1-1     By:  Ratliff                                           S.B. No. 583

 1-2           (In the Senate - Filed February 12, 1997; February 18, 1997,

 1-3     read first time and referred to Committee on Education;

 1-4     April 1, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 11, Nays 0; April 1, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 583                  By:  Haywood

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to the construction of facilities by school districts and

1-11     institutions of higher education.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Subchapter B, Chapter 44, Education Code, is

1-14     amended by adding Section 44.0311 to read as follows:

1-15           Sec. 44.0311.  DESIGN-BUILD CONTRACTS FOR FACILITIES.

1-16     (a)  In this section:

1-17                 (1)  "Architect" means an individual registered as an

1-18     architect under Chapter 478, Acts of the 45th Legislature, Regular

1-19     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).

1-20                 (2)  "Design-build contract" means a single contract

1-21     with a design-build firm for the design and construction of a

1-22     facility.

1-23                 (3)  "Design-build firm" means a partnership,

1-24     corporation, or other legal entity or team which includes an

1-25     engineer or architect and builder qualified to engage in building

1-26     construction in Texas.

1-27                 (4)  "Design criteria package" means a set of documents

1-28     that provides sufficient information to permit a design-build firm

1-29     to prepare a response to a school district's request for proposals.

1-30     The design criteria package shall specify criteria the district

1-31     deems necessary to describe the project and may include, as

1-32     appropriate, the legal description of the site, survey information

1-33     concerning the site, interior space requirements, special material

1-34     requirements, material quality standards, conceptual criteria for

1-35     the project, special equipment requirements, cost or budget

1-36     estimates, time schedules, quality assurance and quality control

1-37     requirements, site development requirements, applicable codes and

1-38     ordinances, provisions for utilities, parking requirements, or any

1-39     other requirement, as applicable.

1-40                 (5)  "Engineer" means an individual registered as a

1-41     professional engineer under The Texas Engineering Practice Act

1-42     (Article 3271a, Vernon's Texas Civil Statutes).

1-43                 (6)  "Facility" means buildings or structures to be

1-44     used by a school district.

1-45           (b)  In entering into a contract for the construction of a

1-46     facility using design-build delivery procedures, the contracting

1-47     school district and the design-build firm shall follow the

1-48     procedures provided by Subsections (c) through (i).

1-49           (c)  The district may designate an engineer or architect to

1-50     act as its exclusive representative.  If the district's engineer or

1-51     architect is not a full-time employee of the district, any engineer

1-52     or architect designated shall be selected on the basis of

1-53     demonstrated competence and qualifications in accordance with

1-54     Subchapter A, Chapter 2254, Government Code.

1-55           (d)  The district shall prepare a request for qualifications

1-56     which includes general information on the project site, project

1-57     scope, budget, special systems, selection criteria, and other

1-58     information that may assist potential design-build firms in

1-59     submitting proposals for the project.  The district shall also

1-60     prepare the design criteria package which includes more detailed

1-61     information on the project.  If the design criteria package

1-62     includes engineering or architectural elements, the package shall

1-63     be prepared by an engineer or architect.

1-64           (e)  The district shall publish the request for

 2-1     qualifications in at least two successive issues of any newspaper

 2-2     of general circulation in the county in which the district's

 2-3     central office is located at least 30 days prior to the deadline

 2-4     for receiving responses to the request for qualifications.

 2-5           (f)  The district shall evaluate proposals and select a

 2-6     design-build firm in two phases:

 2-7                 (1)  In phase one, the district shall evaluate each

 2-8     offeror's experience, technical competence, and capability to

 2-9     perform, the past performance of the offeror's team and members of

2-10     the team, and other appropriate factors submitted by the team or

2-11     firm in response to the request for qualifications, except that

2-12     cost-related or price-related evaluation factors are not permitted.

2-13     Each offeror must certify to the district that the engineer or

2-14     architect that is a member of its team was selected based on

2-15     demonstrated competence and qualifications.  The district shall

2-16     qualify a maximum of three potential offerors to submit additional

2-17     information regarding technical proposals, implementation, and

2-18     costing methodologies in response to a formal request for proposals

2-19     based on the design criteria package.

