75R14483 JRD-F
By Ratliff S.B. No. 583
Substitute the following for S.B. No. 583:
By Culberson C.S.S.B. No. 583
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the construction or repair of facilities by school
1-3 districts and institutions of higher education.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 44.031(a), (b), (e), and (g), Education
1-6 Code, are amended to read as follows:
1-7 (a) Except as provided by this subchapter [section], all
1-8 school district contracts, except contracts for the purchase of
1-9 produce or vehicle fuel, valued at $25,000 or more in the aggregate
1-10 for each 12-month period shall be made by the method, of the
1-11 following methods, that provides the best value to the district:
1-12 (1) competitive bidding;
1-13 (2) competitive sealed proposals;
1-14 (3) a request for proposals;
1-15 (4) a catalogue purchase as provided by Subchapter B,
1-16 Chapter 2157, Government Code;
1-17 (5) an interlocal contract; [or]
1-18 (6) a design/build contract;
1-19 (7) contracts to construct, rehabilitate, alter, or
1-20 repair facilities that involve using a construction manager; or
1-21 (8) a job order contract for the minor repair,
1-22 rehabilitation, or alteration of a facility.
1-23 (b) Except as provided by this subchapter, in [In]
1-24 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
2-26 than $25,000, the advertising may be limited to two successive
2-27 issues of any newspaper published in the county in which the
3-1 district's central administrative office is located, and if there
3-2 is not a newspaper in that county, the advertising shall be
3-3 published in a newspaper in the county nearest the county seat of
3-4 the county in which the district's central administrative office is
3-5 located.
3-6 SECTION 2. Subchapter B, Chapter 44, Education Code, is
3-7 amended by adding Sections 44.0315 and 44.035-44.041 to read as
3-8 follows:
3-9 Sec. 44.0315. DEFINITIONS. In this subchapter:
3-10 (1) "Architect" means an individual registered as an
3-11 architect under Chapter 478, Acts of the 45th Legislature, Regular
3-12 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
3-13 (2) "Contractor" in the context of a contract for the
3-14 construction, rehabilitation, alteration, or repair of a facility
3-15 means a sole proprietorship, partnership, corporation, or other
3-16 legal entity that assumes the risk for constructing,
3-17 rehabilitating, altering, or repairing all or part of the facility
3-18 at the contracted price.
3-19 (3) "Engineer" means an individual registered as a
3-20 professional engineer under The Texas Engineering Practice Act
3-21 (Article 3271a, Vernon's Texas Civil Statutes).
3-22 (4) "Facility" means real property, including
3-23 buildings and associated structures and improved or unimproved
3-24 land.
3-25 (5) "Fee" in the context of a contract for the
3-26 construction, rehabilitation, alteration, or repair of a facility
3-27 means the payment a construction manager receives for its overhead
4-1 and profit in performing its services.
4-2 (6) "General conditions" in the context of a contract
4-3 for the construction, rehabilitation, alteration, or repair of a
4-4 facility means on-site management, administrative personnel,
4-5 insurance, bonds, equipment, utilities, and incidental work,
4-6 including minor field labor and materials.
4-7 Sec. 44.035. COMPETITIVE SEALED PROPOSALS FOR CONSTRUCTION
4-8 SERVICES. (a) Except as otherwise provided by this subchapter, a
4-9 school district using competitive sealed proposals to select a
4-10 contractor for construction services, to select a construction
4-11 manager, or to award a job order contract for construction services
4-12 shall base its selection or award on a combination of price and
4-13 other factors that the district determines provides the best value
4-14 to the district.
4-15 (b) A school district using competitive sealed proposals
4-16 may discuss proposals with offerors after proposals have been
4-17 opened to allow for clarification and changes. The district shall
4-18 take adequate precautions to ensure that information from competing
4-19 proposals is not disclosed to other offerors.
4-20 Sec. 44.036. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
4-21 this section:
4-22 (1) "Design-build contract" means a single contract
4-23 with a design-build firm for the design and construction of a
4-24 facility.
4-25 (2) "Design-build firm" means a partnership,
4-26 corporation, or other legal entity or team that includes an
4-27 engineer or architect and builder qualified to engage in building
5-1 construction in Texas.
5-2 (3) "Design criteria package" means a set of documents
5-3 that provides sufficient information to permit a design-build firm
5-4 to prepare a response to a school district's request for proposals.
5-5 The design criteria package must specify criteria the district
5-6 considers necessary to describe the project and may include, as
5-7 appropriate, the legal description of the site, survey information
5-8 concerning the site, interior space requirements, special material
5-9 requirements, material quality standards, conceptual criteria for
5-10 the project, special equipment requirements, cost or budget
5-11 estimates, time schedules, quality assurance and quality control
5-12 requirements, site development requirements, applicable codes and
5-13 ordinances, provisions for utilities, parking requirements, or any
5-14 other requirement, as applicable.
5-15 (b) A school district may use the design-build method for
5-16 the construction, rehabilitation, alteration, or repair of a
5-17 facility. In using that method and in entering into a contract for
5-18 the services of a design-build firm, the contracting school
5-19 district and the design-build firm shall follow the procedures
5-20 provided by Subsections (c)-(j).
