ORDER NO. 31440 PRLIMINARY PLANNING, EVALUATION AND INITIAL CONSTRUCTION ASPECTS OF PROPOSED LAW ENFORCEMENT ANNEX/ADULT PROBATION BUILDING Came to be heard this the 14th day of September, 2009, with a motion made by Commissioner Baldwin, seconded by Commissioner Letz, the Court unanimously approved by a vote of 4-0-0 to: Exempt ourselves from competitive bidding under 262.024, subsection (4), and engage in negotiations with Peter Lewis and Associates to provide a scope of work and a proposed schedule of fees for architectural services in connection with the listed project. l~~`~ 3~ 5~y0 COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT MADE BY: Judge Pat Tinley OFFICE: County Judge. MEETING DATE: September 14, 2009 TIME PREFERRED: SUBJECT:' Consider, discuss and take appropriate action to authorize and/or approve preliminary± planning, evaluation and initial construction aspects and procedures of proposed Lbw Enforcement Annex/Adult Probation Building. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Judge Tinley and Peter Lewis ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: 5:00 PM previous Tuesday THIS REQUEST RECEIVED BY: THIS RQUEST RECEIVED ON: @ .M. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. ~~~T~ of ~ w ~ ~ x .,`*~.. KERR COUNTY ATTORNEY REX EMERSON COUNTY COURTHOUSE, SUITE BA-lO3 7OO MAIN STREET KERRVILLE, TEXAS 78028 New Construction Timeline: 1. Comm. Ct approves issuing RFP for architect or pass order for exemption from competitive bidding under 262.024(4) professional services. 2. Issue RFP for architect and publish notice. 262.025 3. Receive RFPs, evaluate RFPs and approve architect in Comm. Ct. mtg. 4. Architect submits plan for approval by the Comm. Ct. 5. Architect develops bid specifications. 6. Comm. Ct. determines best construction method to proceed by( competitive bidding, competitive sealed proposals for construction services, design-build contract, contract using construction manager) Chapter 271 Local Government Code 7. Comm. Ct. approves issuing RFP for construction. 8. Issue RFP and publish notice. 9. Pre-bid meeting. ~ c. ~~L 10. Receive bids and of ~ z~l 11. Rank offerors and be J Notice: 262.025 a) Published at le ,per of general circulation with first date ~ o .,.;pure 14B` day before opening bids. (15 days n _.~..~ ume period) Architect: 262.023 competitive bid through RFP or 262.024(a) discretionary exemption by Comm. Ct. order Contractor: LGC Chapter 271, Subchapter B -Competitive bid on certain public works contracts. 271.027- may reject all bids or award to lowest responsible bidder. or LGC. Chapter 271, Subchapter H -Alternative Project Delivery Methods 271.113 -Procurement Options 271.114 -Evaluation of bids 271.115 -Contractor for construction services through competitive bidding MAIN NUMBER (830) 792-2220 HoT CHECKS (830) 792-2221 Fax (830) 792-2228 Website: http://www.co.kerr.tx.us/attorney 271.116 -Contractor for construction services through competitive sealed Proposal 271.119 -Design-Build contracts for facilities that is not payable out of current funds. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1, Sec. 59(b), eff. Aug. 28, 1989; Acts 1989, 71st. Leg., ch. 1250, Sec. 8(a), eff. Sept. 1, 1989. Sec. 26.0225. ADDITIONAL COMPETITIVE PROCEDURES. (a) In the procedure for competitive bidding under this subchapter, the commissioners court of the county 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. (b) A county shall receive bids or proposals under this subchapter in a fair and confidential manner. (c) A county may receive bids or proposals under this subchapter in hard-copy format or through electronic transmission. A county shall accept any bids or proposals submitted in hard-copy format . Added by Acts 2001, 77th Leg., ch. 1063, Sec. 1, eff. Sept. 1, 2001. Sec. 262'.023. COMPETITIVE REQUIREMENTS FOR CERTAIN PURCHASES. (a) Before a county may purchase one or more items under a contract that will require an expenditure exceeding $25,000, the commissioners court of the county must: (1) comply with the competitive bidding or competitive proposal procedures prescribed by this subchapter; (2) use the reverse auction procedure, as defined by Section 2155.062(d), Government Code, for purchasing; or (3) comply with a method described by Subchapter H, Chapter 271. (b) The requirements established by Subsection (a) apply to contracts for which payment will be made from current funds or bond funds or through anticipation notes authorized by Chapter 1431, Government Code, or time warrants. Contracts for which payments will be made through certificates of obligation are governed by The http://www.statutes.legis.state.tx. us/Docs/LG/htm/LG.262.htm 9/ 14/2009 Certificate of Obligation Act of 1971 (Subchapter C, Chapter 271) . (b-1) A county that complies with a method described by Subchapter H, Chapter 271, as provided by Subsection (a)(3), to enter into a contract for which payment will be made through anticipation notes authorized by Chapter 1431, Government Code, may not issue anticipation notes for the payment of that contract in an amount that exceeds the lesser of: (la 20 percent of the county's budget for the fiscal year in which the county enters into the contract; or (2) $10 million. (c) In applying the requirements established by Subsection (a), all separate, sequential, or component purchases of items ordered or purchased, with the intent of avoiding the requirements of this subchapter, from the same supplier by the same county officer, department, or institution are treated as if they are part of a single purchase and of a single contract. In applying this provision to the purchase of office supplies, separate purchases of supplies by an individual department are not considered to be part of a single purchase and single contract by the county if a specific intent to avoid the requirements of this subchapter is not present. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1, Sec. 57(a), eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1250, Sec. 9, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, Sec. 13.02(b), eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 757, Sec. 13, 38, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 442, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 505, Sec. 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 436, Sec. 4, eff. May 28, 2001; Acts 2001, 77th Leg., ch. 1063, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1409, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 12.004, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 68.9, Sec. 1, eff. September 1, 2007. Sec. 262.0235. PROCEDURES ADOPTED BY COUNTY PURCHASING AGENTS http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.262.htm 9/14/2009 FOR ELECTRONIC BIDS OR PROPOSALS. The county purchasing agent, before receiving electronic bids or proposals, shall adopt rules in conformance with Section 262.011(0) to ensure the identification, security, and confidentiality of electronic bids or proposals. Added by Acts 2001, 77th Leg., ch. 1063, Sec. 3, eff. Sept. 1, 2001. Sec. 262.024. DISCRETIONARY EXEMPTIONS. (a) A contract for the purchase of any of the following items is exempt from the requirement established by Section 262.023 if the commissioners court by order grants the exemption: (1) an item that must be purchased in a case of public calamity if it is necessary to make the purchase promptly to relieve the necessity of the citizens or to preserve the property of the county; (2) an item necessary to preserve or protect the public health or safety of the residents of the county; (3) an item necessary because of unforeseen damage to public property; (4) a personal or professional service; (5) any individual work performed and paid for by the day, as the work progresses, provided that no individual is compensated under this subsection for more than 20 working days in any three month period; (6) any land or right-of-way; (7) an item that can be obtained from only one source, including: (A) items for which competition is precluded because of the existence of patents, copyrights, secret processes, or monopolies; (B) films, manuscripts, or books; (C) electric power, gas, water, and other utility services; and (D) captive replacement