By: Ratliff S.B. No. 669
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain contracting procedures for school districts and
1-2 institutions of higher education.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (a), (d), (f), (g), (h), (i), (j),
1-5 and (l), Section 44.031, Education Code, are amended to read as
1-6 follows:
1-7 (a) Except as provided by this subchapter, all school
1-8 district contracts, except contracts for the purchase of produce or
1-9 vehicle fuel, valued at $25,000 or more in the aggregate for each
1-10 12-month period shall be made by the method, of the following
1-11 methods, that provides the best value for [to] the district:
1-12 (1) competitive bidding;
1-13 (2) competitive sealed proposals;
1-14 (3) a request for proposals, for services other than
1-15 construction services;
1-16 (4) a catalogue purchase as provided by Subchapter B,
1-17 Chapter 2157, Government Code;
1-18 (5) an interlocal contract;
1-19 (6) a design/build contract;
1-20 (7) a contract to construct, rehabilitate, alter, or
1-21 repair facilities that involves using a construction manager; or
1-22 (8) a job order contract for the minor construction,
1-23 repair, rehabilitation, or alteration of a facility.
1-24 (d) The board of trustees of the district may adopt rules
2-1 and procedures for the acquisition of goods or services.
2-2 (f) This section does not apply to contracts [fees received]
2-3 for professional services [rendered, including architect's fees,
2-4 attorney's fees, and fees for fiscal agents].
2-5 (g) Notice of the time by when and place where the bids or
2-6 proposals, or the responses to a request for qualifications, will
2-7 be received shall be published in the county in which the
2-8 district's central administrative office is located, once a week
2-9 for at least two weeks before the deadline for receiving bids,
2-10 proposals, or responses to a request for qualifications; except
2-11 that on contracts involving less than $25,000, the advertising may
2-12 be limited to two successive issues of any newspaper published in
2-13 the county in which the district's central administrative office is
2-14 located, and if there is not a newspaper in that county, the
2-15 advertising shall be published in a newspaper in the county nearest
2-16 the county seat of the county in which the district's central
2-17 administrative office is located. In a two-step procurement
2-18 process, the time and place where the second-step bids, proposals,
2-19 or responses will be received are not required to be published
2-20 separately.
2-21 (h) If school equipment or a part of a school facility is
2-22 destroyed or severely damaged or, as a result of an unforeseen
2-23 catastrophe or emergency, undergoes major operational or structural
2-24 failure, and the board of trustees determines that the delay posed
2-25 by the methods provided for in this section [competitive bidding
2-26 process] would prevent or substantially impair the conduct of
3-1 classes or other essential school activities, then contracts for
3-2 the replacement or repair of the equipment or the part of the
3-3 school facility may be made by methods other than those [without
3-4 competitive bidding as otherwise] required by this section.
3-5 (i) A [The board of trustees of a] school district may
3-6 acquire computers and computer-related equipment, including
3-7 computer software, through the General Services Commission under
3-8 contracts entered into in accordance with Chapter 2157, Government
3-9 Code. Before issuing an invitation for bids, the commission shall
3-10 consult with the agency concerning the computer and
3-11 computer-related equipment needs of school districts. To the
3-12 extent possible the resulting contract shall provide for such
3-13 needs.
3-14 (j) Without complying with Subsection (a), [the board of
3-15 trustees of] a school district may purchase an item that is
3-16 available from only one source, including:
3-17 (1) an item for which competition is precluded because
3-18 of the existence of a patent, copyright, secret process, or
3-19 monopoly;
3-20 (2) a film, manuscript, or book;
3-21 (3) a utility service, including electricity, gas, or
3-22 water; and
3-23 (4) a captive replacement part or component for
3-24 equipment.
3-25 (l) Each contract proposed to be made by [the board of
3-26 trustees of] a school district for the purchase or lease of one or
4-1 more school buses, including a lease with an option to purchase,
4-2 must be submitted to competitive bidding when the contract is
4-3 valued at $20,000 or more.
4-4 SECTION 2. Subchapter B, Chapter 44, Education Code, is
4-5 amended by adding Section 44.0311 to read as follows:
4-6 Sec. 44.0311. DELEGATION. (a) The board of trustees of the
4-7 district may, as appropriate, delegate its authority under this
4-8 subchapter regarding an action authorized or required by this
4-9 subchapter to be taken by a school district to a designated person,
4-10 representative, or committee. The district shall provide notice of
4-11 the delegation and the limits of the delegation in the request for
4-12 bids, proposals, or qualifications or in an addendum to the
4-13 request. If the district fails to provide that notice, a ranking,
4-14 selection, or evaluation of bids, proposals, or qualifications
4-15 other than by the board of trustees in an open public meeting is
4-16 advisory only.
4-17 (b) The board may not delegate the authority to act
4-18 regarding an action authorized or required by this subchapter to be
4-19 taken by the board of trustees of a school district.
4-20 SECTION 3. Subsection (f), Section 44.032, Education Code,
4-21 is amended to read as follows:
4-22 (f) A court may enjoin performance of a contract made in
4-23 violation of this subchapter [Section 44.031(a) or (b)]. A county
4-24 attorney, a district attorney, a criminal district attorney, [or] a
4-25 citizen of the county in which the school district is located, or
4-26 any interested party may bring an action for an injunction. A
5-1 party [citizen] who prevails in an action brought under this
5-2 subsection is entitled to reasonable attorney's fees as approved by
5-3 the court.
5-4 SECTION 4. Section 44.035, Education Code, is amended to
5-5 read as follows:
5-6 Sec. 44.035. EVALUATION OF BIDS AND [COMPETITIVE SEALED]
5-7 PROPOSALS FOR CONSTRUCTION SERVICES. (a) The board of trustees of
5-8 a school district that is considering a construction contract using
5-9 a method specified by Section 44.031(a) must, before advertising,
5-10 determine which method [Except as otherwise provided by this
5-11 subchapter, a school district using competitive sealed proposals to
5-12 select a contractor for construction services, to select a
5-13 construction manager, or to award a job order contract for
5-14 construction services shall base its selection or award on a
5-15 combination of price and other factors that the district
5-16 determines] provides the best value for [to] the district.
5-17 (b) The [A school] district shall base its selection among
5-18 offerors on criteria authorized to be used under Section 44.031(b).
5-19 The district shall publish in the request for bids, proposals, or
5-20 qualifications the specific criteria that will be used to evaluate
5-21 the offerors and the relative weights, if any, given to the
5-22 criteria [using competitive sealed proposals may discuss proposals
5-23 with offerors after proposals have been opened to allow for
5-24 clarification and changes. The district shall take adequate
5-25 precautions to ensure that information from competing proposals is
5-26 not disclosed to other offerors].
6-1 (c) The district shall document the basis of its selection
6-2 and shall make the evaluations public on or before the award of the
6-3 contract.
6-4 SECTION 5. Subdivision (3), Subsection (a), Section 44.036,
6-5 Education Code, is amended to read as follows:
6-6 (3) "Design criteria package" means a set of documents
6-7 that provides sufficient information to permit a design-build firm
6-8 to prepare a response to a school district's request for
6-9 qualifications and any additional information requested, including
6-10 criteria for selection [proposals]. The design criteria package
6-11 must specify criteria the district considers necessary to describe
6-12 the project and may include, as appropriate, the legal description
6-13 of the site, survey information concerning the site, interior space
6-14 requirements, special material requirements, material quality
6-15 standards, conceptual criteria for the project, special equipment
6-16 requirements, cost or budget estimates, time schedules, quality
6-17 assurance and quality control requirements, site development
6-18 requirements, applicable codes and ordinances, provisions for
6-19 utilities, parking requirements, or any other requirement, as
6-20 applicable.