5-21 (c) The district may designate an engineer or architect to
5-22 act as its representative. If the district's engineer or architect
5-23 is not a full-time employee of the district, any engineer or
5-24 architect designated shall be selected on the basis of demonstrated
5-25 competence and qualifications in accordance with Subchapter A,
5-26 Chapter 2254, Government Code.
5-27 (d) The district shall prepare a request for qualifications
6-1 that includes general information on the project site, project
6-2 scope, budget, special systems, selection criteria, and other
6-3 information that may assist potential design-build firms in
6-4 submitting proposals for the project. The district shall also
6-5 prepare the design criteria package that includes more detailed
6-6 information on the project. If the preparation of the design
6-7 criteria package requires engineering or architectural services
6-8 that constitute the practice of engineering within the meaning of
6-9 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
6-10 Civil Statutes) or the practice of architecture within the meaning
6-11 of Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
6-12 (Article 249a, Vernon's Texas Civil Statutes), those services shall
6-13 be provided in accordance with the applicable law.
6-14 (e) The district shall evaluate proposals and select a
6-15 design-build firm in two phases:
6-16 (1) In phase one, the district shall evaluate each
6-17 offeror's experience, technical competence, and capability to
6-18 perform, the past performance of the offeror's team and members of
6-19 the team, and other appropriate factors submitted by the team or
6-20 firm in response to the request for qualifications, except that
6-21 cost-related or price-related evaluation factors are not permitted.
6-22 Each offeror must certify to the district that each engineer or
6-23 architect that is a member of its team was selected based on
6-24 demonstrated competence and qualifications. The district shall
6-25 qualify a maximum of five potential offerors to submit additional
6-26 information regarding technical proposals, implementation, and
6-27 costing methodologies in response to a formal request for proposals
7-1 based on the design criteria package.
7-2 (2) In phase two, the district shall evaluate offerors
7-3 on the basis of demonstrated competence and qualifications,
7-4 considerations of the safety and long-term durability of the
7-5 project, the feasibility of implementing the project as proposed,
7-6 the ability of the offeror to meet schedules, costing methodology,
7-7 or other factors as appropriate. The district may not require
7-8 offerors to submit detailed engineering or architectural design as
7-9 part of the proposal. The district shall select the design-build
7-10 firm that submits the proposal offering the best value for the
7-11 district.
7-12 (f) Following selection of a design-build firm under
7-13 Subsection (e), that firm's engineers or architects shall complete
7-14 the design, submitting all design elements for review and
7-15 determination of scope compliance by the district's engineer or
7-16 architect before or concurrently with construction.
7-17 (g) An engineer shall have responsibility for compliance
7-18 with the engineering design requirements and all other applicable
7-19 requirements of The Texas Engineering Practice Act (Article 3271a,
7-20 Vernon's Texas Civil Statutes). An architect shall have
7-21 responsibility for compliance with the requirements of Chapter 478,
7-22 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
7-23 Vernon's Texas Civil Statutes).
7-24 (h) The district shall provide or contract for,
7-25 independently of the design-build firm, the inspection services,
7-26 the testing of construction materials engineering, and the
7-27 verification testing services necessary for acceptance of the
8-1 facility by the district. The district shall select those services
8-2 for which it contracts in accordance with Section 2254.004,
8-3 Government Code.
8-4 (i) The design-build firm shall supply a signed and sealed
8-5 set of construction documents for the project to the district at
8-6 the conclusion of construction.
8-7 (j) A payment or performance bond is not required for, and
8-8 may not provide coverage for, the portion of a design-build
8-9 contract under this section that includes design services only.
8-10 Sec. 44.037. CONTRACTS FOR FACILITIES: CONSTRUCTION
8-11 MANAGER-AGENT. (a) A school district may use the construction
8-12 manager-agent method for the construction, rehabilitation,
8-13 alteration, or repair of a facility. In using that method and in
8-14 entering into a contract for the services of a construction
8-15 manager-agent, a district shall follow the procedures prescribed by
8-16 this section.
8-17 (b) A construction manager-agent is a sole proprietorship,
8-18 partnership, corporation, or other legal entity that provides
8-19 consultation to the school district regarding construction,
8-20 rehabilitation, alteration, or repair of the facility. A
8-21 construction manager-agent represents the district in a fiduciary
8-22 capacity, except that it may perform general conditions as provided
8-23 by the contract.
8-24 (c) Before or concurrently with selecting a construction
8-25 manager-agent, the district shall select or designate an engineer
8-26 or architect who shall prepare the construction documents for the
8-27 project and who has full responsibility for complying with The
9-1 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
9-2 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
9-3 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
9-4 applicable. If the engineer or architect is not a full-time
9-5 employee of the district, the district shall select the engineer or
9-6 architect on the basis of demonstrated competence and
9-7 qualifications as provided by Section 2254.004, Government Code.
9-8 (d) A district shall select a construction manager-agent on
9-9 the basis of demonstrated competence and qualifications in the
9-10 same manner as provided for the selection of engineers or
9-11 architects under Section 2254.004, Government Code.
