CH(LEGAL) - PURCHASING AND ACQUISITION
Note: For additional legal requirements applicable to purchases with federal funds, see CBB. For additional legal requirements applicable to school nutrition procurement, see COA.
A board may adopt rules and procedures for the acquisition of goods and services. Education Code 44.031(d)
Delegation of Authority
A board may delegate its authority regarding an action authorized or required to be taken by a district by Education Code Chapter 44, Subchapter B, to a designated person, representative, or committee.
A board may not delegate the authority to act regarding an action authorized or required to be taken by the board by Education Code Chapter 44, Subchapter B.
Notwithstanding any other provision of the Education Code, in the event of a catastrophe, emergency, or natural disaster affecting a district, the board may delegate to the superintendent or designated person the authority to contract for the replacement, construction, or repair of school equipment or facilities under Education Code Chapter 44, Subchapter B if emergency replacement, construction, or repair is necessary for the health and safety of district students and staff.
Education Code 44.0312
Purchases Valued at or Above $50,000
All district contracts for the purchase of goods and services, except contracts for the purchase of produce or vehicle fuel, valued at $50,000 or more in the aggregate for each 12-month period, shall be made by the method that provides the best value for a district:
- Competitive bidding for services other than construction services.
- Competitive sealed proposals for services other than construction services.
- A request for proposals for services other than construction services.
- An interlocal contract.
- The reverse auction procedure as defined by Government Code 2155.062(d).
- The formation of a political subdivision corporation under Local Government Code 304.001 (purchase of electricity).
Education Code 44.031(a)
[See COA for requirements applicable to school nutrition purchases, including produce, using federal funds.]
Note: Regarding construction of school facilities, see CV generally; CVA for competitive bidding; CVB for competitive sealed proposals; CVC and CVD for contracts using a construction manager; CVE for design/build contracts; and CVF for job order contracts for minor repairs/alterations.
In awarding a contract, a district shall consider:
- Purchase price.
- The reputation of the vendor and of the vendor's goods or services.
- The quality of the vendor's goods or services.
- The extent to which the goods or services meet the district's needs.
- The vendor's past relationship with the district.
- The impact on the ability of the district to comply with laws relating to historically underutilized businesses.
- The total long-term cost to the district to acquire the goods or services.
- For a contract that is not for goods and services related to telecommunications and information services, building construction and maintenance, or instructional materials, whether the vendor or the vendor's ultimate parent company or majority owner has its principal place of business in this state or employs at least 500 persons in this state.
- Any other relevant factor specifically listed in the request for bids or proposals.
Education Code 44.031(b)
In awarding a contract by competitive sealed bid under Education Code 44.031, a district that has its central administrative office located in a municipality with a population of less than 250,000 may consider a bidder's principal place of business in the manner provided by Local Government Code 271.9051. This section does not apply to the purchase of telecommunications services or information services, as those terms are defined by 47 U.S.C. Section 153. Education Code 44.031(b-1)
The factors listed above are the only criteria that may be considered by a district in its decision to award a contract. R.G.V. Vending v. Weslaco Indep. Sch. Dist., 995 S.W.2d 897 (Tex. App.—Corpus Christi 1999, no pet.)
A board shall not award a contract for services or for purchase of supplies, materials, or equipment to a bidder whose principal place of business is not in this state, unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the greater of the amount by which a resident bidder would be required to underbid a nonresident bidder to obtain a comparable contract in the state in which the nonresident's principal place of business is located, or a state in which a majority of the manufacturing relating to the contract will be performed. Gov't Code 2252.001–.002
This requirement shall not apply to a contract involving federal funds. A district shall rely on information published by the comptroller in evaluating the bids of a nonresident bidder. Gov't Code 2252.003–.004
Required Contract Provisions
No Israel Boycott
A district may not enter into a contract with a company for goods and services unless the contract contains a written verification from the company that it does not boycott Israel and will not during the term of the contract.
