AN ACT
1-1 relating to the construction or repair of facilities by school
1-2 districts and institutions of higher education.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (a), (b), (e), and (g), Section
1-5 44.031, Education Code, are amended to read as follows:
1-6 (a) Except as provided by this subchapter [section], all
1-7 school district contracts, except contracts for the purchase of
1-8 produce or vehicle fuel, valued at $25,000 or more in the aggregate
1-9 for each 12-month period shall be made by the method, of the
1-10 following methods, that provides the best value to the district:
1-11 (1) competitive bidding;
1-12 (2) competitive sealed proposals;
1-13 (3) a request for proposals;
1-14 (4) a catalogue purchase as provided by Subchapter B,
1-15 Chapter 2157, Government Code;
1-16 (5) an interlocal contract; [or]
1-17 (6) a design/build contract;
1-18 (7) a contract to construct, rehabilitate, alter, or
1-19 repair facilities that involves using a construction manager; or
1-20 (8) a job order contract for the minor repair,
1-21 rehabilitation, or alteration of a facility.
1-22 (b) Except as provided by this subchapter, in [In]
1-23 determining to whom to award a contract, the district may consider:
2-1 (1) the purchase price;
2-2 (2) the reputation of the vendor and of the vendor's
2-3 goods or services;
2-4 (3) the quality of the vendor's goods or services;
2-5 (4) the extent to which the goods or services meet the
2-6 district's needs;
2-7 (5) the vendor's past relationship with the district;
2-8 (6) the impact on the ability of the district to
2-9 comply with laws and rules relating to historically underutilized
2-10 businesses;
2-11 (7) the total long-term cost to the district to
2-12 acquire the vendor's goods or services; and
2-13 (8) any other relevant factor that a private business
2-14 entity would consider in selecting a vendor.
2-15 (e) To the extent of any conflict, this subchapter [section]
2-16 prevails over any other law relating to the purchasing of goods and
2-17 services except a law relating to contracting with historically
2-18 underutilized businesses.
2-19 (g) Notice of the time by when and place where the bids or
2-20 proposals, or the responses to a request for qualifications, will
2-21 be received shall be published in the county in which the
2-22 district's central administrative office is located, once a week
2-23 for at least two weeks before the deadline for receiving bids,
2-24 proposals, or responses to a request for qualifications; [date set
2-25 for awarding the contract,] except that on contracts involving less
3-1 than $25,000, the advertising may be limited to two successive
3-2 issues of any newspaper published in the county in which the
3-3 district's central administrative office is located, and if there
3-4 is not a newspaper in that county, the advertising shall be
3-5 published in a newspaper in the county nearest the county seat of
3-6 the county in which the district's central administrative office is
3-7 located.
3-8 SECTION 2. Subchapter B, Chapter 44, Education Code, is
3-9 amended by adding Sections 44.0315 and 44.035 through 44.041 to
3-10 read as follows:
3-11 Sec. 44.0315. DEFINITIONS. In this subchapter:
3-12 (1) "Architect" means an individual registered as an
3-13 architect under Chapter 478, Acts of the 45th Legislature, Regular
3-14 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
3-15 (2) "Contractor" in the context of a contract for the
3-16 construction, rehabilitation, alteration, or repair of a facility
3-17 means a sole proprietorship, partnership, corporation, or other
3-18 legal entity that assumes the risk for constructing,
3-19 rehabilitating, altering, or repairing all or part of the facility
3-20 at the contracted price.
3-21 (3) "Engineer" means an individual registered as a
3-22 professional engineer under The Texas Engineering Practice Act
3-23 (Article 3271a, Vernon's Texas Civil Statutes).
3-24 (4) "Facility" means real property, including
3-25 buildings and associated structures and improved or unimproved
4-1 land.
4-2 (5) "Fee" in the context of a contract for the
4-3 construction, rehabilitation, alteration, or repair of a facility
4-4 means the payment a construction manager receives for its overhead
4-5 and profit in performing its services.
4-6 (6) "General conditions" in the context of a contract
4-7 for the construction, rehabilitation, alteration, or repair of a
4-8 facility means on-site management, administrative personnel,
4-9 insurance, bonds, equipment, utilities, and incidental work,
4-10 including minor field labor and materials.
4-11 Sec. 44.035. COMPETITIVE SEALED PROPOSALS FOR CONSTRUCTION
4-12 SERVICES. (a) Except as otherwise provided by this subchapter, a
4-13 school district using competitive sealed proposals to select a
4-14 contractor for construction services, to select a construction
4-15 manager, or to award a job order contract for construction services
4-16 shall base its selection or award on a combination of price and
4-17 other factors that the district determines provides the best value
4-18 to the district.
4-19 (b) A school district using competitive sealed proposals
4-20 may discuss proposals with offerors after proposals have been
4-21 opened to allow for clarification and changes. The district shall
4-22 take adequate precautions to ensure that information from competing
4-23 proposals is not disclosed to other offerors.
4-24 Sec. 44.036. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
4-25 this section:
5-1 (1) "Design-build contract" means a single contract
5-2 with a design-build firm for the design and construction of a
5-3 facility.
5-4 (2) "Design-build firm" means a partnership,
5-5 corporation, or other legal entity or team that includes an
5-6 engineer or architect and builder qualified to engage in building
5-7 construction in Texas.
