CMF(LEGAL) - FACILITIES CONSTRUCTION: JOB ORDER CONTRACTS
"Job order contracting" is a procurement method used for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility when the work is of a recurring nature but the delivery times, type, and quantities of work required are indefinite. Gov't Code 2269.401
This policy applies only to a facility that is a building, the design and construction of which is governed by accepted building codes, or a structure or land, whether improved or unimproved, that is associated with a building. This policy does not apply to:
- A highway, road, street, bridge, utility, water supply project, water plant, wastewater plant, water and wastewater distribution or conveyance facility, wharf, dock, airport runway or taxiway, drainage project, or related type of project associated with civil engineering construction; or
- A building or structure that is incidental to a project that is primarily a civil engineering construction project.
Gov't Code 2269.402
If a governmental entity, including a college district, uses the job order contracts method as described in this policy, it must comply with the applicable legal requirements in this policy as well as other applicable legal requirements [see CM], which include the following steps:
- SELECTING A CONTRACTING METHOD;
- Giving PUBLIC NOTICE of the project;
- Publishing CONTRACT SELECTION CRITERIA;
- MAKING EVALUATIONS PUBLIC after the contract is awarded; and
- Providing for INSPECTION, VERIFICATION, AND TESTING necessary for acceptance of the facility by the governmental entity.
Education Code 44.031(g); Gov't Code 2269.052, .055, .056(a), (c), .058
Note: Terms in all capital letters, above, point to margin notes in the referenced policy.
A governmental entity may award job order contracts for maintenance, repair, alteration, renovation, remediation, or minor construction 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. The governmental entity shall establish the maximum aggregate contract price when it advertises the proposal. The governing body of a governmental entity shall approve each job, task, or purchase order that exceeds $500,000. Gov't Code 2269.403
Establishing Unit Prices
The governmental entity may establish contractual unit prices for a job order contract by:
- Specifying one or more published construction unit price books and the applicable divisions or line items; or
- Providing a list of work items and requiring the offerors to propose one or more coefficients or multipliers to be applied to the price book or prepriced work items as the price proposal.
Gov't Code 2269.404
Advertising and Opening Proposals
A governmental entity may use the competitive sealed proposal method under Government Code Chapter 2269, Subchapter D for job order contracts. [See CMB] The governmental entity shall advertise for, receive, and publicly open sealed proposals for job order contracts. The governmental entity may require offerors to submit information in addition to rates, including experience, past performance, and proposed personnel and methodology. Gov't Code 2269.405
Architect or Engineer
If a job order contract or an order issued under the contract requires architectural or engineering services that constitute the practice of architecture within the meaning of Occupations Code Chapter 1051 or the practice of engineering within the meaning of Occupations Code Chapter 1001, the governmental entity shall select or designate an architect or engineer to prepare the construction documents for the project.
This requirement does not apply to a job order contract or an order issued under the contract for industrialized housing, industrialized buildings, or relocatable educational facilities subject to and approved under Occupations Code Chapter 1202 if the contractor employs the services of an architect or engineer who approves the documents for the project.
Gov't Code 2269.408 [See CM]
The governmental entity may award job order contracts to one or more job order contractors in connection with each solicitation of proposals.
An order for a job or project under a 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
- A unit price order based on the quantities and line items delivered.
Gov't Code 2269.406–.410
The base term for a job order contract may not exceed two years. The governmental entity may renew the contract annually for not more than three additional years. Gov't Code 2269.409
Use of Contract
A job order contract may be used to accomplish work only for the governmental entity that awards the contract unless:
- The solicitation for the job order contract and the contract specifically provide for use by other persons; or
- The governmental entity enters into an interlocal agreement that provides otherwise.
Gov't Code 2269.407
The contractor shall provide payment and performance bonds, if required by law, based on the amount or estimated amount of any order. Gov't Code 2269.411 [See CM for more information on payment and performance bonds]