Texas Attorney General Opinion: JC-37 Page: 4 of 11
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The Honorable Ken Armbrister - Page 4 (JC-0037)
The Honorable Bill Ratliff
different than determining which type of contract will afford the best value. Accordingly, section
44.031(b) does not purport to define how a school district is to determine which purchasing method
affords it the best value, although these factors indeed may be relevant.
Because nothing in the statutes expressly defines or directs a school district in determining
best value, we conclude that a school district should establish, by rule, its own procedure and criteria
to determine the purchasing method that will provide the best value in a particular instance. Section
44.031(d), authorizing a school district to adopt rules and procedures for the acquisition of goods
or services, encompasses the power to adopt rules governing the procedure by which a school district
will evaluate the eight possible purchasing methods. See id. 44.031(d) (Vernon 1996). The criteria
listed in section 44.031 (b) may be relevant to determining the purchasing method that will provide
the best value and could inform a district's decision in choosing one type of contract over another.
See id. 44.040(c) (Vernon Supp. 1999) (stating that criteria established by school district for
determining bidder offering best value to school district may include criteria in section 44.031(b)).
Assuming that a school district properly has determined that a design/build contract will
provide the best value, you also ask whether a school district must competitively procure a
design/build contract. See id. 44.031 (a)(6). You suggest that a school district should use a
combination of competitive bidding with requests for proposal on professional services when
awarding a design/build contract so as not to circumvent the Professional Services Procurement Act,
TEX. Gov'T CODE ANN. ch. 2254, subch. A (Vernon 1999); see id. 2254.001 (naming act), which
prohibits competitive bidding on professional services contracts. We conclude that a school district
selecting the design/build purchasing method must comply with section 44.036 of the Education
Code, which effectively adopts a mechanism for competitive procurement-but not competitive
bidding-of design/build contracts, and that compliance with section 44.036 does not conflict with
the Professional Services Procurement Act.
The Professional Services Procurement Act forbids a school district to competitively bid a
contract for "professional services," which term is defined as the following services: (1) accounting;
(2) architecture; (3) land surveying; (4) medicine; (5) optometry; (6) professional engineering; or
(7) real-estate appraising. See id. 2254.002(2)(A) (Vernon 1999) (defining "professional
services"), 2254.003(a) (forbidding competitive bidding for professional services); see also Tex.
Att'y Gen. LO-96-117, at 1 (noting that contract for professional services may not be competitively
bid). With respect to a contract for the professional services of an architect, professional engineer,
or land surveyor-three professions we imagine are most likely involved in a design/build
contract-a school district must:
(1) first select the most highly qualified provider of those services
on the basis of demonstrated competence and qualifications; and
(2) then attempt to negotiate with that provider a contract at a fairand reasonable price.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-37, text, April 28, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274346/m1/4/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.