6-21 SECTION 6. Subsections (e), (f), and (j), Section 44.036,
6-22 Education Code, are amended to read as follows:
6-23 (e) The district shall evaluate statements of qualifications
6-24 [proposals] and select a design-build firm in two phases:
6-25 (1) In phase one, the district shall prepare a request
6-26 for qualifications and evaluate each offeror's experience,
7-1 technical competence, and capability to perform, the past
7-2 performance of the offeror's team and members of the team, and
7-3 other appropriate factors submitted by the team or firm in response
7-4 to the request for qualifications, except that cost-related or
7-5 price-related evaluation factors are not permitted. Each offeror
7-6 must certify to the district that each engineer or architect that
7-7 is a member of its team was selected based on demonstrated
7-8 competence and qualifications. The district shall qualify a
7-9 maximum of five [potential] offerors to submit additional
7-10 information and, if the district chooses, to interview for final
7-11 selection [regarding technical proposals, implementation, and
7-12 costing methodologies in response to a formal request for proposals
7-13 based on the design criteria package].
7-14 (2) In phase two, the district shall evaluate the
7-15 information submitted by the offerors on the basis of the selection
7-16 criteria stated in the request for qualifications and the results
7-17 of any interview. The district may request additional information
7-18 regarding demonstrated competence and qualifications,
7-19 considerations of the safety and long-term durability of the
7-20 project, the feasibility of implementing the project as proposed,
7-21 the ability of the offeror to meet schedules, costing methodology,
7-22 or other factors as appropriate. The district may not require
7-23 offerors to submit detailed engineering or architectural designs as
7-24 part of the proposal. The district shall rank each proposal
7-25 submitted on the basis of the criteria set forth in the request for
7-26 qualifications. The district shall select the design-build firm
8-1 that submits the proposal offering the best value for the district
8-2 on the basis of the published selection criteria and on its ranking
8-3 evaluations. The district shall first attempt in good faith to
8-4 negotiate with the selected offeror a contract on fair and
8-5 reasonable terms. If the district is unable to negotiate a
8-6 satisfactory contract with the selected offeror, the district
8-7 shall, formally and in writing, end negotiations with that offeror
8-8 and proceed to negotiate with the next offeror in the order of the
8-9 selection ranking until a contract is reached or negotiations with
8-10 all ranked offerors end.
8-11 (f) Following selection of a design-build firm under
8-12 Subsection (e), that firm's engineers or architects shall complete
8-13 the design, submitting all design elements for review and
8-14 determination of scope compliance to [by] the district or
8-15 district's engineer or architect before or concurrently with
8-16 construction.
8-17 (j) A payment or performance bond is not required for, and
8-18 may not provide coverage for, the portion of a design-build
8-19 contract under this section that includes design services only. If
8-20 a fixed contract amount or guaranteed maximum price has not been
8-21 determined at the time a design-build contract is awarded, the
8-22 penal sums of the performance and payment bonds delivered to the
8-23 district must each be in an amount equal to the project budget, as
8-24 specified in the design criteria package. The design-build firm
8-25 shall deliver the bonds not later than the 10th day after the date
8-26 the design-build firm executes the contract unless the design-build
9-1 firm furnishes a bid bond or other financial security acceptable to
9-2 the district to ensure that the design-build firm will furnish the
9-3 required performance and payment bonds when a guaranteed maximum
9-4 price is established.
9-5 SECTION 7. Subsections (b) and (c), Section 44.037,
9-6 Education Code, are amended to read as follows:
9-7 (b) A construction manager-agent is a sole proprietorship,
9-8 partnership, corporation, or other legal entity that provides
9-9 consultation to the school district regarding construction,
9-10 rehabilitation, alteration, or repair of the facility. A district
9-11 using the construction manager-agent method may, under the contract
9-12 between the district and the construction manager-agent, require
9-13 the construction manager-agent to provide administrative personnel,
9-14 equipment necessary to perform duties under this section, and
9-15 on-site management and other services specified in the contract. A
9-16 construction manager-agent represents the district in a fiduciary
9-17 capacity[, except that it may perform general conditions as
9-18 provided by the contract].
