TRANSPORTATION CODE
CHAPTER 223. BIDS AND CONTRACTS FOR HIGHWAY PROJECTS
SUBCHAPTER A. COMPETITIVE BIDS
§ 223.001. CONTRACT REQUIRING COMPETITIVE BIDS. The
department shall submit for competitive bids each contract for:
(1) the improvement of a highway that is part of the
state highway system; or
(2) materials to be used in the construction or
maintenance of that highway.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.002. NOTICE BY PUBLICATION. (a) The department
shall publish notice of the time and place at which bids on a
contract will be opened and the contract awarded.
(b) The notice must be published in a newspaper published in
the county in which the improvement is to be made once a week for at
least two weeks before the time set for awarding the contract and in
two other newspapers that the department may designate.
(c) Instead of the notice required by Subsection (b), if the
department estimates that the contract involves an amount less than
$300,000, notice may be published in two successive issues of a
newspaper published in the county in which the improvement is to be
made.
(d) If a newspaper is not published in the county in which
the improvement is to be made, notice shall be published in a
newspaper published in the county:
(1) nearest the county seat of the county in which the
improvement is to be made; and
(2) in which a newspaper is published.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.13(a), eff. sept. 1, 1997.
§ 223.003. NOTICE BY MAIL. (a) A person may apply to
have the name of the person placed on a mailing list to receive
notice of any proposed contracts.
(b) The department shall mail the notice to each person on
that mailing list.
(c) The department may require each applicant to pay an
annual subscription fee set by the department in an amount not to
exceed the average annual costs of mailing notices to the
applicant.
(d) The department shall deposit money received under this
section to the credit of the state highway fund.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.13(b), eff. Sept. 1, 1997.
§ 223.004. FILING, OPENING, AND REJECTION OF
BIDS. (a) Except as provided by Section 223.005, a bid submitted
under this subchapter must be sealed and filed with the director or
the director's designee in Austin and shall be opened at a public
meeting by the director or the director's designee.
(b) All bidders may attend the opening and all bids shall be
opened in their presence.
(c) The commission by rule may prescribe conditions under
which a bid may be rejected by the department.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.13(c), eff. Sept. 1, 1997.
§ 223.0041. AWARD OF CONTRACTS. (a) Except as
provided by Section 223.005, all bids received and not rejected by
the department shall be tabulated and forwarded to the commission.
(b) The commission may accept or reject the bids. Except as
provided in Subsection (c), if the bids are accepted, the
commission shall award the contract to the lowest bidder, subject
to Section 223.045.
(c) For a maintenance contract involving an amount less than
$100,000, if the lowest bidder withdraws its bid prior to contract
award or fails to execute the contract, the director may recommend
to the commission that the contract be awarded to the second lowest
bidder. The commission may award the maintenance contract to the
second lowest bidder if the second lowest bidder agrees to accept
the unit bid prices of the lowest bidder. The commission shall
adopt rules governing the conditions under which the department
will allow the withdrawal of the bid of the lowest bidder and
consider awarding a maintenance contract to the second lowest
bidder.
Added by Acts 1999, 76th Leg., ch. 82, § 1, eff. Aug. 30, 1999.
§ 223.0042. CONTRACT INFORMATION ON INTERNET
WEBSITE. The department shall make available on the department's
Internet website a listing describing each contract awarded by the
commission for a highway construction project. The listing must
include for each project:
(1) the funding program source contract awardee,
including subcontractors and historically underutilized business
and disadvantaged business enterprise participants and percentage
of contract; and
(2) each department transportation district in which
the contract will be performed.
Added by Acts 2001, 77th Leg., ch. 271, § 1, eff. Sept. 1, 2001.
§ 223.005. BIDS ON CONTRACTS INVOLVING LESS THAN
$300,000. (a) The commission by rule may allow bids on a contract
estimated by the department to involve an amount less than $300,000
to be filed with the district engineer at the headquarters for the
district in which the improvement is to be made and opened and read
at a public meeting held by the district engineer or the district
engineer's designee.
