Commission Agenda Item 1
November 7, 2024
- Item Type: Action
- Presenter: Andrea Lofye
Job Order Contracting – Delegate Authority for Approval of Contracts Over $500,000 – Recommended Adoption of Proposed Rule
I. Executive Summary:
Staff seeks adoption of a proposed amendment to rules governing department contracting practices. The proposed amendment would delegate authority to the Texas Parks and Wildlife Department (TPWD) Executive Director to award “job order contract” jobs, tasks, and purchase orders of $1,000,000 or greater to qualifying projects, as provided under Texas Government Code, Chapter 2269, Subchapter I. The proposed amendment would also delegate authority to the TPWD Infrastructure Division Director and Deputy Director for awards in excess of $500,000 but not more than $1,000,000.
II. Discussion:
Under Texas Government Code section 2269.401, “job order contracting” is a procurement method used for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility when the work is of a recurring nature but the delivery times, type, and quantities of work required are indefinite. Texas Government Code section 2269.403 requires the governing body of a governmental entity to approve each job, task, or purchase order that exceeds $500,000 in value; however, Texas Government Code section 2269.053 provides that the governing body may delegate its authority under Chapter 2269 regarding an action authorized or required by that chapter to a designated representative, committee, or other person. Job order contracting can enhance efficiency by streamlining procurement, reducing lead times, improving cost control, and fostering better relationships with contractors, ultimately enabling faster, more flexible project delivery.
The planning, procurement, and construction costs for minor maintenance activities have increased to the extent that projects in excess of $500,000 in value are now numerous and commonplace. To reduce the amount of time for project delivery, staff seeks an alternative to the cumbersome and time-consuming process of presenting every construction/repair project in excess of $500,000 to the Texas Parks and Wildlife Commission (Commission) for funding approval. Therefore, staff requests that the Commission delegate authority to the Executive Director to award job, tasks, or purchase orders that exceed $1,000,000. Staff also requests that the Commission delegate authority to the Infrastructure Division Director and Deputy Director to award job, tasks, or purchase orders in excess of $500,000 but not more than $1,000.000.
At the Commission Work Session meeting on August 21, 2024, staff was authorized to publish the proposed rule in the Texas Register for public comment. The proposed rule appeared in the October 4, 2024, issue of the Texas Register (49 TexReg 8066). A summary of public comment on the proposed rule will be presented at the time of the meeting.
III. Recommendation:
Staff recommends that the Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts an amendment to 31 Texas Administrative Code §61.21, concerning Contracts for Public Works, with changes as necessary to the proposed text as published in the October 4, 2024, issue of the Texas Register (49 TexReg 8066).”
Attachment – 1
Exhibit A – Commission Agenda Item No. 1
CONTRACTING RULES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes an amendment to 31 TAC §61.21, concerning Contracts for Public Works. The proposed amendment would delegate authority to the executive director of the department to award “job order contract” jobs, tasks, and purchase orders in excess of $1,000,000 or greater under the provisions of Government Code, Chapter 2269, to qualifying projects. The proposed amendment would also delegate authority to the department’s Infrastructure Division director and deputy director for awards in excess of $500,000 but not more than $1,000,000.
Under Parks and Wildlife Code, §11.0171, the commission is required to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts for project management, design, bid, and construction administration consistent with Subchapter A, Chapter 2254, Government Code.
Under Government Code, §2269.401, "job order contracting" is a procurement method used for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility when the work is of a recurring nature but the delivery times, type, and quantities of work required are indefinite. Government Code, §2269.403, requires the governing body of a governmental entity to approve each job, task, or purchase order under a blanket job order contract that exceeds $500,000 in value. The legislature established the statutory threshold of $500,000 years ago. Since then, the planning, procurement, and construction costs for maintenance activities have increased to the extent that projects in excess of $500,000 in value are now numerous and commonplace. Government Code, §2269.053, provides that a governing body of a governmental entity may delegate its authority under Chapter 2269 regarding an action authorized or required by that chapter to a designated representative, committee, or other person. To reduce the amount of time for project delivery, staff seeks an alternative to the cumbersome and time-consuming process of presenting every minor construction/repair project to the commission for funding approval.
Proposed new §61.21(c) would delegate authority to the executive director of the department to award job order contract jobs, tasks, and purchase orders of $1,000,000 or greater under the provisions of Government Code, Chapter 2269, to qualifying projects.
Proposed new 61.21(d) would delegate authority to the division director and deputy division director to award job order contract jobs, tasks, and purchase orders in excess of $500,000 but no more than $1,000,000 under the provision of Government Code, Chapter 2269, Subchapter I to qualifying projects.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rule.
3. Public Benefit/Cost Note.
Mr. Macdonald also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be more efficient administrative processes relating to construction and maintenance contracting, which in turn will result in faster completion of projects that benefit the public.
(B) There will be no adverse economic effect on persons required to comply with the rule as proposed.
(C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic effects” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.
The department has determined that the rule as proposed will not affect small businesses, micro-businesses, or rural communities, since the rule does not impose any direct economic impacts on any business or community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.
(D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.
(E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
(F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create a new regulation;
(6) not expand, limit, or repeal an existing regulation;
(7) not increase the number of individuals subject to regulation; and
(8) neither positively nor adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Darrell Owens, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4660; email: darrell.owens@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §11.0171, which requires the commission to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts, and Government Code §2269.053, which authorizes the governing body of a governmental entity to delegate by rule its authority to approve job order contract jobs, tasks, or purchase orders that exceed $500,000.
The proposed amendment affects Parks and Wildlife Code, Chapter 11.
6. Rule Text.
§61.21. Authority to Contract.
(a) The department shall solicit, evaluate, negotiate, select, and award contracts for construction projects by means of a fair and impartial method as authorized by applicable law and department policy.
(b) The department shall ensure that any method used to solicit, evaluate, select, and award a contract for construction results in the best value for the department.
(c) The executive director of the department is authorized to award job order contract jobs, tasks, and purchase orders in excess of $1,000,000 under the provisions of Government Code, Chapter 2269, Subchapter I, for any qualifying project.
(d) The director and deputy director of the department’s Infrastructure Division are authorized to award job order contract jobs, tasks, and purchase orders in excess of $500,000 but not more than $1,000,000 under the provisions of Government Code, Chapter 2269, Subchapter I, for any qualifying project.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on