2-20                 (2)  In phase two, the district shall evaluate

2-21     proposers on the basis of demonstrated competence and

2-22     qualifications; considerations of the safety and long-term

2-23     durability of the project; the feasibility of implementing the

2-24     project as proposed; the ability of the proposer to meet schedules;

2-25     costing methodology; or other factors as appropriate.  If the

2-26     preparation of proposals requires engineering or architectural

2-27     design, the district shall reimburse qualified proposers for such

2-28     costs.  The district shall select the design-build firm that

2-29     submits the proposal offering the best value for the district.

2-30           (g)  Following selection of a design-build firm under

2-31     Subsection (f), that firm's engineers or architects shall complete

2-32     the design, submitting all design elements for review and

2-33     determination of scope compliance by the district's engineer or

2-34     architect prior to or concurrently with construction.

2-35           (h)  An engineer shall have responsibility for compliance

2-36     with the engineering design requirements and all other requirements

2-37     of The Texas Engineering Practice Act (Article 3271a, Vernon's

2-38     Texas Civil Statutes).  An architect shall have responsibility for

2-39     compliance with the requirements of Chapter 478, Acts of the 45th

2-40     Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas

2-41     Civil Statutes).

2-42           (i)  The design-build firm shall supply a signed and sealed

2-43     set of construction documents for the project and a record of the

2-44     project as built to the district at the conclusion of construction.

2-45           SECTION 2.  Section 51.907, Education Code, is amended to

2-46     read as follows:

2-47           Sec. 51.907.  COMPETITIVE BIDDING ON CONTRACTS.  Except as

2-48     provided by Section 51.9071 of this code, all [All] contracts for

2-49     the construction or erection of permanent improvements at an

2-50     institution of higher education as defined in Section 61.003 of

2-51     this code are void unless made after advertising for bids thereon

2-52     in a manner prescribed by its governing board, receiving sealed

2-53     competitive bids, and awarding of the contract to the lowest

2-54     responsible bidder by the governing body.  If a contract is to be

2-55     recommended for award to other than the lowest bidder, any bidder

2-56     making a lower bid than the recommended bid shall be notified of

2-57     the recommendation for award and shall be allowed an opportunity

2-58     prior to the award to present evidence to the board or its

2-59     designated representative as to the responsibility of that bidder.

2-60           SECTION 3.  Subchapter Z, Chapter 51, Education Code, is

2-61     amended by adding Section 51.9071 to read as follows:

2-62           Sec. 51.9071.  DESIGN-BUILD CONTRACTS FOR FACILITIES.

2-63     (a)  In this section:

2-64                 (1)  "Architect" means an individual registered as an

2-65     architect under Chapter 478, Acts of the 45th Legislature, Regular

2-66     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).

2-67                 (2)  "Design-build contract" means a single contract

2-68     with a design-build firm for the design and construction of a

2-69     facility.

 3-1                 (3)  "Design-build firm" means a partnership,

 3-2     corporation, or other legal entity or team which includes an

 3-3     engineer or architect and builder qualified to engage in building

 3-4     construction in Texas.

 3-5                 (4)  "Design criteria package" means a set of documents

 3-6     that provides sufficient information to permit a design-build firm

 3-7     to prepare a response to an institution's request for proposals.

 3-8     The design criteria package shall specify criteria the institution

 3-9     deems necessary to describe the project and may include, as

3-10     appropriate, the legal description of the site, survey information

3-11     concerning the site, interior space requirements, special material

3-12     requirements, material quality standards, conceptual criteria for

3-13     the project, special equipment requirements, cost or budget

3-14     estimates, time schedules, quality assurance and quality control

3-15     requirements, site development requirements, applicable codes and

3-16     ordinances, provisions for utilities, parking requirements, or any

3-17     other requirement, as applicable.

3-18                 (5)  "Engineer" means an individual registered as a

3-19     professional engineer under The Texas Engineering Practice Act

3-20     (Article 3271a, Vernon's Texas Civil Statutes).