5-8 (3) "Design criteria package" means a set of documents
5-9 that provides sufficient information to permit a design-build firm
5-10 to prepare a response to a school district's request for proposals.
5-11 The design criteria package must specify criteria the district
5-12 considers necessary to describe the project and may include, as
5-13 appropriate, the legal description of the site, survey information
5-14 concerning the site, interior space requirements, special material
5-15 requirements, material quality standards, conceptual criteria for
5-16 the project, special equipment requirements, cost or budget
5-17 estimates, time schedules, quality assurance and quality control
5-18 requirements, site development requirements, applicable codes and
5-19 ordinances, provisions for utilities, parking requirements, or any
5-20 other requirement, as applicable.
5-21 (b) A school district may use the design-build method for
5-22 the construction, rehabilitation, alteration, or repair of a
5-23 facility. In using that method and in entering into a contract for
5-24 the services of a design-build firm, the contracting school
5-25 district and the design-build firm shall follow the procedures
6-1 provided by Subsections (c)-(j).
6-2 (c) The district may designate an engineer or architect to
6-3 act as its representative. If the district's engineer or architect
6-4 is not a full-time employee of the district, any engineer or
6-5 architect designated shall be selected on the basis of demonstrated
6-6 competence and qualifications in accordance with Subchapter A,
6-7 Chapter 2254, Government Code.
6-8 (d) The district shall prepare a request for qualifications
6-9 that includes general information on the project site, project
6-10 scope, budget, special systems, selection criteria, and other
6-11 information that may assist potential design-build firms in
6-12 submitting proposals for the project. The district shall also
6-13 prepare the design criteria package that includes more detailed
6-14 information on the project. If the preparation of the design
6-15 criteria package requires engineering or architectural services
6-16 that constitute the practice of engineering within the meaning of
6-17 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
6-18 Civil Statutes) or the practice of architecture within the meaning
6-19 of Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
6-20 (Article 249a, Vernon's Texas Civil Statutes), those services shall
6-21 be provided in accordance with the applicable law.
6-22 (e) The district shall evaluate proposals and select a
6-23 design-build firm in two phases:
6-24 (1) In phase one, the district shall evaluate each
6-25 offeror's experience, technical competence, and capability to
7-1 perform, the past performance of the offeror's team and members of
7-2 the team, and other appropriate factors submitted by the team or
7-3 firm in response to the request for qualifications, except that
7-4 cost-related or price-related evaluation factors are not permitted.
7-5 Each offeror must certify to the district that each engineer or
7-6 architect that is a member of its team was selected based on
7-7 demonstrated competence and qualifications. The district shall
7-8 qualify a maximum of five potential offerors to submit additional
7-9 information regarding technical proposals, implementation, and
7-10 costing methodologies in response to a formal request for proposals
7-11 based on the design criteria package.
7-12 (2) In phase two, the district shall evaluate offerors
7-13 on the basis of demonstrated competence and qualifications,
7-14 considerations of the safety and long-term durability of the
7-15 project, the feasibility of implementing the project as proposed,
7-16 the ability of the offeror to meet schedules, costing methodology,
7-17 or other factors as appropriate. The district may not require
7-18 offerors to submit detailed engineering or architectural designs as
7-19 part of the proposal. The district shall select the design-build
7-20 firm that submits the proposal offering the best value for the
7-21 district.
7-22 (f) Following selection of a design-build firm under
7-23 Subsection (e), that firm's engineers or architects shall complete
7-24 the design, submitting all design elements for review and
7-25 determination of scope compliance by the district's engineer or
8-1 architect before or concurrently with construction.
8-2 (g) An engineer shall have responsibility for compliance
8-3 with the engineering design requirements and all other applicable
8-4 requirements of The Texas Engineering Practice Act (Article 3271a,
8-5 Vernon's Texas Civil Statutes). An architect shall have
8-6 responsibility for compliance with the requirements of Chapter 478,
8-7 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
8-8 Vernon's Texas Civil Statutes).
8-9 (h) The district shall provide or contract for,
8-10 independently of the design-build firm, the inspection services,
8-11 the testing of construction materials engineering, and the
8-12 verification testing services necessary for acceptance of the
8-13 facility by the district. The district shall select those services
8-14 for which it contracts in accordance with Section 2254.004,
8-15 Government Code.
8-16 (i) The design-build firm shall supply a signed and sealed
8-17 set of construction documents for the project to the district at
8-18 the conclusion of construction.
8-19 (j) A payment or performance bond is not required for, and
8-20 may not provide coverage for, the portion of a design-build
8-21 contract under this section that includes design services only.
8-22 Sec. 44.037. CONTRACTS FOR FACILITIES: CONSTRUCTION
8-23 MANAGER-AGENT. (a) A school district may use the construction
8-24 manager-agent method for the construction, rehabilitation,
8-25 alteration, or repair of a facility. In using that method and in
9-1 entering into a contract for the services of a construction
9-2 manager-agent, a district shall follow the procedures prescribed by
9-3 this section.
9-4 (b) A construction manager-agent is a sole proprietorship,
9-5 partnership, corporation, or other legal entity that provides
9-6 consultation to the school district regarding construction,
9-7 rehabilitation, alteration, or repair of the facility. A
9-8 construction manager-agent represents the district in a fiduciary
9-9 capacity, except that it may perform general conditions as provided
9-10 by the contract.
