Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 25,2013
The Honorable Bill Callegari, P .E. Opinion No. GA-l 028
Chair, Committee on Pensions
Texas House of Representatives Re: Whether the Metropolitan Transit Authority of
Post Office Box 2910 Harris County is authorized to use the job order
Austin, Texas 78768-2910 contracting method of procurement for construction
projects, including civil works projects
(RQ-1129-GA)
Dear Representative Callegari:
You ask whether the Metropolitan Transit Authority of Harris County ("METRO") is
authorized to use the job order contracting method of procurement for construction projects,
including civil works projects. 1
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." TEX. Gov'T
CODE ANN. § 2269.401 (West Supp. 2013). 2 The authority for certain governmental entities to
use job order contracting is located in subchapter I, chapter 2269 of the Government Code. !d.
§§ 2269.401-.411 (subchapter I)? Chapter 2269 "applies to a public work contract made by a ·
governmental entity authorized by state law to make a public work contract, including ... any
other special district or authority ... and ... any other political subdivision of this state[.]" !d.
§ 2269.002(2)(D)-(E). METRO is a governmental entity authorized by state law to make a
public work contract. TEX. TRANSP. CODE ANN. §§ 451.052(a), .054(a), .055(a), .056(a)(l)
(West 2013). Thus, METRO is subject to chapter 2269, including the job order contracting
provisions in subchapter I.
1
See Letter from Honorable Bill Callegari, P.E., Chair, House Comm. on Pensions, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (May 22, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").
2
Effective September 1, 2013, former chapter 2267 of the Government Code was redesignated as chapter
2269. Act of May 9, 2013, 83d Leg., R.S., ch. 161, §§ 22.001, 23.001,2013 Tex. Sess. Law Serv. 623,702, 710 (to
be codified at TEX. GOV'T CODE ANN. ch. 2269).
3
Some governmental entities possess job order contracting ~uthority specified outside of chapter 2269. See
TEX. EDUC. CODE ANN. § 51.784 (West 2012) (institutions of higher education); TEX. WATER CODE ANN.
§ 60.464(a) (West Supp. 2013) (navigation districts).
The Honorable Bill Callegari - Page 2 (GA-1028)
Subchapter I authorizes governmental entities such as METRO to award job order
contracts for work that meets certain criteria. TEX. Gov'T CODE ANN. § 2269.403(a) (West
Supp. 2013). The work allowed under subchapter I is limited in scope. This limits METRO's
authority to use job order contracts. Section 2269.402 authorizes job order contracting only for
certain work involving "a facility that is a building, the design and construction of which is
governed by accepted building codes, or a structure or land . . . that is associated with a
building." !d. § 2269.402. Section 2269.402 prohibits job order contracting for certain other
construction projects:
[Chapter 2269, subchapter I] does not apply to:
(1) a highway, road, street, bridge, utility, water supply project, water
plant, wastewater plant, water and wastewater distribution or conveyance
facility, wharf, dock, airport runway or taxiway, drainage project, or
related type of project associated with civil engineering construction; or
(2) a building or structure that is incidental to a project that is primarily a
civil engineering construction project.
!d. You have not directed us to any other source of authority allowing METRO to use the job
order contracting method of procurement, nor have we found any. Accordingly, pursuant to
section 2269.402 of the Government Code, METRO may use job order contracting only for
certain work pertaining to a facility that is a building or associated structures and land. Section
2269.402 explicitly prohibits METRO from using job order contracting for most other
engineering projects. 4
4
The predecessor to chapter 2269, subchapter I of the Government Code was first made applicable "only to
a contract or construction project for which a governmental entity first advertises or otherwise requests bids,
proposals, offers, or qualifications, or makes a similar solicitation, on or after" September 1, 2011. Act of May 29,
2011, 82d Leg., R.S., ch. 1129, §§ 2.08, 6.01-.02, 2011 Tex. Gen. Laws 2900, 2904-20, 2924. We express no
opinion about job order contracting authority for earlier contracts or construction projects.
The Honorable Bill Callegari - Page 3 (GA-1028)
SUMMARY
Section 2269.402 of the Government Code authorizes the
Metropolitan Transit Authority of Harris County ("METRO") to
us job order contracting only for work involving a facility that is a
building r work involving structures or land associated with a
building.
Very truly yours,
Attorney General ofTexas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee