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ORDINANCE NO.

___
AN ORDINANCE ESTABLISHING RESPONSIBLE BIDDER
REQUIREMENTS ON PUBLIC WORKS PROJECTS

WHEREAS, the City of Houston (City) is a municipal corporation organized and operating under the
laws of the City of Houston and The State of Texas;

WHEREAS, the City expends substantial funds for the construction of public works, a portion of that
money being derived from taxes paid by residents;

WHEREAS, the City seeks to preserve administrative resources by ensuring that only qualified
contractors and subcontractors are awarded contracts on public works construction projects;

WHEREAS, the City, based upon its experience, has determined that quality workmanship, efficient
operation, safety, and timely completion of projects are not necessarily insured by awarding a
construction contract solely on the basis of the low bid;

WHEREAS, the City seeks to enhance its ability to identify the lowest responsible bidder on all public
works construction projects by instituting more comprehensive submission requirements which are in
compliance with Texas law; and

WHEREAS, An Ordinance Establishing Responsible Bidder Requirements on Public Works Projects


will assure efficient use of taxpayer dollars, will promote public safety, and is in the public interest.

NOW, THEREFORE, BE IT ORDAINED by the City Council of __________, Texas, that:

Section 1. Public works

For purposes of this chapter, the term public works shall mean the following: any constructing,
altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating,
renovating, custom fabricating, maintenance, landscaping, improving, moving, wrecking, painting,
decorating, demolishing, and adding to or subtracting from any public building, structure, airport facility,
highway, roadway, street, alley, bridge, sewer, drain, ditch, sewage disposal plant, water work, parking
facility, railroad, excavation, or other project, development, real property, or improvement, or to do any
part thereof, whether or not the performance of the work herein described involves the addition to, or
fabrication into, any structure, project or development, real property or improvement herein described of
any material or article of merchandise and will include any firm that receives any tax abatements and
subsidies or any other city benefits, which is paid for out of a public fund or out of a special assessment.
The term also includes any public works leased by a political subdivision under a lease containing an
option to purchase. (Tex Govt Code 2269.001)

Section 2. Responsible Bidder


Each person, entity, General Contractor or Sub-Contractor submitting a bid for a public works contract
must comply with all submission requirements set forth in this Section 2, in order to be considered a
responsible bidder. The City may determine based on information provided in accordance with this
ordinance, or for other reasons, that the bidder is not a responsible bidder. In order for a bid for a public
works contract to be accepted, each person or entity submitting a bid for a public works contract must
include with its submittal the following information and supporting documentation verified under oath on
a form designated by the City:

A. Documents evidencing compliance with all applicable laws and ordinances pre-requisite to doing
business in the City of Houston;

B. A valid federal employer tax identification number or, if an individual, a valid social security
number;

C. Documents evidencing current registration with the Texas Department of Revenue if bidder has
employees (e.g. document with account number, Texas Business Tax number);

D. Documents evidencing current registration with the Texas Department of Employment Security if
bidder has employees (e.g. document with UI account number);

E. Disclosure of any federal, state or local tax liens or tax delinquencies against the contractor or any
officers of the contractor in the last five (5) years;

F. Evidence that all employees are (i) covered under a current workers compensation insurance policy
and (ii) properly classified under such policy;

If the bidder is insured with a carrier, the evidence of workers compensation insurance shall be a copy of
the Information Page of the contractors workers compensation policy and any continuation of that
Information Page which include the name and address of the insured, as well as the class codes the
compensation premium is based on and the total estimated remuneration per class code;

G. A statement that the bidder has at all times within the preceding five years been in compliance, and
with respect to all work performed under the public works contract will comply with all applicable
provisions of, and rules and regulations related to, each of the following: the Davis-Bacon Act (40 U.S.C.
Section 276a et seq.), the Houston Wage Theft Ordinance (Ord. No. 2013), Texas Labor Code Chapter 61,
and Texas Government Code Chapter 2258;

