CV(LEGAL) - FACILITIES CONSTRUCTION

Note: For information on the new instructional facilities allotment, see CBA.

Definition

Board Authority

Delegation of Authority

Contracts Valued at or Above $50,000

  1. An interlocal contract. Education Code 44.031(a)(4) [See CH]
  2. A method provided by Government Code Chapter 2269 for construction services. Education Code 44.031(a)(5)
    1. Competitive bidding. Gov't Code 2269 Subch. C [See CVA]
    2. Competitive sealed proposals. Gov't Code 2269 Subch. D [See CVB]
    3. Construction manager-agent method. Gov't Code 2269 Subch. E [See CVC]
    4. Construction manager-at-risk method. Gov't Code 2269 Subch. F [See CVD]
    5. Design-build method. Gov't Code 2269 Subch. G [See CVE]
    6. Job order contracting. Gov't Code 2269 Subch. I [See CVF]
  3. The reverse auction procedure as defined by Government Code 2155.062(d). Education Code 44.031(a)(6) [See CH]

Exceptions

Emergency Damage or Destruction

Contracts Requiring a Bond

Notice Publication

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. 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 district 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.

Using Method Other Than Competitive Bidding

Determine Best Value

Publish Criteria

Make Evaluations Public

Submission

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.

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.

Out-of-State Bidders

Change Orders

Inspection, Verification, and Testing

Impact Fees

Professional Services

Architects and Engineers

Registered Architect

  1. A new building having construction costs exceeding $100,000 that is to be:
    1. Constructed and owned by a district; and
    2. Used for education, assembly, or office occupancy; or
  2. An alteration or addition having construction costs exceeding $50,000 that:
    1. Is to be made to an existing building that:
      1. Is owned by a district; and
      2. Is or will be used for education, assembly, or office occupancy; and
    2. Requires the removal, relocation, or addition of a wall or partition or the alteration or addition of an exit.

Registered Engineer

  1. The engineering plans, specifications, and estimates have been prepared by an engineer; and
  2. The engineering construction is to be performed under the direct supervision of an 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 Occupation Code Chapter 1001 or 1051; or
  2. The plans and specifications required under Occupation Code Chapters 1001 and 1051 have been prepared.

Procuring Architectural or Engineering Services

  1. First select the most highly qualified provider 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.

Contracts for Engineering or Architectural Services

Indemnification

Duty to Defend

District 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.

Payment and Performance Bonds

  1. A performance bond if the contract is in excess of $100,000; and
  2. A payment bond if the contract is in excess of $25,000.

Failure to Obtain Payment Bond

  1. The district is subject to the same liability that a surety would have if the surety had issued a payment bond and if the district had obtained the bond; and
  2. A payment bond beneficiary is entitled to a lien on money due to the prime contractor in the same manner and to the same extent as if the public work contract were subject to Property Code Chapter 53, Subchapter J (Lien on Money Due Public Works Contractor).

Bond for Insured Loss

  1. A performance bond as described above for the benefit of a district; and
  2. A payment bond, as described above for the benefit of the beneficiaries described above.

Exception to Bond Requirement

Prevailing Wage on Public Works

  1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed; and
  2. Not less than the general prevailing rate of per diem wages for legal holiday and overtime work.
  1. Conducting a survey of the wages received by classes of workers employed on projects of a character similar to the contract work in the district in which the public work is to be performed; or
  2. Using the prevailing wage rate as determined by the U.S. Department of Labor in accordance with the Davis-Bacon Act (40 U.S.C. Section 276a et seq.), and its subsequent amendments.

Enforcement

  1. Take cognizance of complaints of all violations of Government Code Chapter 2258 committed in the execution of the contract; and
  2. Withhold money forfeited or required to be withheld under Government Code Chapter 2258 from the payments to the contractor under the contract, except that the board may not withhold money from other than the final payment without a determination by the board that there is good cause to believe that the contractor has violated Government Code Chapter 2258.

Retainage and Reimbursement

Note: Arbitration of unresolved issues is governed by Government Code 2258.053–.055.

Penalty for Noncompliance

Criminal Offense

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).
  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).
  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.
  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.
  7. Use the language contained in 28 Administrative Code 110.110(c)(7) 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.

Exception

Definitions

Criminal Offenses

Enforcement Actions

Defects in Facilities

  1. The repair of the defective design, construction, renovation, or improvement of the facility on which the action is brought, including the repair of any ancillary damage to furniture and fixtures;
  2. The replacement of the facility on which the action is brought;
  3. The reimbursement of the district for a repair or replacement; or
  4. Any other purpose with written approval from the commissioner.

Definitions

Attorney General Enforcement

  1. A civil penalty in an amount not to exceed $20,000 for each violation;
  2. The attorney general's reasonable costs for investigating and prosecuting the violation; or
  3. If applicable, the amount of the state's share.

Attorney Fees

Construction Liability Claims

Wink-Loving ISD

CV(LEGAL)-P

UPDATE 117

DATE ISSUED: 6/4/2021