(b) The commission may delegate to the director or the
director's designee the right to:
(1) accept or reject bids received, subject to Section
223.045; and
(2) award a contract to the lowest bidder.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.13(d), eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 82, § 2, eff. Aug. 30, 1999.
§ 223.006. CONTRACTOR'S BOND. A successful bidder
under this subchapter shall post a bond in an amount provided by law
conditioned on the faithful compliance with the bidder's bid and
performance of the contract and made payable to the department for
the use and benefit of the state highway fund.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.007. CONTRACTS. (a) The commission shall
prescribe the form of the contract and may include any matter the
commission considers advantageous to the state.
(b) Contract forms shall be uniform as near as possible.
(c) A contract must be:
(1) made in the name of the state;
(2) signed by the director or the director's designee;
(3) approved by at least two members of the commission
or a designee under Section 2103.064(a), Government Code; and
(4) signed by the successful bidder.
(d) The commission may delegate its authority under
Subsections (a) and (b) to the director, who may delegate the
delegated authority to an employee of the department who holds the
rank of division director or higher.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.13(e), eff. Sept. 1, 1997.
§ 223.008. NO LIABILITY IN EXCESS OF AVAILABLE FUNDS. A
contract may not be made under this subchapter that will create a
liability on the state in excess of funds available for that purpose
under Subchapter A, Chapter 222.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.009. PARTIAL PAYMENT. A contract may provide for
partial payments to the contractor. The aggregate amount of
payments at any time may not exceed 95 percent of the value of the
work done.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.010. DEPOSIT AND INVESTMENT OF RETAINED
AMOUNT. (a) Five percent of the contract price shall be retained
until the entire improvement has been completed and accepted,
except as provided by Subsections (h) and (i).
(b) At the request of the contractor and with the approval
of the department and the comptroller, the amount retained may be
deposited under a trust agreement with a state or national bank that
has its main office or a branch office in this state and is selected
by the contractor.
(c) The department shall provide a trust agreement that
protects the interests of the state.
(d) The bank, acting as escrow agent and by instructions
from the contractor, may reinvest the retained amount in a
certificate of deposit issued by a state or national bank that has
its main office or a branch office in this state, bank time deposit,
or other similar investment prescribed by the trust agreement.
(e) Interest earned under the trust agreement shall be paid
to the contractor unless specified otherwise under the trust
agreement.
(f) The escrow agent is responsible for all investments and
amounts resulting from the deposits of the retained amount until
released from that responsibility under the trust agreement.
(g) The contractor shall pay all expenses incident to the
deposit and all charges made by the escrow agent for custody of the
securities and forwarding of interest on those securities. Those
expenses or charges may not apply to the contract or to the state.
(h) Four percent of the contract price shall be retained
until the entire improvement has been completed and accepted on any
contract that includes the use of recycled materials.
(i) This subsection applies only to a contract that provides
for a separate vegetative establishment, maintenance, or
performance period following construction of an improvement.
Before the entire improvement is accepted, the department may
release a portion of the amount retained under Subsection (a) at the
time construction of the improvement is completed but no more than
the amount sufficient to ensure compliance with the contract.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1423, § 18.01, eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 344, § 5.014, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 902, § 1, eff. June 18, 1999; Acts 1999,
76th Leg., ch. 1261, § 1, eff. Sept. 1, 1999; Acts 2001, 77th
Leg., ch. 1420, § 21.001(102), 21.002(19), eff. Sept. 1, 2001.
§ 223.011. PARTIAL PAYMENT EXCEPTION: MAINTENANCE AND
PRECONSTRUCTION CONTRACTS. The limitation on partial payments
provided by Section 223.009 and the retainage requirement under
Section 223.010(a) do not apply to a contract for:
(1) maintenance; or
(2) the making of all necessary plans and surveys
preliminary to construction, reconstruction, or maintenance.
