CU(LEGAL) - FACILITIES CONSTRUCTION

Note: The CU series, including CUA through CUF, should be read in conjunction with CU(LEGAL) and CH.

For additional legal requirements applicable to purchases with federal funds, see CBB.

Board's Authority

Delegation of Authority

Gov't Code 2269.053

Contracts Valued at or Above $50,000

  1. An interlocal contract. [See CH]
  2. Competitive bidding. [See CUA]
  3. Competitive sealed proposals. [See CUB]
  4. Construction manager-agent method. [See CUC]
  5. Construction manager-at-risk method. [See CUD]
  6. Design-build method. [See CUE]
  7. Job-order contract. [See CUF]
  8. The reverse auction procedure as defined by Government Code 2155.062(d). [See Reverse Auction at CH(LEGAL)]

Education Code 44.031(a); Gov't Code Ch. 2269

Selecting a Contracting Method

Exceptions

Emergency Damage or Destruction

Contracts Requiring a Bond

Public Notice

Contract Selection Criteria

  1. Any existing laws, including any criteria, related to historically underutilized businesses; and
  2. Any existing laws, rules, or applicable municipal charters, including laws applicable to local governments, related to the use of women, minority, small, or disadvantaged businesses.
  1. Price.
  2. The offeror's experience and reputation.
  3. The quality of the offeror's goods or services.
  4. The impact on the ability of the ESC to comply with rules relating to historically underutilized businesses.
  5. The offeror's safety record.
  6. The offeror's proposed personnel.
  7. Whether the offeror's financial capability is appropriate to the size and scope of the project.
  8. Any other relevant factor specifically listed in the request for bids, proposals, or qualifications.

Gov't Code 2269.055

Out-of-State Bidders

Publishing Criteria

Submission

Selection

Making Evaluations Public

Required Contract Provisions

Change Orders

Education Code 44.0411

Inspection, Verification, and Testing

Impact Fees

Energy Savings Performance Contracts

Professional Services

Architects and Engineers

Gov't Code 2269.057

Registered Architect

  1. A new building constructed and owned by an ESC that will be used for education, assembly, or office occupancy when the total projected construction costs at the commencement of construction exceed $100,000.
  2. Any alteration or addition to an existing building owned by an ESC that is, or will be, used for education, assembly, or office occupancy when the total projected construction costs of alteration or addition at the commencement of construction exceed $50,000 and the alteration or addition requires the removal, relocation, or addition of any walls or partitions or the alteration or addition of an exit.

Occupations Code 1051.703; 22 TAC 1.212

Registered Engineer

Certification for Purchases Through Purchasing Cooperatives

  1. The project for which the construction-related goods or services are being procured does not require the preparation of plans and specifications under Chapter 1001 or 1051, Occupations Code; or
  2. The plans and specifications required under Chapters 1001 and 1051, Occupations Code, have been prepared.

Gov't Code 791.011(j)

Procuring Professional Services

  1. First select the most highly qualified provider on the basis of demonstrated competence and qualifications; and
  2. Then attempt to negotiate a contract with that provider at a fair and reasonable price.

Gov't Code 2254.004

Contracts for Engineering or Architectural Services

Indemnification

Duty to Defend

ESC as Additional Insured

Standard of Care

  1. With the professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license; and
  2. As expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

Local Gov't Code 271.904

Right to Work

  1. May not consider whether a person 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 relationship status with respect to an organization.

Gov't Code 2269.054

Collective Bargaining

  1. Prohibit, require, discourage, or encourage a person bidding on the public work contract, including a contractor or subcontractor, from entering into or adhering to an agreement with a collective bargaining organization relating to the project; or
  2. Discriminate against a person described by item 1 based on the person's involvement in the agreement, including the person's status or lack of status as a party to the agreement or willingness or refusal to enter into the agreement.

Accessibility

Payment and Performance Bonds

Failure to Obtain Payment Bond

No Bond for Design Services Only

Bond for Insured Loss

  1. A performance bond for the benefit of an ESC, as described above; and
  2. A payment bond, as described above. If the payment bond is not furnished, an ESC is subject to the same liability that a surety would have if the surety had issued the payment bond and the ESC had required the bond to be provided.

Exception to Bond Requirement

Gov't Code 2253.022

Prevailing Wage on Public Works

Enforcement

Retainage and Reimbursement

Penalty for Noncompliance

Required Workers' Compensation Coverage

  1. Include in the bid specifications all the duties and responsibilities of contractors pertaining to required workers' compensation coverage, using the language required by 28 Administrative Code 110.110(c)(7). [See CU(EXHIBIT)]
  2. As part of the contract, using the language required by 28 Administrative Code 110.110(c)(7), require the contractor to perform the duties and responsibilities pertaining to required workers' compensation coverage, as set out in 28 Administrative Code 110.110(d). [See CU(EXHIBIT)]
  3. Obtain from the contractor a certificate of coverage for each person providing services on the project, prior to that person beginning work on the project. This provision includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, but is not limited to, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity furnishing persons to perform services on the project. "Services" includes, but is not limited to, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets.
  4. Obtain from the contractor a new certificate of coverage showing extension of coverage:
    1. Before the end of the current coverage period, if the contractor's current certificate shows that the coverage period ends during the duration of the project; and
    2. No later than seven days after the expiration of the coverage for each other person providing services on the project whose current certificate shows that the coverage period ends during the duration of the project.
  5. Retain certificates of coverage on file for the duration of the project and for three years thereafter.
  6. Provide a copy of the certificate of coverage to the Texas Department of Insurance, Division of Workers' Compensation upon request and to any person entitled to a copy by law.

28 TAC 110.110(a)(7), (8), (c)

Exception

Criminal History

Impermissible Practices

Enforcement Actions

Attorney Fees

Construction Liability Claims

Prohibited Contracts

Education Service Center Region 11

CU(LEGAL)-ESCA

UPDATE 25

DATE ISSUED: 7/6/2020