The requirement above applies only to a contract that:
- Is between a district and a company with ten or more full-time employees; and
- Has a value of $100,000 or more that is to be paid wholly or partly from public funds of the district.
Gov't Code 2271.002
"Company" has the meaning assigned by Government Code 808.001, except that the term does not include a sole proprietorship. Gov't Code 2271.001(2)
Retention of Contracting Information
These provisions apply to a contract that:
- Has a stated expenditure of at least $1 million in public funds for the purchase of goods or services by the district; or
- Results in the expenditure of at least $1 million in public funds for the purchase of goods or services by the district in a fiscal year of the district.
A board may not accept a bid for a contract described above or award the contract to an entity that the board has determined has knowingly or intentionally failed to comply with Government Code Chapter 552, Subchapter J (Additional Provisions Relating to Contracting Information) in a previous bid or contract described above unless the board determines and documents that the entity has taken adequate steps to ensure future compliance with the requirements of that subchapter. [For additional information and requirements, see GBA and GBAA.]
A contract described above must require a contracting entity to:
- Preserve all contracting information related to the contract as provided by the records retention requirements applicable to the district for the duration of the contract;
- Promptly provide to the district any contracting information related to the contract that is in the custody or possession of the entity on request of the district; and
- On completion of the contract, either:
- Provide at no cost to the district all contracting information related to the contract that is in the custody or possession of the entity; or
- Preserve the contracting information related to the contract as provided by the records retention requirements applicable to the district.
Bid and Contract Language
Except as described at Exception, below, a bid for a contract described above and the contract must include the following statement: "The requirements of Subchapter J, Chapter 552, Government Code, may apply to this (include "bid" or "contract" as applicable) and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter."
Notice of Noncompliance
A board that is the party to a contract described above shall provide notice to the entity that is a party to the contract if the entity fails to comply with a requirement of Government Code Chapter 552, Subchapter J applicable to the entity. The notice must:
- Be in writing;
- State the requirement that the entity has violated; and
- Unless the exception described below applies, advise the entity that the board may terminate the contract without further obligation to the entity if the entity does not cure the violation on or before the tenth business day after the date the board provides the notice.
Except as provided below, a governmental body may terminate a contract described above if:
- The board provides the required notice to the entity that is party to the contract;
- The contracting entity does not cure the violation in the prescribed period;
- The board determines that the contracting entity has intentionally or knowingly failed to comply with a requirement of Government Code Chapter 552, Subchapter J; and
- The board determines that the entity has not taken adequate steps to ensure future compliance with the requirements of that subchapter.
An entity has taken adequate steps to ensure future compliance with Government Code Chapter 552, Subchapter J if:
- The entity produces contracting information requested by the board that is in the custody or possession of the entity not later than the tenth business day after the date the board makes the request; and
- The entity establishes a records management program to enable the entity to comply with Government Code Chapter 552, Subchapter J.
A board may not terminate a contract under these provisions if the contract is related to the purchase or underwriting of a public security, the contract is or may be used as collateral on a loan, or the contract's proceeds are used to pay debt service of a public security or loan.
Gov't Code 552.371(a), .372–.374 [See GBA]
Disclosure of Interested Parties
A district may not enter into a contract described below with a business entity unless the business entity submits a disclosure of interested parties to the district at the time the business entity submits the signed contract to the district.
The requirement above applies only to a contract of a district that:
- Requires an action or vote by the board before the contract may be signed;
- Has a value of at least $1 million; or
- Is for services that would require a person to register as a lobbyist under Government Code Chapter 305.
Gov't Code 2252.908
A contract does not require an action or vote by the board if the board has legal authority to delegate to its staff the authority to execute the contract, the board has delegated this authority, and the board does not participate in the selection of the business entity with which the contract is entered into. 1 TAC 46.1(c)
The disclosure requirement does not apply to a contract with:
- A publicly traded business entity, including a wholly owned subsidiary of the entity;
- An electric utility, as defined by Utilities Code 31.002; or
- A gas utility, as defined by Utilities Code 121.001.