Added by Acts 1997, 75th Leg., ch. 165, § 30.14(a), eff. Sept. 1,
1997.
§ 223.012. CONTRACTOR PERFORMANCE. (a) The department
shall:
(1) develop a schedule for liquidated damages that
accurately reflects the costs associated with project completion
delays, including administrative and travel delays;
(2) review contractor bidding capacity to ensure that
contractors meet each quality, safety, and timeliness standard
established by the commission; and
(3) conduct a review to determine whether commission
rules or state law should be changed to realize significant cost and
time savings on state highway construction and maintenance
projects.
(b) Not later than December 1, 1998, the department shall
file a report with the governor, the lieutenant governor, and the
speaker of the house of representatives containing:
(1) the results of the review conducted under
Subsection (a)(3); and
(2) recommendations on legislation the commission
determines is necessary to realize significant cost and time
savings on state highway construction and maintenance.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.22, eff. Sept. 1,
1997.
§ 223.013. ELECTRONIC BIDDING SYSTEM. (a) The
department may establish an electronic bidding system for highway
construction and maintenance contracts.
(b) The system must permit a qualified vendor to
electronically submit a bid, including any contract, signature, or
verification of a guaranty check by a financial institution.
(c) That part of Section 223.004(a) requiring a bid to be
opened at a public hearing of the commission does not apply to an
electronically submitted bid. A copy of each electronically
submitted bid shall be publicly posted within 48 hours after bids
are opened.
(d) After the electronic bidding system is established, the
department shall take the actions necessary to recover the
department's costs of manually processing bids from a person who
does not submit an electronic bid.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.22, eff. Sept. 1,
1997.
§ 223.014. BID GUARANTY. (a) The commission by rule
shall provide a method by which a bidder may submit a bid guaranty.
A rule may authorize the use of an electronic funds transfer, a
check, including an electronic check, a money order, an escrow
account, a trust account, a credit card issued by a financial
institution chartered by a state or the United States or by a
nationally recognized credit organization approved by the
department, or another method the commission determines to be
suitable. The department may require the payment of a discount or
service charge for the use of a credit card.
(b) The department may establish one or more escrow accounts
in the state highway fund for the prepayment of bid guaranties. The
bid guaranties and any fees the department establishes to
administer this subsection shall be administered in accordance with
an agreement approved by the department. Notwithstanding any other
law and as specified in the agreement, any available accumulated
interest and other income earned on money in an escrow account shall
be paid to the bidder or credited to the escrow account.
(c) The department shall deposit each administrative fee
and discount and service charge collected under this section to the
credit of the state highway fund.
(d) The commission's rules may not prohibit a bidder from
submitting a bid guaranty by use of a cashier's check, money order,
or teller's check.
Added by Acts 2001, 77th Leg., ch. 55, § 1, eff. May 8, 2001.
§ 223.015. DEPOSIT AND INVESTMENT OF BID
GUARANTY. (a) The department may authorize the use of a trust
account for the purpose of providing a required bid guaranty.
(b) The guaranty shall be deposited in accordance with a
trust agreement with a state or nationally chartered financial
institution that has its main office or a branch office in this
state and that is selected by the bidder.
(c) The department shall prescribe a trust agreement that
protects the interests of this state.
(d) Interest earned under the trust agreement shall be paid
to the bidder unless specified otherwise in the trust agreement.
(e) The applicable financial institution is responsible for
all amounts resulting from the deposit of the guaranty until
released from that responsibility in accordance with the trust
agreement.
(f) The bidder shall pay all expenses incident to the
deposit and all charges imposed by the financial institution for
custody of the guaranties and forwarding of interest on a bid
guaranty. The expenses may not be included in the bid and are not
otherwise the responsibility of the state.
(g) On the request of a bidder, the financial institution
may reinvest the guaranty amounts in a certificate of deposit or
another similar instrument prescribed by the trust agreement. The
certificate of deposit or other instrument must be issued by a state
or nationally chartered financial institution that has its main
office or a branch office in this state.
