BUSINESS AND SUPPORT SERVICES
PURCHASING AND ACQUISTIONS
The provisions of Education Code Chapter 44, Subchapter B, relating to the purchase of goods and services under contract by a school district apply to the purchase of goods and services under contract by a community college district.
To the extent of any conflict, the provisions of Subchapter B, Chapter 44, prevail over any other law relating to the purchase of goods and services by a community college district.
The procurement of equipment, supplies, and services requires that a purchase requisition be initiated, processed through the appropriate authority and submitted to a fiscal officer for action. Once the purchase requisition is received in the Purchasing Office and funds availability certified; a purchase order number will be assigned. When the merchandise or service is received, the receiving copy must be signed and dated and returned to Accounts Payable so that payment can be made to the vendor.
Education Code Chapter 44, Subchapter B does not apply to a purchase, acquisition, or license of library goods and services for a library operated as a part of a community college district. “Library goods and services” has the meaning assigned by Education Code 130.0101(a).
The college may adopt rules and procedures for the acquisition of goods and services.
Notwithstanding any other provision of the Education Code, in the event of a catastrophe, emergency, or natural disaster affecting a college district, the District President or the Vice President of Finance and Administration may contract for the replacement or repair of college district equipment under Education Code Chapter 44, Subchapter B if emergency replacement or repair is necessary for the health and safety of college district students and staff.
Subject to legal limitations, a college district may agree or contract with agency for the provision of necessary and authorized services and resources.
PROCUREMENT WITH GRANT FUNDS
Procedures are currently being modified pursuant to 2 CFR 200 (Uniform Guidance). The College will utilize 2015-2017 as a transitional period and will fully implement by September 1, 2017 regarding the procurement of goods and services that are paid with federal funds.
PROCUREMENT WITH INSTITUTIONAL FUNDS
Procurement of goods and services (12 month aggregate) under $10,000 – college must solicit at least one quote.
Procurement of goods and services (12 month aggregate) between 10,000 and $50,000 – college must solicit at least three written quotes or may follow formal bidding process if desired to achieve better value for the district.
All college district contracts for the purchase of goods and services, except contracts for the purchase of produce or vehicle fuel, valued at $50,000 or more in the aggregate for each 12-month period, shall be made by the method that provides the best value for the college district:
- Competitive bidding for services other than construction services.
- Competitive sealed proposals for services other than construction services.
- A request for proposals for services other than construction services.
- Interlocal contract.
- The reverse auction procedure as defined by Government Code 2155.062(d).
- The formation of a political subdivision corporation under Local Government Code 304.001.
AGGREGATE PURCHASES SHALL NOT BE DIVIDED TO CIRCUMVENT PROCUREMENT REQUIREMENTS. PROCUREMENTS THAT SPLIT OR OTHERWISE BYPASS PURCHASING LAWS WILL BE DISALLOWED.
In awarding a contract, the college district shall consider:
- Purchase price.
- Delivery is standardized.
- The reputation of the vendor and of the vendor’s goods and services.
- Quality of the vendor’s goods or services.
- The extent to which the goods or services meet the college district’s needs.
- The vendor’s past relationship with the college district.
- The impact on the ability of the college district to comply with laws relating to historically underutilized businesses.
- The total long-term cost to the college district to acquire the goods or services.
- For a contract that is not for goods and services related to telecommunications and information services, building construction and maintenance, or instructional materials, whether the vendor or the vendor’s ultimate parent company or majority owner has its principal place of business in this state or employs at least 500 persons in this state.
- Any other relevant factor specifically listed in the request for bids or proposals.
The factors listed above are the only criteria that may be considered by the college district in its decision to award a contract. The college district may apply one, some, or all of the criteria, but it may not completely ignore them.
The college shall not award a contract for services or for purchases of supplies, materials, or equipment to a bidder whose principal place of business is not in this state, unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid a nonresident bidder to obtain a comparable contract in the state in which the nonresident’s principal place of business is located.
This requirement shall not apply to a contract involving federal funds. A college district shall rely on information published by the comptroller in evaluating the bids of a nonresident bidder.
The college may, by resolution, establish regulations permitting the college district to refuse to enter into a contract or other transaction with a person indebted to the college district. The college district may refuse to award a contract to or enter into a transaction with an apparent low bidder or successful proposer that is indebted to the college district.
