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.