(h) On request, the financial institution shall certify and
verify to the department the amount on deposit. The trust agreement
must specify the method for providing the required information.
Added by Acts 2001, 77th Leg., ch. 55, § 1, eff. May 8, 2001.
§ 223.016. FORM OF PROPOSAL GUARANTY. If the department
by rule requires a proposal guaranty as a condition of bidding for a
contract, the guaranty may be in the form of:
(1) a cashier's check or money order drawn on a
financial entity specified by the department; or
(2) a bid bond issued by a surety authorized to do
business in this state; or
(3) any other method determined to be suitable by the
department.
Added by Acts 2001, 77th Leg., ch. 833, § 1, eff. Jan. 1, 2002.
Renumbered from V.T.C.A., Transportation Code § 223.014 by Acts
2003, 78th Leg., ch. 1275, § 2(126), eff. Sept. 1, 2003.
SUBCHAPTER B. CONTRACT PROVISIONS
§ 223.041. ENGINEERING AND DESIGN CONTRACTS. (a) The
department shall use private sector engineering-related services
to assist in accomplishing its activities in providing
transportation projects. For the purpose of this section,
engineering-related services means engineering, land surveying,
environmental, transportation feasibility and financial,
architectural, real estate appraisal, and materials laboratory
services. These engineering-related services are for highway
improvements, right-of-way acquisition, and aviation improvements.
(b) The department, in setting a minimum level of
expenditures in these engineering-related activities that will be
paid to the private sector providers, shall index the level of
expenditures from the amount set by rider in the General
Appropriations Act enacted by the 75th Legislature at its regular
session in 1997, expressed as a percentage of the total funds
appropriated in Strategy A.1.1. Plan/Design/Manage.
(c) Beginning in fiscal year 2000, the department shall
increase its expenditures to private sector providers for
engineering-related services at least one percentage point per year
until the expenditure level for a fiscal year in all strategies paid
to private sector providers for all department engineering-related
services for transportation projects reaches a minimum of 35
percent of funds appropriated in Strategy A.1.1.
Plan/Design/Manage of the General Appropriations Act for that
biennium. The department shall attempt to make expenditures for
engineering-related services with private sector providers under
this subsection with historically underutilized businesses, as
defined by Section 2161.001, Government Code, in an amount
consistent with the applicable provisions of the Government Code,
any applicable state disparity study, and in accordance with the
good-faith-effort procedures outlined in the rules adopted by the
General Services Commission.
(d) The commission shall provide for hearings at which
private sector complaints relating to the selection process are
heard.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1122, § 16, eff. Sept. 1, 1997; Acts
1997, 75th Leg., ch. 1171, § 1.23, eff. Sept. 1, 1997.
§ 223.042. PRIVATIZATION OF MAINTENANCE CONTRACTS.
Text of section as amended by Acts 2003, 78th Leg., ch. 28, § 1
(a) Of the amount spent in a fiscal year by the department
for maintenance projects, the department shall spend not less than
50 percent through contracts awarded by competitive bids.
(b) Money spent for maintenance projects to which this
section does not apply are included when computing the amount of
expenditures for maintenance projects in a fiscal year.
(c) The department shall consider all of its direct and
indirect costs in determining the cost of providing the services.
The department shall use the cost accounting procedures and
instructions developed by the State Council on Competitive
Government under Section 2162.102(c)(2), Government Code, in
determining its cost. On request, the State Council on Competitive
Government shall provide technical assistance to the department
about the cost accounting procedures and instructions.
(d) Subsection (a) does not apply unless the department
determines that a function of comparable quality and quantity can
be purchased or performed at a savings by using private sector
contracts.
(e) The department shall file a report with the Legislative
Budget Board on September 1 of each fiscal year detailing the
contracts awarded by the department under this section during the
previous fiscal year.
(f) The commission shall adopt rules to administer this
section.