The term “person” includes an individual, sole proprietorship, corporation, nonprofit corporation, partnership, joint venture, limited liability company, and any other entity that seeks to enter into a contract or other transaction with the college district requiring board approval.
MAJOR CONTRACT REQUIREMENTS
Before the college district may award a major contract, with a value of at least $1 million for the purchase of goods or services, to a business entity, each of the college district’s purchasing personnel who makes decisions or recommendations concerning the contract must disclose in writing to the administrative head of the college district any relationship the purchasing employee is aware about that the purchasing employee has with an employee, a partner, a major stockholder, a paid consultant with a contract with the business entity the value of which exceeds $25,000, or other owner of the business entity who is within the third degree by consanguinity or within the second degree by affinity of the purchasing employee.
Notice of when and where bids or proposals or the responses to a request for qualifications will be received and opened shall be published in the county where a college district’s central administrative office is located, once a week for at least two weeks prior to deadline for receiving bids, proposals, or responses to a request for qualifications. If there is no newspaper in that county, the advertising shall be published in a newspaper in the county nearest the county seat of the county in which the college district’s central administrative office is located. In a two-step procurement process, the time and place where the second-step bids, proposals, or responses will be received are not required to be published separately.
The purchasing requirements of Education Code 44.031 do not apply to a contract for professional services rendered, including the services of an architect, attorney, certified public accountant, engineer, or fiscal agent.
The college district may contract for professional services rendered by a financial consultant or a technology consultant in the manner provided by Government Code 2254.003, in lieu of the methods provided by Education Code 44.031.
Competitive bids shall not be solicited for professional services of any licensed or registered certified public accountant, architect, landscape architect, land surveyor, physician, optometrist, professional engineer, state-certified or state-licensed real estate appraiser, or registered nurse. Contracts for these professional services shall be made on the basis of demonstrated competence and qualifications to perform the services and for a fair and reasonable price.
An interlocal contract between a college district and a purchasing cooperative may not be used to purchase engineering or architectural services.
If school equipment, a school facility, or a part of a school facility or personal property is destroyed or severely damaged or, as a result of an unforeseen catastrophe or emergency, undergoes major operational or structural failure, and the college determines that the delay posed by the methods provided for in Education Code 44.031 would prevent or substantially impair the conduct of classes or other essential school activities, then contracts for the replacement or repair of the equipment, school facility, or the part of the school facility may be made by methods other than those required by Education Code 44.031.
The college district may acquire computers and computer-related equipment, including computer software, through the Department of Information Resources (DIR) under contracts with the DIR in accordance with Government Code Chapter 2054 or 2157.
PURCHASING USING COMPETITIVE BIDDING
Each college district that solicits bids or proposals from the public for the purchase and/or lease of computer equipment must do so in accordance with applicable rules adopted by the comptroller pertaining to competitive bidding or competitive sealed proposals.
A public solicitation for the purchase or lease of computer equipment issued by a college district is required to contain the certification to be completed by bidders, in accordance with administrative Code 217.30. If the bidder fails to include the certification, the college district shall reject the related bid and not evaluate it.
All college districts shall include in all bids for the purchase or lease of computer equipment a special preference for all manufacturers that have a program to recycle the computer equipment of other manufacturers, which program includes collection events and manufacturer initiatives to accept computer equipment labeled with another manufacturer’s brand. The preference may take the form of extra evaluation points or may be the tie-breaking factor among equal bids.
“Computer equipment” is defined as a desktop or notebook computer and includes a computer monitor or other display device that does not contain a tuner.
AUTOMATED INFORMATION SYSTEM
A college district may purchase an automated information system using the purchasing method described by Government Code 2157.068 for commodity items or a purchasing method designated by the comptroller to obtain the best value for the state, including a request for offers method. A college district that purchases an item using a method listed above satisfies any state law requiring the college district to seek competitive bids for the purchase of the item.
Compliance with Education Code 44.031 is not required for purchases that are available from only one source, including:
- An item for which competition is precluded because of a patent, copyright, secret process, or monopoly.
- A film, manuscript, or book.
- A utility service, including electricity, gas, or water.
- A captive replacement part or component for equipment.
The sole source exception shall not apply to mainframe data processing equipment and peripheral attachments with a single-item purchase price in excess of $15,000.