H. A statement that the contractor will in connection with its performance of the public works contract
comply with provisions of Section 2000e of Chapter 21, Title 42 of the United States Code and Federal
Executive Order No. 11246 as amended by Executive Order No.11375 (known as the Equal Opportunity
Employer provisions);

I. A copy of the contractors written program for the prevention of substance abuse to be filed with a
public body pursuant to the Substance Abuse Prevention on Public Works Projects Act (820 ILCS 265/1
et seq.);

J. Evidence that individuals who will perform work on the public works project on behalf of the
contractor are properly classified as either (i) an employee or (ii) an independent contractor under all
applicable state and federal laws and local ordinances;
K. Disclosure of any claim under federal, state or local law for unpaid compensation (wages and/or
fringe benefits) for contractors employees filed against the contractor in the last five years, where the
total amount of all such claims during that period equals $1,000 or more, as well as any past
determination of unpaid wages or other violations of labor law by any court or government agency;

L. Documents evidencing any professional or trade license required by law for any trade or specialty
area in which the contractor is seeking a contract award, as well as any suspension or revocation of any
such license held by the company, or of any director, officer, or manager of the company;

M. Evidence of participation in apprenticeship and training programs applicable to the work to be


performed on the project which are approved by and registered with the United States Department of
Labors Office of Apprenticeship, including a copy of all applicable apprenticeship standards and
Apprenticeship Agreement(s) for any apprentice(s) who will perform work on the public works project;

N. Documents evidencing the contractors safety and health activities and programs, including:

(i) A written Injury and illness Prevention Program signed by a company representative;
(ii) evidence that any employee performing a supervisory role on the public works contacts has
completed an OSHA 30 hour training class and all other employees performing work on the
public works contact have completed an OSHA 10 hour training class.
(iii) Complete copies of OSHA Form 300A Summary of Work-Related Injuries and Illnesses for the
Past three (3) years (if Applicable); and
(iiii) the current year-to-date OSHA Form 300 Log of Work-Related Injuries and Illnesses (if
Applicable).

O. The name and address of each subcontractor from whom the contractor has accepted a bid and/or
intends to hire on any part of the project and must be entered into the City of Houston/HCDD-Section 3
business database and adhere to Government Code 522.003(1)(A)(i)-(xi).

Section 3. Subcontractor Submission Requirements

E. Such subcontractor performing work under a public works contract with a value equal to or exceeding
the lesser of 3% off the public works contract value or $10,000 shall be required to adhere to all
requirements applicable to contractors set forth herein. No subcontractor may perform work under a
public works contract until it, or the contractor, has submitted to the City all of the information required
under Section 2 of this Ordinance with regard to the subcontractor and the City has provided a written
determination that the submission is complete.

Section 4. Automatic Disqualification of Repeat Violators

If a contractor or subcontractor of any tier on a public works contract is found by a court or agency of
competent jurisdiction twice within a three (3) year period to have violated the Davis-Bacon Act (40
U.S.C. Section 276a et seq.), the Houston Wage Theft Ordinance (Ord. No. 2013), Texas Labor Code
Chapter 61, or Texas Government Code Chapter 2258, it shall be deemed not to be a responsible bidder
for two (2) years from the date of the latest finding.

Section 5. Ongoing Obligations of Contractors and Subcontractors

Each contractor performing work under a public works contract, including subcontractors at any tier, will
abide by the following:

A. Any material changes to the contractors status with regard to any of the issues addressed in the
contractors bid submissions, at any time, must be reported in writing to the City within fourteen (14)
days of its occurrence. Failure to comply with this requirement is grounds for a finding of breach of the
public works contract and the contractor to be deemed a non-responsible bidder for purposes of future
public works contracts;

B. A public works contractor who fails to pay to any worker the wage rates stipulated in the public
works contract to which it is a party shall (a), in accordance with Texas Govt Code Sec. 2258.023(b),
pay to the City $60 for each worker employed for each calendar day or part of the day that the worker is
paid less than the wage rates stipulated in the contract and (b) pay to any worker all back wages and
waiting time penalty equivalent to the applicable wage rate multiplied by the number of days the
employee has waited to receive the back wages multiplied by 8 hours ;.and

C. In the event the City determines that any of the information submitted by a contractor in
connection with bidding on a public works contract is inaccurate, the City may elect in its sole discretion
to terminate the contract or to require the termination of a subcontract entered into by a subcontractor that
is the subject of the inaccurate information.