9-12 (e) A district using the construction manager-agent method
9-13 shall procure, in accordance with applicable law and in any manner
9-14 authorized by this chapter, a general contractor, trade
9-15 contractors, or subcontractors who will serve as the prime
9-16 contractor for their specific portion of the work.
9-17 (f) The district or the construction manager-agent shall
9-18 procure in accordance with Section 2254.004, Government Code, all
9-19 of the testing of construction materials engineering, the
9-20 inspection services, and the verification testing services
9-21 necessary for acceptance of the facility by the district.
9-22 Sec. 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
9-23 MANAGER-AT-RISK. (a) A school district may use the construction
9-24 manager-at-risk method for the construction, rehabilitation,
9-25 alteration, or repair of a facility. In using that method and in
9-26 entering into a contract for the services of a construction
9-27 manager-at-risk, a district shall follow the procedures prescribed
10-1 by this section.
10-2 (b) A construction manager-at-risk is a sole proprietorship,
10-3 partnership, corporation, or other legal entity that assumes the
10-4 risk for construction, rehabilitation, alteration, or repair of a
10-5 facility at the contracted price as a general contractor and
10-6 provides consultation to the school district regarding construction
10-7 during and after the design of the facilities.
10-8 (c) Before or concurrently with selecting a construction
10-9 manager-at-risk, the district shall select or designate an engineer
10-10 or architect who shall prepare the construction documents for the
10-11 project and who has full responsibility for complying with The
10-12 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
10-13 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
10-14 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
10-15 applicable. If the engineer or architect is not a full-time
10-16 employee of the district, the district shall select the engineer or
10-17 architect on the basis of demonstrated competence and
10-18 qualifications as provided by Section 2254.004, Government Code.
10-19 (d) The district shall provide or contract for,
10-20 independently of the construction manager-at-risk, the inspection
10-21 services, the testing of construction materials engineering, and
10-22 the verification testing services necessary for acceptance of the
10-23 facility by the district. The district shall select those services
10-24 for which it contracts in accordance with Section 2254.004,
10-25 Government Code.
10-26 (e) The district shall prepare a request for competitive
10-27 sealed proposals that includes general information on the project
11-1 site, project scope, schedule, selection criteria, estimated
11-2 budget, the time and place for receipt of proposals, and other
11-3 information that may assist the district in its selection of a
11-4 construction manager-at-risk. The district may request that
11-5 proposals provide the construction manager's proposed fee and its
11-6 price for fulfilling the general conditions. The district shall
11-7 state the selection criteria in the request for proposals. The
11-8 selection criteria may include the offeror's experience, past
11-9 performance, safety record, proposed personnel and methodology, and
11-10 other appropriate factors that demonstrate the capability of the
11-11 construction manager.
11-12 (f) The district may provide for prequalifying offerors
11-13 before proposals are submitted. Prequalification may not be a
11-14 conclusive determination that an offeror offers the best value to
11-15 the district, and a prequalified offeror may be rejected on the
11-16 basis of subsequently discovered information. A failure to
11-17 prequalify does not bar a subsequent determination that an offeror
11-18 offers the best value to the district with respect to a given
11-19 proposal.
11-20 (g) The district shall receive, publicly open, and read
11-21 aloud the names of the offerors and the monetary proposals, if any,
11-22 for each proposal. Within 45 days after the date of opening the
11-23 proposals, the district shall evaluate and rank each proposal
11-24 submitted in relation to the criteria set forth in the request for
11-25 proposals.
11-26 (h) The district shall select the offeror that offers the
11-27 best value to the district based on the published selection
12-1 criteria and on its ranking evaluation. If the district is unable
12-2 to reach a contract agreement with the selected offeror, the
12-3 district shall terminate further discussions and proceed to the
12-4 next offeror in the order of the selection ranking until a contract
12-5 agreement is reached or all proposals are rejected.
12-6 (i) A construction manager-at-risk shall publicly advertise
12-7 and solicit either competitive bids or competitive sealed proposals
12-8 from trade contractors or subcontractors for the performance of all
12-9 major elements of the work other than the minor work that may be
12-10 included in the general conditions. A construction manager-at-risk
12-11 may seek to perform portions of the work itself if the construction
12-12 manager-at-risk submits its bid or proposal for those portions of
12-13 the work in the same manner as all other trade contractors or
12-14 subcontractors and if the district determines that the construction
12-15 manager-at-risk's bid or proposal provides the best value for the
12-16 district.
12-17 (j) The construction manager-at-risk and the district or its
12-18 representative shall receive and open all trade contractor or
12-19 subcontractor bids or proposals in a manner that does not disclose
12-20 the contents of the bid or proposal during the selection process.
12-21 All bids or proposals shall be made public within seven days after
12-22 the date of final selection.
12-23 (k) If the construction manager-at-risk reviews, evaluates,
12-24 and recommends to the district a bid or proposal from a trade
12-25 contractor or subcontractor but the district requires another bid
12-26 or proposal to be accepted, the district shall compensate the
12-27 construction manager-at-risk by a change in price, time, or
13-1 guaranteed maximum cost for any additional cost and risk that the
13-2 construction manager-at-risk may incur because of the district's
13-3 requirement that another bid or proposal be accepted.
