Procuring Architects, Engineers and Land Surveyors by Texas School Districts and Charter Schools: Do I have to RFQ or Not?

We have recently received a number if inquiries, many of which appear to have been generated after a recent training event on charter school facilities (not by our Firm) about whether or not a "request for qualifications" or "RFQ" for professional services for architects, engineers and land surveyors is required or not. Sure, in a pinch maybe you can get away with something less than a full-blown RFQ.  But why then is it that almost everyone falls back on the good old stand by RFQ?

For your consideration, here is legal authority for why an RFQ should be conducted:

The Texas Attorney General has determined that “the most reasonable way to assure that such service providers [architects, engineers, surveyors] are selected on the basis of demonstrated competence and qualification to perform the services, as the statute mandates, is through a request for qualifications or similar competitive process” followed by the necessary negotiation process.[1]  In its Financial Accountability System Resource Guide (“FASRG”), the Texas Education Agency (“TEA”) states that the PSPA:

"requires a two-step procedure … for the procurement of architectural and engineering services. Competitive proposal procedures are recommended, where other procurement procedures are not required … to stimulate competitive prices for services.  In connection with … architectural or engineering, Chapter 2254, Government Code, requires a two-step negotiation process.  The two-step process only allows negotiation of price after an initial selection based upon demonstrated competence and qualifications of the person/firm."[2]

FASRG also provides that, “Chapter 2254 of the Government Code does specify a two-step proposal process for obtaining services from architects and engineers.”[3]  FASRG emphasizes the use of "proposal" which for professional services is essentially the RFQ process or something so close to it that it might as well be an RFQ.

As the PSPA itself does not prescribe the exact process that must be followed, specific advice may vary from attorney to attorney in regard to methods for compliance.  Nevertheless, it cannot be disputed that the two-step process must take place, and a school district must keep adequate records to document compliance with both steps.  As the Attorney General and TEA have opined in their opinions and regulations, the only safe way to assure full compliance with the PSPA is to utilize something like a structured Request for Qualifications process, and such is the recommendation, and we suggest, expectation of the Texas Attorney General and the TEA have recommended.



What is the potential exposure:  If your documentation is inadequate in demonstrating compliance, the contracts are subject to legal challenge by non-selected competitors and the contracts entered into may be "void" as a matter of public policy.

[1] Tex. Atty. Gen. Op. No. GA-0494 (2006) (emphasis added).

[2] TEA Financial Accountability System Resource Guide (FASRG), v. 12.0 (2004) (Competitive Proposals Defined) (emphasis added)

[3] FASRG § 3.2.3.2 (emphasis added).  The FASRG is not merely a guide as the title suggests, but is given the power and effect of law under 19 Texas Administrative Code § 109.41, which adopts FASRG as the TEA’s official rule and incorporates it by reference as a formal regulation.

Recent Legislative Updates Affecting

Required Website Postings for Charter Schools

Texas law requires charter schools who maintain a website to post certain information on their websites.  During the recently concluded 83rd Legislative Session, a handful of additions to these requirements were made.  The following notes summarize these new required postings. 

·      Names of Governing Bodies

As part of Senate Bill 2, Chapter 12 of the Education Code was amended by adding Section 12.1211, which requires charter schools to list the names of board members on the home page of the school’s website.  This requirement takes effect on September 1, 2013. 

·      Superintendent’s Salary

Senate Bill 2 also amended Chapter 12 of the Education Code by adding Section 12.136, which requires charter schools to post the salary of the school’s superintendent (or the administrator serving as educational leader and chief executive officer) on the school’s website.  This requirement also takes effect on September 1, 2013.

While this requirement may seem a bit jarring and invasive at first, please remember that superintendent salaries are already a matter of public record, as they are reported on your charter holder’s IRS Form 990. 

·      Written Communications of Board Members

Senate Bill 1297 amended Chapter 551 of the Government Code (the Open Meetings Act) by adding section 551.06, provides an additional opportunity for board members to communicate with each other without fear of violating the Open Meetings Act.  Specifically, section 551.06 allows a charter school to create an online message board or similar Internet application through which board members may communicate about public business or school policy so long as:

1.     The message board or other application is supervised or controlled by the school;

2.     The communication is in writing;

3.     The message board or other application is viewable and searchable by the public; and

4.     The communication is displayed in real time and for no less than 30 days after the communication was first posted. 

Schools are limited to only one message board or similar application for posting online messages, and the online forums may only be used by board members or staff members who have been given authorization from the board to post.  Most importantly, the board cannot vote or take action required to be taken during a meeting through the message board service, and no message board postings are to be considered an action of the board.  This requirement also takes effect on September 1, 2013.

·      “Transition and Employment Guide” for Special Education Programs

Finally, House Bill 617 amended Chapter 29 of the Education Code by adding section 29.0112, which requires the TEA to develop a “transition and employment guide” for students enrolled in special education programs and their parents to provide information on statewide services and programs that assist in the transition to life outside the public school system.  Once TEA publishes this guide, charter schools are required to post it on their websites.  However, since this will be a huge undertaking, the Legislature gave TEA until September 1, 2014 to complete the guide.  Charter schools are then required to post the guide as soon as it is made available.

We recommend that you begin updating your school websites as soon as possible so that you don’t miss any deadlines set by these new requirements.