JLM C.S.S.B. 583 75(R)    BILL ANALYSIS


PUBLIC EDUCATION
C.S.S.B. 583
By: Ratliff (Craddick)
5-21-97
Committee Report (Substituted)



BACKGROUND 

In 1995, the Legislature passed S.B. 1, the omnibus public education
reform bill.  S.B. 1 included one section modifying the basic purchasing
statutes for school districts and allowed districts to choose from any of
a list of purchasing methods, including competitive bidding, competitive
sealed proposals, request for proposals, catalogue purchases, inter local
contracts, or design-build contracts.  (New Section 44.031, Education
Code.) 

The reference to design-build in this statute has created confusion.
Prior to the passage of S.B. 1, a series of Attorney General Opinions held
that public entities in Texas could not utilize designbuild procedures
because the practice is incompatible with the Professional Services
Procurement Act (now Chapter 2254, Government Code), which prohibits
competitive bidding for professional services.  Since S.B. 1 authorizes
school districts to use design-build contracts but does not specify the
procedures to be used, it is unclear how the two statutes fit together. 

Also, institutions of higher education do not currently have authority to
utilize design-build contracts. 

PURPOSE

C.S.S.B. 583 establishes a more specific procedure for districts to follow
in utilizing design-build contracts.  C.S.S.B. 583 also authorizes
institutions of higher education to enter into design-build contracts and
establishes procedures that must be used that mirror those provided for
school districts. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does grant additional
rulemaking authority to the board of an institution of higher education in
Section 3.   

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sec. 44.031 (a), (b), (e), and (g) to provide for
exceptions from general   purchasing provisions for school districts. 

SECTION 2.  Adds new Sections 44.0315, 44.035, 44.036, 44.037, 44.038,
44.039, 44.040, and   44.041 to the Education code: 
  Sec. 44.0315. Definitions
  
  Sec. 44.035.  Establishes guidelines for competitive sealed proposals
for     construction services. 

  Sec. 44.036.  Establishes procedures that school districts must follow
in entering   into contracts using design-build delivery procedures.  The
procedures require a   request for qualifications and a two-phase
evaluation process. 

  Sec. 44.037.   Establishes procedures that school districts must follow
in     contracting with a construction manager-agent.  A construction
manager-agent is   selected on basis of qualifications. 

  Sec. 44.038.  Establishes procedures that school districts must follow
in     contracting with a construction manager-at-risk.  The procedures
require a request   for competitive sealed proposals, a ranking of
proposers, and a negotiation   process.  Guidelines are established under
which the construction manager may   self-perform work. 

  Sec.  44.039.  Establishes procedures that school districts must follow
in selecting   contractors through competitive sealed proposals. 

  Sec. 44.040.  Provides guidelines for procurement of contractors through
competitive bidding. 

  Sec. 44.041.  Establishes procedures that school districts must follow
in awarding   job order contracts. 

SECTION 3.  Amends Chapter 51, Education Code, to add a new Subchapter S:

  Sec. 51.776.  Definitions.

  Sec. 51.777. Provides for delegation by boards of institutions of higher
education. 

  Sec. 51.778.  Provides that contracts for construction are void without
competitive   bidding, except as provided in this subchapter. 

  Sec. 51.779.  Establishes guidelines for competitive sealed proposals
for     construction services. 

  Sec. 51.780.  Establishes procedures that institutions of higher
education must   follow in entering into contracts using design-build
delivery procedures.  The   procedures require a request for
qualifications and a two-phase evaluation process. 

  Sec. 51.781.  Establishes procedures that institutions of higher
education must   follow in contracting manager-agent.  A construction
manager-agent is selected on   the basis of qualifications. 

  Sec. 51.782.  Establishes procedures that institutions of higher
education must   follow in contracting with a construction
manager-at-risk.  The procedures require   a request for competitive
sealed proposals, a ranking of proposers, and a     negotiation process.
Guidelines are established under which the construction   manager may
self-perform work. 

  Sec. 51.783.  Establishes procedures that institutions of higher
education must   follow in selecting contractors through competitive
sealed proposals. 

  Sec. 51.784.  Establishes procedures that institutions of higher
education must   follow in awarding job order contracts. 

SECTION 4.  Repeals Sec. 51.907, Education Code.

SECTION 5.  Effective date: September 1, 1997.

SECTION 6.  Emergency clause. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute makes minor changes to the sections of the bill
describing design-build procedures.  These include changing the maximum
firms that can be short listed from three to  five, deleting the
requirement that a district or institution reimburse proposers for
engineering or architectural design, adding a requirement for inspection
and verification testing independent of the design-build firm, and adding
a section clarifying that performance and payment bonds are not required
for the design portion of  design-build contract. 

The most significant changes in the committee substitute expand the bill
beyond design-build issues to cover other alternative delivery systems.
School districts have taken advantage of procurement reforms in S.B. 1 to
begin utilizing a wide variety of procurement options.  Delivery methods
such as construction management, competitive sealed proposals for
construction services, and job order contracting are increasingly
prevalent.  Unfortunately, neither S.B. 1 nor other law establishes
procedural guidelines for these delivery methods, even though school
districts are not commonly familiar with them.  The major changes in the
committee substitute establish procedural guidelines which school
districts and institutions of higher education must follow to enter in
contracts for construction manager-agents, construction managers-at-risk,
competitive sealed proposals for construction services and job order
contracts.