CHAPTER 262. PURCHASING AND CONTRACTING AUTHORITY OF COUNTIES
LOCAL GOVERNMENT CODE
TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY
SUBTITLE B. COUNTY ACQUISITION, SALE, OR LEASE OF PROPERTY
CHAPTER 262. PURCHASING AND CONTRACTING AUTHORITY OF COUNTIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 262.001. APPOINTMENT OF AGENT TO MAKE CONTRACTS. (a) The
commissioners court of a county may appoint an agent to make a
contract on behalf of the county for:
(1) erecting or repairing a county building;
(2) supervising the erecting or repairing of a county building;
or
(3) any other purpose authorized by law.
(b) A contract or other act of an agent appointed under this
section that is properly executed on behalf of the county and is
within the agent's authority binds the county to the contract for
all purposes.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 262.002. AUTHORITY TO PURCHASE ROAD EQUIPMENT AND TIRES
THROUGH COMPTROLLER. (a) The commissioners court of a county
may purchase through the comptroller road machinery and
equipment, tires, and tubes to be used by the county.
(b) The commission must purchase an item under this section on
competitive bids and in accordance with any rules of the
commission.
(c) A purchase under this section must be made on the
requisition of the commissioners court. When the court sends the
requisition to the commission, the court must include with the
requisition a general description of the item desired and a
certification of the funds available to pay for the item.
(d) The commission may adopt rules to carry out the purpose of
this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.101, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 1.102, eff. September 1, 2007.
Sec. 262.003. SMALL, SOLE-SOURCE PURCHASE EXEMPT FROM
COMPETITIVE BIDDING. (a) Any law that requires a county to
follow a competitive procurement procedure in making a purchase
requiring the expenditure of $50,000 or less does not apply to
the purchase of an item available for purchase from only one
supplier.
(b) If a county makes a purchase covered by Subsection (a), the
county auditor or other appropriate county officer or employee
may not refuse payment for the purchase because a competitive
bidding procedure was not followed.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1993, 73rd Leg., ch. 757, Sec. 12, eff. Sept. 1,
1993; Acts 2001, 77th Leg., ch. 115, Sec. 4, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1266, Sec. 3, eff. June 19, 2009.
Sec. 262.004. CONTRACT AND OTHER INSTRUMENTS VEST RIGHTS IN
COUNTY; SUIT ON CONTRACT OR OTHER INSTRUMENT. (a) A note, bond,
bill, contract, covenant, agreement, or writing in which a person
is bound to a county, to the court or commissioners of a county,
or to another person for the payment of a debt or for the
performance of a duty or another action for the county vests in
the county the same right, interest, or action that would vest in
any other person if the contract had been made with that other
person.
(b) A suit may be initiated and prosecuted on an instrument
covered by Subsection (a) in the name of a county, or in the name
of the person to whom the document was made for the use of the
county, in the same manner that any other person may sue on a
similar document made to that person.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 262.005. APPLICATION OF OTHER LAW. The purchasing
requirements of Section 361.426, Health and Safety Code, apply to
county purchases made under this chapter.
Added by Acts 1991, 72nd Leg., ch. 303, Sec. 18, eff. Sept. 1,
1991.
Sec. 262.006. LEAST COST REVIEW PROGRAM. The commissioners
court of a county may establish a least cost review program for
public improvements to be constructed by the use of personnel,
equipment, or facilities of the county that may exceed a cost of:
(1) $100,000; or
(2) an amount less than $100,000 as determined by the
commissioners court.
Added by Acts 1999, 76th Leg., ch. 62, Sec. 13.11(f), eff. Sept.
1, 1999.
Sec. 262.007. SUIT AGAINST COUNTY ARISING UNDER CERTAIN
CONTRACTS. (a) A county that is a party to a written contract
for engineering, architectural, or construction services or for
goods related to engineering, architectural, or construction
services may sue or be sued, plead or be impleaded, or defend or
be defended on a claim arising under the contract. A suit on the
contract brought by a county shall be brought in the name of the
county. A suit on the contract brought against a county shall
identify the county by name and must be brought in a state court
in that county.
(b) The total amount of money recoverable from a county on a
claim for breach of the contract is limited to the following:
(1) the balance due and owed by the county under the contract as
it may have been amended, including any amount owed as
compensation for the increased cost to perform the work as a
direct result of owner-caused delays or acceleration;
(2) the amount owed for change orders or additional work
required to carry out the contract;
(3) reasonable and necessary attorney's fees that are equitable
and just; and
(4) interest as allowed by law.
(c) An award of damages under this section may not include:
(1) consequential damages, except as allowed under Subsection
(b)(1);
(2) exemplary damages; or
(3) damages for unabsorbed home office overhead.
(d) This section does not waive a defense or a limitation on
damages available to a party to a contract, other than a bar
against suit based on sovereign immunity.
(e) This section does not waive sovereign immunity to suit in
federal court.
Acts 2003, 78th Leg., ch. 1203, Sec. 2, eff. Sept. 1, 2003.