Gov't Code 2252.908(c)(4)–(6)
The disclosure of interested parties must be submitted on a form prescribed by the Texas Ethics Commission (TEC) that includes a list of each interested party for the contract of which the contracting business entity is aware; and a written, unsworn declaration subscribed by the authorized agent of the contracting business entity as true under penalty of perjury that is in substantially the form set out in Government Code 2252.908(e)(2). Gov't Code 2252.908(e); 1 TAC 46.5(a)
The certification of filing and the completed disclosure of interested parties form generated by TEC's electronic filing application must be printed, signed by an authorized agent of the contracting business entity, and submitted to the district that is the party to the contract for which the form is being filed. 1 TAC 46.5(b)
A district that receives a completed disclosure of interested parties form and certification of filing shall notify TEC, in an electronic format prescribed by TEC, of the receipt of those documents not later than the 30th day after the date the board receives the disclosure. 1 TAC 46.5(c); Gov't Code 2252.908(f)
The disclosure requirements do not apply to a change made to an existing contract, including an amendment, change order, or extension of a contract except as set out below.
The disclosure requirements apply to a change made to an existing contract, including an amendment, change order, or extension of a contract if:
- A disclosure of interested parties form was not filed for the existing contract; and either the changed contract requires an action or vote by the board or the value of the changed contract is at least $1 million; or
- The business entity submitted a disclosure of interested parties form to the district that is a party to the existing contract; and either there is a change to the disclosure; or the changed contract requires an action or vote by the board; or the value of the changed contract is at least $1 million greater than the value of the existing contract.
1 TAC 46.4
"Contract" means a contract between a board and a business entity at the time it is voted on by the board or at the time it binds the board, whichever is earlier, and includes an amended, extended, or renewed contract. 1 TAC 46.3(a)
"Business entity" means any entity recognized by law through which business is conducted, including a sole proprietorship, partnership, or corporation. The term includes an entity through which business is conducted with a district, regardless of whether the entity is a for-profit or nonprofit entity, and does not include a governmental entity or state agency. Gov't Code 2252.908(a)(1); 1 TAC 46.3(b)
"Interested party" means a person who has a controlling interest in a business entity with whom a district contracts or who actively participates in facilitating the contract or negotiating the terms of the contract, including a broker, intermediary, adviser, or attorney for the business entity. Gov't Code 2252.908(a)(3); 1 TAC 46.3(d), (e)
"Controlling interest" means:
- An ownership interest or participating interest in a business entity by virtue of units, percentage, shares, stock, or otherwise that exceeds ten percent;
- Membership on the board of directors or other governing body of a business entity of which the board or other governing body is composed of not more than ten members; or
- Service as an officer of a business entity that has four or fewer officers, or service as one of the four officers most highly compensated by a business entity that has more than four officers. This subsection does not apply to an officer of a publicly held business entity or its wholly owned subsidiaries.
1 TAC 46.3(c)
"Signed" includes any symbol executed or adopted by a person with present intention to authenticate a writing, including an electronic signature. 1 TAC 46.3(f)
"Value" of a contract is based on the amount of consideration received or to be received by a business entity from a board under the contract. 1 TAC 46.3(g)
[See BBFA for additional conflict of interest disclosures.]
Contract with Person Indebted to District
A board may, by resolution, establish regulations permitting a school district to refuse to enter into a contract or other transaction with a person indebted to the school district. A district may refuse to award a contract to or enter into a transaction with an apparent low bidder or successful proposer that is indebted to the district.
The term "person" includes an individual, sole proprietorship, corporation, nonprofit corporation, partnership, joint venture, limited liability company, and any other entity that seeks to enter into a contract or other transaction with a district requiring board approval.
