Alternative Project Delivery - Texas Water Development Board

Legal Review of Alternative Delivery Methods
I. Public Entities Authorized to Procure
Water/Wastewater Infrastructure
The following types of public entities are authorized by state law to procure
water/wastewater infrastructure:
1. The State of Texas, acting by and through one or more of its agencies. For
example the Texas Water Development Board is authorized to develop and acquire
water and wastewater infrastructure. i
2. Municipalities.
3. Districts created under the authority of Article 16, Section 59 of the Texas
Constitution.
4. “Affected” counties as defined by the Texas Water Code, Section 16.341.
II.
Laws Affecting Public Procurement Processes
Each type of the above-listed entities are subject to the state constitution, the laws
relating to the selection of professional services, and applicable sections of the Texas
Administrative Code.
State Constitution
A public entity must comply with applicable procurement laws in order for payments
under a contract to be lawful. The Texas Constitution specifically prohibits the state,
either on its own or through its political subdivisions, from granting extra
compensation after service has been rendered, or a contract has been entered into or
performed. ii This limitation prevents the state and its public entities from payment of
a claim under a contract unless the contract is authorized under the law and service has
or will be rendered for the benefit of the state or the public entity. iii Any unlawfully
entered contract would be void from its inception and ineligible for compensation to
the performing party.
However, the state constitution does not identify any specific procurement process
except for the procurement of stationery, printing, and fuel. iv One author states that
the section requiring bidding for fuel and stationery was added to the Constitution in
reaction to the prior policy of granting government contracts for fuel and printing at
exorbitant prices as special favors to friends or relatives of those wielding government
powers. v
Professional Services
1. Licensed Engineer Required by Texas Engineering Practice Act.
The Texas Engineering Practice Act prohibits the state and its public entities from
engaging "in the construction of any public works project involving professional
engineering, where public health, public welfare or public safety is involved, unless
2 Texas Water Development Board Legal Review