SUBCHAPTER B. PURCHASING AGENTS
Sec. 262.011. PURCHASING AGENTS. (a) A board composed as
provided by this subsection, by majority vote, may appoint a
suitable person to act as the county purchasing agent. In a
county with a population of 150,000 or less, the board is
composed of the judges of the district courts in the county and
the county judge. In any other county, the board is composed of
three judges of the district courts in the county and two members
of the commissioners court of the county unless the county has
fewer than three district court judges, in which case the board
is composed of one district court judge and one member of the
commissioners court. If members of the board who are district
judges must be selected, the selection is made by a majority vote
of all the district judges in a county having more than one
district judge. If members of the board who are members of the
commissioners court must be selected, the selection is made by a
majority vote of the commissioners court. The term of office of
the county purchasing agent is two years.
(b) The board may remove the county purchasing agent from
office.
(c) A person appointed under this section must execute a bond in
the amount of $5,000, payable to the county, conditioned that the
individual will faithfully perform the duties of county
purchasing agent.
(d) The county purchasing agent shall purchase all supplies,
materials, and equipment required or used, and contract for all
repairs to property used, by the county or a subdivision,
officer, or employee of the county, except purchases and
contracts required by law to be made on competitive bid. A person
other than the county purchasing agent may not make the purchase
of the supplies, materials, or equipment or make the contract for
repairs.
(e) The county purchasing agent shall supervise all purchases
made on competitive bid and shall see that all purchased
supplies, materials, and equipment are delivered to the proper
county officer or department in accordance with the purchase
contract.
(f) A purchase made by the county purchasing agent shall be paid
for by a warrant drawn by the county auditor on funds in the
county treasury in the manner provided by law. The county auditor
may not draw and the county treasurer may not honor a warrant for
a purchase unless the purchase is made by the county purchasing
agent or on competitive bid as provided by law.
(g) The county purchasing agent may cooperate with the
purchasing agent of a municipality in the county to purchase any
item in volume as may be necessary. The county treasurer shall
honor a warrant drawn by the county auditor to reimburse the
municipality's purchasing agent making the purchase for the
county.
(h) The county purchasing agent is not required to make
purchases for a municipal-county hospital or other joint
undertaking of the municipality and county.
(i) On July 1 of each year, the county purchasing agent shall
file with the county auditor and each of the members of the board
that appoints the county purchasing agent an inventory of all the
property on hand and belonging to the county and each
subdivision, officer, and employee of the county. The county
auditor shall carefully examine the inventory and make an
accounting for all property purchased or previously inventoried
and not appearing in the inventory.
(j) To prevent unnecessary purchases, the county purchasing
agent, with the approval of the commissioners court, shall
transfer county supplies, materials, and equipment from a
subdivision, department, officer, or employee of the county that
are not needed or used to another subdivision, department,
officer, or employee requiring the supplies or materials or the
use of the equipment. The county purchasing agent shall furnish
to the county auditor a list of transferred supplies, materials,
and equipment.
(k) The board that appoints the county purchasing agent shall
set the salary of the agent in an amount not less than $5,000 a
year, payable in equal monthly installments or by any other
distribution at the option of the county. The salary shall be
paid by warrants drawn on funds in the county treasury.
(l) The county purchasing agent may have assistants to aid in
the performance of the agent's duties. A person who is authorized
by the county purchasing agent to use a county purchasing card
while making a county purchase is considered an assistant of the
county purchasing agent to the extent the person complies with
the rules and procedures prescribed for the use of county
purchasing cards as adopted by the county purchasing agent under
Subsection (o). The county purchasing agent and assistants may
have any help, equipment, supplies, and traveling expenses that
are approved and considered advisable by the board that appointed
the agent.
(m) A person, including an officer, agent, or employee of a
county or of a subdivision or department of a county, commits an
offense if the person violates this section. An offense under
this subsection is a misdemeanor punishable by a fine of not less
than $10 or more than $100, by confinement in the county jail for
not less than 30 days or more than one year, or by both the fine
and confinement. Each act in violation of this section is a
separate offense.
(n) This section applies to all purchases of supplies,
materials, and equipment for the use of the county and its
officers, including purchases made by officers paid out of fees
of office or otherwise, regardless of whether the purchase
contract is made by the commissioners court or any other officer
authorized to bind the county by contract. An officer making a
purchase out of fees of office in violation of this section may
not deduct the amount of the purchase from the amount of any fees
of office due the county.
(o) The county purchasing agent shall adopt the rules and
procedures necessary to implement the agent's duties under this
section subject to approval by the commissioners court.
Notwithstanding Subsection (f) or other law, rules and procedures
adopted under this subsection may include rules and procedures
for persons to use county purchasing cards to pay for county
purchases under the direction and supervision of the county
purchasing agent.
(p) During each two-year term of office, a county purchasing
agent shall complete not less than 25 hours in courses relating
to the duties of the county purchasing agent. The courses must
be:
(1) accredited by a nationally recognized college or university;
(2) recognized by a national purchasing association, such as the
National Association of Purchasing Management; or
(3) courses offered by state agencies, or by state professional
associations, related to purchasing.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 87(q), eff. Aug. 28,
1989; Acts 1989, 71st Leg., ch. 561, Sec. 1, 2, eff. Aug. 28,
1989; Acts 1989, 71st Leg., ch. 1250, Sec. 5, 6, eff. Sept. 1,
1989; Acts 1991, 72nd Leg., ch. 16, Sec. 13.02(a), (d), eff. Aug.
