Alternative Project Delivery - Texas Water Development Board

Legal Review of Alternative Delivery Methods
In 1997, the law was revised by S.B. 583 and is codified, as revised, as Section 44.036
of the Education Code. lx S.B. 583 was supposedly, at least in part, a compromise and
consensus bill involving the Associated General Contractors, the Consulting Engineers
Council, the Texas Society of Architects, and the State Board of Registration of
Professional Engineers. lxi
The Associated General Contractors, Texas Building Branch, caused to be prepared
and distributed a Construction Procurement Handbook for Texas School Districts and
Institutions of Higher Education. The Handbook describes in detail the several
procurement methodologies allowed schools, a description of each methodology, and
how to implement and satisfy each requirement.
VII. Barriers
The barriers described below are listed in order of significance, beginning with the
most significant barrier and progressing to the least significant barriers.
Constitution
If the required procurement process is not followed, the contractor may jeopardize the
right to receive payment under the Texas Constitution. Further a contractor is
presumed to know the law and contracts at his or her risk with a public entity. Thus,
the first barrier is "contractor beware." Any change to the required procurement
process would need to provide a level of comfort to the contractors.
Professional Services
As previously stated in this memorandum, the revised law authorizing school districts
to use alternative procurement methods passes muster under the Professional Services
Procurement Act only because a bifurcated process to select the design/build
contractor is used.
Plan Approval
As described previously in this memorandum, state law requires the submission of
complete water system plans. Western system plans must also be submitted. To the
extent that alternative wastewater procurement methods use less than complete plans
to achieve cost savings, these requirements would be a barrier.
Procurement Process
As described previously in this workpaper, public entities must use the design-bidbuild
process to obtain water/wastewater infrastructure. Also as previously stated,
state law has allowed alternative procurement methods on a case-by-case basis for
detention facilities with public schools.
Legal Review R. W. Beck 9