9-19 (c) Before or concurrently with selecting a construction
9-20 manager-agent, the district shall select or designate an engineer
9-21 or architect who shall prepare the construction documents for the
9-22 project and who has full responsibility for complying with The
9-23 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
9-24 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
9-25 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
9-26 applicable. If the engineer or architect is not a full-time
10-1 employee of the district, the district shall select the engineer or
10-2 architect on the basis of demonstrated competence and
10-3 qualifications as provided by Section 2254.004, Government Code.
10-4 The district's engineer or architect may not serve, alone or in
10-5 combination with another person, as the construction manager-agent
10-6 unless the engineer or architect is hired to serve as the
10-7 construction manager-agent under a separate or concurrent
10-8 procurement conducted in accordance with this subchapter. This
10-9 subsection does not prohibit the district's engineer or architect
10-10 from providing customary construction phase services under the
10-11 engineer's or architect's original professional service agreement
10-12 in accordance with applicable licensing laws.
10-13 SECTION 8. Sections 44.038 and 44.039, Education Code, are
10-14 amended to read as follows:
10-15 Sec. 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
10-16 MANAGER-AT-RISK. (a) A school district may use the construction
10-17 manager-at-risk method for the construction, rehabilitation,
10-18 alteration, or repair of a facility. In using that method and in
10-19 entering into a contract for the services of a construction
10-20 manager-at-risk, a district shall follow the procedures prescribed
10-21 by this section.
10-22 (b) A construction manager-at-risk is a sole proprietorship,
10-23 partnership, corporation, or other legal entity that assumes the
10-24 risk for construction, rehabilitation, alteration, or repair of a
10-25 facility at the contracted price as a general contractor and
10-26 provides consultation to the school district regarding construction
11-1 during and after the design of the facility.
11-2 (c) Before or concurrently with selecting a construction
11-3 manager-at-risk, the district shall select or designate an engineer
11-4 or architect who shall prepare the construction documents for the
11-5 project and who has full responsibility for complying with The
11-6 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
11-7 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
11-8 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
11-9 applicable. If the engineer or architect is not a full-time
11-10 employee of the district, the district shall select the engineer or
11-11 architect on the basis of demonstrated competence and
11-12 qualifications as provided by Section 2254.004, Government Code.
11-13 The district's engineer, architect, or construction manager-agent
11-14 for a project may not serve, alone or in combination with another,
11-15 as the construction manager-at-risk.
11-16 (d) The district shall provide or contract for,
11-17 independently of the construction manager-at-risk, the inspection
11-18 services, the testing of construction materials engineering, and
11-19 the verification testing services necessary for acceptance of the
11-20 facility by the district. The district shall select those services
11-21 for which it contracts in accordance with Section 2254.004,
11-22 Government Code.
11-23 (e) The district shall select the construction
11-24 manager-at-risk in either a one-step or two-step process. The
11-25 district shall prepare a request for [competitive sealed]
11-26 proposals, in the case of a one-step process, or a request for
12-1 qualifications, in the case of a two-step process, that includes
12-2 general information on the project site, project scope, schedule,
12-3 selection criteria, estimated budget, and the time and place for
12-4 receipt of proposals or qualifications, as applicable, a statement
12-5 as to whether the selection process is a one-step or two-step
12-6 process, and other information that may assist the district in its
12-7 selection of a construction manager-at-risk. The district shall
12-8 state the selection criteria in the request for proposals or
12-9 qualifications, as applicable. The selection criteria may include
12-10 the offeror's experience, past performance, safety record, proposed
12-11 personnel and methodology, and other appropriate factors that
12-12 demonstrate the capability of the construction manager-at-risk. If
12-13 a one-step process is used, the district may request, as part of
12-14 the offeror's proposal, proposed fees and prices for fulfilling the
12-15 general conditions. If a two-step process is used, the district
12-16 may not request fees or prices in step one. In step two, the [The]
12-17 district may request that five or fewer offerors, selected solely
12-18 on the basis of qualifications, provide additional information,
12-19 including [proposals provide] the construction manager-at-risk's
12-20 [manager's] proposed fee and its price for fulfilling the general
12-21 conditions. [The district shall state the selection criteria in
12-22 the request for proposals. The selection criteria may include the
12-23 offeror's experience, past performance, safety record, proposed
12-24 personnel and methodology, and other appropriate factors that
12-25 demonstrate the capability of the construction manager.]