9-11 (c) Before or concurrently with selecting a construction
9-12 manager-agent, the district shall select or designate an engineer
9-13 or architect who shall prepare the construction documents for the
9-14 project and who has full responsibility for complying with The
9-15 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
9-16 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
9-17 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
9-18 applicable. If the engineer or architect is not a full-time
9-19 employee of the district, the district shall select the engineer or
9-20 architect on the basis of demonstrated competence and
9-21 qualifications as provided by Section 2254.004, Government Code.
9-22 (d) A district shall select a construction manager-agent on
9-23 the basis of demonstrated competence and qualifications in the
9-24 same manner as provided for the selection of engineers or
9-25 architects under Section 2254.004, Government Code.
10-1 (e) A district using the construction manager-agent method
10-2 shall procure, in accordance with applicable law and in any manner
10-3 authorized by this chapter, a general contractor, trade
10-4 contractors, or subcontractors who will serve as the prime
10-5 contractor for their specific portion of the work.
10-6 (f) The district or the construction manager-agent shall
10-7 procure in accordance with Section 2254.004, Government Code, all
10-8 of the testing of construction materials engineering, the
10-9 inspection services, and the verification testing services
10-10 necessary for acceptance of the facility by the district.
10-11 Sec. 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
10-12 MANAGER-AT-RISK. (a) A school district may use the construction
10-13 manager-at-risk method for the construction, rehabilitation,
10-14 alteration, or repair of a facility. In using that method and in
10-15 entering into a contract for the services of a construction
10-16 manager-at-risk, a district shall follow the procedures prescribed
10-17 by this section.
10-18 (b) A construction manager-at-risk is a sole proprietorship,
10-19 partnership, corporation, or other legal entity that assumes the
10-20 risk for construction, rehabilitation, alteration, or repair of a
10-21 facility at the contracted price as a general contractor and
10-22 provides consultation to the school district regarding construction
10-23 during and after the design of the facility.
10-24 (c) Before or concurrently with selecting a construction
10-25 manager-at-risk, the district shall select or designate an engineer
11-1 or architect who shall prepare the construction documents for the
11-2 project and who has full responsibility for complying with The
11-3 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
11-4 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
11-5 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
11-6 applicable. If the engineer or architect is not a full-time
11-7 employee of the district, the district shall select the engineer or
11-8 architect on the basis of demonstrated competence and
11-9 qualifications as provided by Section 2254.004, Government Code.
11-10 (d) The district shall provide or contract for,
11-11 independently of the construction manager-at-risk, the inspection
11-12 services, the testing of construction materials engineering, and
11-13 the verification testing services necessary for acceptance of the
11-14 facility by the district. The district shall select those services
11-15 for which it contracts in accordance with Section 2254.004,
11-16 Government Code.
11-17 (e) The district shall prepare a request for competitive
11-18 sealed proposals that includes general information on the project
11-19 site, project scope, schedule, selection criteria, estimated
11-20 budget, the time and place for receipt of proposals, and other
11-21 information that may assist the district in its selection of a
11-22 construction manager-at-risk. The district may request that
11-23 proposals provide the construction manager's proposed fee and its
11-24 price for fulfilling the general conditions. The district shall
11-25 state the selection criteria in the request for proposals. The
12-1 selection criteria may include the offeror's experience, past
12-2 performance, safety record, proposed personnel and methodology, and
12-3 other appropriate factors that demonstrate the capability of the
12-4 construction manager.
12-5 (f) The district may provide for prequalifying offerors
12-6 before proposals are submitted. Prequalification may not be a
12-7 conclusive determination that an offeror offers the best value to
12-8 the district, and a prequalified offeror may be rejected on the
12-9 basis of subsequently discovered information. A failure to
12-10 prequalify does not bar a subsequent determination that an offeror
12-11 offers the best value to the district with respect to a given
12-12 proposal.
12-13 (g) The district shall receive, publicly open, and read
12-14 aloud the names of the offerors and the monetary proposals, if any,
12-15 for each proposal. Within 45 days after the date of opening the
12-16 proposals, the district shall evaluate and rank each proposal
12-17 submitted in relation to the criteria set forth in the request for
12-18 proposals.
12-19 (h) The district shall select the offeror that offers the
12-20 best value to the district based on the published selection
12-21 criteria and on its ranking evaluation. If the district is unable
12-22 to reach a contract agreement with the selected offeror, the
12-23 district shall terminate further discussions and proceed to the
12-24 next offeror in the order of the selection ranking until a contract
12-25 agreement is reached or all proposals are rejected.
13-1 (i) A construction manager-at-risk shall publicly advertise
13-2 and solicit either competitive bids or competitive sealed proposals
13-3 from trade contractors or subcontractors for the performance of all
13-4 major elements of the work other than the minor work that may be
13-5 included in the general conditions. A construction manager-at-risk
13-6 may seek to perform portions of the work itself if the construction
13-7 manager-at-risk submits its bid or proposal for those portions of
13-8 the work in the same manner as all other trade contractors or
13-9 subcontractors and if the district determines that the construction
13-10 manager-at-risk's bid or proposal provides the best value for the
13-11 district.