A contract for the purchase of insurance is a contract for the purchase of personal property and shall be made in accordance with Education Code 44.031.
The college district may execute an insurance contract for a period longer than 12 months, if the contract contains provisions concerning commitment of current revenue. If the college district executes a multi-year insurance contract, it need not advertise for insurance vendors until the 12-month period during which the college district will be executing a new insurance contract.
Except to the extent prohibited by other law and to the extent consistent with Education Code Chapter 44, Subchapter B, a college district may use competitive bidding to select a vendor as authorized.
A college district shall award a competitively bid contract at the bid amount to the bidder offering the best value for the college district. In determining the best value for the college district, the college district is not restricted to considering price alone but may consider any other factors stated in the selection criteria. The selection criteria may include the factors listed in Education Code 44.031(b) [see FACTORS, above].
Except as provided below, Local Government Code Chapter 271, Subchapter B does not apply to a competitive bidding process under this policy.
The formal bidding process requires at least three (3) weeks of time. The originating department must be prepared to supply bid specifications, prospective bidders, award criteria and to work closely with the Budget Officer in preparation of the bid document. A committee comprised of at least three (3) persons will review responses to bids/proposals and rate them according to the award criteria.
The College may use vendors who have contracts with the State of Texas or other board-approved purchasing cooperatives to procure approved items in lieu of the bidding process in accordance with state and federal law. For each 12-month period, the College District shall publish a notice in two successive issues of any newspaper of general circulation in the county in which the school is located, specifying the categories of personal property to be purchased and soliciting the names, addresses, and telephone numbers of vendors that are interested in supplying any of the categories to the College District.
Bids may be opened only by a designated employee of the college district at or in an office of the college district. A bid that has been opened may not be changed for the purpose of correcting an error in the bid price. Local Gov’t Code 271.026
The college shall have the right to reject any and all bids.
In determining who is a responsible bidder, the college 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 firm, corporation, partnership, or institution, provided that:
- The college has adopted a written definition and criteria for accurately determining the safety record of the bidder.
- The college has given notice in the bid specifications that the safety record of a bidder may be considered in determining the bidder’s responsibility.
- The determinations are not arbitrary and capricious.
If the college district receives two or more bids from responsible bidders that are identical, in nature and amount, as the lowest and best bids, it shall select only one bidder from the identical bids.
If only one of the bidders submitting identical bids is a resident of the college district, that bidder shall be selected. If two or more such bidders are residents of the college district, one shall be selected by the casting of lots. In all other cases, one of the identical bids shall be selected by the casting of lots.
The college shall prescribe the manner of casting lots and shall be present when the lots are cast. All qualified bidders or their representatives may be present at the casting of lots.
REQUEST FOR PROPOSALS
The college district shall prepare a request for competitive sealed proposals that includes information that vendors may require to respond to the request. The college district shall state in the request for proposals the selection criteria that will be used in selecting the successful offeror.
In selecting a vendor through competitive sealed proposals as authorized by Education Code 44.031(a)(2), a college district shall follow the procedures prescribed below.
The college district shall receive, publicly open, and read aloud the names of the offerors and, if any are required to be stated, all prices stated in each proposal. Not later than the 45th day after the date on which the proposals are opened, the college district shall evaluate and rank each proposal submitted in relation to the published selection criteria.
The college district shall select the offeror that offers the best value for the college district based on the published selection criteria and on its ranking evaluation. The college district shall first attempt to negotiate a contract with the selected offeror. The college district may discuss with the selected offeror options for a scope or time modification and any price change associated with the modification. If the college district is unable to negotiate a satisfactory contract with the selected offeror, the college district shall, formally and in writing, end negotiations with that offeror and proceed to the next offeror in the order of the selection ranking until a contract is reached or all proposals are rejected.
BEST VALUE DETERMINATION
In determining the best value for the college district, the college district is not restricted to considering price alone but may consider any other factors stated in the selection criteria.
To increase efficiency and effectiveness, a college district may contract or agree with other local governments and with state agencies, including the comptroller, to perform some of its purchasing functions.
An interlocal contract must be authorized by the college and the governing body of each contracting party; must state the purpose, terms, rights, and duties of the contracting parties; and must specify that each party paying for the performance of governmental functions or services shall make those payments from current revenues available to the paying party.
