Design professionals will be pleased to hear that beginning September 1, 2017, all RFPs and RFQs published by the state will be subject to additional statutory protections for architects and engineers.
The Texas Legislature recently amended Texas Government Code 2254.0031 and Texas Local Government Code 271.904 to prohibit a state agency—including institutions of higher education—from requiring design professionals selected under the Professional Services Procurement Act to defend the state for claims or liabilities, when resulting from the negligent acts or omissions of the state governmental entity or its employees. In addition, the standard of care applicable to the architect’s and engineer’s services on projects for state agencies is now defined and cannot be expanded by contract. Instead, design professionals will be required to perform to the classic standard of “professional skill and care ordinarily provided by competent engineers or architects under the same or similar circumstances and professional license . . . .”
These protections were previously available only to design professionals contracting with local governmental entities (such as municipalities, counties, and school districts). As a result, state agencies could include potentially uninsurable obligations in design services contracts. H.B. 3021 makes the protections that had only been applicable to most local governmental entities now applicable to state agencies, as well.
The new law, which will apply to RFPs and RFQs published on or after September 1, 2017, is very good news for architects and engineers contracting with state agencies because it provides the needed ammunition for design professionals to revise and limit defense, indemnity, and standard-of-care clauses that would otherwise present potentially dangerous and uninsurable risks.