(g) In this section, "maintenance project" means any
routine or preventive maintenance activity. The term includes
mowing, concrete removal and replacement, illumination
maintenance, guardrail repair, fence repair, litter pick-up,
herbicide spraying, pothole repair, silt and erosion control or
repair, sign installation, highway overlaying, paint and bead
striping, rest area maintenance, and installation of raised
pavement markings.
(h) This section does not apply to the purchase of materials
for maintenance projects.
(i) As an alternative to the requirements of Section
2253.021, Government Code, the department may require that a bond
securing a contractor's performance under a contract awarded under
this section for a routine maintenance activity:
(1) be in an amount equal to the greatest annual amount
to be paid the contractor under the contract and remain in effect
for one year from the day work is resumed after any default by the
contractor; or
(2) be in an amount equal to the amount to be paid the
contractor during the term of the bond and be for a term of two
years, renewable annually in two-year increments.
(j) A bond posted under Subsection (i) must:
(1) be solely for the protection of the department;
and
(2) be conditioned on the faithful performance of the
maintenance work in accordance with the contract requirements.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 17.19, eff. Sept. 1, 1997;
Acts 2003, 78th Leg., ch. 28, § 1, eff. May 12, 2003.
For text of section as amended by Acts 2003, 78th Leg., ch. 274,
§ 1, see § 223.042, post.
§ 223.042. PRIVATIZATION OF MAINTENANCE CONTRACTS.
Text of section as amended by Acts 2003, 78th Leg., ch. 274, § 1
(a) Of the amount spent in a fiscal year by the department
for maintenance projects, the department shall spend not less than
50 percent through contracts awarded by competitive bids.
(b) Money spent for maintenance projects to which this
section does not apply are included when computing the amount of
expenditures for maintenance projects in a fiscal year.
(c) The department may award a contract under this section
as a purchase of service under Subtitle D, Title 10, Government
Code, if the department:
(1) estimates that the contract will involve an amount
less than $15,000; and
(2) determines that the competitive bidding procedure
in this chapter is not practical.
(d) The department shall consider all of its direct and
indirect costs in determining the cost of providing the services.
The department shall use the cost accounting procedures and
instructions developed by the State Council on Competitive
Government under Section 2162.102(c)(2), Government Code, in
determining its cost. On request, the State Council on Competitive
Government shall provide technical assistance to the department
about the cost accounting procedures and instructions.
(e) Subsection (a) does not apply unless the department
determines that a function of comparable quality and quantity can
be purchased or performed at a savings by using private sector
contracts.
(f) The department shall file a report with the Legislative
Budget Board on September 1 of each fiscal year detailing the
contracts awarded by the department under this section during the
previous fiscal year.
(g) The commission shall adopt rules to administer this
section.
(h) In this section, "maintenance project" means any
routine or preventive maintenance activity. The term includes
mowing, concrete removal and replacement, illumination
maintenance, guardrail repair, fence repair, litter pick-up,
herbicide spraying, pothole repair, silt and erosion control or
repair, sign installation, highway overlaying, paint and bead
striping, rest area maintenance, and installation of raised
pavement markings.
(i) This section does not apply to the purchase of
materials for maintenance projects.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 17.19, eff. Sept. 1, 1997;
Acts 2003, 78th Leg., ch. 274, § 1, eff. June 18, 2003.
For text of section as amended by Acts 2003, 78th Leg., ch. 28, §
1, see § 223.042, ante
§ 223.043. CITIZEN'S PREFERENCE IN EMPLOYMENT. In a
contract for the construction, maintenance, or improvement of a
designated state highway, the department may require that a citizen
of the United States and of the county in which construction,
maintenance, or improvement of the highway is being proposed shall
be given preference in employment to perform manual labor.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.044. INMATE LABOR OR LABOR OF PERSONS PLACED ON
COMMUNITY SUPERVISION FOR IMPROVEMENT PROJECTS. (a) The
commission may authorize the department to contract with a criminal
justice agency or a private correctional facility for the provision
of inmate labor or the labor of persons placed on community
supervision for a state highway system improvement project.