Education Code 44.044
Notice of when and where bids or proposals or the responses to a request for qualifications will be received and opened shall be published in the county where a district's central administrative office is located, once a week for at least two weeks prior to the deadline for receiving bids, proposals, or responses to a request for qualifications. If there is no newspaper in that county, the advertising shall be published in a newspaper in the county nearest the county seat of the county in which a district's central administrative office is located. In a two-step procurement process, the time and place where the second-step bids, proposals, or responses will be received are not required to be published separately. Education Code 44.031(g)
Electronic Bids or Proposals
A district may receive bids or proposals through electronic transmission if the board adopts rules to ensure the identification, security, and confidentiality of electronic bids or proposals and to ensure that the electronic bids or proposals remain effectively unopened until the proper time.
An electronic bid or proposal is not required to be sealed. A provision of Education Code Chapter 44 that applies to a sealed bid or proposal applies to a bid or proposal received through electronic transmission in accordance with the rules adopted by the board.
Education Code 44.0313
The purchasing requirements of Education Code 44.031 do not apply to a contract for professional services rendered, including the services of an architect, attorney, certified public accountant, engineer, or fiscal agent.
A district may contract for professional services rendered by a financial consultant or a technology consultant in the manner provided by Government Code 2254.003, in lieu of the methods provided by Education Code 44.031.
Education Code 44.031(f)
An interlocal contract between a district and a purchasing cooperative may not be used to purchase engineering or architectural services. Gov't Code 791.011(h)
Professional Services Procurement Act
A district may not select a provider of professional services or a group or association of providers or award a contract for the services on the basis of competitive bids submitted for the contract or for the services, but shall make the selection and award on the basis of demonstrated competence and qualifications to perform the services and for a fair and reasonable price. Gov't Code 2254.003(a)
"Professional services" means services:
- 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;
- Provided in connection with the professional employment or practice of a person who is licensed or registered as a certified public accountant, architect, landscape architect, land surveyor, physician, optometrist, professional engineer, state-certified or state-licensed real estate appraiser, or registered nurse; or
- Provided by a person lawfully engaged in interior design, regardless of whether the person is registered as an interior designer under Occupations Code 1053.
Gov't Code 2254.002
Contingent Fee Contract for Legal Services
Government Code Chapter 2254, Subchapter C provides the manner in which and the situations under which a district may compensate a public contractor under a contingent fee for legal services. That subchapter does not apply to a contract for legal services entered into under Tax Code 6.30 (delinquent tax collection) or Government Code 1201.027 (issuance of public securities), except that Government Code sections 2254.1032, 2254.1034, 2254.1036, and 2254.1037 do apply to the contract. Gov't Code 2254.102
A district may select an attorney or law firm to award a contingent fee contract only in accordance with Government Code 2254.003(a) [see Selection, above] and Government Code 2254.1032. Gov't Code 2254.1032(a)
Emergency Damage or Destruction
If school equipment, a school facility, or a part of a school facility or personal property is destroyed or severely damaged or, as a result of an unforeseen catastrophe or emergency, undergoes major operational or structural failure, and a board determines that the delay posed by the methods provided for in Education Code 44.031 would prevent or substantially impair the conduct of classes or other essential school activities, then contracts for the replacement or repair of the equipment, school facility, or the part of the school facility may be made by methods other than those required by Education Code 44.031. Education Code 44.031(h)
A district may acquire computers and computer-related equipment, including computer software, through the Department of Information Resources (DIR) under contracts with the DIR in accordance with Government Code Chapter 2054 or 2157. Education Code 44.031(i)
Automated Information System
A district may purchase an automated information system using the purchasing method described by Government Code 2157.068 for commodity items or a purchasing method designated by the comptroller to obtain the best value for the state, including a request for offers method. A district that purchases an item using a method listed above satisfies any state law requiring the district to seek competitive bids for the purchase of the item. Gov't Code 2157.006; 34 TAC 20.391
Automated External Defibrillators
A school that purchases or leases an automated external defibrillator, as defined by Health and Safety Code 779.001, shall ensure that the defibrillator meets standards established by the federal Food and Drug Administration. Education Code 44.047
Compliance with Education Code 44.031 is not required for purchases that are available from only one source, including:
- An item for which competition is precluded because of a patent, copyright, secret process, or monopoly.