parts or components for equipment; (8) an item of food; (9) personal property sold: http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.262.htm 9/14/2009 (A) at an auction by a state licensed auctioneer; (B) at a going out of business sale held in compliance with Subchapter F, Chapter 17, Business & Commerce Code; or (C) by a political subdivision of this state, a state agency of this state, or an entity of the federal government; (lp) any work performed under a contract for community and economic development made by a county under Section 381.004; or (11) vehicle and equipment repairs. (b) The renewal or extension of a lease or of an equipment maintenance agreement is exempt from the requirement established by Section 262.023 if the commissioners court by order grants the exemption and if: (1) the lease or agreement has gone through the competitive bidding procedure within the preceding year; (2) the renewal or extension does not exceed one year; and (3) the renewal or extension is the first renewal or extension of the lease or agreement. (c) If an item exempted under Subsection (a)(7) is purchased, the commissioners court, after accepting a signed statement from the county official who makes purchases for the county as to the existence of only one source, must enter in its minutes a statement to that effect. (d) The exemption granted under Subsection (a)(8) of this section shall apply only to the sealed competitive bidding requirements on food purchases. Counties shall solicit at least three bids for purchases of food items by telephone or written quotation at intervals specified by the commissioners court. Counties shall award food purchase contracts to the responsible bidder who submits the lowest and best bid or shall reject all bids and repeat the bidding process, as provided by this subsection. The purchasing officer taking telephone or written bids under this subsection shall maintain, on a form approved by the commissioners court, a record of all bids solicited and the vendors contacted. This record shall be kept in the purchasing office for a period of at least one year or until audited by the county auditor. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by http://www.statutes.l~gis.state.tx. us/Doc s/LG/htm/LG.262.htm 9/ 14/2009 1065, Sec. 2, eff; June 15, 2001. Sec. 262.025. COMPETITIVE BIDDING NOTICE. (a) A notice of a proposed purchase must be published at least once a week in a newspaper of general circulation in the county, with the first day of publication occurring before the 14th day before the date of the bid opening. If there is no newspaper of general circulation in the county, the notice must be posted in a prominent place in the courthouse for 14 days before the date of the bid opening. (b) The notice must include: (1) the specifications describing the item to be purchased or a statement of where the specifications may be obtained; (2) the time and place for receiving and opening bids and the name and position of the county official or employee to whom the bids are to be sent; (3) whether the bidder should use lump-sum or unit pricing; (4) the method of payment by the county; and (5) the type of bond required by the bidder. (c) If any part of the payment for a proposed purchase will be made through time warrants, the notice also must include a statement of the maximum amount of time warrant indebtedness, the rate of interest on the time warrants, and the maximum maturity date of the time warrants. (d) In a county with a population of 3.3 million or more, the county and any district or authority created under Article XVI, Section 59, of the Texas Constitution of which the governing body is the commissioners court may require that a minimum of 25 percent of the work be performed by the bidder and, notwithstanding any other law to the contrary, may establish financial criteria for the surety companies that provide payment and performance bonds. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1019, Sec. 1, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 669, Sec. 78, eff. Sept. 1, 2001. http://www. statutes legis.state.tx. us/Docs/LG/htm/LG262.htm 9/ 14/2009 Amended by Acts 2003, 78th Leg., ch. 660, Sec. 1, eff. Sept. 1, 2003. Sec. 262.0256. PRE-BID CONFERENCE. Text of section as amended by Acts 2003, 78th Leg., ch. 725, Sec. 1 The commissioners court of a county or the governing body of a district or authority created under Section 59, Article XVI, Texas Constitution, if the governing body is the commissioners court of the county in which the district is located, 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. Added by Acts 2001, 77th Leg., ch. 255, Sec. 1, eff. May 22, 2001. Amended by Acts 2003, 78th Leg., ch. 725, Sec. 1, eff. Sept. 1, 2003. Sec. 262.026. OPENING OF BIDS. (a) The county official who makes purchases for the county shall open the bids on the date specified in the notice. The date specified in the notice may be extended if the commissioners court determines that the extension is in the best interest of the county. All bids, including those received before an extension is made, must be opened at the same time. The commissioners court may adopt an order that delegates the authority to make extensions under this subsection to the county official who makes purchases for the county. (b) Opened bids shall be kept on file and available for inspection by anyone desiring to see them. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 505, Sec. 3, eff. Sept. 1, 1999. http://www~.statuteslegis.state.tx.us/Does/LG/htm/LG.262.htm 9/14/2009 Sec. 262.027. AWARDING OF CONTRACT. (a) The officer in charge of opening the bids shall present them to the commissioners court in session. Except as provided by Subsection (e), the court shall: (1) award the contract to the responsible bidder who submits the lowest and best bid; or (2} reject all bids and publish a new notice. (b) If two responsible bidders submit the lowest and best bid, the commissioners court shall decide between the two by drawing lots in a manner prescribed by the county judge. (c) A contract may not be awarded to a bidder who is not the lowest dollar bidder meeting specifications unless, before the award, each lower bidder is given notice of the proposed award and is given an opportunity to appear before the commissioners court and present evidence concerning the lower bidder's responsibility. (d) In determining the lowest and best bid for a contract for the purchase of earth-moving, material-handling, road maintenance, or construction equipment, the commissioners court may consider the information submitted under Section 262.0255. (e) In determining the lowest and best bid for a contract for the purchase of road construction material, the commissioners court may consider the pickup and delivery locations of the bidders and the cost to the county of delivering or hauling the material to be purchased. The commissioners court may award contracts for the purchase of road construction material to more than one bidder if each of the selected bidders submits the lowest and best bid for a particular location or type of material. (f) Notwithstanding any other requirement of this section, the commissioners court may condition acceptance of a bid on compliance with a requirement for attendance at a mandatory pre-bid conference under Section 262.0256. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 416, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 127, Sec. 1, eff. May 11, 1993; Acts 2001, 77th Leg., ch. 255, Sec. 2, eff. May 22, 2001. Sec. 262.0271. CONSIDERATION OF HEALTH INSURANCE PROVIDED BY http://www.statutes.l~gis.state.tx.us/Docs/LGlhtm/LG.262.htm 9/14/2009 BIDDER. (a) In this section, "comparable health insurance coverage" means health insurance benefits provided by a bidder or a subcontractor a bidder intends to use that are comparable to the health insurance benefits provided for employees of the county. (b) In purchasing items under this chapter through a competitive bidding process, if a county receives one or more bids from a bidder who provides comparable health insurance coverage to its employees and requires a subcontractor the bidder intends to use to provide comparable health insurance coverage to the subcontractor's employees and whose bid is within five percent of the lowest bid price received by the county from a bidder who does not provide or require comparable health insurance coverage, the commissioners court of the county may give preference to the bidder who provides and requires comparable health insurance coverage. (c) This section does not prohibit a county from rejecting all bids. Added by Acts 2005, 79th Leg., Ch. 1.29.9, Sec. 1, eff. September 1, 2005. Sec. 262.0275. SAFETY RECORD OF BIDDER CONSIDERED. In determining who is a responsible bidder, the commissioners court may take into account the safety record of the bidder, of the firm, corporation, partnership, or institution represented by the bidder, or of anyone acting for such a firm, corporation, partnership, or institution if: (1) the commissioners court has adopted a written definition and criteria for accurately determining the safety record of a bidder; (2) the governing body 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 (3) the determinations are not arbitrary and capricious. Added by Acts 1989, 71st Leg., ch. 1, Sec. 58(c), eff. Aug. 28, 1989. http://www. statutes legi s. state.tx. us/Does/LG/htm/LG.262.htm 9/ 14/2009 Sec. 262.0276. CONTRACT WITH PERSON INDEBTED TO COUNTY. (a) By an order adopted and entered in the minutes of the commissioners court and after notice is published in a newspaper of general circulation in the county, the commissioners court may adopt rules permitting the county to refuse to enter into a contract or other transaction with a person indebted to the county. (b) It is not a violation of this subchapter for a county, under rules adopted under Subsection (a), to refuse to award a contract to or enter into a transaction with an apparent low bidder or successful proposer that is indebted to the county. (c) In this section, "person" includes an individual, sole proprietorship, corporation, nonprofit corporation, partnership, joint venture,. limited liability company, and any other entity that proposes or otherwise seeks to enter into a contract or other transaction with the county requiring approval by the commissioners court. Added by Acts 2003, 78th Leg., ch. 156, Sec. 2, eff. Sept. 1, 2003. Sec. 262.028. LUMP-SUM OR UNIT PRICE METHOD. A purchase may be proposed on a lump-sum or unit price basis. If the county chooses to use unit pricing in its notice, the information furnished bidders must specify the approximate quantities estimated on the best available information, but the compensation paid the bidder must be based on the actual quantities purchased. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 262.029. TIME WARRANT ELECTION. If before the date tentatively set for the authorization of the issuance of time warrants applying to a contract covered by this subchapter or if before that authorization a petition signed by at least five percent of the registered voters of the county is filed with the county clerk protesting the issuance of the time warrants, the county may not issue the time warrants unless the issuance is approved at an http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.262.htm 9/14/2009 LOCAL GOVERNMENT CODE TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY SUBTITLE C. ACQUISITION, SALE, OR LEASE PROVISIONS APPLYING TO MORE THAN ONE TYPE OF LOCAL GOVERNMENT CHAPTER 271. PURCHASING AND CONTRACTING AUTHORITY OF MUNICIPALITIES, COUNTIES, AND CERTAIN OTHER LOCAL GOVERNMENTS SUBCHAPTER A. PUBLIC PROPERTY FINANCE ACT Sec. 271.001. SHORT TITLE Public Property Finance Act. This subchapter may be cited as the Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.002. PURPOSE. (a) The legislature finds that the purchase or other acquisition or the use of property by governmental agencies and the financing of those activities are necessary to the efficient and economic operation of government. (b) This subchapter promotes a public purpose by furnishing governmental agencies with a feasible means to purchase or otherwise acquire, use, and finance public property. Acts 1987, Acts 1993, 70th Leg., eff. Sept. 73rd Leg., eff. Aug. 1, 1987. Amended by 30, 1993. Sec. 271.003. DEFINITIONS. In this subchapter: (1) "Conservation and reclamation district" means a district or authority organized or operating under Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution. (2) "Contract" means an agreement entered into under this subchapter but does not mean a contract solely for the construction of improvements to real property. ch. 149, ch. 752, Sec. 1, Sec. 1, http://www. statutes.legis. state.tx.us/Does/LG/htm/LG.271.htm 9/ 14/2009 (3) "Governing body" means the board, council, commission, agency, court, or other body or group that is authorized by law to acquire personal property for each respective governmental agency. (4) "Governmental agency" means a municipality, county, school district, conservation and reclamation district, hospital organization, or other political subdivision of this state. (5) "Hospital organization" means a district, authority, board, or joint board organized under the laws of this state for hospital purposes. (6) "Net effective interest rate" means, with reference to a contract, the interest amount considered by the governing body of a governmental agency to accrue on a contract. (7) "Net interest cost" means the total of all interest to accrue and come due on a contract through the last date a payment is due on the contract, plus any discount or minus any premium included in the contract price or principal sum. (8) "Personal property" includes appliances, equipment, facilities, and furnishings, or an interest in personal property, whether movable or fixed, considered by the governing body of the governmental agency to be necessary, useful, or appropriate to one or more purposes of the governmental agency. The term includes all materials and labor incident to the installation of that personal property. The term does not include real property. (9) "School district" means an independent school district, common school district, community college district, junior college district, or regional college district organized under the laws of this state. (10) "Improvement" means a permanent building, structure, fixture, or fence that is erected on or affixed to land but does not include a transportable building or structure whether or not it is affixed to land. (11) "Real property" means land, improvement, or an estate or interest in real property, other than a mortgage or deed of trust creating a lien on property or an interest securing payment or performance of an obligation in real property. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, Acts 1993, 73rd Leg., ch. 752, Sec. 2, eff. Aug. 30, 1987. Amended by 1993; Acts 1999, http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 76th Leg., ch. 396, Sec. 1.37, eff. Sept. 1, 1999. Sec. 271.004. REAL PROPERTY AND IMPROVEMENTS FOR SCHOOL DISTRICTS. (a) The board of trustees of a school district may execute, perform, and make payments under a contract under this Act for the use or purchase or other acquisition of real property or an improvement to real property. If the board proposes to enter into such a contract, the board shall publish notice of intent to enter into the contract not less than 60 days before the date set to approve execution of the contract in a newspaper with general circulation in the district. The notice must summarize the major provisions of the proposed contract. The notice shall estimate the construction and other costs, but the board shall not publish the first advertisement for bids for construction of improvements until 60 days has expired from the publication of the notice of intent to enter into the contract. (b) If, within 60 days of the date of publication of the notice of intent required by Subsection (a), a written petition signed by at least five percent of the registered voters of the district is filed with the board of trustees requesting that the board order a referendum on the question of whether the contract should be approved, the board may not approve the contract or publish the first advertisement for bids for construction of improvements unless the question is approved by a majority of the