Hiring an Architect or Engineer for District Construction

Laws related to school district construction can be confusing, even for those who deal with the issues regularly. In this article, TASB Legal Services answers basic questions about hiring an architect or engineer. 

Legal Background

The Texas Occupations Code, and administrative rules adopted under the code, set out requirements for architects and engineers and define the scope of an architecture or engineering practice in Texas. Some acts of engineering are within the practice of architecture. Consequently, architects can perform some services considered to be engineering. But only a limited number of engineers may legally engage in the practice of architecture. A construction project may require an architect, an engineer, or both, depending on the nature of the project. The project may, in fact, require multiple engineers if the project involves different engineering disciplines, such as geotechnical, structural, electrical, or mechanical engineering.

When to Hire an Architect or Engineer

Engineers: A district may not construct a public work involving engineering in which the public health, welfare, or safety is involved unless the engineering plans, specifications, and estimates have been prepared by an engineer, and the engineering construction is performed under the direct supervision of an engineer. Tex. Occ. Code § 1001.407. A public work generally includes the construction, alteration, or repair of a building or other structure or improvement paid for in whole or in part from public funds.

The Engineering Practice Act provides two exceptions applicable to school districts. No engineer is required if (1) the project involves mechanical or electrical engineering and will cost $8,000 or less or (2) the project does not require mechanical or electrical engineering and will cost $20,000 or less. Tex. Occ. Code § 1001.053. The general rule and exceptions are shown in a helpful flowchart from the Texas Board of Professional Engineers.

Architects: If a district constructs a public building that will be used for education, assembly, or office occupancy, an architect is required for design and supervision, depending on construction cost at the start of the project and whether the project involves new construction or existing buildings. For construction of a new building, a school district must hire an architect if construction costs exceed $100,000. 22 Tex. Admin. Code § 1.212(a). However, if the district alters or adds on to an existing building, the district must hire an architect if (1) the project requires removal, relocation, or addition of walls, partitions, or exits, and (2) construction costs exceed $50,000. 22 Tex. Admin. Code § 1.212(b).

Selecting an Architect or Engineer

As providers of professional services, architects and engineers must be selected in accordance with the Professional Services Procurement Act (PSPA). Tex. Educ. Code § 44.031(f). A district must first select the most highly qualified provider of those services based on demonstrated competence and qualifications and then attempt to negotiate a contract at a fair and reasonable price. Tex. Gov’t Code § 2254.004(a).

It is important to follow the two-step process under PSPA. Professional rules for both architects and engineers prohibit disclosing cost information, or information from which cost can be derived, until after the district has selected a provider based on demonstrated competence and qualifications. 22 Tex. Admin. Code §§ 1.147, 137.53. In addition, the Texas Education Agency’s Division of Financial Compliance has authority to investigate a school district’s selection process and direct the district to take remedial action if a violation is found.

Unlike other forms of competitive procurement, PSPA does not require a specific process. For example, districts do not need to advertise in a newspaper. As a best practice, school districts typically evaluate potential architects and engineers using a Request for Qualifications to solicit information from multiple firms and rank the firms on criteria such as experience, references, and financial stability. If the district cannot negotiate a satisfactory contract with the most highly qualified provider, it must end negotiations with that provider, select the next most highly qualified provider, and begin contract negotiations anew. This process continues until the parties enter into a contract. Tex. Gov’t Code § 2254.004.

Because of the complexity of these issues, TASB Legal Services recommends that a district consult with its attorney prior to selecting an architect or engineer for a construction project. A district should always seek legal advice before signing any construction-related contract. An attorney with experience in school district construction can assist in modifying an architect or engineer’s standard contract language to ensure that the contract complies with Texas law and school district needs.

This resource is provided for educational purposes and contains information to facilitate a general understanding of the law. References to judicial or other official proceedings are intended to be a fair and impartial account of public records, which may contain allegations that are not true. This publication is not an exhaustive treatment of the law, nor is it intended to substitute for the advice of an attorney. Consult your own attorney to apply these legal principles to specific fact situations.