13-4 Sec. 44.039. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
13-5 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
13-6 contractor for construction, rehabilitation, alteration, or repair
13-7 services for a facility through competitive sealed proposals, a
13-8 school district shall follow the procedures prescribed by this
13-9 section.
13-10 (b) The district shall select or designate an engineer or
13-11 architect to prepare construction documents for the project. The
13-12 selected or designated engineer or architect has full
13-13 responsibility for complying with The Texas Engineering Practice
13-14 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
13-15 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
13-16 Vernon's Texas Civil Statutes), as applicable. If the engineer or
13-17 architect is not a full-time employee of the district, the district
13-18 shall select the engineer or architect on the basis of demonstrated
13-19 competence and qualifications as provided by Section 2254.004,
13-20 Government Code.
13-21 (c) The district shall provide or contract for,
13-22 independently of the contractor, the inspection services, the
13-23 testing of construction materials engineering, and the verification
13-24 testing services necessary for acceptance of the facility by the
13-25 district. The district shall select those services for which it
13-26 contracts in accordance with Section 2254.004, Government Code.
13-27 (d) The district shall prepare a request for competitive
14-1 sealed proposals that includes construction documents, selection
14-2 criteria, estimated budget, project scope, schedule, and other
14-3 information that contractors may require to respond to the request.
14-4 The district shall state the selection criteria in the request for
14-5 proposals. The selection criteria may include the offeror's
14-6 experience, past performance, safety record, proposed personnel and
14-7 methodology, and other appropriate factors that demonstrate the
14-8 capability of the contractor.
14-9 (e) The district may provide for prequalifying offerors
14-10 before proposals are submitted. Prequalification may not be a
14-11 conclusive determination that an offeror offers the best value to
14-12 the district, and a prequalified offeror may be rejected on the
14-13 basis of subsequently discovered information. A failure to
14-14 prequalify does not bar a subsequent determination that an offeror
14-15 offers the best value to the district with respect to a given
14-16 proposal.
14-17 (f) The district shall receive, publicly open, and read
14-18 aloud the names of the offerors and the monetary proposals, if any,
14-19 stated in each proposal. Within 45 days after the date of opening
14-20 the proposals, the district shall evaluate and rank each proposal
14-21 submitted in relation to the published selection criteria.
14-22 (g) The district shall select the offeror that offers the
14-23 best value to the district based on the published selection
14-24 criteria and on its ranking evaluation. The district and its
14-25 engineer or architect may discuss with the selected offeror options
14-26 for cost reduction. If the district is unable to reach a contract
14-27 agreement with the selected offeror, the district shall terminate
15-1 further discussions and proceed to the next offeror in the order of
15-2 the selection ranking until a contract agreement is reached or all
15-3 proposals are rejected.
15-4 (h) In determining best value for the district, the district
15-5 is not restricted to considering price alone, but may consider any
15-6 other factor stated in the selection criteria.
15-7 Sec. 44.040. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
15-8 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
15-9 by other law and to the extent consistent with this subchapter, a
15-10 school district may use competitive bidding to select a contractor
15-11 to perform construction, rehabilitation, alteration, or repair
15-12 services for a facility.
15-13 (b) Sections 271.021, 271.022, 271.026, 271.027(a), and
15-14 271.0275-271.030, Local Government Code, apply to a competitive
15-15 bidding process under this section.
15-16 (c) A school district shall award a competitively bid
15-17 contract at the bid amount to the bidder offering the best value to
15-18 the district according to the selection criteria that were
15-19 established by the district. The selection criteria may include
15-20 the factors listed in Section 44.031(b).
15-21 Sec. 44.041. JOB ORDER CONTRACTS FOR FACILITIES REPAIR. (a)
15-22 A school district may award job order contracts for the minor
15-23 repair, rehabilitation, or alteration of a facility if the work is
15-24 of a recurring nature but the delivery times are indefinite and
15-25 indefinite quantities and orders are awarded substantially on the
15-26 basis of predescribed and prepriced tasks.
15-27 (b) The school district shall advertise for, receive, and
16-1 publicly open competitive sealed proposals for job order contracts
16-2 based on time and material rates for various types and
16-3 classifications of work. The rates under a job order contract shall
16-4 be in effect for at least six months and for not longer than two
16-5 years.
16-6 (c) The district may require offerors to submit additional
16-7 information besides rates, including experience, past performance,
16-8 and proposed personnel and methodology.
16-9 (d) The district may award job order contracts to one or
16-10 more contractors based on price proposals, experience, past
16-11 performance, proposed personnel and methodology, safety record, and
16-12 other appropriate factors.
16-13 (e) An order for a job or project under the job order
16-14 contract must be signed by the district's representative and the
16-15 contractor. The order may be a fixed price, lump-sum contract
16-16 based on a statement of work negotiated between the district or its
16-17 representative and the contractor, or the order may be a unit price
16-18 order based on estimated quantities. The contractor shall provide
16-19 payment and performance bonds, if required by law, based on the
16-20 amount or estimated amount of any order.