(b) A contract with a criminal justice agency must be made
in conformity with Chapter 771, Government Code.
(c) In this section, "criminal justice agency" includes:
(1) the Texas Department of Criminal Justice;
(2) a community supervision and corrections
department established under Chapter 76, Government Code; and
(3) a sheriff's department operating:
(A) a county farm or workhouse established under
Article 43.10, Code of Criminal Procedure; or
(B) a county correctional center established
under Section 351.181, Local Government Code.
(d) A contract with a private correctional facility under
this section may not provide for the transfer of public funds to the
private correctional facility for the use of inmate labor.
(e) The commission may authorize the department to contract
with the Texas Department of Criminal Justice for the provision of
inmate labor or the labor of persons placed on community
supervision for a brush control project, as defined by Section
203.001, Agriculture Code, on an area located on or adjacent to a
state highway system improvement project.
(f) The State Soil and Water Conservation Board may also
enter into a contract with the Texas Department of Criminal Justice
for the provision of inmate labor or the labor of persons placed on
community supervision to perform a brush control project described
by Subsection (e) or under Chapter 203, Agriculture Code.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 795, § 1, eff. June 17, 1997; Acts
1999, 76th Leg., ch. 484, § 1 to 4, eff. Aug. 30, 1999.
§ 223.045. STEEL PREFERENCE PROVISIONS IN IMPROVEMENT
CONTRACTS. A contract awarded by the department for the
improvement of the state highway system without federal aid must
contain the same preference provisions for steel and steel products
that are required under federal law for an improvement made with
federal aid.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.046. USE OF FLY ASH AND BOTTOM ASH FOR ROAD
CONSTRUCTION. Design standards, guidelines, and specifications of
the department, a county, or a municipality shall require that
contract specifications for a road construction project allow for
the use of fly ash and bottom ash resulting from combustion of coal
or other fossil fuels and used for paving, bridge construction, and
other appropriate road construction unless that use is technically
inappropriate according to sound engineering principles or
increases the cost of that construction.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.047. PREFERENCE FOR RUBBERIZED ASPHALT PAVING MADE
FROM SCRAP TIRES. (a) If the department, a county, or a
municipality uses rubberized asphalt paving, the department,
county, or municipality shall use scrap tires converted to
rubberized asphalt paving by a facility in this state if available.
(b) In comparing bids submitted for road construction that
require paving, the department, a county, or a municipality may
give a preference to a bid that provides for using, as a part of the
paving material, rubberized asphalt paving described by Subsection
(a) if the cost of that paving material does not exceed by more than
15 percent the bid cost of alternative paving materials for the same
job. The cost of the materials must be determined by a life-cycle
cost benefit analysis.
(c) In this section:
(1) "Rubberized asphalt" means an asphalt material
containing at least 15 percent by weight of a reacted whole scrap
tire.
(2) "Scrap tire" means a tire that can no longer be
used for its original intended purpose.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.048. TIME OF PAYMENT. The department may not pay
a contractor for highway improvement, construction, or maintenance
before the 10th day of the month after the month in which the work is
performed or the material is used. The department shall make
payment as soon after that date as is practical.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
SUBCHAPTER C. EXPEDITED HIGHWAY IMPROVEMENT CONTRACTS
§ 223.101. DEFINITIONS. In this subchapter:
(1) "Highway emergency" means a situation or condition
of a designated state highway that:
(A) poses an imminent threat to life or property
of travelers; or
(B) substantially disrupts the orderly flow of
traffic and commerce.
