Guide to County Purchasing: Construction Procurement

Section 262.011 (e) of the Texas Local Government Code states that "The county purchasing agent shall supervise all purchases made on competitive bid..."

Section 271.024 of the Texas Local Government Code states that to award a contract for the construction, repair, or renovation of a structure, road, highway, or other improvement or addition to real property on the basis of competitive bids, and if the contract requires the expenditure of more than the statutory limit, bidding on the contract must be accomplished in the manner provided by this subchapter.

Bidding Notice

The Purchasing office will publish the advertisement for bid, which must include the following:

1. Description of Work
2. Location at which the bidding documents, plans, specifications, or other data may be examined without charge by all potential bidders. Also the location at which plans and specifications may be obtained and the amount of the deposit required.
3. Time and place for submitting bids and time and place of bid opening.
4. The method of payment, and if payment is by certificate of obligation, the advertisement must state either:

a. that the bidder must accept certificates, or
b. that the bidder must elect to accept certificates or assign them to a financial institution with which county has made arrangements.

If the contract is to be let on a unit price basis, the notice must also include the approximate quantities of the goods and services needed that are to be bid on and the quantities must be based on the best available information.

The bidding notice must be published for at least once a week for two consecutive weeks in a newspaper of general circulation in the county with the date of the first publication 15 days before the date set for the public opening of the bids

In determining who the responsible bidder is, county may take into account the safety record of bidders if the invitation for bids states that the safety record may be considered in determining the responsibility of the bidder and includes the Safety Record Questionnaire approved by commissioners court.

Bonding Requirements

No bonds will be required for construction contracts that are less than $25,000.

Bid Bonds

Bid bonds may not be required for construction contracts that are less than $100,000. Bid Bonds may not be required from any bidder whose rates are subject to regulation by a state agency.

If the purchasing agent decides that a bid bond is required for a particular contract, the invitation for bids or request for proposals will state a bid bond in the amount of 5% of the contract price is required and that it must be executed by a surety company authorized to do business in Texas.

Performance Bonds

For all contracts in excess of $100,000 for the construction, repair or alteration of a public work or the prosecution or completion of any public work, the contractor, before commencing work, must execute a performance bond that:

1. is payable to the county,

2. is in the full amount of the contract,

3. is conditioned on faithful performance of the work in accordance with the plans, specifications, and contract documents,

4. is solely for the protection of the county,

5. executed by a corporate surety or sureties in accordance with the Insurance Code, and

6. is in a form approved by the commissioners court.

Any performance bond that is furnished by a contractor in attempted compliance with the requirements of TEX. GOV'T CODE ANN., ch. 2253 will be construed as in conformity with that chapter in relation to rights created, limitations on the bond and remedies provided.

Payment Bonds

For all contracts in excess of $25,000 for the construction, repair or alteration of a public work or the prosecution or completion of any public work, the contractor, before commencing work, must execute a payment bond that:

1. is solely for the protection of all claimants supplying labor and material in the performance of work provided in the contract,

2. is payable to the county for the use of these claimants,

3. is in the full amount of the contract,

4. executed by a corporate surety or sureties in accordance with the Insurance Code, and

5. is in a form approved by the commissioners court.

Payment bonds should be effective from commencement of performance until the end of the fourth month after all items of work, for the project are completed unless releases are obtained from all subcontractors and materialmen. Any payment bond that is furnished by a contractor in attempted compliance with the requirements of TEX. GOV'T CODE ANN., ch. 2253 will be construed as in conformity with that chapter in relation to rights created, limitations on the bond and remedies provided.

Evaluation and Award

Evaluation of bids will be based on the following factors: (1) the relative prices of the bids, including the cost of repair and maintenance of heavy equipment if that is subject of the bid, and the cost of delivery and hauling of road construction materials; (2) compliance of goods and services offered with specifications; and (3) the responsibility of the vendor, including the vendor's safety record if commissioners court has adopted a definition of safety that is included in the bid , and the past performance of the vendor.

When the lowest priced bid is not the best bid, clear justification for not selecting the lowest bidder must be documented to the Court. This recommendation will be supported by clear and concise documentation from the user department that defines the rational for awarding to other than the lowest bidder. A joint review of the bid by the user department and the Purchasing office should be required.

The purchasing agent or responsible official will recommend contract award to commissioners court in session. The court shall:

1. Award the contract to the responsive and responsible bidder who submits the lowest and best bid; or

2. Reject all bids and publish a new notice.

If two responsive and 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.

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.