16-21 SECTION 3. Chapter 51, Education Code, is amended by adding
16-22 Subchapter S to read as follows:
16-23 SUBCHAPTER S. CONSTRUCTION AND REPAIR OF PERMANENT IMPROVEMENTS
16-24 Sec. 51.776. DEFINITIONS. In this subchapter:
16-25 (1) "Architect" means an individual registered as an
16-26 architect under Chapter 478, Acts of the 45th Legislature, Regular
16-27 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
17-1 (2) "Board" means the governing body of an
17-2 institution.
17-3 (3) "Contractor" in the context of a contract for the
17-4 construction, rehabilitation, alteration, or repair of a facility
17-5 means a sole proprietorship, partnership, corporation, or other
17-6 legal entity that assumes the risk for constructing,
17-7 rehabilitating, altering, or repairing all or part of the facility
17-8 at the contracted price.
17-9 (4) "Engineer" means an individual registered as a
17-10 professional engineer under The Texas Engineering Practice Act
17-11 (Article 3271a, Vernon's Texas Civil Statutes).
17-12 (5) "Facility" means real property, including
17-13 buildings and associated structures and improved or unimproved
17-14 land.
17-15 (6) "Fee" in the context of a contract for the
17-16 construction, rehabilitation, alteration, or repair of a facility
17-17 means the payment a construction manager receives for its overhead
17-18 and profit in performing its services.
17-19 (7) "General conditions" in the context of a contract
17-20 for the construction, rehabilitation, alteration, or repair of a
17-21 facility means on-site management, administrative personnel,
17-22 insurance, bonds, equipment, utilities, and incidental work,
17-23 including minor field labor and materials.
17-24 (8) "Institution" means an institution of higher
17-25 education as defined by Section 61.003.
17-26 Sec. 51.777. DELEGATION OF AUTHORITY. A board may, as
17-27 appropriate, delegate by rule its authority under this subchapter
18-1 to its designated representative.
18-2 Sec. 51.778. COMPETITIVE BIDDING ON CONTRACTS. (a) Except
18-3 as otherwise provided by this subchapter, all contracts for the
18-4 construction or erection of permanent improvements at an
18-5 institution are void unless made after advertising for bids for the
18-6 contracts in a manner prescribed by the institution's board,
18-7 receiving sealed competitive bids, and awarding of the contract to
18-8 the lowest responsible bidder by the board.
18-9 (b) If a contract awarded under sealed competitive bidding
18-10 is to be recommended for award to other than the lowest bidder, any
18-11 bidder making a lower bid than the recommended bid shall be
18-12 notified of the recommendation for award and shall be allowed an
18-13 opportunity before the award to present evidence to the board or
18-14 its designated representative as to the responsibility of that
18-15 bidder.
18-16 Sec. 51.779. COMPETITIVE SEALED PROPOSALS FOR CONSTRUCTION
18-17 SERVICES. (a) Except as otherwise provided by this subchapter,
18-18 the board of an institution using competitive sealed proposals to
18-19 select a contractor for construction services, to select a
18-20 construction manager, or to award a job order contract for
18-21 construction services shall base its selection or award on a
18-22 combination of price and other factors that the board determines
18-23 provides the best value to the institution.
18-24 (b) An institution using competitive sealed proposals may
18-25 discuss proposals with offerors after proposals have been opened to
18-26 allow for clarification and changes. The institution shall take
18-27 adequate precautions to ensure that information from competing
19-1 proposals is not disclosed to other offerors.
19-2 Sec. 51.780. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
19-3 this section:
19-4 (1) "Design-build contract" means a single contract
19-5 with a design-build firm for the design and construction of a
19-6 facility.
19-7 (2) "Design-build firm" means a partnership,
19-8 corporation, or other legal entity or team that includes an
19-9 engineer or architect and builder qualified to engage in building
19-10 construction in Texas.
19-11 (3) "Design criteria package" means a set of documents
19-12 that provides sufficient information to permit a design-build firm
19-13 to prepare a response to an institution's request for proposals.
19-14 The design criteria package must specify criteria the institution
19-15 considers necessary to describe the project and may include, as
19-16 appropriate, the legal description of the site, survey information
19-17 concerning the site, interior space requirements, special material
19-18 requirements, material quality standards, conceptual criteria for
19-19 the project, special equipment requirements, cost or budget
19-20 estimates, time schedules, quality assurance and quality control
19-21 requirements, site development requirements, applicable codes and
19-22 ordinances, provisions for utilities, parking requirements, or any
19-23 other requirement, as applicable.
19-24 (b) An institution may use the design-build method for the
19-25 construction, rehabilitation, alteration, or repair of a facility.
19-26 In using that method and in entering into a contract for the
19-27 services of a design-build firm, the contracting institution and
20-1 the design-build firm shall follow the procedures provided by
20-2 Subsections (c)-(k).
20-3 (c) The board may designate an engineer or architect to act
20-4 as its representative. If the board's engineer or architect is not
20-5 a full-time employee of the institution, any engineer or architect
20-6 designated shall be selected on the basis of demonstrated
20-7 competence and qualifications in accordance with Subchapter A,
20-8 Chapter 2254, Government Code.
20-9 (d) The institution shall prepare a request for
20-10 qualifications that includes general information on the project
20-11 site, project scope, budget, special systems, selection criteria,
20-12 and other information that may assist potential design-build firms
20-13 in submitting proposals for the project. The institution shall
20-14 also prepare the design criteria package that includes more
20-15 detailed information on the project. If the preparation of the
20-16 design criteria package requires engineering or architectural
20-17 services that constitute the practice of engineering within the
20-18 meaning of The Texas Engineering Practice Act (Article 3271a,
20-19 Vernon's Texas Civil Statutes) or the practice of architecture
20-20 within the meaning of Chapter 478, Acts of the 45th Legislature,
20-21 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
20-22 Statutes), those services shall be provided in accordance with the
20-23 applicable law.
20-24 (e) The board or its representative shall publish the
20-25 request for qualifications in a manner prescribed by the board.
20-26 (f) The board or its representative shall evaluate proposals
20-27 and select a design-build firm in two phases:
21-1 (1) In phase one, the board or its representative
21-2 shall evaluate each offeror's experience, technical competence, and
21-3 capability to perform, the past performance of the offeror's team
21-4 and members of the team, and other appropriate factors submitted by
21-5 the team or firm in response to the request for qualifications,
21-6 except that cost-related or price-related evaluation factors are
21-7 not permitted. Each offeror must certify to the board that each
21-8 engineer or architect that is a member of its team was selected
21-9 based on demonstrated competence and qualifications. The board or
21-10 its representative shall qualify a maximum of five potential
21-11 offerors to submit additional information regarding technical
21-12 proposals, implementation, and costing methodologies in response to
21-13 a formal request for proposals based on the design criteria
21-14 package.
21-15 (2) In phase two, the board or its representative
21-16 shall evaluate offerors on the basis of demonstrated competence and
21-17 qualifications, considerations of the safety and long-term
21-18 durability of the project, the feasibility of implementing the
21-19 project as proposed, the ability of the offeror to meet schedules,
21-20 costing methodology, or other factors as appropriate. The
21-21 institution may not require offerors to submit detailed engineering
21-22 or architectural design as part of the proposal. The board shall
21-23 select the design-build firm that submits the proposal offering the
21-24 best value for the institution.
21-25 (g) Following selection of a design-build firm under
21-26 Subsection (f), that firm's engineers or architects shall complete
21-27 the design, submitting all design elements for review and
22-1 determination of scope compliance by the institution's engineer or
22-2 architect before or concurrently with construction.
22-3 (h) An engineer shall have responsibility for compliance
22-4 with the engineering design requirements and all other applicable
22-5 requirements of The Texas Engineering Practice Act (Article 3271a,
22-6 Vernon's Texas Civil Statutes). An architect shall have
22-7 responsibility for compliance with the requirements of Chapter 478,
22-8 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
22-9 Vernon's Texas Civil Statutes).
22-10 (i) The institution shall provide or contract for,
22-11 independently of the design-build firm, the inspection services,
22-12 the testing of construction materials engineering, and the
22-13 verification testing services necessary for acceptance of the
22-14 facility by the institution. The institution shall select those
22-15 services for which it contracts in accordance with Section
22-16 2254.004, Government Code.
22-17 (j) The design-build firm shall supply a signed and sealed
22-18 set of construction documents for the project to the institution at
22-19 the conclusion of construction.
22-20 (k) A payment or performance bond is not required for, and
22-21 may not provide coverage for, the portion of a design-build
22-22 contract under this section that includes design services only.
22-23 Sec. 51.781. CONTRACTS FOR FACILITIES: CONSTRUCTION
22-24 MANAGER-AGENT. (a) An institution may use the construction
22-25 manager-agent method for the construction, rehabilitation,
22-26 alteration, or repair of a facility. In using that method and in
22-27 entering into a contract for the services of a construction
23-1 manager-agent, a board shall follow the procedures prescribed by
23-2 this section.
23-3 (b) A construction manager-agent is a sole proprietorship,
23-4 partnership, corporation, or other legal entity that provides
23-5 consultation to the institution regarding construction,
23-6 rehabilitation, alteration, or repair of the facility. A
23-7 construction manager-agent represents the institution in a
23-8 fiduciary capacity, except that it may perform general conditions
23-9 as provided by the contract.
23-10 (c) Before or concurrently with selecting a construction
23-11 manager-agent, the board shall select or designate an engineer or
23-12 architect who shall prepare the construction documents for the
23-13 project and who has full responsibility for complying with The
23-14 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
23-15 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
23-16 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
23-17 applicable. If the engineer or architect is not a full-time
23-18 employee of the institution, the board shall select the engineer or
23-19 architect on the basis of demonstrated competence and
23-20 qualifications as provided by Section 2254.004, Government Code.
23-21 (d) A board shall select a construction manager-agent on the
23-22 basis of demonstrated competence and qualifications in the same
23-23 manner as provided for the selection of engineers or architects
23-24 under Section 2254.004, Government Code.