(2) "Highway improvement contract" means a contract
awarded by the department for the construction, repair, or
maintenance of a designated state highway or any part of that
highway.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.102. AWARD OF EMERGENCY HIGHWAY IMPROVEMENT
CONTRACT. As an alternative to the procedure provided by
Subchapter A, in a highway emergency the department may award a
highway improvement contract in accordance with rules adopted by
the commission, which may include:
(1) contractor eligibility;
(2) notification of prospective bidders;
(3) bidding requirements;
(4) procedures for awarding the contract;
(5) bonding or other requirements to ensure
satisfactory performance by the contractor and the protection of
claimants supplying labor and materials used in performance;
(6) contract form and content; and
(7) provision for a waiver of or exception to a
procedure or requirement adopted under this section.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.103. CERTIFICATION OF EMERGENCY. (a) Before
awarding a contract under this subchapter, the director or a person
the director designates must certify in writing a description of
the highway emergency.
(b) A person designated under Subsection (a) may not occupy
a position below the level of deputy director.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.104. CONTRACT REQUIREMENTS. (a) A contract
awarded under this subchapter must:
(1) be in the name of the state;
(2) be signed by the director or a person the director
designates; and
(3) have attached a copy of the certification required
by Section 223.103.
(b) A person designated under Subsection (a) may not occupy
a position below the level of district engineer.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 223.105. NOTIFICATION OF COMMISSION. Not later than
the fifth working day after the date on which the contract is
awarded, the director shall notify in writing each member of the
commission of the details of the highway emergency and the award of
the contract.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
SUBCHAPTER D. CONTRACTS FOR ENVIRONMENTAL OR CULTURAL ASSESSMENT
§ 223.151. APPLICABILITY. This subchapter:
(1) applies to services of a technical expert,
including an archeologist, biologist, geologist, or historian, to
conduct an environmental or cultural assessment required by state
or federal law for a transportation project under the authority or
jurisdiction of the department; and
(2) does not apply to services defined as engineering
by the Texas Board of Professional Engineers under Chapter 1001,
Occupations Code.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997. Amended by Acts 2003, 78th Leg., ch. 1276, § 14A.820, eff.
Sept. 1, 2003.
§ 223.152. DETERMINATION BY DEPARTMENT. The department
may use competitive sealed proposals to obtain services under this
subchapter if the department determines that competitive sealed
bidding or informal competitive bidding is:
(1) not practical; or
(2) disadvantageous to the state.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
§ 223.153. SOLICITATION OF PROPOSALS. The department
shall solicit proposals under this subchapter using the procedure
by which the department procures services under Subchapter A,
Chapter 2254, Government Code.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
§ 223.154. OPENING OF PROPOSALS; DISCLOSURE OF
INFORMATION. (a) The department:
(1) shall open each proposal received under this
subchapter so as to avoid disclosure of contents to competing
offerors during the process of negotiation; and
(2) may not disclose any information to an offeror
that is derived from a proposal received from another offeror.
(b) After the award of a contract under this subchapter,
each proposal submitted to the department is open for public
inspection, except as provided by Chapter 552, Government Code.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
§ 223.155. DISCUSSIONS WITH OFFERORS. (a) As provided
in a request for proposals and under rules adopted by the
commission, the department may discuss an acceptable or potentially
acceptable proposal with the offeror to assess that offeror's
ability to meet each requirement of the solicitation.
(b) To obtain the best final offer, before the department
awards a contract under this subchapter, the department may permit
an offeror to revise the offeror's proposal.
(c) The department shall provide each offeror an equal
opportunity to discuss and revise the offeror's proposal.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
§ 223.156. AWARD OF CONTRACT. (a) Except as provided
by Subsection (c), the department shall make a written award of a
contract under this subchapter to the offeror whose proposal is the
most advantageous to the state, considering price and the
evaluation factors in the request for proposals.
(b) The contract file must state in writing the basis on
which the award is made.
(c) If the department finds that none of the proposals is
acceptable, the department shall reject all proposals.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
§ 223.157. RULES. The department may adopt rules to
implement this subchapter.
Added by Acts 1997, 75th Leg., ch. 165, § 30.15(a), eff. Sept. 1,
1997.