- A film, manuscript, or book.
- A utility service, including electricity, gas, or water.
- A captive replacement part or component for equipment.
The sole source exception shall not apply to mainframe data processing equipment and peripheral attachments with a single-item purchase price in excess of $15,000.
Education Code 44.031(j)–(k)
A contract for the purchase of insurance is a contract for the purchase of personal property and shall be made in accordance with Education Code 44.031. Education Code 44.031; Atty. Gen. Op. DM-347 (1995)
A district may execute an insurance contract for a period longer than 12 months, if the contract contains either or both of the provisions described at Commitment of Current Revenue, below. If a district executes a multiyear insurance contract, it need not advertise for insurance vendors until the 12-month period during which the district will be executing a new insurance contract. Atty. Gen. Op. DM-418 (1996)
Except to the extent prohibited by other law and to the extent consistent with Education Code Chapter 44, Subchapter B, a school district may use competitive bidding to select a vendor as authorized by Education Code 44.031(a)(1).
A district shall award a competitively bid contract at the bid amount to the bidder offering the best value for the district. In determining the best value for the district, the district is not restricted to considering price alone but may consider any other factors stated in the selection criteria. The selection criteria may include the factors listed in Education Code 44.031(b) [see Factors, above].
Except as provided below, Local Government Code Chapter 271, Subchapter B does not apply to a competitive bidding process under this policy.
Education Code 44.0351
Bids may be opened only by a board at a public meeting or by an officer or employee of a district at or in an office of the district. A bid that has been opened may not be changed for the purpose of correcting an error in the bid price. Local Gov't Code 271.026
A board shall have the right to reject any and all bids. Local Gov't Code 271.027(a)
In determining who is a responsible bidder, a board 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 firm, corporation, partnership, or institution, provided that:
- The board has adopted a written definition and criteria for accurately determining the safety record of the bidder.
- The board has given notice in the bid specifications that the safety record of a bidder may be considered in determining the bidder's responsibility.
- The determinations are not arbitrary and capricious.
Local Gov't Code 271.0275
If a district receives two or more bids from responsible bidders that are identical, in nature and amount, as the lowest and best bids, it shall select only one bidder from the identical bids.
If only one of the bidders submitting identical bids is a resident of a district, that bidder shall be selected. If two or more such bidders are residents of a district, one shall be selected by the casting of lots. In all other cases, one of the identical bids shall be selected by the casting of lots.
A board shall prescribe the manner of casting lots and shall be present when the lots are cast. All qualified bidders or their representatives may be present at the casting of lots.
Local Gov't Code 271.901
Competitive Sealed Proposals
In selecting a vendor through competitive sealed proposals as authorized by Education Code 44.031(a)(2), a school district shall follow the procedures prescribed below.
Request for Proposals
The district shall prepare a request for competitive sealed proposals that includes information that vendors may require to respond to the request. The district shall state in the request for proposals the selection criteria that will be used in selecting the successful offeror.
The district 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 on which the proposals are opened, the district shall evaluate and rank each proposal submitted in relation to the published selection criteria.
The district shall select the offeror that offers the best value for the district based on the published selection criteria and on its ranking evaluation. The district shall first attempt to negotiate a contract with the selected offeror. The district may discuss with the selected offeror options for a scope or time modification and any price change associated with the modification. If the district is unable to negotiate a satisfactory contract with the selected offeror, the district 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.
Best Value Determination
In determining the best value for the district, the district is not restricted to considering price alone but may consider any other factors stated in the selection criteria.