23-25 (e) A board using the construction manager-agent method
23-26 shall procure, in accordance with applicable law and in any manner
23-27 authorized by this chapter, a general contractor, trade
24-1 contractors, or subcontractors who will serve as the prime
24-2 contractor for their specific portion of the work.
24-3 (f) The board or the construction manager-agent shall
24-4 procure in accordance with Section 2254.004, Government Code, all
24-5 of the testing of construction materials engineering, the
24-6 inspection services, and the verification testing services
24-7 necessary for acceptance of the facility by the institution.
24-8 Sec. 51.782. CONTRACTS FOR FACILITIES: CONSTRUCTION
24-9 MANAGER-AT-RISK. (a) An institution may use the construction
24-10 manager-at-risk method for the construction, rehabilitation,
24-11 alteration, or repair of a facility. In using that method and in
24-12 entering into a contract for the services of a construction
24-13 manager-at-risk, a board shall follow the procedures prescribed by
24-14 this section.
24-15 (b) A construction manager-at-risk is a sole proprietorship,
24-16 partnership, corporation, or other legal entity that assumes the
24-17 risk for construction, rehabilitation, alteration, or repair of a
24-18 facility at the contracted price as a general contractor and
24-19 provides consultation to the institution regarding construction
24-20 during and after the design of the facilities.
24-21 (c) Before or concurrently with selecting a construction
24-22 manager-at-risk, the board shall select or designate an engineer or
24-23 architect who shall prepare the construction documents for the
24-24 project and who has full responsibility for complying with The
24-25 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
24-26 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
24-27 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
25-1 applicable. If the engineer or architect is not a full-time
25-2 employee of the institution, the board shall select the engineer or
25-3 architect on the basis of demonstrated competence and
25-4 qualifications as provided by Section 2254.004, Government Code.
25-5 (d) The board shall provide or contract for, independently
25-6 of the construction manager-at-risk, the inspection services, the
25-7 testing of construction materials engineering, and the verification
25-8 testing services necessary for acceptance of the facility by the
25-9 institution. The board shall select those services for which it
25-10 contracts in accordance with Section 2254.004, Government Code.
25-11 (e) The board shall prepare a request for competitive sealed
25-12 proposals that includes general information on the project site,
25-13 project scope, schedule, selection criteria, estimated budget, the
25-14 time and place for receipt of proposals, and other information that
25-15 may assist the board in its selection of a construction
25-16 manager-at-risk. The board may request that proposals provide the
25-17 construction manager's proposed fee and its price for fulfilling
25-18 the general conditions. The board shall state the selection
25-19 criteria in the request for proposals. The selection criteria may
25-20 include the offeror's experience, past performance, safety record,
25-21 proposed personnel and methodology, and other appropriate factors
25-22 that demonstrate the capability of the construction manager.
25-23 (f) The board shall publish the request for proposals in a
25-24 manner prescribed by the board.
25-25 (g) The board may provide for prequalifying offerors before
25-26 proposals are submitted. Prequalification may not be a conclusive
25-27 determination that an offeror offers the best value to the
26-1 institution, and a prequalified offeror may be rejected on the
26-2 basis of subsequently discovered information. A failure to
26-3 prequalify does not bar a subsequent determination that an offeror
26-4 offers the best value to the institution with respect to a given
26-5 proposal.
26-6 (h) The board shall receive, publicly open, and read aloud
26-7 the names of the offerors and the monetary proposals, if any, for
26-8 each proposal. Within 45 days after the date of opening the
26-9 proposals, the board shall evaluate and rank each proposal
26-10 submitted in relation to the criteria set forth in the request for
26-11 proposals.
26-12 (i) The board shall select the offeror that offers the best
26-13 value to the institution based on the published selection criteria
26-14 and on its ranking evaluation. If the board is unable to reach a
26-15 contract agreement with the selected offeror, the board shall
26-16 terminate further discussions and proceed to the next offeror in
26-17 the order of the selection ranking until a contract agreement is
26-18 reached or all proposals are rejected.
26-19 (j) A construction manager-at-risk shall publicly advertise
26-20 and solicit either competitive bids or competitive sealed proposals
26-21 from trade contractors or subcontractors for the performance of all
26-22 major elements of the work other than the minor work that may be
26-23 included in the general conditions. A construction manager-at-risk
26-24 may seek to perform portions of the work itself if the construction
26-25 manager-at-risk submits its bid or proposal for those portions of
26-26 the work in the same manner as all other trade contractors or
26-27 subcontractors and if the board determines that the construction
27-1 manager-at-risk's bid or proposal provides the best value for the
27-2 institution.
27-3 (k) The construction manager-at-risk and the board or its
27-4 representative shall receive and open all trade contractor or
27-5 subcontractor bids or proposals in a manner that does not disclose
27-6 the contents of the bid or proposal during the selection process.
27-7 All bids or proposals shall be made public within seven days after
27-8 the date of final selection.
27-9 (l) If the construction manager-at-risk reviews, evaluates,
27-10 and recommends to the board a bid or proposal from a trade
27-11 contractor or subcontractor but the board requires another bid or
27-12 proposal to be accepted, the institution shall compensate the
27-13 construction manager-at-risk by a change in price, time, or
27-14 guaranteed maximum cost for any additional cost and risk that the
27-15 construction manager-at-risk may incur because of the board's
27-16 requirement that another bid or proposal be accepted.