13-12 (j) The construction manager-at-risk and the district or its
13-13 representative shall receive and open all trade contractor or
13-14 subcontractor bids or proposals in a manner that does not disclose
13-15 the contents of the bid or proposal during the selection process.
13-16 All bids or proposals shall be made public within seven days after
13-17 the date of final selection.
13-18 (k) If the construction manager-at-risk reviews, evaluates,
13-19 and recommends to the district a bid or proposal from a trade
13-20 contractor or subcontractor but the district requires another bid
13-21 or proposal to be accepted, the district shall compensate the
13-22 construction manager-at-risk by a change in price, time, or
13-23 guaranteed maximum cost for any additional cost and risk that the
13-24 construction manager-at-risk may incur because of the district's
13-25 requirement that another bid or proposal be accepted.
14-1 Sec. 44.039. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
14-2 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
14-3 contractor for construction, rehabilitation, alteration, or repair
14-4 services for a facility through competitive sealed proposals, a
14-5 school district shall follow the procedures prescribed by this
14-6 section.
14-7 (b) The district shall select or designate an engineer or
14-8 architect to prepare construction documents for the project. The
14-9 selected or designated engineer or architect has full
14-10 responsibility for complying with The Texas Engineering Practice
14-11 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
14-12 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
14-13 Vernon's Texas Civil Statutes), as applicable. If the engineer or
14-14 architect is not a full-time employee of the district, the district
14-15 shall select the engineer or architect on the basis of demonstrated
14-16 competence and qualifications as provided by Section 2254.004,
14-17 Government Code.
14-18 (c) The district shall provide or contract for,
14-19 independently of the contractor, the inspection services, the
14-20 testing of construction materials engineering, and the verification
14-21 testing services necessary for acceptance of the facility by the
14-22 district. The district shall select those services for which it
14-23 contracts in accordance with Section 2254.004, Government Code.
14-24 (d) The district shall prepare a request for competitive
14-25 sealed proposals that includes construction documents, selection
15-1 criteria, estimated budget, project scope, schedule, and other
15-2 information that contractors may require to respond to the request.
15-3 The district shall state the selection criteria in the request for
15-4 proposals. The selection criteria may include the offeror's
15-5 experience, past performance, safety record, proposed personnel and
15-6 methodology, and other appropriate factors that demonstrate the
15-7 capability of the contractor.
15-8 (e) The district may provide for prequalifying offerors
15-9 before proposals are submitted. Prequalification may not be a
15-10 conclusive determination that an offeror offers the best value to
15-11 the district, and a prequalified offeror may be rejected on the
15-12 basis of subsequently discovered information. A failure to
15-13 prequalify does not bar a subsequent determination that an offeror
15-14 offers the best value to the district with respect to a given
15-15 proposal.
15-16 (f) The district shall receive, publicly open, and read
15-17 aloud the names of the offerors and the monetary proposals, if any,
15-18 stated in each proposal. Within 45 days after the date of opening
15-19 the proposals, the district shall evaluate and rank each proposal
15-20 submitted in relation to the published selection criteria.
15-21 (g) The district shall select the offeror that offers the
15-22 best value to the district based on the published selection
15-23 criteria and on its ranking evaluation. The district and its
15-24 engineer or architect may discuss with the selected offeror options
15-25 for cost reduction. If the district is unable to reach a contract
16-1 agreement with the selected offeror, the district shall terminate
16-2 further discussions and proceed to the next offeror in the order of
16-3 the selection ranking until a contract agreement is reached or all
16-4 proposals are rejected.
16-5 (h) In determining best value for the district, the district
16-6 is not restricted to considering price alone, but may consider any
16-7 other factor stated in the selection criteria.
16-8 Sec. 44.040. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
16-9 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
16-10 by other law and to the extent consistent with this subchapter, a
16-11 school district may use competitive bidding to select a contractor
16-12 to perform construction, rehabilitation, alteration, or repair
16-13 services for a facility.
16-14 (b) Sections 271.021, 271.022, 271.026, 271.027(a), and
16-15 271.0275-271.030, Local Government Code, apply to a competitive
16-16 bidding process under this section.
16-17 (c) A school district shall award a competitively bid
16-18 contract at the bid amount to the bidder offering the best value to
16-19 the district according to the selection criteria that were
16-20 established by the district. The selection criteria may include
16-21 the factors listed in Section 44.031(b).
16-22 Sec. 44.041. JOB ORDER CONTRACTS FOR FACILITIES REPAIR.
16-23 (a) A school district may award job order contracts for the minor
16-24 repair, rehabilitation, or alteration of a facility if the work is
16-25 of a recurring nature but the delivery times are indefinite and
17-1 indefinite quantities and orders are awarded substantially on the
17-2 basis of predescribed and prepriced tasks.
17-3 (b) The school district shall advertise for, receive, and
17-4 publicly open competitive sealed proposals for job order contracts
17-5 based on time and material rates for various types and
17-6 classifications of work. The rates under a job order contract
17-7 shall be in effect for at least six months and for not longer than
17-8 two years.
17-9 (c) The district may require offerors to submit additional
17-10 information besides rates, including experience, past performance,
17-11 and proposed personnel and methodology.
17-12 (d) The district may award job order contracts to one or
17-13 more contractors based on price proposals, experience, past
17-14 performance, proposed personnel and methodology, safety record, and
17-15 other appropriate factors.
