Texas Government Code Chapter 2267… and 2267
By Narita Holmes
Former Ector County Purchasing Agent
No! There really are two Chapter 2267 sections in the Texas Government Code that have an impact on counties. During the Regular Session of the 82nd Legislature in 2011, two separate bills were passed with the same chapter number in the Government Code. Both sections deal with construction, and both apply to counties. The first section governs construction methods for counties that were previously located in the Local Government Code, Chapter 271. The new law, which was summarized in the May issue of County Progress, is located in the Government Code, the first Chapter 2267. The second Chapter 2267 deals with public/private partnerships for qualifying facilities and infrastructure.
The focus of this article is on the second Government Code, Chapter 2267, public/private partnerships. In the past, Texas and other states have enacted legislation to address public/private transactions in areas such as transportation and corrections projects. In 2011, the Texas Legislature introduced legislation to provide structure and clear authority for public projects in conjunction with private investment that could decrease the financial burden of repairing existing infrastructure and could satisfy the demand for new infrastructure as the state’s population continues to grow. In fact, the Texas Capitol building (1882) and Dallas Cowboys Stadium (2009) utilized such methods.
This section of the law, which went into effect on Sept. 1, 2011, amended the Government Code to create the authority and processes for public/private agreements for development of qualifying public works projects. Specifically, the method was established to satisfy a public need which may not be wholly satisfied by existing methods of procurement and available resources. The intent was to make qualifying projects available in a more timely and less costly fashion.
Qualifying Public Works Projects are defined in the Definitions section {Government Code Chapter 2267.001 (10)}. Some of the qualifying projects include: mass transit facilities, port facilities, water supply facilities, public works, recreational facilities, public buildings, and other similar facilities currently available or to be made available to a governmental entity for public use. These projects include any structure, parking area, appurtenance, and other property required to operate the structure, including technology infrastructure that is essential to the project’s purpose. Qualifying projects also include improvements necessary or desirable to unimproved real estate owned by a governmental entity. The provisions do NOT apply to state highway system projects or telecommunications infrastructure other than technology installed as part of a qualifying project.
Specific Implementation Requirements: If your county believes that it may implement a public-private qualifying public works project in the future, you will want to plan ahead in order to have a smooth implementation process.
Approval Required. This chapter describes the approval process for a qualifying project. The process may be initiated by a person submitting a proposal or by the responsible governmental entity requesting proposals or bids following very specific procedures established in the law.
Guidelines MUST be adopted by the governmental entity to enable compliance with this law. The guidelines must be reasonable, encourage competition, and guide the selection of projects. Very specific procedures are described that MUST and MAY be included in the guidelines.
Specific Items MUST be included with a proposal. The law describes 10 requirements including a topographic map, description of the project, method of financing, and schedule for initiation and completion.
Proposal Evaluation Factors that SHALL and MAY be considered when evaluating the proposals received are described in the law.
Before negotiation of an interim or comprehensive agreement, the responsible governmental entity MUST submit copies of the proposals to the Partnership Advisory Commission which is established in Government Code Chapter 2268.
Affected Jurisdictions (any county or municipality in which all or a portion of a qualifying project is located) must be notified following specific guidelines. A comment period is required.
Posting Requirements. Very specific public notice requirements are listed, and a public hearing is required.
Other Provisions of the law cover topics such as dedication and conveyance of public property; powers and duties of contracting persons; specific provisions that SHALL be included in a comprehensive agreement for the project; interim agreements that may be implemented; bond requirements; and other issues.
Procurement Guidelines are set forth in the law. However, they refer to many sections of the law that were repealed by the first Government Code 2267. It is anticipated that some of the conflicts between the two sections of the code will be corrected in the current legislative session. Stay tuned for additional changes that may occur as the dust settles from this legislative session.
Narita Holmes served many years as purchasing agent for Ector County. She is currently associated with N&C Consulting Services, which provides government procurement and compliance consulting services. She is also a lecturer in accountancy at The University of Texas of the Permian Basin. Holmes stays current on the purchasing laws for counties and provides training for county officials.