26, 1991; Acts 1991, 72nd Leg., ch. 874, Sec. 4, eff. June 16,
1991; Acts 1993, 73rd Leg., ch. 367, Sec. 1, eff. Aug. 30, 1993;
Acts 1999, 76th Leg., ch. 505, Sec. 1, eff. Sept. 1, 1999; Acts
2001, 77th Leg., ch. 57, Sec. 1, eff. Sept. 1, 2001; Acts 2001,
77th Leg., ch. 321, Sec. 1, eff. Sept. 1, 2001.
Sec. 262.0115. PURCHASING AGENTS IN COUNTIES WITH POPULATION OF
MORE THAN 100,000. (a) In a county with a population of more
than 100,000, the commissioners court may employ a person to act
as county purchasing agent. However, this section does not apply
to a county that has appointed a purchasing agent under Section
262.011 and that has not abolished the position as authorized by
law.
(b) A purchasing agent employed under this section serves at the
pleasure of the commissioners court.
(c) The commissioners court may employ other persons necessary
to assist the purchasing agent in performing the agent's
functions.
(d) Under the supervision of the commissioners court, the
purchasing agent shall carry out the functions prescribed by law
for a purchasing agent under Section 262.011 and for the county
auditor in regard to county purchases and contracts and shall
administer the procedures prescribed by law for notice and public
bidding for county purchases and contracts.
(e) A county that has established the position of county
purchasing agent under this section may abolish the position at
any time. On the abolition of the position, the county auditor
shall assume the functions previously performed by the purchasing
agent.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 11(g), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 63, Sec. 1, eff. May
9, 1995; Acts 1999, 76th Leg., ch. 369, Sec. 1, eff. May 29,
1999.
Sec. 262.012. COUNTY AUDITORS AS PURCHASING AGENTS IN CERTAIN
COUNTIES. (a) The commissioners court of a county that employs
a county auditor jointly with one or more counties under Section
84.008 may require the auditor to act as the purchasing agent for
the county, in addition to performing the regular duties of the
auditor as required by law.
(b) In a county with a population of 41,680 to 42,100, the
county auditor shall act as the purchasing agent for the county
in addition to performing the regular duties of the auditor as
required by law.
(c) This section applies only to a county in which a county
purchasing agent has not been appointed under Section 262.011.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 561, Sec. 3, eff. Aug. 28,
1989; Acts 1989, 71st Leg., ch. 1250, Sec. 7, eff. Sept. 1, 1989;
Acts 1991, 72nd Leg., ch. 204, Sec. 1, eff. Sept. 1, 1991.
SUBCHAPTER C. COMPETITIVE BIDDING IN GENERAL
Sec. 262.021. SHORT TITLE. This subchapter may be cited as the
County Purchasing Act.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 262.022. DEFINITIONS. In this subchapter:
(1) "Bond funds" means money in the county treasury received
from the sale of bonds, and proceeds of bonds that have been
voted but that have not been issued and delivered.
(2) "Component purchases" means purchases of the component parts
of an item that in normal purchasing practices would be purchased
in one purchase.
(3) "Current funds" means funds in the county treasury that are
available in the current tax year, revenue that may be
anticipated with reasonable certainty to come into the county
treasury during the current tax year, and emergency funds.
(4) "High technology item" means a service, equipment, or good
of a highly technical nature, including:
(A) data processing equipment and software and firmware used in
conjunction with data processing equipment;
(B) telecommunications, radio, and microwave systems;
(C) electronic distributed control systems, including building
energy management systems; and
(D) technical services related to those items.
(5) "Item" means any service, equipment, good, or other tangible
or intangible personal property, including insurance and high
technology items.
(6) "Purchase" means any kind of acquisition, including a lease,
of an item.
(7) "Separate purchases" means purchases, made separately, of
items that in normal purchasing practices would be purchased in
one purchase.
(8) "Sequential purchases" means purchases, made over a period,
of items that in normal purchasing practices would be purchased
in one purchase.
(9) "Time warrant" means any warrant issued by a county that is
not payable out of current funds.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 59(b), eff. Aug. 28,
1989; Acts 1989, 71st. Leg., ch. 1250, Sec. 8(a), eff. Sept. 1,
1989.
Sec. 262.0225. ADDITIONAL COMPETITIVE PROCEDURES. (a) In the
procedure for competitive bidding under this subchapter, the
commissioners court of the county shall provide all bidders with
the opportunity to bid on the same items on equal terms and have
bids judged according to the same standards as set forth in the
specifications.
(b) A county shall receive bids or proposals under this
subchapter in a fair and confidential manner.
(c) A county may receive bids or proposals under this subchapter
in hard-copy format or through electronic transmission. A county
shall accept any bids or proposals submitted in hard-copy format.
Added by Acts 2001, 77th Leg., ch. 1063, Sec. 1, eff. Sept. 1,
2001.
Sec. 262.023. COMPETITIVE REQUIREMENTS FOR CERTAIN PURCHASES.
(a) Before a county may purchase one or more items under a
contract that will require an expenditure exceeding $50,000, the
commissioners court of the county must:
(1) comply with the competitive bidding or competitive proposal
procedures prescribed by this subchapter;
(2) use the reverse auction procedure, as defined by Section
2155.062(d), Government Code, for purchasing; or
(3) comply with a method described by Subchapter H, Chapter 271.
(b) The requirements established by Subsection (a) apply to
contracts for which payment will be made from current funds or
bond funds or through anticipation notes authorized by Chapter
1431, Government Code, or time warrants. Contracts for which
payments will be made through certificates of obligation are
governed by The Certificate of Obligation Act of 1971 (Subchapter
C, Chapter 271).
