As the legislature readies for its next session, school districts and governmental entities are still grappling to interpret purchasing law changes for facility services from 2011, when Government Code Chapter 2269 (initially listed as Chapter 2267) was introduced. What are construction services? What can be classified as minor facilities services and/or maintenance? Harris County Department of Education has done extensive research and has made the following clarifications to assist purchasing and facilities personnel.
“This used to be so much easier,” said Micki Morris, partner at Rogers, Morris & Grover, LLP, as she explained that all construction projects were previously under procurement rules of Chapter 44 of the Education Code.
“Anything construction is now Chapter 2269 of the Government Code. That made everybody’s life a little more difficult,” said Morris.Ms. Morris spoke at a recent TASBO Gulf Coast Maintenance and Operations chapter meeting at HCDE.
Using school district or budgetary interpretations of what used to be defined as construction or maintenance are not relevant. Texas Education Code Chapter 44 specifies that Chapter 2269 of the Texas Government Code applies for all “construction services,” which is not defined. Sarah Langlois, HCDE general counsel and partner at Rogers, Morris & Grover, LLP, notes that “generally, construction contracts can encompass both maintenance and public works projects.” Ms. Langlois spoke at a recent HCDE School Finance Council meeting.
So purchasing and facilities professionals must distinguish between projects that replace like-for-like and projects that involve a “public works contract,” which triggers bonding and prevailing wage requirements.
Morris says the legal definition of maintenance is very narrow. She notes that the Texas Attorney General’s definition of “maintenance refers to ordinary upkeep necessary to preserve something in good condition; to ‘keep up, keep from change; preserve’ and includes ‘ordinary repairs necessary and proper from time to time for that purpose.’”
“Generally, if a construction contract does not fall within the definition of ‘maintenance,’ it is safe to consider it a ‘public work contract’ if it involves construction work related to a public building,” said Langlois.
“With advancements in technology, it is becoming more and more difficult to replace like for like,” said Les Hooper, RTSBA, executive director, HCDE facilities services.
It is no longer legal for school district purchasing professionals to use time and materials contracts with vendors on standby for Heating Ventilation Air Conditioning, electrical, plumbing or other such repairs. Under Government Code 2269, maintenance service contracts should be procured using Job Order Contracts (Indefinite Delivery-Indefinite Quantity Construction), which by definition uses a construction unit price book. The JOC contracts can be for individual trades or can be a JOC company that subcontracts for all component work. JOC contracts can be procured by individual school districts or through a cooperative via an interlocal contract (Government Code Chapter 791.)
Minor repairs and renovations that school districts can no longer classify as maintenance and procure under time and materials contracts include such things as: adding an electrical outlet; removing old carpeting and replacing with a different or upgraded flooring surface; adding a wall; replacing HVAC units with higher efficiency units; replacing lighting with improved efficiency bulbs, etc.
“If you are doing time and materials for construction services under Chapter 44, it is going to get flagged by the auditor,” said Morris.
This information was developed by Jim Owens, retired school facilities administrator and HCDE consultant, and Sarah Langlois and Micki Morris, partners, Rogers, Morris & Grover, LLP. Ms. Langlois and Mr. Owens are presenting a session on this topic at the TASBO Facility Masters conference in November 2014. Article written by HCDE Client Development Services.