An interlocal contractual payment must be in an amount that fairly compensates the performing party for the services or functions performed under the contract. The contract may have a specified term of years and may be renewed.
The college district may agree with another local government, including a nonprofit corporation that is created and operated to provide one or more governmental functions and services, or with the state or a state agency, including the comptroller, to purchase goods and services reasonably required for the installation, operation, or maintenance of the goods. Such an agreement may not, however, apply to services provided by firefighters, police officers, or emergency medical personnel.
A college district that purchases goods and services by agreement with another local government or with the state or state agency satisfies the requirement to seek competitive bids for the purchase of goods and services.
STATE PURCHASING PROGRAM
Purchasing services performed for the college district by the comptroller shall include:
- The extension of state contract prices to the college district when the comptroller considers it feasible.
- Solicitation of bids on items desired by the college district if the solicitation is considered feasible by the comptroller and is desired by the college district.
- Provision of information and technical assistance to the college district about the purchasing program.
The comptroller may charge the college district its actual costs in providing purchasing services.
MULTIPLE AWARD CONTRACT SCHEDULE
The comptroller shall develop a schedule of multiple award contracts that have been previously awarded using a competitive process by the federal government or any other governmental entity in any state.
The college district may purchase goods or services directly from a vendor under a contract listed on a schedule. An authorized purchase satisfies any requirement of state law relating to competitive bids or proposals and satisfies any applicable requirements of Government Code Chapter 2157.
The price listed for a good or service under a multiple award contract is a price. The college district may negotiate a lower price for goods or services under a contract listed on a schedule.
COOPERATIVE PURCHASING PROGRAM
The college district may participate in a cooperative purchasing program with another local government or a local cooperative organization. If the college district does so, it may sign an agreement with another participating local government or a local cooperative stating that the college district will:
- Designate a person to act on behalf of the college district in all matters relating to the program.
- Make payments to another participating local government or local cooperative organization or directly under a contract, as provided in the agreement.
- Be responsible for the vendor’s compliance.
If the college district participates in a cooperative purchasing program, it satisfies any law requiring it to seek competitive bids.
CONTRACT RELATED FEE REPORT
A college district that enters into a purchasing contract valued at $25,000 or more under Education Code 44.031(a)(5) (interlocal contract), under Local Government Code Chapter 271, Subchapter F (cooperative purchasing program), or under any other cooperative purchasing program authorized for college districts by law shall document any contract-related fee, including any management fee, and the purpose of each fee under the contract.
The amount, purpose, and disposition of any fee described above must be presented in a written report and submitted annually in an open meeting of the college. The written report must appear as an agenda item. The Commissioner of Education may audit the written report.
STATE COUNCIL ON COMPETITIVE GOVERNMENT
As approved by the State Council on Competitive Government, the college district may voluntarily participate in a contract awarded by the council or a state agency under Government Code 2162. A college district that purchases goods or services under this type of contract is considered to have satisfied any state law requiring competitive purchasing.
The college district may use the reverse auction procedure and must include in the procedure a notice provision and other provisions necessary to produce a method of purchasing that is advantageous to the college district and fair to vendors.
REVERSE AUCTION PROCEDURE MEANS:
- A real-time bidding process usually lasting less than one hour and taking place at a previously scheduled time and Internet location, in which multiple suppliers, anonymous to each other, submit bids to provide the designated goods or services; or
- Bidding process usually lasting less than two weeks and taking place during a previously scheduled period and at a previously scheduled Internet location, in which multiple suppliers, anonymous to each other, submit bids to provide the designated goods or services.
COMMITMENT OF CURRENT REVENUE
A contract for the acquisition, including lease, of real or personal property is a commitment of the college district’s current revenue only, provided the contract contains either or both of the following provisions:
- Retains to the college the continuing right to terminate the contract at the expiration of each budget period during the term of the contract.
- Is conditioned on a best efforts attempt by the college to obtain and appropriate funds for payment of the contract.
If a change in plans or specifications is necessary after the performance of a contract is begun or if it is necessary to decrease or increase the quantity of work to be performed or of materials, equipment, or supplies to be furnished, the college district may approve change orders making the changes. The college district may grant general authority to an administrative official to approve the change orders.