votes received in a referendum ordered and held on the question. (c) Except as otherwise provided by this section, the referendum shall be held in accordance with the applicable provisions of the Election Code. The requirement that an election must be held on a uniform election date as prescribed by the Election Code does not apply to an election held under this section. (d) The contract is a special obligation of the school district if ad valorem taxes are not pledged to the payment of the contract. (e) If the contract provides that payments by the school district are to be made from maintenance taxes previously approved by the voters of the school district and are subject to annual appropriation or are paid from a source other than ad valorem taxes, the payments under the contract shall not be considered payment of http://www.statutes.l;gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 indebtedness under Section 26.04(c), Tax Code. (f) All or part of the obligation of the school district may be evidenced by one or more negotiable promissory notes. (g) A lease-purchase contract entered into by the district under this section and the records relating to its execution must be submitted to the attorney general for examination as to their validity. (h) If the attorney general finds that the contract has been authorized in accordance with the law, the attorney general shall approve them, and the comptroller of public accounts shall register the contract. (i) Following approval and registration, the contract is incontestable and is a binding obligation according to its terms. Acts 1987, 70th Leg., ch. 149, Sec, 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 752, Sec. 3, eff. Aug. 30, 1993. Sec. 271.005. AUTHORITY TO CONTRACT FOR PERSONAL PROPERTY. (a) The governing body of a governmental agency may execute, perform, and make payments under a contract with any person for the use or the purchase or other acquisition of any personal property, or the financing thereof. The contract is an obligation of the governmental agency. The contract may: (1) be on the terms considered appropriate by the governing body; (2) be in the form of a lease, a lease with an option or options to purchase, an installment purchase, or any other form considered appropriate by the governing body including that of an instrument which would be required to be approved by the attorney general under Chapter 1202, Government Code, provided that contracts in such form must be approved by the attorney general in accordance with the terms of that chapter; (3) be for a term approved by the governing body and contain an option or options to renew or extend the term; and (4) be made payable from a pledge of all or any part of any revenues, funds, or taxes available to the governmental agency for its public purposes. http://ww~~.statuteslagis.state.tx.us/Docs/LG/htm/LG271.htm 9/14/2009 (b) The governing body of a governmental agency may contract under this section for materials and labor incident to the installation of personal property. (c) A contract may provide for the payment of interest on the unpaid amounts of the contract at a rate or rates and may contain prepayment provisions, termination penalties, and other provisions determined within the discretion of the governing body. The net effective interest rate on the contract may not exceed the net effective interest rate at which public securities may be issued in accordance with Chapter 1204, Government Code. Interest on the unpaid amounts of a contract shall be computed as simple interest. (d) Subject only to applicable constitutional restrictions, the governing body may obligate taxes or revenues for the full term of a contract for the payment of the contract. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 82, Sec. 1, eff. May 12, 1991; Acts 1993, 73rd Leg., ch. 104, Sec. 3, eff. May 7, 1993; Acts 1999, 76th Leg., ch. 396, Sec. 1.38, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 8.293, eff. Sept. 1, 2001. Sec. 271.006. COMPLIANCE WITH OTHER REQUIREMENTS. (a) In entering into the contract, a municipality must comply with the requirements of Chapter 252 and a county must comply with the requirements of Subchapter C, Chapter 262. However, the municipality or county is not required to submit to a referendum the question of entering into the contract. (b) The purchasing requirements of Section 361.426, Health and Safety Code, apply to a purchase by a governmental agency under this chapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 303, Sec. 19, eff. Sept. 1, 1991. Sec. 271.0065. ADDITIONAL COMPETITIVE PROCEDURES. (a) In any procedure for competitive bidding under this subchapter, the http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 • governing body 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. (b) A governmental agency shall receive bids or proposals under this subchapter in a fair and confidential manner. (c) A governmental agency may receive bids or proposals under this subchapter in hard-copy format or through electronic transmission. A governmental agency shall accept any bids or proposals submitted in hard-copy format. Added by Acts 2001, 77th Leg., ch. 1063, Sec. 4, eff. Sept. 1, 2001. Sec. 271.007. APPROVED AND REGISTERED CONTRACT. (a) If the governing body approves the contract and the contract provides for the payment of an aggregate amount of $100,000 or more, the governing body may submit the contract and the record relating to the contract to the attorney general for examination as to the validity of the contract. The attorney general shall approve the contract if it has been made in accordance with the constitution and other laws of this state, and the contract then shall be registered by the comptroller of public accounts. (b) After the contract has been approved and registered as provided by this section, the contract is valid and is incontestable for any cause. The legal obligation of the lessor, vendor, or supplier of personal property or of the person installing personal property to the governmental agency is not diminished in any respect by the approval and registration of the contract. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 1.39, eff. Sept. 1, 1999. Sec. 271.008. AUTHORIZED INVESTMENTS. The contract is a legal and authorized investment for: (1) banks, savings banks, trust companies, and savings and loan associations; (2) insurance companies; http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 (3) fiduciaries and trustees; and (4) the sinking funds of a county, municipality, school district, or other political subdivision or corporation of this state. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.009. TERM OF CONTRACT. The contract may be for any term not to exceed 25 years. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. SUBCHAPTER B. COMPETITIVE BIDDING ON CERTAIN PUBLIC WORKS CONTRACTS Sec. 271.021. DEFINITIONS. In this subchapter: (1) "Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be purchased in one purchase. (2) "Governmental entity" means: (A) a county; (B) a common or independent school district; (C) a hospital district or authority; (D) a housing authority; or (E) an agency or instrumentality of the governmental entities described by Paragraphs (A) through (D). (3) "Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be purchased in one purchase. (4) "Sequential purchases" means purchases, made over a period, of items that in normal purchasing practices would be purchased in one purchase. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 328, Sec. 15, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1250, Sec. 14, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, Sec. 13.04, eff. Aug. 26, 1991; Acts 1997, 75th http://www.statutes.l~gis.state.tx. us/Docs/LG/htm/LG.271.htm 9/ 14/2009 Leg., ch. 1370, Sec. 1, eff. Sept. 1, 1997. Sec. 271.022. EXEMPT CONTRACT. This subchapter does not affect a contract required to be awarded under Subchapter A, Chapter 2254, Government Code. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(9), eff. Sept. 1, 1995. Sec. 271.023. CONFLICT OF LAWS. To the extent of any conflict, the provisions of Subchapter B, Chapter 44, Education Code, relating to the purchase of goods and services under contract by a school district prevail over this subchapter. Added by Acts 1999, 76th Leg., ch. 1383, Sec. 2, eff. June 19, 1999. Sec. 271.024. COMPETITIVE BIDDING PROCEDURE APPLICABLE TO CONTRACT. If a governmental entity is required by statute to award a contract for the construction, repair, or renovation of a structure, road, highway, or other improvement or addition to real property on the basis of competitive bids, and if the contract requires the expenditure of more than $25,000 from the funds of the entity, the bidding on the contract must be accomplished in the manner provided by this subchapter. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1993, 73rd Leg., ch. 749, Sec. 2, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 757, Sec. 14, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 115, Sec. 5, eff. Sept. 1, 2001. Sec. 271..0245. ADDITIONAL COMPETITIVE PROCEDURES. (a) In the procedure for competitive bidding under this subchapter, the governing body of the governmental entity shall provide all bidders with the opportunity to bid on the same items on equal terms and have http://www.statutes.legis. state.tx.us/Does/LG/htm/LG.271. htm 9/ 14/2009 bids judged according to the same standards as set forth in the specifications. (b) A governmental entity shall receive bids under this subchapter in a fair and confidential manner. (c) A governmental entity may receive bids under this subchapter in hard-copy format or through electronic transmission. A governmental entity shall accept any bids submitted in hard-copy format. Added by Acts 2001, 77th Leg., ch. 1063, Sec. 5, eff. Sept. 1, 2001. Sec. 271.025. ADVERTISEMENT FOR BIDS. (a) The governmental entity must advertise for bids. The advertisement for bids must include a notice that: (1) describes the work; (2) states the location at which the bidding documents, plans, specifications, or other data may be examined by all bidders; and (3) states the time and place for submitting bids and the time and place that bids will be opened. (b) The advertisement must be published as required by law. If no legal requirement for publication exists, the advertisement must be published at least twice in one or more newspapers of general circulation in the county or counties in which the work is to be performed. The second publication must be on or before the 10th day before the first date bids may be submitted. (c) The governmental entity must mail a notice containing the information required under Subsection (a) to any organization that: (1) requests in advance that notices for bids be sent to it; (2) agrees in writing to pay the actual cost of mailing the notice; and (3) certifies that it circulates notices for bids to the construction trade in general. (d) The governmental entity shall mail a notice required under Subsection (c) on or before the date the first newspaper advertisement under this section is published. http://www.statutes.legis.state.tx.us/Does/LG/htm/LG.271.htm 9/14/2009 (e) In a county with a population of 3.3 million or more, the county and any district or authority created under Article XVI, Section 59, of the Texas Constitution of which the governing body is the commissioners court may require that a minimum of 25 percent of the work be performed by the bidder and, notwithstanding any other law to the contrary, may establish financial criteria for the surety companies that provide payment and performance bonds. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1019, Sec. 2, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 669, Sec. 82, eff. Sept. 1, 2001. Sec. 271.026. OPENING OF BIDS. (a) Bids may be opened only by the governing body of the governmental entity at a public meeting or by an officer or employee of the governmental entity at or in an office of the governmental entity. A bid that has been opened may not be changed for the purpose of correcting an error in the bid price. (b) This subchapter does not change the common law right of a bidder to withdraw a bid due to a material mistake in the bid. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.027. AWARD OF CONTRACT. (a) The governmental entity is entitled to reject any and all bids. (b) The contract must be awarded to the lowest responsible bidder, but the contract may not be awarded to a bidder who is not the lowest bidder unless before the award each lower bidder is given notice of the proposed award and is given an opportunity to appear before the governing body of the governmental entity or the designated representative of the governing body and present evidence concerning the bidders responsibility. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.0275. SAFETY RECORD OF BIDDER CONSIDERED. In http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 determining who is a responsible bidder, the governmental entity may take into account the safety record of the bidder, of the firm, corporation, partnership, or institution represented by the bidder, or of anyone acting for such a firm, corporation, partnership, or institution if: (1) the governing body of the governmental entity has adopted a written definition and criteria for accurately determining the safety record of a bidder; (2) the governing body 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 (3) the determinations are not arbitrary and capricious. Added by Acts 1989, 71st Leg., ch. 1, Sec. 58(d), eff. Aug. 28, 1989. Sec. 271.028. EFFECT OF NONCOMPLIANCE. A contract awarded in violation of this subchapter is void. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Sec. 271.029. CRIMINAL PENALTIES. (a) An officer or employee of a governmental entity commits an offense if the officer or employee intentionally or knowingly makes or authorizes separate, sequential, or component purchases to avoid the competitive bidding requirements of the statute that requires a contract described by Section 271.024 to be awarded on the basis of competitive bids. An offense under this subsection is a Class B misdemeanor. (b) An officer or employee of a governmental entity commits an offense if the officer or employee intentionally or knowingly violates the competitive bidding requirements of the statute that requires a contract described by Section 271.024 to be awarded on the basis of competitive bids, other than by conduct described by Subsection (a). An offense under this subsection is a Class B misdemeanor. (c) An officer or employee of a governmental entity commits an http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/ 14/2009 SUBCHAPTER G. PURCHASES FROM FEDERAL SCHEDULE SOURCES OF SUPPLY Sec. 271.103. FEDERAL SUPPLY SCHEDULE SOURCES. (a) A local government may purchase goods or services available under Federal supply schedules of the United States General Services Administration to the extent permitted by federal law. (b) A local government that purchases goods or services under this subchapter satisfies any state law requiring the local government to seek competitive bids for the purchase of the goods or services. Added by Acts 1997, 75th Leg., ch. 826, Sec. 2, eff. June 18, 1997. SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN PROJECTS Sec. 271.111. DEFINITIONS. In this subchapter: (1) "Architect" means an individual registered as an architect under Chapter 1051, Occupations Code. (2) "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. (3) "Design-build contract" means a single contract with a design-build firm for the design and construction of a facility. (4) "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. (5) "Design criteria package" means a set of documents that provides sufficient information to permit a design-build firm to prepare a response to a governmental entity's request for qualifications and any additional information requested, including criteria for selection. The design criteria package must specify criteria the governmental entity considers necessary to describe the project and may include, as appropriate, the legal description of the http://www. statutes.legis. state.tx.us/Does/LG/htm/LG.271.htm 9/ 14/2009 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. (6) "Engineer" means an individual licensed as an engineer under Chapter 1001, Occupations Code. (7) "Facility" means, unless otherwise specifically provided, buildings the design and construction of which are governed by accepted building codes. The term does not include: (A) highways, roads, streets, bridges, utilities, water supply projects, water plants, wastewater plants, water and wastewater distribution or conveyance facilities, wharves, docks, airport runways and taxiways, drainage projects, or related types of projects associated with civil engineering construction; or (B) buildings or structures that are incidental to projects that are primarily civil engineering construction projects. (8) "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. (9) "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. Text of subdivision as amended by Acts 2007, 80th Leg., R.S., Ch. 1213, Sec. 2 (10) "Governmental entity" means a municipality, county, hospital district, water district or authority created under Section http://wwv~~.statuteslegis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 59, Article XVI, Texas Constitution, including a river authority or conservation and reclamation district, or a defense base development authority established under Chapter 379B. Text of subdivision as amended by Acts 2007, 80th Leg., R.S., Ch. 1272, Sec. 6 (10) "Governmental entity" means a municipality, county, river authority, conservation and reclamation district created pursuant to Section 59, Article XVI, Texas Constitution, and located in a county with a population of more than 250,000, or defense base development authority established under Chapter 379B. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 877, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.791, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1.2.1.3., Sec. 2, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 1272, Sec. 6, eff. September 1, 2007. Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision in the charter of a home-rule municipality or regulation, if any, of a county, river authority, conservation and reclamation district created. pursuant to Section 59, Article XVI, Texas Constitution, and located in a county with a population of more than 250,000, or defense base development authority that requires the use of competitive bidding or competitive sealed proposals or that prescribes procurement procedures and that is in conflict with this subchapter controls over this subchapter unless the governing body of the governmental entity elects to have this subchapter supersede the charter or regulation. (b) The purchasing requirements of Section 361.426, Health and http://www.statutes.legis.state.tx. us/Docs/LG/htm/LG.271.htm 9/ 14/2009 • Safety Code, apply to purchases by a governmental entity made under this subchapter. (c) Except as provided by this section, 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. (d) For a contract entered into by a municipality, river authority, conservation and reclamation district created pursuant to Section 59, Article XVI, Texas Constitution, and located in a county with a population of more than 250,000, or defense base development authority under any of the methods provided by this subchapter, the municipality, river authority, conservation and reclamation district created pursuant to Section 59, Article XVI, Texas Constitution, and located in a county with a population of more than 250,000, or defense base development authority shall publish notice of the time and place the bids or proposals, or the responses to a request for qualifications, will be received and opened. The notice must be published in a newspaper of general circulation in the county in which the defense base development authority's or municipality's central administrative office is located or the county in which the greatest amount of the river authority's or such conservation and reclamation district's territory is located once each week for at least two weeks before the deadline for receiving bids, proposals, or responses. If there is not a newspaper of general circulation in that county, the notice shall be published in a newspaper of general circulation in the county nearest the county seat of the county in which the defense base development authority's or municipality's central administrative office is located or the county in which the greatest amount of the river authority's or such conservation and reclamation district's territory is located. In a two-step procurement process, the time and place the second step bids, proposals, or responses will be received are not required to be published separately. (e) For a contract entered into by a county under any of the methods provided by this subchapter, the county shall publish notice of the time and place the bids or proposals, or the responses to a request for qualifications, will be received and opened. The notice must be published in a newspaper of general circulation in the county http://www. statutes 1~gis.state.tx. us/Doc s/LG/htm/LG.271.htm 9/ 14/2009 once each week for at least two weeks before the deadline for receiving bids, proposals, or responses. If there is not a newspaper of general circulation in the county, the notice shall be: (1) posted at the courthouse door of the county; and (2) published in a newspaper of general circulation in the nearest county. (f) A contract entered into or an arrangement made in violation of this subchapter is contrary to public policy and is void. 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 resident of a county that enters into a contract under this subchapter or of a county in which a municipality, river authority, or conservation and reclamation district created pursuant to Section 59, Article XVI, Texas Constitution, and located in a county with a population of more than 250,000 that enters into a contract under this subchapter 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. (g) If the contract for a facility involves the use of state or federal highway funds, the purchasing requirements of the appropriate state or federal funding entity apply, unless otherwise waived by the appropriate state or federal funding entity. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 877, Sec. 2, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 12.13, Sec. 7, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 1272, Sec. 7, eff. September 1, 2007. Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into a contract for the construction of a facility, a governmental entity may use any of the following methods that provides the best value for the governmental entity: (1) competitive bidding; http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 (2) competitive sealed proposals for construction services; (3) a design-build contract; (4) a contract to construct, rehabilitate, alter, or repair facilities that involves using a construction manager; or (5) a job order contract for the minor repair, rehabilitation, or alteration of a facility. (b) Except as provided by this subchapter, in determining to whom to award'a contract, the governmental entity 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 goods or services meet the governmental entity's needs; (5) the vendor's past relationship with the governmental entity; (6) the impact on the ability of the governmental entity to comply with rules relating to historically underutilized businesses; (7) the total long-term cost to the governmental entity to acquire the vendor's goods or services; and (8) any other relevant factor specifically listed in the request for bids or proposals. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR CONSTRUCTION SERVICES. (a) The governing body of a governmental entity that is considering a construction contract using a method specified by Section 271.113 (a) other than competitive bidding must, before advertising, determine which method provides the best value for the governmental entity. The governing body may, as appropriate, delegate its authority under this section to a designated representative. (b) The governmental entity shall base its selection among offerors on criteria authorized to be used under Section 271.113(b). The governmental entity shall publish in the request for bids, http://www.statutes.l~gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 proposals, or qualifications all the criteria that will be used to evaluate the offerors and the relative weights given to the criteria. (c) The governmental entity 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. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.115. 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 governmental entity may use competitive bidding to select a contractor to perform construction, rehabilitation, alteration, or repair services for a facility. (b) Except as otherwise specifically provided by this subsection, Subchapter B does not apply to a competitive bidding process under this section. Sections 271.026, 271.027(a), and 271.0275 apply to a competitive bidding process under this section. (c) A governmental entity shall award a competitively bid contract at the bid amount to the bidder offering the best value to the governmental entity according to the selection criteria that were established by the governmental entity. The selection criteria may include the factors listed in Section 271.113(b). Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a contractor through competitive sealed proposals for construction, rehabilitation., alteration, or repair services for a facility or for construction of a project to which Section 252.043(d-1) applies, a governmental entity shall follow the procedures prescribed by this section. (a-1) In this section "facility" means an improvement to real property. http://www.statutes.lcgis.state.tx.us/Docs/LG/htm/LG.271.htm 9/l 4/2009 (b) The governmental entity 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 Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. (c) The governmental entity 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 or project by the governmental entity. The governmental entity 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 governmental entity 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. The governmental entity shall state in the request for proposals the selection criteria that will be used in selecting the successful offeror. (e) The governmental entity 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. Not later than the 45th day after the date of opening the proposals, the governmental entity shall evaluate. and rank each proposal submitted in relation to the published selection criteria. (f) The governmental entity shall select the offeror that offers the best value for the governmental entity based on the published selection criteria and on its ranking evaluation. The governmental entity shall first attempt to negotiate a contract with the selected offeror. The governmental entity 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 governmental entity is unable to negotiate a http://www. statutes.legis. state.tx.us/Does/LG/htm/LG.271.htm 9/ 14/2009 contract with the selected offeror, the governmental entity 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. (g) In determining best value for the governmental entity, the governmental entity is not restricted to considering price alone, but may consider any other factor stated in the selection criteria. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.792, eff. Sept. 1, 2003. Amended by: ', Acts 200.5, 79th Leg., Ch. 739, Sec. 2, eff. September 1, 2005. Acts 200'7, 80th Leg., R.S., Ch. 1213., Sec. 3, eff. September 1, 2007. Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION MANAGER- AGENT. (a) A governmental entity 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 governmental entity 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 governmental entity regarding construction, rehabilitation, alteration, or repair of the facility. A governmental entity using the construction manager-agent method may, under the contract between the governmental entity 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 governmental entity in a fiduciary capacity. (c) Before or concurrently with selecting a construction manager-agent, the governmental entity shall select or designate an engineer or architect who shall prepare the construction documents http://www.statutesl~gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 for the project and who has full responsibility for complying with Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. The governmental entity'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 governmental entity'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 governmental entity 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, except that notice must be published as provided by Section 271.112(d). (e) A governmental entity using the construction manager-agent method shall procure, in accordance with applicable law, a general contractor, trade contractors, or subcontractors who will serve as the prime contractor for their specific portion of the work. (f) The governmental entity 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 governmental entity. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.793, eff. Sept. 1, 2003. Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION MANAGER- AT-RISK. (a) A governmental entity may use the construction manager-at-risk method for the construction, rehabilitation, http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG271.htm 9/14/2009 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 governmental entity shall follow the procedures prescribed by this section. (a-1) In this section "facility" means an improvement to real property. (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 governmental entity regarding construction during and after the design of the facility. (c) Before or concurrently with selecting a construction manager-at-risk, the governmental entity 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 Chapter 1001 or 1051, Occupations Code, as applicable. If the engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. The governmental entity'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 unless the engineer or architect is hired to serve as the construction manager-at-risk under a separate or concurrent procurement conducted in accordance with this subchapter. (d) The governmental entity 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 governmental entity. The governmental entity shall select those services for which it contracts in accordance with Section 2254.004, Government Code. (e) The governmental entity shall select the construction manager-at-risk in either a one-step or two-step process. The governmental entity shall prepare a request for proposals, in the case of a one-step process, or a request for qualifications, in the http://www.statutes.l~gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 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, and other information that may assist the governmental entity in its selection of a construction manager- at-risk. The governmental entity 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 governmental entity 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 governmental entity may not request fees or prices in step one. In step two, the governmental entity 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 governmental entity shall receive, publicly open, and read aloud the names of the offerors. At the appropriate step, the governmental entity shall also read aloud the fees and prices, if any, stated in each proposal as the proposal is opened. Not later than the 45th day after the date of opening the proposals, the governmental entity shall evaluate and rank each proposal submitted in relation to the criteria set forth in the request for proposals. (g) The governmental entity shall select the offeror that submits the proposal that offers the best value for the governmental entity based on the published selection criteria and on its ranking evaluation. The governmental entity shall first attempt to negotiate a contract with the selected offeror. If the governmental entity is unable to negotiate a satisfactory contract with the selected offeror, the governmental entity 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, as http://www.statutes.l~gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 prescribed for a governmental entity under Section 