Q: Our District has not yet updated our construction procurement documents to reflect changes from the 87th Regular Legislative session. Is this something we need to do?
A: Yes. Specifically, House Bill 2581 requires school districts to include new information in their procurement solicitations when awarding construction contracts and creates new obligations for transparency to bidders/proposers.
House Bill 2581, which went into effect on September 1, 2021, amended Chapter 2269 of the Texas Government Code relating to construction projects of governmental entities, including school districts. Note, HB 2581 does not affect a school’s procurement of general contracts for goods and services; rather, the new law makes an important change to the requirements for construction procurement solicitations, including Requests for Proposals (RFP) or Requests for Qualifications (RFQ). Previously, the law required that governmental entities include in a solicitation the criteria that would be used to evaluate/score each bidder, as well as the weighted value of each criterion. HB 2581 adds an additional element to the solicitation, requiring schools to provide a “detailed methodology” for scoring each criterion. By adding detail on the evaluation process, bidders can appropriately plan and determine the level of effort needed to prepare a competitive response.
The “detailed methodology” will be specific to each construction project. For example, one common evaluation criterion is: “Quality of products/services and extent to which the products/services meet the school district’s needs.” For this criterion, the detailed methodology might include an identified point allotment for review of the proposer’s project management personnel and experience, company/firm infrastructure and resources, and ability to perform the work timely.
HB 2581 also added new obligations required of a governmental entity after a construction contract is awarded. Upon award of a contract, any bidder/proposer who submitted a response may request, in writing, documents related to its scoring evaluation. After receiving a request, the entity must, within 30 days, deliver the documents, including records reflecting how the requestor’s submission was ranked, if applicable. The new law also provides that when the competitive sealed proposal procurement method is used (i.e., RFP/RFQ), a governmental entity must make the evaluations (including any scores) public and provide the evaluations to all respondents. This disclosure obligation applies regardless of whether a request is made and must occur not later than the seventh business day after the date the contract is awarded. From a practical perspective, a school district can comply with this requirement by posting the completed evaluation forms, or a tabulation of the rankings, on its website.
To the extent that you have entered into a construction contract since September 1, 2021 that was not procured in compliance with the requirements of HB 2581, it is wise to reach out to your school attorney.