12-26 (f) At each step, the [The district may provide for
13-1 prequalifying offerors before proposals are submitted.
13-2 Prequalification may not be a conclusive determination that an
13-3 offeror offers the best value to the district, and a prequalified
13-4 offeror may be rejected on the basis of subsequently discovered
13-5 information. A failure to prequalify does not bar a subsequent
13-6 determination that an offeror offers the best value to the district
13-7 with respect to a given proposal.]
13-8 [(g) The] district shall receive, publicly open, and read
13-9 aloud the names of the offerors. At the appropriate step, the
13-10 district shall also read aloud all fees and prices stated in [and
13-11 the monetary proposals, if any, for] each proposal. Within 45 days
13-12 after the date of opening the proposals, the district shall
13-13 evaluate and rank each proposal submitted in relation to the
13-14 criteria set forth in the request for proposals.
13-15 (g) [(h)] The district shall select the offeror that submits
13-16 the proposal that offers the best value for [to] the district based
13-17 on the published selection criteria and on its ranking evaluation.
13-18 The district shall first attempt in good faith to negotiate with
13-19 the selected offeror a contract on fair and reasonable terms. If
13-20 the district is unable to negotiate [reach] a satisfactory contract
13-21 [agreement] with the selected offeror, the district shall, formally
13-22 and in writing, end negotiations with that offeror [terminate
13-23 further discussions] and proceed to negotiate with the next offeror
13-24 in the order of the selection ranking until a contract [agreement]
13-25 is reached or negotiations with all ranked offerors end [all
13-26 proposals are rejected].
14-1 (h) [(i)] A construction manager-at-risk shall publicly
14-2 advertise, in accordance with Section 44.031(g), and receive bids
14-3 or [and solicit either competitive bids or competitive sealed]
14-4 proposals from trade contractors or subcontractors for the
14-5 performance of all major elements of the work other than the minor
14-6 work that may be included in the general conditions. A
14-7 construction manager-at-risk may seek to perform portions of the
14-8 work itself if the construction manager-at-risk submits its bid or
14-9 proposal for those portions of the work in the same manner as all
14-10 other trade contractors or subcontractors and if the district
14-11 determines that the construction manager-at-risk's bid or proposal
14-12 provides the best value for the district.
14-13 (i) [(j)] The construction manager-at-risk and the district
14-14 or its representative shall review [receive and open] all trade
14-15 contractor or subcontractor bids or proposals in a manner that does
14-16 not disclose the contents of the bid or proposal during the
14-17 selection process to a person not employed by the construction
14-18 manager-at-risk, engineer, architect, or district. All bids or
14-19 proposals shall be made public within seven days after the date of
14-20 final selection.
14-21 (j) [(k)] If the construction manager-at-risk reviews,
14-22 evaluates, and recommends to the district a bid or proposal from a
14-23 trade contractor or subcontractor but the district requires another
14-24 bid or proposal to be accepted, the district shall compensate the
14-25 construction manager-at-risk by a change in price, time, or
14-26 guaranteed maximum cost for any additional cost and risk that the
15-1 construction manager-at-risk may incur because of the district's
15-2 requirement that another bid or proposal be accepted.
15-3 (k) If a selected trade contractor or subcontractor defaults
15-4 in the performance of its work or fails to execute a subcontract
15-5 after being selected in accordance with this section, the
15-6 construction manager-at-risk may, without advertising, itself
15-7 fulfill the contract requirements or select a replacement trade
15-8 contractor or subcontractor to fulfill the contract requirements.
