Subtitle TITLE LAYOUT
Updating Purchasing Procedures and Forms KEEPING UP WITH THE LEGISLATURE
Learning Objectives Learn new requirements related to vendors not boycotting Israel (House Bill 89) and anti-terrorism verifications (Senate Bill 252) Review revised and updated forms related to transparency (Form 1295 and Conflicts of Interest CIS & CIQ) Learn some general tips related to updating forms, boiler plate language, and using YOUR contracts.
House Bill 89 – Texas Govt. Code Ch. 2270 Prohibition on Contracting with Companies who Boycott Israel – effective 9/1/2017 – Companies : means for-profit, not other governmental entities – Boycott : refusing to deal with, terminating business with, or taking any other action intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel or with a person or entity doing business in Israel or in an Israeli-controlled territory. This definition does NOT include an action made for ordinary business purposes. Texas and many other states passed laws in response to the Boycott, Divestment and Sanctions (BDS) movement, whose political goat is to change policy toward the State of Israel in relation to Palestinians.
House Bill 89 – Nevada Lawsuit According to a press release from the Texas Attorney General’s office, “[a]fter Arizona’s law took effect in 2016, Mikkel Jordahl, a state contractor who is Anti-Israeli, balked at having to sign a form on behalf of his company certifying he was not engaged in any boycotts against Israel. The ACLU sued Arizona on his behalf, arguing that the state law violates Jordahl’s free speech rights”. This case is currently pending in a Federal district court in Arizona. Another similar case is pending in Kansas.
Language in Section 2270.002 2270.002. PROVISION REQUIRED IN CONTRACT. A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract.
House Bill 89 – Requirements Requires language be included in all school district • contracts that the [vendor, architect, contractor] does not boycott Israel and will not boycott Israel during the term of the Contract. Include this language in all contracts, purchase orders, etc. with all for-profit businesses. Express language does not require a separate form to be completed by the vendor during procurement.
House Bill 89 – Comptroller List List of Companies that Boycott Israel maintained by Comptroller at: https://comptroller.texas.gov/purchasing/publications/divestment.php 5 th Largest Supermarket Chain in United Kingdom & a Norwegian Financial Services Company for Norwegian public employees
Senate Bill 252 – Tex. Govt. Code Ch. 2252 Similar to HB 89 • Prohibits school districts from entering into contracts with a company that is identified on a list as doing business in Iran, Sudan, or with a foreign terrorist organization. – Applies to contracts for the purchase of supplies, materials, equipment and services, including construction services. – Also applies to professional and consulting services
Where do I find this list? Sec. 2252.153. LISTED COMPANIES. The comptroller shall prepare and maintain, and make available to each governmental entity, a list of companies known to have contracts with or provide supplies or services to a foreign terrorist organization.
Status of Comptroller List Lists of Companies that do business with Iran, Sudan, or a foreign terrorist organization to be maintained by Comptroller at: https://comptroller.texas.gov/purchasing/publications/divestment.php Comptroller’s List of Scrutinized Companies were added last week even though dated March 1.
Scrutinized Companies with ties to Iran
Scrutinized Companies with ties to Sudan
Scrutinized Companies with ties to FTOs
Senate Bill 252 – Requirements School Districts should consult the Comptroller’s list for each contract it enters or renews after Sept. 1, 2017 One method: before entering a contract: 1. Check Comptroller’s website. 2. Print current list. 3. Sign and date the printed list verifying compliance. 4. Add page to vendor file.
Do we need a Separate Form? Statute does not require a separate form to be completed by the prospective vendor during procurement. Statute does not require specific language be included in your contract. Can you rely on a representation from a company that they do not do business with terrorists? Law requires the school district to verify the vendor is not on the list.
HB 3270: New Criminal History Requirements Formerly, required Criminal History Record Information • (CHRI) if direct contact with students, no distinction on construction v. other contracts Some questions about remodeling or addition projects. HB 3270 seeks to provide some clarification See Educ. Code 22.0834, 22.08341 & Govt. Code 411.097
Construction – Non-Schools A person does not have the opportunity for direct contact • with students if the public work does not involve the construction, alteration, or repair of an instructional facility. An instructional facility is used predominantly for teaching required curriculum.
Construction – New Schools A person does not have the opportunity for direct contact • with students on a new facility if the person’s duties end not later than seven (7) days before the facility will be used for instruction.
Renovations/Additions to Existing Schools For a public work that involves an existing instructional facility: (A) the public work area contains sanitary facilities and is separated from all areas used by students by a secure barrier fence that is not less than six feet in height; and (B) the contracting entity adopts a policy prohibiting employees, including subcontracting entity employees, from interacting with students or entering areas used by students, informs employees of the policy, and enforces the policy at the public work area.
HB 3021 –Architects/Engineers Modifies the Standard of Care a school district must contractually require of an architect or engineer as follows: (1) with the professional skill and care ordinarily provided by competent engineers or architects practicing in the same or similar locality under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.
Benefit to Small, Rural School Districts If you are in a small, rural school district and have a potential design defect, it may be difficult to find another architect or engineer in the same or similar locality to be an expert witness related to the standard of care.
SB 807 – Voidable Provisions of Construction Contracts Sec. 272.001. VOIDABLE CONTRACT PROVISION. • (a) This section applies only to a construction contract concerning real property located in this State. (b) If a construction contract or an agreement collateral to or affecting the construction contract contains a provision making the contract or agreement or any conflict arising under the contract or agreement subject to another state's law, litigation in the courts of another state, or arbitration in another state, that provision is voidable by a party obligated by the contract or agreement to perform the work that is the subject of the construction contract.
Form 1295: More Transparency = More Forms House Bill 1295 (2015) introduced Form 1295 – aka Certificate of Interested Parties Recommend including a sample form with your RFP/CSP/RFQ, etc. But only required when entering into a contract – must use online filing application on the Texas Ethics Commission’s website: https://www.ethics.state.tx.us/
Form 1295 – Continued Form 1985 applies to a contract between a school district and a business entity at the time it is voted on by the Board of Trustees or at the time it binds the school district, whichever is earlier, including an amended, extended, or renewed contract, of a school district that either: 1. Requires an action or vote by the Board of Trustees before the contract may be signed; or 2. Has a value of at least $1 million. The disclosure requirement applies to a contract entered into on or after January 1, 2016.
Form 1295 – How To’s Business completes form, submits to school district, school district uses same application to acknowledge receipt (not later than 30 days after receipt) If contract was entered into before 1/1/2016, but was amended, extended or renewed after 1/1/2016 – will need them to complete Form 1295.
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