Education Code 44.0352
To increase efficiency and effectiveness, a district may contract or agree with other local governments and with state agencies, including the comptroller, to perform some of its purchasing functions. Gov't Code 791.001, .011, .025
An interlocal contract must be authorized by a board and the governing body of each contracting party; must state the purpose, terms, rights, and duties of the contracting parties; and must specify that each party paying for the performance of governmental functions or services shall make those payments from current revenues available to the paying party.
An interlocal contractual payment must be in an amount that fairly compensates the performing party for the services or functions performed under the contract. The contract may be renewed and may have a specified term of years.
Gov't Code 791.011(d)–(f), (i)
A district may agree with another local government, including a nonprofit corporation that is created and operated to provide one or more governmental functions and services, or with the state or a state agency, including the comptroller, to purchase goods and services reasonably required for the installation, operation, or maintenance of the goods. Such an agreement may not, however, apply to services provided by firefighters, police officers, or emergency medical personnel.
A district that purchases goods and services by agreement with another local government or with the state or state agency satisfies the requirement to seek competitive bids for the purchase of goods and services.
Gov't Code 791.025(b)–(c); Atty. Gen. Op. JC-37 (1999)
A district may not enter into a contract to purchase construction-related goods or services through a purchasing cooperative in an amount greater than $50,000 unless a person designated by the district certifies in writing that:
- 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
- The plans and specifications required under Chapters 1001 and 1051, Occupations Code, have been prepared.
"Purchasing cooperative" means a group purchasing organization that governmental entities join as members and the managing entity of which receives fees from members or vendors.
Gov't Code 791.011(j)
State Purchasing Program
Purchasing services performed for a district by the comptroller shall include:
- The extension of state contract prices to a district when the comptroller considers it feasible.
- Solicitation of bids on items desired by a district if the solicitation is considered feasible by the comptroller and is desired by the district.
- Provision of information and technical assistance to a district about the purchasing program.
The comptroller may charge a district its actual costs in providing purchasing services.
Local Gov't Code 271.082
A district may participate in the purchasing program, including participation in purchases that use the reverse auction procedure, by filing with the comptroller a resolution adopted by the board requesting that the district be allowed to participate on a voluntary basis, to the extent the comptroller deems feasible, and stating that the board shall:
- Designate an official to act for the district in all matters relating to the program, including the purchase of items from the vendor under any contract.
- Direct the decisions of its representative.
- Be responsible for:
- Submitting requisitions to the commission under contract(s) and for payment directly to the vendor; and
- Electronically sending purchase orders directly to vendors, or complying with procedures governing a reverse auction purchase, and electronically sending the comptroller reports on actual purchases.
- Be responsible for the vendor's compliance with all conditions of delivery and quality of the purchased item.
A purchase made through participation in this program meets any state requirement to seek competitive bids for the purchase of the item.
Local Gov't Code 271.083
Multiple Award Contract Schedule
The comptroller shall develop a schedule of multiple award contracts that have been previously awarded using a competitive process by the federal government or any other governmental entity in any state. Gov't Code 2155.502
A district may purchase goods or services directly from a vendor under a contract listed on a schedule. A district contracting for the purchase of an automated information system under a contract listed on a schedule shall comply with Government Code 2157.068(e-1) (purchase of information technology commodity items) [see Automated Information System, above]. An authorized purchase satisfies any requirement of state law relating to competitive bids or proposals.
The price listed for a good or service under a multiple award contract is a maximum price. A district may negotiate a lower price for goods or services under a contract listed on a schedule.
Gov't Code 2155.504
Cooperative Purchasing Program
A district may participate in a cooperative purchasing program with another local government of this state or another state or with a local cooperative organization of this state or another state. If a district does so, it may sign an agreement with another participating local government or a local cooperative stating that the district will:
- Designate a person to act on behalf of the district in all matters relating to the program.
- Make payments to another participating local government or local cooperative organization or directly under a contract, as provided in the agreement.
- Be responsible for the vendor's compliance.
If a district participates in a cooperative purchasing program, it satisfies any law requiring it to seek competitive bids.
Local Gov't Code 271.102; Atty. Gen. Op. JC-37 (1999)
A school district that enters into a purchasing contract valued at $25,000 or more under Education Code 44.031(a)(5) (interlocal contract), under Local Government Code Chapter 271, Subchapter F (cooperative purchasing program), or under any other cooperative purchasing program authorized for school districts by law shall document any contract-related fee, including any management fee, and the purpose of each fee under the contract.
The amount, purpose, and disposition of any fee described above must be presented in a written report and submitted annually in an open meeting of the board. The written report must appear as an agenda item. The commissioner of education may audit the written report.
Education Code 44.0331
A district that uses the reverse auction procedure must include in the procedure a notice provision and other provisions necessary to produce a method of purchasing that is advantageous to the district and fair to vendors. Local Gov't Code 271.906(b)
Reverse auction procedure means:
- A real-time bidding process usually lasting less than one hour and taking place at a previously scheduled time and internet location, in which multiple suppliers, anonymous to each other, submit bids to provide the designated goods or services; or
- A bidding process usually lasting less than two weeks and taking place during a previously scheduled period and at a previously scheduled internet location, in which multiple suppliers, anonymous to each other, submit bids to provide the designated goods or services.
Gov't Code 2155.062(d)
Commitment of Current Revenue
A contract for the acquisition, including lease, of real or personal property is a commitment of a district's current revenue only, provided the contract contains either or both of the following provisions:
- Retains to the board the continuing right to terminate the contract at the expiration of each budget period during the term of the contract.
- Is conditioned on a best efforts attempt by the board to obtain and appropriate funds for payment of the contract.
Local Gov't Code 271.903
If a change in plans or specifications is necessary after the performance of a contract is begun or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment, or supplies to be furnished, the district may approve change orders making the changes. The district may grant general authority to an administrative official to approve the change orders.
The total contract price may not be increased because of the changes unless additional money for increased costs is approved for that purpose from available money or is provided for by the authorization of the issuance of time warrants.
A contract with an original contract price of $1 million or more may not be increased by more than 25 percent. If a change order for a contract with an original contract price of less than $1 million increases the contract amount to $1 million or more, the total of the subsequent change orders may not increase the revised contract amount by more than 25 percent of the original contract price.
Education Code 44.0411
Energy or Water Conservation Measures
A district may contract for energy or water conservation measures. Such a contract shall be let according to the procedures established for professional services by Government Code 2254.004.
A board shall establish a long-range energy plan to reduce a district's annual electric consumption by five percent beginning with the 2008 state fiscal year and consume electricity in subsequent fiscal years in accordance with the district's energy plan.
Education Code 44.901–.902 [See policy CL for legal requirements pertaining to such contracts and plans.]
A district shall give preference in purchasing to products made of recycled materials if the products meet applicable specifications as to quantity and quality. A district regularly shall review and revise its procurement procedures and specifications for the purchase of goods, supplies, equipment, and materials in order to:
- Eliminate procedures and specifications that explicitly discriminate against products made of recycled materials.
- Encourage the use of products made of recycled materials.
- Ensure to the maximum extent economically feasible that the district purchases products that may be recycled when they have served their intended use.
In developing new procedures and specifications, the district shall encourage the use of recycled products and products that may be recycled or reused.
The Texas Commission on Environmental Quality (TCEQ) by order shall exempt from compliance with these provisions a district with a student enrollment of fewer than 10,000 students.
Health and Safety Code 361.426
If the cost and quality are equal, a district shall give preference in purchasing to agricultural products, including textiles and other similar products, that are produced, processed, or grown in Texas. "Processed" means canning, freezing, drying, juicing, preserving, or any other act that changes the form of a good from its natural state to another form. If Texas agricultural products are not equal in cost and quality to other agricultural products, a district shall give preference in purchasing to agricultural products produced, processed, or grown in the United States, if the cost and quality of the U.S. and foreign products are equal.