15-9 (l) If a fixed contract amount or guaranteed maximum price
15-10 has not been determined at the time the contract is awarded, the
15-11 penal sums of the performance and payment bonds delivered to the
15-12 district must each be in an amount equal to the project budget, as
15-13 specified in the request for qualifications. The construction
15-14 manager shall deliver the bonds not later than the 10th day after
15-15 the date the construction manager executes the contract unless the
15-16 construction manager furnishes a bid bond or other financial
15-17 security acceptable to the district to ensure that the construction
15-18 manager will furnish the required performance and payment bonds
15-19 when a guaranteed maximum price is established.
15-20 Sec. 44.039. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
15-21 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
15-22 contractor for construction, rehabilitation, alteration, or repair
15-23 services for a facility through competitive sealed proposals, a
15-24 school district shall follow the procedures prescribed by this
15-25 section.
15-26 (b) The district shall select or designate an engineer or
16-1 architect to prepare construction documents for the project. The
16-2 selected or designated engineer or architect has full
16-3 responsibility for complying with The Texas Engineering Practice
16-4 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
16-5 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
16-6 Vernon's Texas Civil Statutes), as applicable. If the engineer or
16-7 architect is not a full-time employee of the district, the district
16-8 shall select the engineer or architect on the basis of demonstrated
16-9 competence and qualifications as provided by Section 2254.004,
16-10 Government Code.
16-11 (c) The district shall provide or contract for,
16-12 independently of the contractor, the inspection services, the
16-13 testing of construction materials engineering, and the verification
16-14 testing services necessary for acceptance of the facility by the
16-15 district. The district shall select those services for which it
16-16 contracts in accordance with Section 2254.004, Government Code, and
16-17 shall identify them in the request for proposals.
16-18 (d) The district shall prepare a request for competitive
16-19 sealed proposals that includes construction documents, selection
16-20 criteria, estimated budget, project scope, schedule, and other
16-21 information that contractors may require to respond to the request.
16-22 The district shall state in the request for proposals the selection
16-23 criteria that will be used in selecting the successful offeror [in
16-24 the request for proposals]. [The selection criteria may include
16-25 the offeror's experience, past performance, safety record, proposed
16-26 personnel and methodology, and other appropriate factors that
17-1 demonstrate the capability of the contractor.]
17-2 (e) [The district may provide for prequalifying offerors
17-3 before proposals are submitted. Prequalification may not be a
17-4 conclusive determination that an offeror offers the best value to
17-5 the district, and a prequalified offeror may be rejected on the
17-6 basis of subsequently discovered information. A failure to
17-7 prequalify does not bar a subsequent determination that an offeror
17-8 offers the best value to the district with respect to a given
17-9 proposal.]
17-10 [(f)] The district shall receive, publicly open, and read
17-11 aloud the names of the offerors and, if any are required to be
17-12 stated, all prices [the monetary proposals, if any,] stated in each
17-13 proposal. Within 45 days after the date of opening the proposals,
17-14 the district shall evaluate and rank each proposal submitted in
17-15 relation to the published selection criteria.
17-16 (f) [(g)] The district shall select the offeror that offers
17-17 the best value for [to] the district based on the published
17-18 selection criteria and on its ranking evaluation. The district
17-19 shall first attempt in good faith to negotiate with the selected
17-20 offeror a contract on fair and reasonable terms. The district and
17-21 its engineer or architect may discuss with the selected offeror
17-22 options for a scope or time modification and any price change
17-23 associated with the modification [cost reduction]. If the district
17-24 is unable to negotiate [reach] a contract [agreement] with the
17-25 selected offeror, the district shall, formally and in writing, end
17-26 negotiations with that offeror [terminate further discussions] and
18-1 proceed to the next offeror in the order of the selection ranking
18-2 until a contract [agreement] is reached or all proposals are
18-3 rejected.