27-17 Sec. 51.783. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
27-18 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
27-19 contractor for construction, rehabilitation, alteration, or repair
27-20 services for a facility through competitive sealed proposals, a
27-21 board shall follow the procedures prescribed by this section.
27-22 (b) The board shall select or designate an engineer or
27-23 architect to prepare construction documents for the project. The
27-24 selected or designated engineer or architect has full
27-25 responsibility for complying with The Texas Engineering Practice
27-26 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
27-27 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
28-1 Vernon's Texas Civil Statutes), as applicable. If the engineer or
28-2 architect is not a full-time employee of the institution, the board
28-3 shall select the engineer or architect on the basis of demonstrated
28-4 competence and qualifications as provided by Section 2254.004,
28-5 Government Code.
28-6 (c) The board shall provide or contract for, independently
28-7 of the contractor, the inspection services, the testing of
28-8 construction materials engineering, and the verification testing
28-9 services necessary for acceptance of the facility by the
28-10 institution. The board shall select those services for which it
28-11 contracts in accordance with Section 2254.004, Government Code.
28-12 (d) The board shall prepare a request for competitive sealed
28-13 proposals that includes construction documents, selection criteria,
28-14 estimated budget, project scope, schedule, and other information
28-15 that contractors may require to respond to the request. The board
28-16 shall state the selection criteria in the request for proposals.
28-17 The selection criteria may include the offeror's experience, past
28-18 performance, safety record, proposed personnel and methodology, and
28-19 other appropriate factors that demonstrate the capability of the
28-20 contractor.
28-21 (e) The board shall publish notice of the request for
28-22 proposals in a manner prescribed by the board.
28-23 (f) The board may provide for prequalifying offerors before
28-24 proposals are submitted. Prequalification may not be a conclusive
28-25 determination that an offeror offers the best value to the
28-26 institution, and a prequalified offeror may be rejected on the
28-27 basis of subsequently discovered information. A failure to
29-1 prequalify does not bar a subsequent determination that an offeror
29-2 offers the best value to the institution with respect to a given
29-3 proposal.
29-4 (g) The board shall receive, publicly open, and read aloud
29-5 the names of the offerors and the monetary proposals, if any,
29-6 stated in each proposal. Within 45 days after the date of opening
29-7 the proposals the board shall evaluate and rank each proposal
29-8 submitted in relation to the published selection criteria.
29-9 (h) The board shall select the offeror that offers the best
29-10 value to the institution based on the published selection criteria
29-11 and on its ranking evaluation. The board and its engineer or
29-12 architect may discuss with the selected offeror options for cost
29-13 reduction. If the board is unable to reach a contract agreement
29-14 with the selected offeror, the board shall terminate further
29-15 discussions and proceed to the next offeror in the order of the
29-16 selection ranking until a contract agreement is reached or all
29-17 proposals are rejected.
29-18 (i) In determining best value for the institution, the board
29-19 is not restricted to considering price alone, but may consider any
29-20 other factor stated in the selection criteria.
29-21 Sec. 51.784. JOB ORDER CONTRACTS FOR FACILITIES REPAIR. (a)
29-22 An institution may award job order contracts for the minor repair,
29-23 rehabilitation, or alteration of a facility if the work is of a
29-24 recurring nature but the delivery times are indefinite and
29-25 indefinite quantities and orders are awarded substantially on the
29-26 basis of predescribed and prepriced tasks.
29-27 (b) The board shall advertise for, receive, and publicly
30-1 open competitive sealed proposals for job order contracts based on
30-2 time and material rates for various types and classifications of
30-3 work. The rates under a job order contract shall be in effect for
30-4 at least six months and for not longer than two years.
30-5 (c) The board may require offerors to submit additional
30-6 information besides rates, including experience, past performance,
30-7 and proposed personnel and methodology.
30-8 (d) The board may award job order contracts to one or more
30-9 contractors based on price proposals, experience, past performance,
30-10 proposed personnel and methodology, safety record, and other
30-11 appropriate factors.
30-12 (e) An order for a job or project under the job order
30-13 contract must be signed by the board's representative and the
30-14 contractor. The order may be a fixed price, lump-sum contract
30-15 based on a statement of work negotiated between the board or its
30-16 representative and the contractor, or the order may be a unit price
30-17 order based on estimated quantities. The contractor shall provide
30-18 payment and performance bonds, if required by law, based on the
30-19 amount or estimated amount of any order.
30-20 SECTION 4. Section 51.907, Education Code, is repealed.
30-21 SECTION 5. This Act takes effect September 1, 1997. The
30-22 changes in law made by this Act apply only to a contract for which
30-23 requests for bids, requests for proposals, or requests for
30-24 qualifications are published or distributed on or after that date.
30-25 SECTION 6. The importance of this legislation and the
30-26 crowded condition of the calendars in both houses create an
30-27 emergency and an imperative public necessity that the
31-1 constitutional rule requiring bills to be read on three several
31-2 days in each house be suspended, and this rule is hereby suspended.