A district may not adopt product purchasing specifications that unnecessarily exclude agricultural products produced, processed, or grown in Texas.
Vegetation for Landscaping
If cost is equal and the quality is not inferior, a district shall give preference to Texas vegetation when it purchases vegetation for landscaping purposes.
Education Code 44.042
Bus Purchase or Lease
Each contract proposed for the purchase or lease of one or more school buses, including a lease with an option to purchase, shall be submitted to competitive bidding when the contract is valued at $20,000 or more. Education Code 44.031(l) [See CNB]
Right to Work
While engaged in procuring goods and services or awarding a contract, a district:
- May not consider whether a vendor is a member of or has another relationship with any organization; and
- 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.
Education Code 44.043
Lobbying Restriction—Tobacco Education Grant Funds
A district may not spend grant funds it receives from the Permanent Fund for Tobacco Education and Enforcement to pay:
- Lobbying expenses incurred by the district;
- A person or entity that is required under Government Code Chapter 305 to register as a lobbyist with the Texas Ethics Commission;
- Any partner, employee, employer, relative, contractor, consultant, or related entity of a person or entity of a registered lobbyist (as described in item 2); or
- A person or entity who has been hired to represent associations or other entities for the purpose of affecting the outcome of legislation, agency rules, ordinances, or other government policies.
Gov't Code 403.1067
For provisions pertaining to criminal history record information on contractors, see CJA(LEGAL).
A board member, employee, or agent shall not, with criminal negligence, make or authorize separate, sequential, or component purchases to avoid the purchasing requirements set out in Education Code 44.031. An officer or employee shall not knowingly violate Education Code 44.031 in any other manner.
"Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be made in one purchase. "Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be made in one purchase. "Sequential purchases" means purchases, over a period, of items that in normal purchasing practices would be made in one purchase.
Violation of this provision is a Class B misdemeanor and an offense involving moral turpitude, conviction of which shall result in removal from office or dismissal from employment. A board member who is convicted of a violation of this provision is considered to have committed official misconduct and for four years after the date of final conviction, the removed person is ineligible to be appointed or elected to public office in Texas, is ineligible to be employed by or act as an agent for the state or a political subdivision, and is ineligible to receive any compensation through a contract with the state or a political subdivision. [See BBC]
Education Code 44.032
A court may enjoin performance of a contract made in violation of Education Code Chapter 44, Subchapter B. A county attorney, district attorney, criminal district attorney, citizen of the county in which a district 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. Education Code 44.032(f)
Entertainment Event Contracts
A person, including a board, may not include a provision in a contract related to a parade, concert, or other entertainment event paid for in whole or in part with public funds that prohibits or would otherwise prevent the disclosure of information relating to the receipt or expenditure of public or other funds by a board for the event. A contract provision that violates Government Code 552.104(c) is void. Gov't Code 552.104(c) [See GBA for information related to competition or bidding.]
Taxpayer Resource Transactions
A district may not enter into a taxpayer resource transaction with an abortion provider or an affiliate of an abortion provider. Gov't Code 2272.003(a)
"Taxpayer resource transaction" means a sale, purchase, lease, donation of money, goods, services, or real property, or any other transaction between a governmental entity and a private entity that provides to the private entity something of value derived from state or local tax revenue, regardless of whether the governmental entity receives something of value in return.
"Affiliate" means a person or entity who enters into with another person or entity a legal relationship created or governed by at least one written instrument, including a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a license, that demonstrates:
- Common ownership, management, or control between the parties to the relationship;
- A franchise granted by the person or entity to the affiliate; or
- The granting or extension of a license or other agreement authorizing the affiliate to use the other person's or entity's brand name, trademark, service mark, or other registered identification mark.
Gov't Code 2272.001(3), (5)
For provisions regarding other prohibited contracts, see CV(LEGAL).