The total contract price may not be increased because of the changes unless additional money for increased costs is approved for that purpose from available money or is provided for by the authorization of the issuance of time warrants.
A contract with an original contract price of $1 million or more may not be increased by more than 25 percent. If a change order for a contract with an original contract price of less than $1 million increases the contract amount to $1 million or more, the total of the subsequent change orders may not increase the revised contract amount by more than 25 percent of the original contract price.
The college district shall give preference in purchasing to products made of recycled materials if the products meet applicable specifications as to quantity and quality. The college district shall regularly review and revise its purchasing procedures and specifications for purchase of goods, supplies, equipment, and materials in order to:
- Eliminate procedures and specifications that explicitly discriminate against products made of recycled materials.
- Encourage the use of products made of recycled materials.
- Ensure to the maximum extent economically feasible that the college district purchase products that may be recycled when they have served their intended use.
The college district may seek an exemption from compliance if it has a population of less than 5,000 within its geographic boundaries and demonstrates to the Water Commission that compliance would work a hardship on the college district.
If the cost and quality are equal, the college district shall give preference in purchasing to agricultural products, including textiles and other similar products that are produced, processed, or grown in Texas. “Processed” means canning, freezing, drying, juicing, preserving, or any other act that changes the form of a good from its natural state to another form. If Texas agricultural products are not equal in cost and quality to other agricultural products, the college district shall give preference in purchasing to agricultural products produced, processed, or grown in the United States, if the cost and quality of the U.S. and foreign products are equal.
The college district may not adopt product purchasing specifications that unnecessarily exclude agricultural products produced, processed, or grown in Texas.
VEGETATION FOR LANDSCAPING
If cost is equal and the quality is not inferior, the college district shall give preference to Texas vegetation when it purchases vegetation for landscaping purposes.
The college shall not purchase milk, cream, butter, cheese, or a product consisting largely of one or more of those items that has been imported from outside the United States. However, imported milk powder may be purchased if domestic milk powder is not readily available in the normal course of business.
The college district shall not purchase beef or a product consisting substantially of beef that has been imported from outside the United States.
Before entering into a contract with the college district, a person or business must give notice to the college district if the person or an owner or operator of the business has been convicted of a felony. The college district may terminate a contract with a person or business if the college district determines that the person or business failed to give such notice or misrepresented the conduct resulting in the conviction. The college district must compensate the person for services performed before the contract terminated.
RIGHT TO WORK
While engaged in procuring goods and services or awarding a contract, the college district:
- May not consider whether a vendor is a member of or has another relationship with any organization; and
- Shall ensure that its bid specifications and any subsequent contract or other agreement do not deny or diminish the right of a person to work because of the person’s membership or other relationship status with respect to any organization.
A board member, employee, or agent shall not, with criminal negligence, make or authorize separate, sequential, or component purchases to avoid the purchasing requirements set out in Education Code 44.031. An officer or employee shall not knowingly violate Education Code 44.031 in any other manner.
“Component purchases” means purchases of the component parts of an item that in normal purchasing practices would be made in one purchase. “Separate purchases” means purchases, made separately, of items that in normal purchasing practices would be made in one purchase. “Sequential purchases” means purchases, over a period, of items that in normal purchasing practices would be made in one purchase.
Violation of this provision is a Class B misdemeanor and an offense involving moral turpitude, conviction of which shall result in removal from office or dismissal from employment. The college member who is convicted of a violation of this provision is considered to have committed official misconduct and for four years after the date of final conviction, the removed person is ineligible to be appointed or elected to public office in Texas, is ineligible to be employed by or act as an agent for the state or a political subdivision, and is ineligible to receive any compensation through a contract with the state or a political subdivision.
A court may enjoin performance of a contract made in violation of Education Code Chapter 44, Subchapter B. A county attorney, district attorney, criminal district attorney, citizen of the county in which a college district is located, or any interested party may bring an action for an injunction. A party who prevails in an action brought under this subsection is entitled to reasonable attorney’s fees as approved by the court.
Employees purchasing services or merchandise without an approved purchase requisition prior to the purchase are subject to paying personally for the services or merchandise. Such action could lead to termination of employment by the College. This also applies to any violation of state purchasing law or other misuse of the purchasing card or other college credit cards.
Approved: October 2, 2015
Revised: August 30, 2016