3-21                 (6)  "Facility" means buildings or structures to be

3-22     used by an institution of higher education.

3-23                 (7)  "Institution" means an institution of higher

3-24     education as defined in Section 61.003.

3-25                 (8)  "Board" means the governing board of an

3-26     institution.

3-27           (b)  In entering into a contract for the construction of a

3-28     facility using design-build delivery procedures, the contracting

3-29     institution and the design-build firm shall follow the procedures

3-30     provided by Subsections (c) through (i).

3-31           (c)  The board may designate an engineer or architect to act

3-32     as its exclusive representative.  If the board's engineer or

3-33     architect is not a full-time employee of the institution, any

3-34     engineer or architect designated shall be selected on the basis of

3-35     demonstrated competence and qualifications in accordance with

3-36     Subchapter A, Chapter 2254, Government Code.

3-37           (d)  The institution shall prepare a request for

3-38     qualifications which includes general information on the project

3-39     site, project scope, budget, special systems, selection criteria,

3-40     and other information that may assist potential design-build firms

3-41     in submitting proposals for the project.  The institution shall

3-42     also prepare the design criteria package which includes more

3-43     detailed information on the project.  If the design criteria

3-44     package includes engineering or architectural elements, the package

3-45     shall be prepared by an engineer or architect.

3-46           (e)  The board or its representative shall publish the

3-47     request for qualifications in a manner prescribed by the board.

3-48           (f)  The board or its representative shall evaluate proposals

3-49     and select a design-build firm in two phases:

3-50                 (1)  In phase one, the board or its representative

3-51     shall evaluate each offeror's experience, technical competence, and

3-52     capability to perform, the past performance of the offeror's team

3-53     and members of the team, and other appropriate factors submitted by

3-54     the team or firm in response to the request for qualifications,

3-55     except that cost-related or price-related evaluation factors are

3-56     not permitted.  Each offeror must certify to the board that the

3-57     engineer or architect that is a member of its team was selected

3-58     based on demonstrated competence and qualifications.  The board or

3-59     its representative shall qualify a maximum of three potential

3-60     offerors to submit additional information regarding technical

3-61     proposals, implementation, and costing methodologies in response to

3-62     a formal request for proposals based on the design criteria

3-63     package.

3-64                 (2)  In phase two, the board or its representative

3-65     shall evaluate proposers on the basis of demonstrated competence

3-66     and qualifications; considerations of the safety and long-term

3-67     durability of the project; the feasibility of implementing the

3-68     project as proposed; the ability of the proposer to meet schedules;

3-69     costing methodology; or other factors as appropriate.  If the

 4-1     preparation of proposals requires engineering or architectural

 4-2     design, the institution shall reimburse qualified proposers for

 4-3     such costs.  The board shall select the design-build firm that

 4-4     submits the proposal offering the best value for the institution.

 4-5           (g)  Following selection of a design-build firm under

 4-6     Subsection (f), that firm's engineers or architects shall complete

 4-7     the design, submitting all design elements for review and

 4-8     determination of scope compliance by the institution's engineer or

 4-9     architect prior to or concurrently with construction.

4-10           (h)  An engineer shall have responsibility for compliance

4-11     with the engineering design requirements and all other requirements

4-12     of The Texas Engineering Practice Act (Article 3271a, Vernon's

4-13     Texas Civil Statutes).  An architect shall have responsibility for

4-14     compliance with Chapter 478, Acts of the 45th Legislature, Regular

4-15     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).

4-16           (i)  The design-build firm shall supply a signed and sealed

4-17     set of construction documents for the project and a record of the

4-18     project as built to the institution at the conclusion of

4-19     construction.

4-20           SECTION 4.  This Act takes effect September 1, 1997.

4-21           SECTION 5.  The importance of this legislation and the

4-22     crowded condition of the calendars in both houses create an

4-23     emergency and an imperative public necessity that the

4-24     constitutional rule requiring bills to be read on three several

4-25     days in each house be suspended, and this rule is hereby suspended.

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