17-16 (e) An order for a job or project under the job order
17-17 contract must be signed by the district's representative and the
17-18 contractor. The order may be a fixed price, lump-sum contract
17-19 based on a statement of work negotiated between the district or its
17-20 representative and the contractor, or the order may be a unit price
17-21 order based on estimated quantities. The contractor shall provide
17-22 payment and performance bonds, if required by law, based on the
17-23 amount or estimated amount of any order.
17-24 SECTION 3. Chapter 51, Education Code, is amended by adding
17-25 Subchapter S to read as follows:
18-1 SUBCHAPTER S. CONSTRUCTION AND REPAIR OF PERMANENT IMPROVEMENTS
18-2 Sec. 51.776. DEFINITIONS. In this subchapter:
18-3 (1) "Architect" means an individual registered as an
18-4 architect under Chapter 478, Acts of the 45th Legislature, Regular
18-5 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
18-6 (2) "Board" means the governing body of an
18-7 institution.
18-8 (3) "Contractor" in the context of a contract for the
18-9 construction, rehabilitation, alteration, or repair of a facility
18-10 means a sole proprietorship, partnership, corporation, or other
18-11 legal entity that assumes the risk for constructing,
18-12 rehabilitating, altering, or repairing all or part of the facility
18-13 at the contracted price.
18-14 (4) "Engineer" means an individual registered as a
18-15 professional engineer under The Texas Engineering Practice Act
18-16 (Article 3271a, Vernon's Texas Civil Statutes).
18-17 (5) "Facility" means real property, including
18-18 buildings and associated structures and improved or unimproved
18-19 land.
18-20 (6) "Fee" in the context of a contract for the
18-21 construction, rehabilitation, alteration, or repair of a facility
18-22 means the payment a construction manager receives for its overhead
18-23 and profit in performing its services.
18-24 (7) "General conditions" in the context of a contract
18-25 for the construction, rehabilitation, alteration, or repair of a
19-1 facility means on-site management, administrative personnel,
19-2 insurance, bonds, equipment, utilities, and incidental work,
19-3 including minor field labor and materials.
19-4 (8) "Institution" means an institution of higher
19-5 education as defined by Section 61.003.
19-6 Sec. 51.777. DELEGATION OF AUTHORITY. A board may, as
19-7 appropriate, delegate by rule its authority under this subchapter
19-8 to its designated representative.
19-9 Sec. 51.778. COMPETITIVE BIDDING ON CONTRACTS. (a) Except
19-10 as otherwise provided by this subchapter, all contracts for the
19-11 construction or erection of permanent improvements at an
19-12 institution are void unless made after advertising for bids for the
19-13 contracts in a manner prescribed by the institution's board,
19-14 receiving sealed competitive bids, and awarding of the contract to
19-15 the lowest responsible bidder by the board.
19-16 (b) If a contract awarded under sealed competitive bidding
19-17 is to be recommended for award to other than the lowest bidder, any
19-18 bidder making a lower bid than the recommended bid shall be
19-19 notified of the recommendation for award and shall be allowed an
19-20 opportunity before the award to present evidence to the board or
19-21 its designated representative as to the responsibility of that
19-22 bidder.
19-23 Sec. 51.779. COMPETITIVE SEALED PROPOSALS FOR CONSTRUCTION
19-24 SERVICES. (a) Except as otherwise provided by this subchapter,
19-25 the board of an institution using competitive sealed proposals to
20-1 select a contractor for construction services, to select a
20-2 construction manager, or to award a job order contract for
20-3 construction services shall base its selection or award on a
20-4 combination of price and other factors that the board determines
20-5 provides the best value to the institution.
20-6 (b) An institution using competitive sealed proposals may
20-7 discuss proposals with offerors after proposals have been opened to
20-8 allow for clarification and changes. The institution shall take
20-9 adequate precautions to ensure that information from competing
20-10 proposals is not disclosed to other offerors.
20-11 Sec. 51.780. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
20-12 this section:
20-13 (1) "Design-build contract" means a single contract
20-14 with a design-build firm for the design and construction of a
20-15 facility.
20-16 (2) "Design-build firm" means a partnership,
20-17 corporation, or other legal entity or team that includes an
20-18 engineer or architect and builder qualified to engage in building
20-19 construction in Texas.
20-20 (3) "Design criteria package" means a set of documents
20-21 that provides sufficient information to permit a design-build firm
20-22 to prepare a response to an institution's request for proposals.
20-23 The design criteria package must specify criteria the institution
20-24 considers necessary to describe the project and may include, as
20-25 appropriate, the legal description of the site, survey information
21-1 concerning the site, interior space requirements, special material
21-2 requirements, material quality standards, conceptual criteria for
21-3 the project, special equipment requirements, cost or budget
21-4 estimates, time schedules, quality assurance and quality control
21-5 requirements, site development requirements, applicable codes and
21-6 ordinances, provisions for utilities, parking requirements, or any
21-7 other requirement, as applicable.
21-8 (b) An institution may use the design-build method for the
21-9 construction, rehabilitation, alteration, or repair of a facility.
21-10 In using that method and in entering into a contract for the
21-11 services of a design-build firm, the contracting institution and
21-12 the design-build firm shall follow the procedures provided by
21-13 Subsections (c)-(k).