271.025, 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 c©ntractors or subcontractors and if the governmental entity determines that the construction manager-at-risk's bid or proposal provides the best value for the governmental entity. (i) The construction manager-at-risk and the governmental entity 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 governmental entity. All bids or proposals shall be made public after the award of the contract or not later than the seventh day 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 governmental entity a bid or proposal from a trade contractor or subcontractor but the governmental entity requires another bid or proposal to be accepted, the governmental entity 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 governmental entity'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, fulfill the contract requirements itself or select a replacement trade contractor or subcontractor to fulfill the contract requirements. (1) 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 governmental entity must each be in an amount equal to the project http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 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 governmental entity to ensure that the construction manager will furnish the required performance and payment bonds when a guaranteed maximum price is established. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.794, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1.213, Sec. 4, eff. September 1, 2007. Sec. 271.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A governmental entity 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 governmental entity and the design-build firm shall follow the procedures provided by this section. (b) The governmental entity shall select or designate an engineer or architect independent of the design-build firm to act as its representative for the duration of the work on the facility. If the governmental entity's engineer or architect is not a full-time employee of the governmental entity, the governmental entity shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. (c) The governmental entity 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 governmental entity shall also prepare a design criteria package that includes more detailed information on the project. If the preparation of the design criteria http://www.statutes.l~gis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 package requires engineering or architectural services that constitute the practice of engineering within the meaning of Chapter 1001, Occupations Code, or the practice of architecture within the meaning of Chapter 1051, Occupations Code, those services shall be provided in accordance with the applicable law. (d) The governmental entity shall evaluate statements of qualifications and select a design-build firm in two phases: (1) In phase one, the governmental entity 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 governmental entity that each engineer or architect that is a member of its team was selected based on demonstrated competence and qualifications in the manner provided by Section 2254.004, Government Code. The governmental entity shall qualify a maximum of five offerors to submit additional information and, if the governmental entity chooses, to interview for final selection. (2) In phase two, the governmental entity 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 an interview. The governmental entity 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 governmental entity may not require offerors to submit detailed engineering or architectural designs as part of the proposal. The governmental entity shall rank each proposal submitted on the basis of the criteria set forth in the request for qualifications. The governmental entity shall select the design-build firm that submits the proposal offering the best value for the governmental entity on the basis of the published selection criteria and on its ranking evaluations. The governmental entity shall first attempt to negotiate a contract with the selected offeror. If the governmental entity is http://v~ww.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009 unable to negotiate a satisfactory contract with the selected offeror, the governmental entity 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. (e) Following selection of a design-build firm under Subsection (d), that firm's engineers or architects shall complete the design, submitting all design elements for review and determination of scope compliance to the governmental entity or the governmental entity's engineer or architect before or concurrently with construction. (f) An engineer shall have responsibility for compliance with the engineering design requirements and all other applicable requirements of Chapter 1001, Occupations Code. An architect shall have responsibility for compliance with the requirements of Chapter 1051, Occupations Code. (g) The governmental entity 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 governmental entity. The governmental entity shall select those services for which it contracts in accordance with Section 2254.004, Government Code. (h) The. design-build firm shall supply a signed and sealed set of construction documents for the project to the governmental entity at the conclusion of construction. (i) 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 governmental entity 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 governmental entity to ensure that the design-build firm will furnish the required performance and payment bonds when a guaranteed maximum price is http://www.statutes.l~gis.state.tx.us/Docs/LG/htm/LG271.htm 9/14/2009 established. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.795, eff. Sept. 1, 2003. Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION OR REPAIR. (a) A governmental entity 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 predescribed and prepriced tasks. (b) The governmental entity 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 governmental entity shall advertise for, receive, and publicly open sealed proposals for job order contracts. (d) The' governmental entity may require offerors to submit additional information besides rates, including experience, past performance, and proposed personnel and methodology. (e) The governmental entity 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 governmental entity'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 times 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 http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/ 14/2009 with any renewal options that the governmental entity sets forth in the request for proposals. If the governmental entity 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 Chapter 1001, Occupations Code, or the practice of architecture within the meaning of Chapter 1051, Occupations Code, the governmental entity shall select or designate an architect or engineer to prepare the construction documents for the facility. If the architect or engineer is not a full-time employee of the governmental entity, the governmental entity shall select the architect or engineer on the basis of demonstrated competence and qualifications as provided by Section 2254.004, Government Code. Added by Acts 2001, 77th Leg., ch. 1409, Sec. 5, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.796, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 12.13, Sec. 5, eff. September 1, 2007. Sec. 271.121. RIGHT TO WORK. (a) This section applies to a governmental entity while the governmental entity is engaged in: (1) procuring goods or services; (2) awarding a contract; or (3) overseeing procurement or construction for a public work or public improvement. (b) Notwithstanding any other provision of this chapter, a governmental entity: (1) may not consider whether a vendor is a member of or has another relationship with any organization; and (2) shall ensure that its bid specifications and any subsequent contract or other agreement do not deny or diminish the right of a person to work because of the person's membership or other http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.271.htm 9/14/2009