Alternative Project Delivery - Texas Water Development Board

Legal Review of Alternative Delivery Methods
Texas Antiquities Act. xviii
The Texas Antiquities Act may be perceived as affecting procurement processes.
"Before breaking ground on a project location on state or local public land, the person
primarily responsible for the project... shall notify the [Texas Historical
Committee]." xix The committee would then determine whether a historically
significant archeological site is likely to be present; the action needed to protect the
site, and if an archeological survey is necessary. xx Neither the Antiquities Act nor the
rules of the Historical Committee explicitly require the submission of final plans and
specifications in order to obtain the required determination.
The Texas Water Development and the Texas Antiquities Commission are parties to a
memorandum of understanding (MOU) authorizing the TWDB to conduct
environmental surveys. xxi The MOU authorizes the TWDB to “conduct surveys for all
types of archeological sites on lands belonging to or controlled by any county, city or
other political subdivision of the State of Texas which may be impacted by proposed
development projects that are funded in whole or in part by TWDB.” xxii The MOU
does not require that final plans and specifications be submitted prior to obtaining the
survey, but the survey requires pedestrian surveys and subsurface probing, so the
general location of the project facilities need to be finalized. TWDB rules do not
require the submission of final plans, but TWDB guidance documents or instructions
may require final plans.
Regulatory impediments arising from federal grant requirements may exist. For
example, prior to federal action, such as issuing a permit or providing financial
assistance, a review may be required under the National Environmental Policy Act.
Analysis of this issue is beyond the scope of this workpaper.
III.
Procurement by Specific Entities
State laws regulating the construction or purchase of water/wastewater infrastructure
differs between the various public entities, but generally is based on the competitive
bid process. xxiii Unlike the law specifically authorizing schools to use the design/build
procurement process and other alternative procurement methods, there is no statute
specifically authorizing public entities to use alternative procurement methods for
water/wastewater infrastructure projects. The choice of procurement methods for
water/wastewater projects by public entities is limited by the provisions of the
Professional Services Procurement Act and the requirement for complete designs as a
condition for required regulatory approval. xxiv
State
The General Services Commission (the "GSC") acquires all goods and services for all
state agencies. xxv State law further requires the procurement will be accomplished
through competitive bidding, unless otherwise provided by law, and that the state will
purchase goods that provide the best value for the state. xxvi The competitive
purchasing methods available to the GSA include the contract purchase procedure,
4 Texas Water Development Board Legal Review