Can Houston METRO use job order contracting for civil works like roads and water projects?

Plain-English summary

Job order contracting is a streamlined procurement method for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility, used when the work recurs but the timing, type, and quantities are indefinite. Representative Bill Callegari, chair of the House Committee on Pensions, asked the Attorney General whether the Metropolitan Transit Authority of Harris County, known as METRO, could use this method for its construction projects, including civil works projects.

The Attorney General answered in two parts. First, METRO is covered by the statute. The authority to use job order contracting sits in subchapter I of chapter 2269 of the Government Code, and chapter 2269 applies to any governmental entity authorized by state law to make a public work contract, including special districts and authorities. METRO is such an entity, so it is subject to chapter 2269 and its job order contracting provisions.

Second, the method is limited in scope. Section 2269.402 authorizes job order contracting only for 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 associated with a building. The same section expressly says subchapter I does not apply to 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 civil engineering construction, nor to a building or structure that is incidental to a project that is primarily civil engineering construction. The AG found no other source of authority letting METRO use the method more broadly. So the conclusion was that METRO may use job order contracting only for building-related work and is barred from using it for most other engineering projects. The AG also noted, in a footnote, that the predecessor statute applied only to projects first advertised or solicited on or after September 1, 2011, and expressed no opinion about job order contracting authority for earlier contracts.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The House Committee on Pensions (as the opinion described it): The opinion answered that section 2269.402 of the Government Code authorizes METRO to use job order contracting only for work involving a facility that is a building or associated structures and land, and that the same section bars the method for most other engineering projects.

METRO (as the opinion described it): The opinion described METRO as subject to chapter 2269 and able to use job order contracting, but limited to building-related work, with civil engineering construction such as roads, utilities, and water and wastewater projects excluded.

Contractors and engineers working with METRO (as the opinion described it): The opinion described job order contracting as available for building-related work but not for the listed civil works categories, and noted it expressed no view on contracts first solicited before September 1, 2011.

Common questions

Can METRO use job order contracting at all?
Yes, for building-related work. The AG confirmed METRO is a governmental entity covered by chapter 2269, so it may use job order contracting, but only within the limits section 2269.402 sets.

Can METRO use it for roads, utilities, or water projects?
No. The AG explained that section 2269.402 expressly excludes highways, roads, bridges, utilities, water and wastewater projects, drainage, airport runways, and related civil engineering construction from job order contracting.

What kind of work does the method cover?
The AG described it as limited to work involving a facility that is a building (governed by accepted building codes) or a structure or land associated with a building.

Background and statutory framework

Job order contracting is defined in Government Code section 2269.401 and authorized in subchapter I of chapter 2269 (Tex. Gov't Code Ann. § 2269.401 (West Supp. 2013); §§ 2269.401-.411). Chapter 2269 applies to public work contracts by governmental entities, including special districts and authorities and other political subdivisions (Tex. Gov't Code Ann. § 2269.002(2)(D)-(E)), and METRO is such an entity authorized to make public work contracts (Tex. Transp. Code Ann. §§ 451.052(a), .054(a), .055(a), .056(a)(1) (West 2013)). Subchapter I lets a covered entity award job order contracts for qualifying work (Tex. Gov't Code Ann. § 2269.403(a) (West Supp. 2013)), but section 2269.402 limits that work to building-related facilities and excludes civil engineering construction (Tex. Gov't Code Ann. § 2269.402). Former chapter 2267 was redesignated as chapter 2269 effective September 1, 2013 (Act of May 9, 2013, 83d Leg., R.S., ch. 161, §§ 22.001, 23.001, 2013 Tex. Sess. Law Serv. 623, 702, 710). Some entities have job order contracting authority elsewhere (Tex. Educ. Code Ann. § 51.784 (West 2012); Tex. Water Code Ann. § 60.464(a) (West Supp. 2013)), and the predecessor provision applied only to projects first solicited 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).

Citations

Statutes and session laws:

• Tex. Gov't Code Ann. § 2269.401 (West Supp. 2013); §§ 2269.401-.411 (job order contracting, subchapter I)
• Tex. Gov't Code Ann. § 2269.002(2)(D)-(E) (entities covered by chapter 2269)
• Tex. Gov't Code Ann. § 2269.402 (work eligible for job order contracting; civil works exclusions)
• Tex. Gov't Code Ann. § 2269.403(a) (West Supp. 2013) (award of job order contracts)
• Tex. Transp. Code Ann. §§ 451.052(a), .054(a), .055(a), .056(a)(1) (West 2013) (METRO's public work contract authority)
• Tex. Educ. Code Ann. § 51.784 (West 2012); Tex. Water Code Ann. § 60.464(a) (West Supp. 2013) (other entities' authority)
• Act of May 9, 2013, 83d Leg., R.S., ch. 161, §§ 22.001, 23.001, 2013 Tex. Sess. Law Serv. 623, 702, 710 (chapter 2267 redesignated 2269)
• Act of May 29, 2011, 82d Leg., R.S., ch. 1129, §§ 2.08, 6.01-.02, 2011 Tex. Gen. Laws 2900, 2904-20, 2924 (effective-date provision)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1028
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1028.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 25, 2013

The Honorable Bill Callegari, P.E. Opinion No. GA-1028
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. Id. §§ 2269.401-.411 (subchapter I).[3] 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[.]" Id. § 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)(1) (West 2013). Thus, METRO is subject to chapter 2269, including the job order contracting provisions in subchapter I.

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." Id. § 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.

Id. 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]

SUMMARY

Section 2269.402 of the Government Code authorizes the Metropolitan Transit Authority of Harris County ("METRO") to use job order contracting only for work involving a facility that is a building or work involving structures or land associated with a building.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

[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 authority 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).

[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.