21-14 (c) The board may designate an engineer or architect to act
21-15 as its representative. If the board's engineer or architect is not
21-16 a full-time employee of the institution, any engineer or architect
21-17 designated shall be selected on the basis of demonstrated
21-18 competence and qualifications in accordance with Subchapter A,
21-19 Chapter 2254, Government Code.
21-20 (d) The institution shall prepare a request for
21-21 qualifications that includes general information on the project
21-22 site, project scope, budget, special systems, selection criteria,
21-23 and other information that may assist potential design-build firms
21-24 in submitting proposals for the project. The institution shall
21-25 also prepare the design criteria package that includes more
22-1 detailed information on the project. If the preparation of the
22-2 design criteria package requires engineering or architectural
22-3 services that constitute the practice of engineering within the
22-4 meaning of The Texas Engineering Practice Act (Article 3271a,
22-5 Vernon's Texas Civil Statutes) or the practice of architecture
22-6 within the meaning of Chapter 478, Acts of the 45th Legislature,
22-7 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
22-8 Statutes), those services shall be provided in accordance with the
22-9 applicable law.
22-10 (e) The board or its representative shall publish the
22-11 request for qualifications in a manner prescribed by the board.
22-12 (f) The board or its representative shall evaluate proposals
22-13 and select a design-build firm in two phases:
22-14 (1) In phase one, the board or its representative
22-15 shall evaluate each offeror's experience, technical competence, and
22-16 capability to perform, the past performance of the offeror's team
22-17 and members of the team, and other appropriate factors submitted by
22-18 the team or firm in response to the request for qualifications,
22-19 except that cost-related or price-related evaluation factors are
22-20 not permitted. Each offeror must certify to the board that each
22-21 engineer or architect that is a member of its team was selected
22-22 based on demonstrated competence and qualifications. The board or
22-23 its representative shall qualify a maximum of five potential
22-24 offerors to submit additional information regarding technical
22-25 proposals, implementation, and costing methodologies in response to
23-1 a formal request for proposals based on the design criteria
23-2 package.
23-3 (2) In phase two, the board or its representative
23-4 shall evaluate offerors on the basis of demonstrated competence and
23-5 qualifications, considerations of the safety and long-term
23-6 durability of the project, the feasibility of implementing the
23-7 project as proposed, the ability of the offeror to meet schedules,
23-8 costing methodology, or other factors as appropriate. The
23-9 institution may not require offerors to submit detailed engineering
23-10 or architectural design as part of the proposal. The board shall
23-11 select the design-build firm that submits the proposal offering the
23-12 best value for the institution.
23-13 (g) Following selection of a design-build firm under
23-14 Subsection (f), that firm's engineers or architects shall complete
23-15 the design, submitting all design elements for review and
23-16 determination of scope compliance by the institution's engineer or
23-17 architect before or concurrently with construction.
23-18 (h) An engineer shall have responsibility for compliance
23-19 with the engineering design requirements and all other applicable
23-20 requirements of The Texas Engineering Practice Act (Article 3271a,
23-21 Vernon's Texas Civil Statutes). An architect shall have
23-22 responsibility for compliance with the requirements of Chapter 478,
23-23 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
23-24 Vernon's Texas Civil Statutes).
23-25 (i) The institution shall provide or contract for,
24-1 independently of the design-build firm, the inspection services,
24-2 the testing of construction materials engineering, and the
24-3 verification testing services necessary for acceptance of the
24-4 facility by the institution. The institution shall select those
24-5 services for which it contracts in accordance with Section
24-6 2254.004, Government Code.
24-7 (j) The design-build firm shall supply a signed and sealed
24-8 set of construction documents for the project to the institution at
24-9 the conclusion of construction.
24-10 (k) A payment or performance bond is not required for, and
24-11 may not provide coverage for, the portion of a design-build
24-12 contract under this section that includes design services only.
24-13 Sec. 51.781. CONTRACTS FOR FACILITIES: CONSTRUCTION
24-14 MANAGER-AGENT. (a) An institution may use the construction
24-15 manager-agent method for the construction, rehabilitation,
24-16 alteration, or repair of a facility. In using that method and in
24-17 entering into a contract for the services of a construction
24-18 manager-agent, a board shall follow the procedures prescribed by
24-19 this section.
24-20 (b) A construction manager-agent is a sole proprietorship,
24-21 partnership, corporation, or other legal entity that provides
24-22 consultation to the institution regarding construction,
24-23 rehabilitation, alteration, or repair of the facility. A
24-24 construction manager-agent represents the institution in a
24-25 fiduciary capacity, except that it may perform general conditions
25-1 as provided by the contract.
25-2 (c) Before or concurrently with selecting a construction
25-3 manager-agent, the board shall select or designate an engineer or
25-4 architect who shall prepare the construction documents for the
25-5 project and who has full responsibility for complying with The
25-6 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
25-7 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
25-8 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
25-9 applicable. If the engineer or architect is not a full-time
25-10 employee of the institution, the board shall select the engineer or
25-11 architect on the basis of demonstrated competence and
25-12 qualifications as provided by Section 2254.004, Government Code.
25-13 (d) A board shall select a construction manager-agent on the
25-14 basis of demonstrated competence and qualifications in the same
25-15 manner as provided for the selection of engineers or architects
25-16 under Section 2254.004, Government Code.