(b-1) A county that complies with a method described by
Subchapter H, Chapter 271, as provided by Subsection (a)(3), to
enter into a contract for which payment will be made through
anticipation notes authorized by Chapter 1431, Government Code,
may not issue anticipation notes for the payment of that contract
in an amount that exceeds the lesser of:
(1) 20 percent of the county's budget for the fiscal year in
which the county enters into the contract; or
(2) $10 million.
(c) In applying the requirements established by Subsection (a),
all separate, sequential, or component purchases of items ordered
or purchased, with the intent of avoiding the requirements of
this subchapter, from the same supplier by the same county
officer, department, or institution are treated as if they are
part of a single purchase and of a single contract. In applying
this provision to the purchase of office supplies, separate
purchases of supplies by an individual department are not
considered to be part of a single purchase and single contract by
the county if a specific intent to avoid the requirements of this
subchapter is not present.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 57(a), eff. Aug. 28,
1989; Acts 1989, 71st Leg., ch. 1250, Sec. 9, eff. Sept. 1, 1989;
Acts 1991, 72nd Leg., ch. 16, Sec. 13.02(b), eff. Aug. 26, 1991;
Acts 1993, 73rd Leg., ch. 757, Sec. 13, 38, eff. Sept. 1, 1993;
Acts 1997, 75th Leg., ch. 442, Sec. 1, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 505, Sec. 2, eff. Sept. 1, 1999; Acts 2001,
77th Leg., ch. 436, Sec. 4, eff. May 28, 2001; Acts 2001, 77th
Leg., ch. 1063, Sec. 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg.,
ch. 1409, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch.
1276, Sec. 12.004, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
689, Sec. 1, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
1266, Sec. 4, eff. June 19, 2009.
Sec. 262.0235. PROCEDURES ADOPTED BY COUNTY PURCHASING AGENTS
FOR ELECTRONIC BIDS OR PROPOSALS. The county purchasing agent,
before receiving electronic bids or proposals, shall adopt rules
in conformance with Section 262.011(o) to ensure the
identification, security, and confidentiality of electronic bids
or proposals.
Added by Acts 2001, 77th Leg., ch. 1063, Sec. 3, eff. Sept. 1,
2001.
Sec. 262.024. DISCRETIONARY EXEMPTIONS. (a) A contract for the
purchase of any of the following items is exempt from the
requirement established by Section 262.023 if the commissioners
court by order grants the exemption:
(1) an item that must be purchased in a case of public calamity
if it is necessary to make the purchase promptly to relieve the
necessity of the citizens or to preserve the property of the
county;
(2) an item necessary to preserve or protect the public health
or safety of the residents of the county;
(3) an item necessary because of unforeseen damage to public
property;
(4) a personal or professional service;
(5) any individual work performed and paid for by the day, as
the work progresses, provided that no individual is compensated
under this subsection for more than 20 working days in any three
month period;
(6) any land or right-of-way;
(7) an item that can be obtained from only one source,
including:
(A) items for which competition is precluded because of the
existence of patents, copyrights, secret processes, or
monopolies;
(B) films, manuscripts, or books;
(C) electric power, gas, water, and other utility services; and
(D) captive replacement parts or components for equipment;
(8) an item of food;
(9) personal property sold:
(A) at an auction by a state licensed auctioneer;
(B) at a going out of business sale held in compliance with
Subchapter F, Chapter 17, Business & Commerce Code; or
(C) by a political subdivision of this state, a state agency of
this state, or an entity of the federal government;
(10) any work performed under a contract for community and
economic development made by a county under Section 381.004; or
(11) vehicle and equipment repairs.
(b) The renewal or extension of a lease or of an equipment
maintenance agreement is exempt from the requirement established
by Section 262.023 if the commissioners court by order grants the
exemption and if:
(1) the lease or agreement has gone through the competitive
bidding procedure within the preceding year;
(2) the renewal or extension does not exceed one year; and
(3) the renewal or extension is the first renewal or extension
of the lease or agreement.
(c) If an item exempted under Subsection (a)(7) is purchased,
the commissioners court, after accepting a signed statement from
the county official who makes purchases for the county as to the
existence of only one source, must enter in its minutes a
statement to that effect.
(d) The exemption granted under Subsection (a)(8) of this
section shall apply only to the sealed competitive bidding
requirements on food purchases. Counties shall solicit at least
three bids for purchases of food items by telephone or written
quotation at intervals specified by the commissioners court.
Counties shall award food purchase contracts to the responsible
bidder who submits the lowest and best bid or shall reject all
bids and repeat the bidding process, as provided by this
subsection. The purchasing officer taking telephone or written
bids under this subsection shall maintain, on a form approved by
the commissioners court, a record of all bids solicited and the
vendors contacted. This record shall be kept in the purchasing
office for a period of at least one year or until audited by the
county auditor.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 59(c), eff. Aug. 28,
1989; Acts 1989, 71st Leg., ch. 962, Sec. 1, eff. Sept. 1, 1989;
Acts 1989, 71st Leg., ch. 1001, Sec. 2, eff. Aug. 28, 1989; Acts
1989, 71st Leg., ch. 1060, Sec. 1, eff. Aug. 28, 1989; Acts 1991,
72nd Leg., ch. 16, Sec. 13.03, eff. Aug. 26, 1991; Acts 1997,
75th Leg., ch. 442, Sec. 2, eff. Sept. 1, 1997; Acts 2001, 77th
Leg., ch. 1065, Sec. 1, eff. June 15, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1272, Sec. 3, eff. September 1, 2007.
Sec. 262.0241. MANDATORY EXEMPTIONS: CERTAIN RECREATIONAL
SERVICES. (a) This section applies only to a county that:
(1) has a population of 20,000 or less; and
(2) owns not more than one golf course open for public use.
(b) The competitive bidding and competitive proposal procedures
prescribed by this subchapter do not apply to the purchase of:
(1) management services for:
(A) a county-owned golf course; or
(B) a retail facility owned by the county and located on the
premises of the golf course; and
(2) landscape maintenance services for a county-owned golf
course.
Added by Acts 2001, 77th Leg., ch. 1065, Sec. 2, eff. June 15,
2001.
Sec. 262.0245. COMPETITIVE PROCUREMENT PROCEDURES ADOPTED BY
COUNTY PURCHASING AGENTS. A county purchasing agent shall adopt
procedures that provide for competitive procurement, to the
extent practicable under the circumstances, for the county
purchase of an item that is not subject to competitive
procurement.
Added by Acts 1991, 72nd Leg., ch. 16, Sec. 13.02(c), eff. Aug.
26, 1991. Renumbered from Sec. 262.0241 by Acts 2001, 77th Leg.,
ch. 1065, Sec. 2, eff; June 15, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1266, Sec. 5, eff. June 19, 2009.
Sec. 262.025. COMPETITIVE BIDDING NOTICE. (a) A notice of a
proposed purchase must be published at least once a week in a
newspaper of general circulation in the county, with the first
day of publication occurring before the 14th day before the date
of the bid opening. If there is no newspaper of general
circulation in the county, the notice must be posted in a
prominent place in the courthouse for 14 days before the date of
the bid opening.
(b) The notice must include:
(1) the specifications describing the item to be purchased or a
statement of where the specifications may be obtained;
(2) the time and place for receiving and opening bids and the
name and position of the county official or employee to whom the
bids are to be sent;
(3) whether the bidder should use lump-sum or unit pricing;
(4) the method of payment by the county; and
(5) the type of bond required by the bidder.
(c) If any part of the payment for a proposed purchase will be
made through time warrants, the notice also must include a
statement of the maximum amount of time warrant indebtedness, the
rate of interest on the time warrants, and the maximum maturity
date of the time warrants.
(d) In a county with a population of 3.3 million or more, the
county and any district or authority created under Article XVI,
Section 59, of the Texas Constitution of which the governing body
is the commissioners court may require that a minimum of 25
percent of the work be performed by the bidder and,
notwithstanding any other law to the contrary, may establish
financial criteria for the surety companies that provide payment
and performance bonds.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1019, Sec. 1, eff. Aug. 28,
1989; Acts 2001, 77th Leg., ch. 669, Sec. 78, eff. Sept. 1, 2001.
Sec. 262.0255. ADDITIONAL NOTICE AND BOND PROVISIONS RELATING TO
PURCHASE OF CERTAIN EQUIPMENT. (a) A notice of a proposed
purchase of earth-moving, material-handling, road maintenance, or
construction equipment under Section 262.025 may include a
request for information about the costs of the repair,
maintenance, or repurchase of the equipment.
(b) The commissioners court may require the bidder to furnish,
to the county in a contract for the purchase of the equipment, a
bond to cover the repurchase costs of the equipment.
Added by Acts 1991, 72nd Leg., ch. 416, Sec. 1, eff. Sept. 1,
1991.
Sec. 262.0256. PRE-BID CONFERENCE FOR CERTAIN COUNTIES OR A
DISTRICT GOVERNED BY THOSE COUNTIES.
Text of section as amended by Acts 2003, 78th Leg., ch. 660, Sec.
1
(a) This section applies only to a county with a population of
2.8 million or more.
(b) The commissioners court of the county or the governing body
of a district or authority created under Section 59, Article XVI,
Texas Constitution, if the governing body is the commissioners
court of the county in which the district is located, may require
a principal, officer, or employee of each prospective bidder to
attend a mandatory pre-bid conference conducted for the purpose
of discussing contract requirements and answering questions of
prospective bidders.
(c) After a conference is conducted under Subsection (b), any
additional required notice for the proposed purchase may be sent
by certified mail, return receipt requested, only to prospective
bidders who attended the conference. Notice under this subsection
is not subject to the requirements of Section 262.025.
Added by Acts 2001, 77th Leg., ch. 255, Sec. 1, eff. May 22,
2001. Amended by Acts 2003, 78th Leg., ch. 660, Sec. 1, eff.
Sept. 1, 2003.
Sec. 262.0256. PRE-BID CONFERENCE.
Text of section as amended by Acts 2003, 78th Leg., ch. 725, Sec.
1
The commissioners court of a county or the governing body of a
district or authority created under Section 59, Article XVI,
Texas Constitution, if the governing body is the commissioners
court of the county in which the district is located, may require
a principal, officer, or employee of each prospective bidder to
attend a mandatory pre-bid conference conducted for the purpose
of discussing contract requirements and answering questions of
prospective bidders.
Added by Acts 2001, 77th Leg., ch. 255, Sec. 1, eff. May 22,
2001. Amended by Acts 2003, 78th Leg., ch. 725, Sec. 1, eff.
Sept. 1, 2003.
Sec. 262.026. OPENING OF BIDS. (a) The county official who
makes purchases for the county shall open the bids on the date
specified in the notice. The date specified in the notice may be
extended if the commissioners court determines that the extension
is in the best interest of the county. All bids, including those
received before an extension is made, must be opened at the same
time. The commissioners court may adopt an order that delegates
the authority to make extensions under this subsection to the
county official who makes purchases for the county.
(b) Opened bids shall be kept on file and available for
inspection by anyone desiring to see them.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1999, 76th Leg., ch. 505, Sec. 3, eff. Sept. 1,
1999.
Sec. 262.027. AWARDING OF CONTRACT. (a) The officer in charge
of opening the bids shall present them to the commissioners court
in session. Except as provided by Subsection (e), the court
shall:
(1) award the contract to the responsible bidder who submits the
lowest and best bid; or
(2) reject all bids and publish a new notice.
(b) If two responsible bidders submit the lowest and best bid,
the commissioners court shall decide between the two by drawing
lots in a manner prescribed by the county judge.
(c) A contract may not be awarded to a bidder who is not the
lowest dollar bidder meeting specifications unless, before the
award, each lower bidder is given notice of the proposed award
and is given an opportunity to appear before the commissioners
court and present evidence concerning the lower bidder's
responsibility.
(d) In determining the lowest and best bid for a contract for
the purchase of earth-moving, material-handling, road
maintenance, or construction equipment, the commissioners court
may consider the information submitted under Section 262.0255.
(e) In determining the lowest and best bid for a contract for
the purchase of road construction material, the commissioners
court may consider the pickup and delivery locations of the
bidders and the cost to the county of delivering or hauling the
material to be purchased. The commissioners court may award
contracts for the purchase of road construction material to more
than one bidder if each of the selected bidders submits the
lowest and best bid for a particular location or type of
material.
(f) Notwithstanding any other requirement of this section, the
commissioners court may condition acceptance of a bid on
compliance with a requirement for attendance at a mandatory
pre-bid conference under Section 262.0256.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1991, 72nd Leg., ch. 416, Sec. 2, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 127, Sec. 1, eff. May 11, 1993;
Acts 2001, 77th Leg., ch. 255, Sec. 2, eff. May 22, 2001.
Sec. 262.0271. CONSIDERATION OF HEALTH INSURANCE PROVIDED BY
BIDDER. (a) In this section, "comparable health insurance
coverage" means health insurance benefits provided by a bidder or
a subcontractor a bidder intends to use that are comparable to
the health insurance benefits provided for employees of the
county.
(b) In purchasing items under this chapter through a competitive
bidding process, if a county receives one or more bids from a
bidder who provides comparable health insurance coverage to its
employees and requires a subcontractor the bidder intends to use
to provide comparable health insurance coverage to the
subcontractor's employees and whose bid is within five percent of
the lowest bid price received by the county from a bidder who
does not provide or require comparable health insurance coverage,
the commissioners court of the county may give preference to the
bidder who provides and requires comparable health insurance
coverage.
(c) This section does not prohibit a county from rejecting all
bids.
Added by Acts 2005, 79th Leg., Ch.
1299, Sec. 1, eff. September 1, 2005.
Sec. 262.0275. SAFETY RECORD OF BIDDER CONSIDERED. In
determining who is a responsible bidder, the commissioners court
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 a firm, corporation,
partnership, or institution if:
(1) the commissioners court has adopted a written definition and
criteria for accurately determining the safety record of a
bidder;
(2) the governing body has given notice to prospective bidders
in the bid specifications that the safety record of a bidder may
be considered in determining the responsibility of the bidder;
and
(3) the determinations are not arbitrary and capricious.
Added by Acts 1989, 71st Leg., ch. 1, Sec. 58(c), eff. Aug. 28,
1989.
Sec. 262.0276. CONTRACT WITH PERSON INDEBTED TO COUNTY. (a) By
an order adopted and entered in the minutes of the commissioners
court and after notice is published in a newspaper of general
circulation in the county, the commissioners court may adopt
rules permitting the county to refuse to enter into a contract or
other transaction with a person indebted to the county.
(b) It is not a violation of this subchapter for a county, under
rules adopted under Subsection (a), to refuse to award a contract
to or enter into a transaction with an apparent low bidder or
successful proposer that is indebted to the county.
(c) In this section, "person" includes an individual, sole
proprietorship, corporation, nonprofit corporation, partnership,
joint venture, limited liability company, and any other entity
that proposes or otherwise seeks to enter into a contract or
other transaction with the county requiring approval by the
commissioners court.
Added by Acts 2003, 78th Leg., ch. 156, Sec. 2, eff. Sept. 1,
2003.
Sec. 262.028. LUMP-SUM OR UNIT PRICE METHOD. A purchase may be
proposed on a lump-sum or unit price basis. If the county chooses
to use unit pricing in its notice, the information furnished
bidders must specify the approximate quantities estimated on the
best available information, but the compensation paid the bidder
must be based on the actual quantities purchased.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 262.029. TIME WARRANT ELECTION. If before the date
tentatively set for the authorization of the issuance of time
warrants applying to a contract covered by this subchapter or if
before that authorization a petition signed by at least five
percent of the registered voters of the county is filed with the
county clerk protesting the issuance of the time warrants, the
county may not issue the time warrants unless the issuance is
approved at an election ordered and conducted in the manner
provided for county bond elections under Chapter 1251, Government
Code.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 8.291, eff. Sept.
1, 2001.
Sec. 262.0295. ALTERNATIVE MULTISTEP COMPETITIVE PROPOSAL
PROCEDURE. (a)(1) If the county official who makes purchases for
the county determines that it is impractical to prepare detailed
specifications for an item to support the award of a purchase
contract, the official shall notify the commissioners court of
such determination.
(2) Upon a finding by the commissioners court that it is
impractical to prepare detailed specifications for an item to
support the award of a purchase contract, after a notification of
such determination by the county official who makes purchases for
the county, the county official who makes purchases for the
county may use the multistep competitive proposal procedure
provided by this section.
(3) This section applies only to a county with a population of
125,000 or more.
(b) Quotations must be solicited through a request for
proposals. Public notice for the request for proposals must be
made in the same manner as provided in the competitive bidding
procedure, except that the notice may include a general
description of the item to be purchased, instead of the
specifications describing the item or a statement of where the
specifications may be obtained, and may request the submission of
unpriced proposals.
(c) On the date specified in the notice, the county official
shall open the proposals and, within seven days after that date,
solicit by mailed request priced bids from the persons who
submitted proposals and who qualified under the criteria stated
in the first solicitation.
(d) Within 30 days after the date the unpriced proposals are
opened under Subsection (c), the county official shall present
the priced bids to the commissioners court. The award of the
contract shall be made to the responsible offeror whose bid is
determined to be the lowest evaluated offer resulting from
negotiation. All proposals and bids that have been submitted
shall be available and open for public inspection after the
contract is awarded.
(e) As provided in the request for proposals and under rules
adopted by the commissioners court, discussion may be conducted
with responsible offerors who submit priced bids determined to be
reasonably susceptible of being selected for award. Offerors must
be accorded fair and equal treatment with respect to any
opportunity for discussion and revision of proposals, and
revisions may be permitted after submission and before award for
the purpose of obtaining best and final offers.
Added by Acts 1989, 71st Leg., ch. 1250, Sec. 10, eff. Sept. 1,
1989.
Sec. 262.030. ALTERNATIVE COMPETITIVE PROPOSAL PROCEDURE FOR
CERTAIN GOODS AND SERVICES. (a) Except for Subsection (d) of
this section, the competitive proposal procedure provided by this
section may be used for the purchase of insurance, high
technology items, and the following special services:
(1) landscape maintenance;
(2) travel management; or
(3) recycling.
(b) Quotations must be solicited through a request for
proposals. Public notice for the request for proposals must be
made in the same manner as provided in the competitive bidding
procedure. The request for proposals must specify the relative
importance of price and other evaluation factors. The award of
the contract shall be made to the responsible offeror whose
proposal is determined to be the lowest evaluated offer resulting
from negotiation, taking into consideration the relative
importance of price and other evaluation factors set forth in the
request for proposals.
(c) If provided in the request for proposals, proposals shall be
opened so as to avoid disclosure of contents to competing
offerors and kept secret during the process of negotiation. All
proposals that have been submitted shall be available and open
for public inspection after the contract is awarded, except for
trade secrets and confidential information contained in the
proposals and identified as such.
(d) A county in which a purchasing agent has been appointed
under Section 262.011 or employed under Section 262.0115 may use
the competitive proposal purchasing method authorized by this
section for the purchase of insurance or high technology items.
In addition, the method may be used to purchase other items when
the county official who makes purchases for the county
determines, with the consent of the commissioners court, that it
is in the best interest of the county to make a request for
proposals.
(e) As provided in the request for proposals and under rules
adopted by the commissioners court, discussions may be conducted
with responsible offerors who submit proposals determined to be
reasonably susceptible of being selected for award. Offerors must
be accorded fair and equal treatment with respect to any
opportunity for discussion and revision of proposals, and
revisions may be permitted after submission and before award for
the purpose of obtaining best and final offers.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 59(d), eff. Aug. 28,
1989; Acts 1995, 74th Leg., ch. 464, Sec. 1, eff. Aug. 28, 1995;
Acts 1995, 74th Leg., ch. 746, Sec. 3, eff. Aug. 28, 1995; Acts
1999, 76th Leg., ch. 62, Sec. 19.01(85), eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
640, Sec. 1, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
1272, Sec. 4, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
1272, Sec. 5, eff. September 1, 2007.
Sec. 262.0305. MODIFICATION AFTER AWARD. (a) After award of a
contract but before the contract is made, the county official who
makes purchases for the county may negotiate a modification of
the contract if the modification is in the best interests of the
county and does not substantially change the scope of the
contract or cause the contract amount to exceed the next lowest
bid.
(b) For the modified contract to be effective, the commissioners
court must approve the contract.
Added by Acts 1989, 71st Leg., ch. 1250, Sec. 11, eff. Sept. 1,
1989.
Sec. 262.031. CHANGES IN PLANS AND SPECIFICATIONS. (a) If it
becomes necessary to make changes in plans, specifications, or
proposals after a contract is made or if it becomes necessary to
increase or decrease the quantity of items purchased, the
commissioners court may make the changes. However, the total
contract price may not be increased unless the cost of the change
can be paid from available funds.
(b) If a change order involves an increase or decrease in cost
of $50,000 or less, the commissioners court may grant general
authority to an employee to approve the change orders. However,
the original contract price may not be increased by more than 25
percent unless the change order is necessary to comply with a
federal or state statute, rule, regulation, or judicial decision
enacted, adopted, or rendered after the contract was made. The
original contract price may not be decreased by 18 percent or
more without the consent of the contractor.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1993, 73rd Leg., ch. 104, Sec. 1, eff. May 7,
1993; Acts 1993, 73rd Leg., ch. 891, Sec. 1, eff. June 19, 1993;
Acts 1995, 74th Leg., ch. 746, Sec. 4, eff. Aug. 28, 1995.
Sec. 262.032. BID OR PERFORMANCE BOND; PAYMENT UNDER CONTRACT.
(a) If the contract is for the construction of public works or
is under a contract exceeding $100,000, the bid specifications or
request for proposals may require the bidder to furnish a good
and sufficient bid bond in the amount of five percent of the
total contract price. A bid bond must be executed with a surety
company authorized to do business in this state.
(b) Within 30 days after the date of the signing of a contract
or issuance of a purchase order following the acceptance of a bid
or proposal and prior to commencement of the actual work, the
bidder or proposal offeror shall furnish a performance bond to
the county, if required by the county, for the full amount of the
contract if that contract exceeds $50,000. This subsection does
not apply to a performance bond required to be furnished by
Chapter 2253, Government Code.
(c) If the contract is for $50,000 or less, the county may
provide in the bid notice or request for proposals that no money
will be paid to the contractor until completion and acceptance of
the work or the fulfillment of the purchase obligation to the
county.
(d) A bidder or proposal offeror whose rates are subject to
regulation by a state agency may not be required to furnish a
performance bond or a bid bond under this section.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1, Sec. 59(e), eff. Aug. 28,
1989; Acts 1991, 72nd Leg., ch. 109, Sec. 3, eff. Aug. 26, 1991;
Acts 1991, 72nd Leg., ch. 696, Sec. 1, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 33, Sec. 1, eff. Aug. 30, 1993; Acts 1995,
74th Leg., ch. 76, Sec. 5.95(17), eff. Sept. 1, 1995.
Sec. 262.033. INJUNCTION. Any property tax paying citizen of
the county may enjoin performance under a contract made by a
county in violation of this subchapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 262.034. CRIMINAL PENALTIES. (a) A county officer or
employee commits an offense if the officer or employee
intentionally or knowingly makes or authorizes separate,
sequential, or component purchases to avoid the competitive
bidding requirements of Section 262.023. An offense under this
subsection is a Class B misdemeanor.
(b) A county officer or employee commits an offense if the
officer or employee intentionally or knowingly violates Section
262.023, other than by conduct described by Subsection (a). An
offense under this subsection is a Class B misdemeanor.
(c) A county officer or employee commits an offense if the
officer or employee intentionally or knowingly violates this
subchapter, other than by conduct described by Subsection (a) or
(b). An offense under this subsection is a Class C misdemeanor.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Amended by Acts 1989, 71st Leg., ch. 1250, Sec. 12, eff. Sept. 1,
1989.
Sec. 262.035. REMOVAL; INELIGIBILITY. (a) The final conviction
of a county officer or employee for an offense under Section
262.034(a) or (b) results in the immediate removal from office or
employment of that person.
(b) For four years after the date of the final conviction, the
removed officer or employee is ineligible:
(1) to be a candidate for or to be appointed or elected to a
public office in this state;
(2) to be employed by the county with which the person served
when the offense occurred; and
(3) to receive any compensation through a contract with that
county.
(c) This section does not prohibit the payment of retirement or
workers' compensation benefits to the removed officer or
employee.
Added by Acts 1989, 71st Leg., ch. 1250, Sec. 13, eff. Sept. 1,
1989.
Sec. 262.036. SELECTION AND RETENTION OF INSURANCE BROKER. (a)
Notwithstanding any other provision in this chapter, a county
with a population of 800,000 or more may select an appropriately
licensed insurance agent as the sole broker of record to obtain
proposals and coverages for insurance that provides necessary
coverage and adequate limits of coverage in all areas of risk,
including public official liability, property, casualty, workers'
compensation, and specific and aggregate stop-loss coverage for
self-funded health care.
(b) The county may retain a broker of record selected under this
section only on a fee basis paid by the county. A broker of
record retained in this manner may not directly or indirectly
receive any other remuneration, compensation, or other form of
payment from any other source for the placement of insurance
business under the broker of record contract.
(c) A broker of record retained under this section may not
submit any insurance carrier proposal to the county or direct any
county insurance business to an insurance carrier if the broker
has a business relationship or proposed business relationship
with the carrier, including an appointment, unless the broker
first discloses the nature of that relationship or proposed
relationship, in writing, to the county.
(d) A broker who violates this section is subject to any
disciplinary remedy available under Chapter 82, Insurance Code,
or Section 4005.102, Insurance Code, including license revocation
and fine.
Added by Acts 2005, 79th Leg., Ch.
353, Sec. 1, eff. June 17, 2005.