selected trade contractor or subcontractor
defaults in the performance of its work or fails to execute a
subcontract after being selected in accordance with this section,
the construction manager-at-risk may, without advertising, itself
fulfill the contract requirements or select a replacement trade
contractor or subcontractor to fulfill the contract requirements.
(l) If a fixed contract amount or guaranteed maximum price
has not been determined at the time the contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget, as
specified in the request for qualifications. The construction
manager shall deliver the bonds not later than the 10th day after
the date the construction manager executes the contract unless the
construction manager furnishes a bid bond or other financial
security acceptable to the district to ensure that the construction
manager will furnish the required performance and payment bonds
when a guaranteed maximum price is established.
130.419. SELECTING CONTRACTOR FOR CONSTRUCTION PURPOSES
THROUGH COMPETITIVE SEALED PROPOSALS.
(a) In selecting a contractor for construction,
rehabilitation, alteration, or repair services for a facility
through competitive sealed proposals, a district shall follow the
procedures prescribed by this section.
(b) The district shall select or designate an engineer or
architect to prepare construction documents for the project. The
selected or designated engineer or architect has full
responsibility for complying with The Texas Engineering Practice
Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
Vernon's Texas Civil Statutes), as applicable. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code.
(c) The district shall provide or contract for,
independently of the contractor, the inspection services, the
testing of construction materials engineering, and the
verification testing services necessary for acceptance of the
facility by the district. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code, and shall identify them in the request for
proposals.
(d) The district shall prepare a request for competitive
sealed proposals that includes construction documents, selection
criteria, estimated budget, project scope, schedule, and other
information that contractors may require to respond to the request.
(e) The district shall receive, publicly open, and read
aloud the names of the offerors and if any are required to be
stated, all prices stated in each proposal. Within 45 days after
the date of opening the proposals, the district shall evaluate and
rank each proposal submitted in relation to the published selection
criteria.
(f) The district shall first attempt to negotiate with the
selected offeror a contract. The district and its engineer or
architect may discuss with the selected offeror options for a scope
or time modification and any price change associated with the
modification. If the district is unable to negotiate a contract
with the selected offeror, the district shall, formally and in
writing, end negotiations with that offeror and proceed to the next
offeror in the order of the selection ranking until a contract is
reached or all proposals are rejected.
130.420. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
THROUGH COMPETITIVE BIDDING.
(a) Except to the extent prohibited by other law and to the
extent consistent with this subchapter, a district may use
competitive bidding to select a contractor to perform construction,
rehabilitation, alteration, or repair services for a facility.
130.421. JOB ORDER CONTRACTS FOR CONSTRUCTION SERVICES.
(a) A district may award job order contracts for the minor
construction, repair, rehabilitation, or alteration of a facility
if the work is of a recurring nature but the delivery times are
indefinite and indefinite quantities and orders are awarded
substantially on the basis of pre-described and pre-priced tasks.
(b) The district may establish contractual unit prices for a
job order contract by:
(1) specifying one or more published construction unit
price books and the applicable divisions or line items; or
(2) providing a list of work items and requiring the
offerors to bid or propose one or more coefficients or multipliers
to be applied to the price book or work items as the price proposal.
(c) The district shall advertise for, receive, and publicly
open sealed proposals for job order contracts.
(d) The district may require offerors to submit additional
information besides rates, including experience, past performance,
and proposed personnel and methodology.
(e) The district may award job order contracts to one or
more job order contractors in connection with each solicitation of
bids or proposals.
(f) An order for a job or project under the job order
contract must be signed by the district's representative and the
contractor. The order may be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities or may be a unit price order based on the quantities and
line items delivered.
(g) The contractor shall provide payment and performance
bonds, if required by law, based on the amount or estimated amount
of any order.
(h) The base term of a job order contract is for the period
and with any renewal option that the district sets forth in the
request for proposals. If the district fails to advertise that
term, the base term may not exceed two years and is not renewable
without further advertisement and solicitation of proposals.
(i) If a job order contract or an order issued under the
contract requires engineering or architectural services that
constitute the practice of engineering within the meaning of The
Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
Statutes) or the practice of architecture within the meaning of
Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
(Article 249a, Vernon's Texas Civil Statutes), those services shall
be provided in accordance with applicable law.
SECTION 8. Education Code Title 3, HIGHER EDUCATION,
CHAPTER 130. JUNIOR COLLEGE DISTRICTS, is amended by adding
Subchapter M, Chapter 130.5, HISTORICALLY UNDERUTILIZED
BUSINESSES.
130.501. On an annual basis, a district located in a county
with a population of one million or more shall prepare a plan
stating their objectives and methods to be used to achieve their
objectives regarding purchases to be made from historically
underutilized businesses as defined under the Texas Government
Code.
130.502. On an annual basis the district shall publish a
report that shows the extent to which contracts awarded to
historically underutilized businesses compare to the total
contracts awarded. The report shall be published in a newspaper of
general circulation in the county where the district is located
within sixty days following the end of the district's fiscal year.
SECTION 9. This Act takes effect September 1, 2005