25-17 (e) A board using the construction manager-agent method
25-18 shall procure, in accordance with applicable law and in any manner
25-19 authorized by this chapter, a general contractor, trade
25-20 contractors, or subcontractors who will serve as the prime
25-21 contractor for their specific portion of the work.
25-22 (f) The board or the construction manager-agent shall
25-23 procure in accordance with Section 2254.004, Government Code, all
25-24 of the testing of construction materials engineering, the
25-25 inspection services, and the verification testing services
26-1 necessary for acceptance of the facility by the institution.
26-2 Sec. 51.782. CONTRACTS FOR FACILITIES: CONSTRUCTION
26-3 MANAGER-AT-RISK. (a) An institution may use the construction
26-4 manager-at-risk method for the construction, rehabilitation,
26-5 alteration, or repair of a facility. In using that method and in
26-6 entering into a contract for the services of a construction
26-7 manager-at-risk, a board shall follow the procedures prescribed by
26-8 this section.
26-9 (b) A construction manager-at-risk is a sole proprietorship,
26-10 partnership, corporation, or other legal entity that assumes the
26-11 risk for construction, rehabilitation, alteration, or repair of a
26-12 facility at the contracted price as a general contractor and
26-13 provides consultation to the institution regarding construction
26-14 during and after the design of the facility.
26-15 (c) Before or concurrently with selecting a construction
26-16 manager-at-risk, the board shall select or designate an engineer or
26-17 architect who shall prepare the construction documents for the
26-18 project and who has full responsibility for complying with The
26-19 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
26-20 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
26-21 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
26-22 applicable. If the engineer or architect is not a full-time
26-23 employee of the institution, the board shall select the engineer or
26-24 architect on the basis of demonstrated competence and
26-25 qualifications as provided by Section 2254.004, Government Code.
27-1 (d) The board shall provide or contract for, independently
27-2 of the construction manager-at-risk, the inspection services, the
27-3 testing of construction materials engineering, and the verification
27-4 testing services necessary for acceptance of the facility by the
27-5 institution. The board shall select those services for which it
27-6 contracts in accordance with Section 2254.004, Government Code.
27-7 (e) The board shall prepare a request for competitive sealed
27-8 proposals that includes general information on the project site,
27-9 project scope, schedule, selection criteria, estimated budget, the
27-10 time and place for receipt of proposals, and other information that
27-11 may assist the board in its selection of a construction
27-12 manager-at-risk. The board may request that proposals provide the
27-13 construction manager's proposed fee and its price for fulfilling
27-14 the general conditions. The board shall state the selection
27-15 criteria in the request for proposals. The selection criteria may
27-16 include the offeror's experience, past performance, safety record,
27-17 proposed personnel and methodology, and other appropriate factors
27-18 that demonstrate the capability of the construction manager.
27-19 (f) The board shall publish the request for proposals in a
27-20 manner prescribed by the board.
27-21 (g) The board may provide for prequalifying offerors before
27-22 proposals are submitted. Prequalification may not be a conclusive
27-23 determination that an offeror offers the best value to the
27-24 institution, and a prequalified offeror may be rejected on the
27-25 basis of subsequently discovered information. A failure to
28-1 prequalify does not bar a subsequent determination that an offeror
28-2 offers the best value to the institution with respect to a given
28-3 proposal.
28-4 (h) The board shall receive, publicly open, and read aloud
28-5 the names of the offerors and the monetary proposals, if any, for
28-6 each proposal. Within 45 days after the date of opening the
28-7 proposals, the board shall evaluate and rank each proposal
28-8 submitted in relation to the criteria set forth in the request for
28-9 proposals.
28-10 (i) The board shall select the offeror that offers the best
28-11 value to the institution based on the published selection criteria
28-12 and on its ranking evaluation. If the board is unable to reach a
28-13 contract agreement with the selected offeror, the board shall
28-14 terminate further discussions and proceed to the next offeror in
28-15 the order of the selection ranking until a contract agreement is
28-16 reached or all proposals are rejected.
28-17 (j) A construction manager-at-risk shall publicly advertise
28-18 and solicit either competitive bids or competitive sealed proposals
28-19 from trade contractors or subcontractors for the performance of all
28-20 major elements of the work other than the minor work that may be
28-21 included in the general conditions. A construction manager-at-risk
28-22 may seek to perform portions of the work itself if the construction
28-23 manager-at-risk submits its bid or proposal for those portions of
28-24 the work in the same manner as all other trade contractors or
28-25 subcontractors and if the board determines that the construction
29-1 manager-at-risk's bid or proposal provides the best value for the
29-2 institution.
29-3 (k) The construction manager-at-risk and the board or its
29-4 representative shall receive and open all trade contractor or
29-5 subcontractor bids or proposals in a manner that does not disclose
29-6 the contents of the bid or proposal during the selection process.
29-7 All bids or proposals shall be made public within seven days after
29-8 the date of final selection.
29-9 (l) If the construction manager-at-risk reviews, evaluates,
29-10 and recommends to the board a bid or proposal from a trade
29-11 contractor or subcontractor but the board requires another bid or
29-12 proposal to be accepted, the institution shall compensate the
29-13 construction manager-at-risk by a change in price, time, or
29-14 guaranteed maximum cost for any additional cost and risk that the
29-15 construction manager-at-risk may incur because of the board's
29-16 requirement that another bid or proposal be accepted.
