Building a new school or adding onto an existing school is an exciting time for a charter school. However, when a charter school begins to consider such a project, it should be familiar with the procurement regulations governing those contracts. Procurement governs the process a charter school must engage in before it spends more than $50,000 on a contract for construction, repair, or renovation of a facility. Procurement statutes are designed to ensure public works contracts, which include these charter school contracts, are advertised, evaluated, and awarded in a transparent and responsible manner.
By default, charter schools must follow the procurement method outlined in Texas Local Government Code Chapter 271, Subchapter B. Chapter 271 authorizes traditional pure competitive bidding, which allows charter schools to consider two factors: a potential contractor’s price and its safety record. While consideration of a contractor’s safety record is an important evaluation tool, there are other factors a charter school may want to consider before it awards the contract.
Other procurement methods are available to charter schools. Chapter 100 of the Texas Administrative Code allows charter schools to “opt-in” to the public works procurement methods available to school districts under Chapter 44 of the Texas Education Code. Chapter 44 enables charter schools to utilize the procurement methods outlined in Texas Government Code chapter 2269, which are commonly known as “alternative project delivery methods.” Alternative project delivery methods were created because many public owners felt they were forced into selecting lesser quality contractors who may be difficult to work with and who may not be able to meet specific schedule deadlines.
The statutory framework of chapter 2269 allows charter schools to select contractors based on a holistic view of the company rather than a fixed set of criteria that may not encompass the specific requirements of the project. Many of these factors are listed by statute, and include the bidder’s reputation and past relationship with the charter, quality of the bidder’s good or services, the bidder’s impact on the charter’s ability to comply with laws and rules relating to historically underutilized businesses, and “any other relevant factor specifically listed in the request for bids, proposals, or qualifications.”
Charter schools also have the option to hire contractors to help them through the design and construction phases of a project, or to engage in multi-phased construction that allows some construction to begin before the entire design is complete. Flexible project delivery methods can facilitate speedier completion, which is especially important for charter schools who face a hard “start” deadline every school year.
To “opt-in” to chapter 2269, a charter school must amend its charter to include a statement expressly adopting the provisions of Texas Education Code, Chapter 44, Subchapter B, as the charter holder’s process for awarding a contract for the construction, repair, or renovation of a structure, road, highway, or other improvement to real property. Charter amendment requests must be consented by the charter holder and approved by the Commissioner of Education. Additionally, the amendment request must show why the amendment is in the best interest of the students enrolled in the charter school.
An academic question exists whether an “opt-in” procedure is necessary, as chapter 2269 explicitly states “this chapter prevails over any other law relating to a public work contract.” This language appears to put all other procurement statutes in a secondary role. However, for the purposes of ensuring compliance with the Texas Administrative Code, charter schools who wish to utilize the alternative project delivery methods in chapter 2269 should seek to amend their charter to include a specific opt-in statement.