Section 6. Additional Criteria Available

The City may, in its discretion, request from bidders and consider one or more of the following sets of
information in awarding the public works contract:

A. Statements as to past performance, which shall give an accurate and complete record of all public
works projects completed in the past three (3) years by the contractor and include the name of the public
body and the project, original contract price, final contract price, and the names of all subcontractors used,
if applicable, and a statement as to compliance with completion deadlines; and

B. Any determinations by a court or governmental agency of violations of federal, state, or local laws
including but not limited to violations of contracting or antitrust laws, tax or licensing laws,
environmental laws, the Occupational Safety and Health Act (OSHA), the National Labor Relations Act
(NLRA), or federal Davis-Bacon and related Acts.

Section 7. Credit Toward Bid Award

The City shall adhere to the following in granting credit toward a bid in awarding a public works contract.

A. If the City applies any credit(s) towards a bid, the credit(s) will not operate to reduce the amount
Of the contract price.
B. The City shall apply a credit equal to 5% or $50,000 towards the bid of any bidder that can show
that it pay its employees a family-sustaining living wage and provide basic benefits.

C. The City shall apply a credit equal to 5% or $50,000, whichever is less, based on the local
bidders bid. For purposes of this Section, a local bidder is an individual or business entity that (1)
establishes it has a place of business located in the City for at least 1 year prior to the deadline for
submitting bids, and (2) can demonstrate for one year prior to the deadline for submitting bids that it has
paid a minimum of $5,000 of sales tax in the county where the work is to be performed. Preference will
be given to any local bidder that is a S/W/M/DBE and can meet all requirements of this subsection 7(C).
In the event that no local bidder bids on the project, a bidder that establishes it has a place of business
located within a city or county adjacent to the City is to be performed for at least one year prior to the
deadline for submitting bids will receive a credit equal to 1% or $10,000, whichever is less.

D. The City shall apply a credit equal to 2% or $20,000, whichever is less, towards the bid of a bidder
at least 25% of whose construction employees performing work under the public works contract reside in
the City; and that has at least 50% of its City-resident workforce enrolled in federally registered
apprenticeship programs. The bidder is not required to have a place of business in the county where the
work is to be performed for this credit to apply.

E. The City shall apply a credit equal to 2% or $20,000, whichever is less, towards the bid of a bidder
with a Veteran workforce. Veteran workforce means at least 30% of the bidder construction employees
reside in the county where the work is to be performed or Texas counties contiguous to the county where
the work is to be performed. The bidder is not required to have a place of business in the county where
the work is to be performed for this credit to apply.

F. The City shall apply a credit equal to 2% or $20,000, whichever is less, towards the bid of a bidder
with Zip codes with the highest unemployment workforce. Zip codes with the highest unemployment
workforce means at least 10% of the bidder construction employees reside in the county where the work
is to be performed or Texas counties contiguous to the county where the work is to be performed. The
bidder is not required to have a place of business in the county where the work is to be performed for this
credit to apply.

G. The City shall apply a credit equal to 2% or $20,000, whichever is less, towards the bid of a bidder
with a second chance workforce. Second Chance workforce means at least 10% of the bidder
construction employees reside in the county where the work is to be performed or Texas counties
contiguous to the county where the work is to be performed. The bidder is not required to have a place of
business in the county where the work is to be performed for this credit to apply.

The bidder is responsible for requesting credit based upon any of the above criteria.

Section 8. Incomplete Submissions by Bidders and Subcontractors

It is the sole responsibility of the contractor to comply with all submission requirements at the time it
submits its bid to the City. Contractor submissions deemed inadequate or incomplete may result in a
determination that the contractor is not a responsible bidder.

The submission requirements also apply to all subcontractors, except that the contractor shall submit all
subcontractor submissions to the City prior to the subcontractor commencing work on the project. Failure
of a subcontractor to submit the required information shall not disqualify the successful bidder from
performing work on the project and shall not constitute a contractual default and/or breach by the
successful bidder. However, the City may prohibit the subcontractor from commencing work, may require
the termination of the subcontract and may withhold all payments otherwise due for work performed by a
subcontractor, until the subcontractor submits the required information and the City approves such
information.

Section 9. Lowest Bidder Not Chosen

When the award is not recommended to be given to the lowest bidder, a statement of the reason for such
recommendation shall be prepared by the purchasing agent.

Section 10. Multiple Low Bids

When two or more responsible bidders submit the same low bid, the contract award shall be determined
by drawing lots at a public meeting of the City Council, unless one bidder is a local contractor and one is
a non-local contractor, in which event the local contractor shall be awarded the contract.

Section 11. Public Records

Contractors working for the city will continue to comply with the City of Houston/HCDD Section 3
business database. All information submitted by a contractor or subcontractor to the City pursuant to this
Ordinance will be considered a public record subject to disclosure under Government Code 552.003(1)
(A)(i)-(xi)

Section 12. Materiality

The requirements of this Ordinance are a material part of the bid documents and the public works contract
and the successful bidder shall include the provisions of Sections 2, 3,4, 5, 6, 11 and 16 of this Ordinance
as material terms in all subcontracts for the performance of work on the public works contract and shall
name the City as an intended third party beneficiary of all such terms and all workers performing work
under the contract in question as intended third party beneficiaries of Section 5(B)..

Section 13. Severability

If any portion of this Ordinance or the application thereof to any person or circumstance is held invalid,
such invalidity shall not affect other portions or applications of this Ordinance which can be given effect
without the invalid portions or applications and, to this end, the portions of this Ordinance are severable.

Section 14. Other Ordinances

Any prior ordinance or portion thereof in conflict with this Ordinance is hereby revoked.

Section 15. Construction Advisory Committee

There is hereby established a Construction Advisory Committee for the City. The Committee will
include members who are representatives of labor and the construction industry, consisting of seven
(7) individuals appointed by the Mayor and confirmed by City Council. The Director of the Public
Works Department shall serve as committee secretary and as an ex officio committee member.

A. The purpose of the Committee will be to:


(1) Monitor and enforce compliance with
(a) all public works contracts entered into by the City and
(b) all requirements of this Ordinance, in partnership with the City Compliance Office
as well as any other appropriate Federal, State, or local agency;

(2) advise the Mayor and City Council regarding categories and specific projects of maintenance
and construction work that should be accomplished by contract through competitive bidding
process instead of by use of City personnel and equipment;
(3) review the implementation of state laws, Charter provisions, ordinances, and council policies
relating to the award of construction contracts and the purchase or rental of construction
equipment materials and services, including advertising policies, specifications, and lease purchase
agreements; and
(4) Advise the Mayor and City Council on other construction matters affecting the quality, cost and
improvement of City construction programs.

Section 16. Enforcement and Penalties

The City may bring an action in any court of competent jurisdiction to enforce the requirements of
this Ordinance, any public works contract and any contract in which it is named as a third party
beneficiary, and shall be entitled to all rights and remedies available at law or in equity.

Upon determination, by the City that a contractor or subcontractor has submitted false
information or engaged in deceptive practices by a bidder in an attempt to secure a contract with
the City, a penalty not to exceed $15,000, shall be assessed, and bidder shall not be considered a
responsible bidder for a period not to exceed two (2) years.

Section 17. Effective Date

This Ordinance shall take effect upon passage by the City Council of ________________, Texas
This Ordinance was passed by the City Council of ________________, Texas on this ____ day of
____________, 201__.

This Ordinance was approved by the Mayor of the City of ________________, Texas on this ____ day
of ____________, 201__.
__________________________

Mayor

Attest:

Clerk