29-17 Sec. 51.783. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
29-18 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
29-19 contractor for construction, rehabilitation, alteration, or repair
29-20 services for a facility through competitive sealed proposals, a
29-21 board shall follow the procedures prescribed by this section.
29-22 (b) The board shall select or designate an engineer or
29-23 architect to prepare construction documents for the project. The
29-24 selected or designated engineer or architect has full
29-25 responsibility for complying with The Texas Engineering Practice
30-1 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
30-2 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
30-3 Vernon's Texas Civil Statutes), as applicable. If the engineer or
30-4 architect is not a full-time employee of the institution, the board
30-5 shall select the engineer or architect on the basis of demonstrated
30-6 competence and qualifications as provided by Section 2254.004,
30-7 Government Code.
30-8 (c) The board shall provide or contract for, independently
30-9 of the contractor, the inspection services, the testing of
30-10 construction materials engineering, and the verification testing
30-11 services necessary for acceptance of the facility by the
30-12 institution. The board shall select those services for which it
30-13 contracts in accordance with Section 2254.004, Government Code.
30-14 (d) The board shall prepare a request for competitive sealed
30-15 proposals that includes construction documents, selection criteria,
30-16 estimated budget, project scope, schedule, and other information
30-17 that contractors may require to respond to the request. The board
30-18 shall state the selection criteria in the request for proposals.
30-19 The selection criteria may include the offeror's experience, past
30-20 performance, safety record, proposed personnel and methodology, and
30-21 other appropriate factors that demonstrate the capability of the
30-22 contractor.
30-23 (e) The board shall publish notice of the request for
30-24 proposals in a manner prescribed by the board.
30-25 (f) The board may provide for prequalifying offerors before
31-1 proposals are submitted. Prequalification may not be a conclusive
31-2 determination that an offeror offers the best value to the
31-3 institution, and a prequalified offeror may be rejected on the
31-4 basis of subsequently discovered information. A failure to
31-5 prequalify does not bar a subsequent determination that an offeror
31-6 offers the best value to the institution with respect to a given
31-7 proposal.
31-8 (g) The board shall receive, publicly open, and read aloud
31-9 the names of the offerors and the monetary proposals, if any,
31-10 stated in each proposal. Within 45 days after the date of opening
31-11 the proposals the board shall evaluate and rank each proposal
31-12 submitted in relation to the published selection criteria.
31-13 (h) The board shall select the offeror that offers the best
31-14 value to the institution based on the published selection criteria
31-15 and on its ranking evaluation. The board and its engineer or
31-16 architect may discuss with the selected offeror options for cost
31-17 reduction. If the board is unable to reach a contract agreement
31-18 with the selected offeror, the board shall terminate further
31-19 discussions and proceed to the next offeror in the order of the
31-20 selection ranking until a contract agreement is reached or all
31-21 proposals are rejected.
31-22 (i) In determining best value for the institution, the board
31-23 is not restricted to considering price alone but may consider any
31-24 other factor stated in the selection criteria.
31-25 Sec. 51.784. JOB ORDER CONTRACTS FOR FACILITIES REPAIR.
32-1 (a) An institution may award job order contracts for the minor
32-2 repair, rehabilitation, or alteration of a facility if the work is
32-3 of a recurring nature but the delivery times are indefinite and
32-4 indefinite quantities and orders are awarded substantially on the
32-5 basis of predescribed and prepriced tasks.
32-6 (b) The board shall advertise for, receive, and publicly
32-7 open competitive sealed proposals for job order contracts based on
32-8 time and material rates for various types and classifications of
32-9 work. The rates under a job order contract shall be in effect for
32-10 at least six months and for not longer than two years.
32-11 (c) The board may require offerors to submit additional
32-12 information besides rates, including experience, past performance,
32-13 and proposed personnel and methodology.
32-14 (d) The board may award job order contracts to one or more
32-15 contractors based on price proposals, experience, past performance,
32-16 proposed personnel and methodology, safety record, and other
32-17 appropriate factors.
32-18 (e) An order for a job or project under the job order
32-19 contract must be signed by the board's representative and the
32-20 contractor. The order may be a fixed price, lump-sum contract
32-21 based on a statement of work negotiated between the board or its
32-22 representative and the contractor, or the order may be a unit price
32-23 order based on estimated quantities. The contractor shall provide
32-24 payment and performance bonds, if required by law, based on the
32-25 amount or estimated amount of any order.
33-1 SECTION 4. Section 51.907, Education Code, is repealed.
33-2 SECTION 5. This Act takes effect September 1, 1997. The
33-3 changes in law made by this Act apply only to a contract for which
33-4 requests for bids, requests for proposals, or requests for
33-5 qualifications are published or distributed on or after that date.
33-6 SECTION 6. The importance of this legislation and the
33-7 crowded condition of the calendars in both houses create an
33-8 emergency and an imperative public necessity that the
33-9 constitutional rule requiring bills to be read on three several
33-10 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 583 passed the Senate on
April 8, 1997, by a viva-voce vote; and that the Senate concurred
in House amendment on May 29, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 583 passed the House, with
amendment, on May 27, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor