CM(LEGAL) - FACILITIES CONSTRUCTION

Note: For information on procuring goods and services under Education Code Chapter 44, including the delegation of authority and pursuit of injunctions, see CF(LEGAL). For information on expenditures using federal funds, see CAAB. For information on providing notice to the Legislative Budget Board (LBB) regarding contracts exceeding $50,000, see GGC.

Board Authority

Delegation of Authority

Contracts Valued at or Above $50,000

  1. An interlocal contract. [See CF]
  2. Competitive bidding. [See CMA]
  3. Competitive sealed proposals. [See CMB]
  4. Construction manager-agent method. [See CMC]
  5. Construction manager-at-risk method. [See CMD]
  6. Design-build method. [See CME]
  7. The reverse auction procedure as defined by Government Code 2155.062(d). [See CF]

Selecting a Contracting Method

Exceptions

Emergency Damage or Destruction

Contracts Requiring a Bond

Public Notice

Contract Selection Criteria

  1. Consider and apply any existing laws, including any criteria, related to historically underutilized businesses; and
  2. Consider and apply any existing laws, rules, or applicable municipal charters, including laws applicable to local governments, related to the use of women- or minority-owned, small, or disadvantaged businesses.
  1. The 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 governmental entity 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.

Out-of-State Bidder

Publishing Criteria

Contracts Prohibited

Scrutinized Companies

Companies that Boycott Israel

Required Disclosures

Disclosure of Interested Parties

Disclosures by Purchasing Personnel

Notice Publication

Submission

Electronic Bids or Proposals

Selection

Making Evaluations Public

Consolidated Insurance Program

Change Orders

Inspection, Verification, and Testing

Energy Savings Performance Contracts

Professional Services

Registered Architect

  1. A new building having construction costs exceeding $100,000 that is to be constructed and owned by a political subdivision of this state and used for education, assembly, or office occupancy.
  2. An alteration or addition having construction costs exceeding $50,000 that is to be made to an existing building that is owned by a political subdivision of this state and is or will be used for education, assembly, or office occupancy and requires the removal, relocation, or addition of a wall or partition or the alteration or addition of an exit.

Registered Engineer

  1. A public work that involves electrical or mechanical engineering, if the contemplated expense for the completed project is $8,000 or less; or
  2. A public work that does not involve electrical or mechanical engineering, if the contemplated expense for the completed project is $20,000 or less.

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 Occupations Code Chapters 1001 or 1051; or
  2. The plans and specifications required under Occupations Code Chapters 1001 and 1051 have been prepared.

Procuring Professional Services

  1. Within the scope of the practice, as defined by state law, of accounting, architecture, landscape architecture, land surveying, medicine, optometry, professional engineering, real estate appraising, or professional nursing; or
  2. Provided in connection with the professional employment or practice of a person who is licensed or registered as a certified public accountant, an architect, a landscape architect, a land surveyor, a physician, including a surgeon, an optometrist, a professional engineer, a state certified or state licensed real estate appraiser, or a registered nurse.
  1. First select the most highly qualified provider of those services on the basis of demonstrated competence and qualifications; and
  2. Then attempt to negotiate with that provider a contract at a fair and reasonable price.

Professional Service Contract Exceeding $14,000

Contracts for Engineering or Architectural Services

Required 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.
Limitation on Indemnification

Criminal History

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 any organization.

Accessibility

Payment and Performance Bonds

Failure to Obtain Payment Bond

No Bond for Design Services Only

Bond for Insured Loss

  1. A performance bond as described by Government Code 2253.021(b) for the benefit of the governmental entity; and
  2. A payment bond as described in Government Code 2253.021(c) for the benefit of the beneficiaries described by that subsection. If the payment bond is not furnished, the governmental entity is subject to the same liability that a surety would have if the surety had issued the payment bond and the governmental entity had required the bond to be provided.

Exception to Bond Requirement

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 coverages described in 28 Administrative Code 110.110(c)(7). [See CM(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 described in 28 Administrative Code 110.110(d). [See CM(EXHIBIT)]
  3. Obtain from the contractor a certificate of coverage for each person providing services on the project, prior to that person's beginning work on the project. "Person providing services on the project" includes but is not limited to 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 contracts 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 contract. "Services" include, but are not limited to, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other services 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.
  5. Before the end of the coverage period, if the contractor's current certificate shows that the coverage period ends during the duration of the project.
  6. 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.
  7. Retain certificates of coverage on file for the duration of the project and for three years thereafter.
  8. 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.
  9. Use the prescribed language for bid specifications and contracts, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation. [See CM(EXHIBIT) for prescribed language]

Exception

Use of Student Fees in Construction

Impermissible Practices

Enforcement Actions

Attorney Fees

Public and Private Facilities and Infrastructure Partnerships

Austin Community College

CM(LEGAL)-LJC

UPDATE 35

DATE ISSUED: 11/21/2018