18-4 (g) [(h)] In determining best value for the district, the
18-5 district is not restricted to considering price alone, but may
18-6 consider any other factor stated in the selection criteria.
18-7 SECTION 9. Subsection (b), Section 44.040, Education Code,
18-8 is amended to read as follows:
18-9 (b) Sections 271.021, 271.022, 271.026, 271.027(a), and
18-10 271.0275-271.030, Local Government Code, apply to a competitive
18-11 bidding process under this section. Section 271.027(b), Local
18-12 Government Code, does not apply to a bid or proposal submitted
18-13 under this section.
18-14 SECTION 10. Section 44.041, Education Code, is amended to
18-15 read as follows:
18-16 Sec. 44.041. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION
18-17 OR REPAIR. (a) A school district may award job order contracts
18-18 for the minor construction, repair, rehabilitation, or alteration
18-19 of a facility if the work is of a recurring nature but the delivery
18-20 times are indefinite and indefinite quantities and orders are
18-21 awarded substantially on the basis of predescribed and prepriced
18-22 tasks.
18-23 (b) The school district may establish contractual unit
18-24 prices for a job order contract by:
18-25 (1) specifying one or more published construction unit
18-26 price books and the applicable divisions or line items; or
19-1 (2) providing a list of work items and requiring the
19-2 offerors to bid or propose one or more coefficients or multipliers
19-3 to be applied to the price book or work items as the price
19-4 proposal.
19-5 (c) The school district shall advertise for, receive, and
19-6 publicly open [competitive] sealed proposals for job order
19-7 contracts [based on time and material rates for various types and
19-8 classifications of work. The rates under a job order contract
19-9 shall be in effect for at least six months and for not longer than
19-10 two years].
19-11 (d) [(c)] The district may require offerors to submit
19-12 additional information besides rates, including experience, past
19-13 performance, and proposed personnel and methodology.
19-14 (e) [(d)] The district may award job order contracts to one
19-15 or more job order contractors in connection with each solicitation
19-16 of bids or [based on price] proposals[, experience, past
19-17 performance, proposed personnel and methodology, safety record, and
19-18 other appropriate factors].
19-19 (f) [(e)] An order for a job or project under the job order
19-20 contract must be signed by the district's representative and the
19-21 contractor. The order may be a fixed price, lump-sum contract
19-22 based substantially on contractual unit pricing applied to
19-23 estimated quantities [a statement of work negotiated between the
19-24 district or its representative and the contractor,] or [the order]
19-25 may be a unit price order based on the [estimated] quantities and
19-26 line items delivered.
20-1 (g) The contractor shall provide payment and performance
20-2 bonds, if required by law, based on the amount or estimated amount
20-3 of any order.
20-4 (h) The base term of a job order contract is for the period
20-5 and with any renewal option that the district sets forth in the
20-6 request for proposals. If the district fails to advertise that
20-7 term, the base term may not exceed two years and is not renewable
20-8 without further advertisement and solicitation of proposals.
20-9 (i) If a job order contract or an order issued under the
20-10 contract requires engineering or architectural services that
20-11 constitute the practice of engineering within the meaning of The
20-12 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
20-13 Statutes) or the practice of architecture within the meaning of
20-14 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
20-15 (Article 249a, Vernon's Texas Civil Statutes), those services shall
20-16 be provided in accordance with applicable law.
20-17 SECTION 11. Section 51.779, Education Code, is amended to
20-18 read as follows:
20-19 Sec. 51.779. EVALUATION OF BIDS AND [COMPETITIVE SEALED]
20-20 PROPOSALS FOR CONSTRUCTION SERVICES. (a) An institution that is
20-21 considering a construction contract using a method authorized by
20-22 this subchapter must, before advertising, determine which method
20-23 [Except as otherwise provided by this subchapter, the board of an
20-24 institution using competitive sealed proposals to select a
20-25 contractor for construction services, to select a construction
20-26 manager, or to award a job order contract for construction services
21-1 shall base its selection or award on a combination of price and
21-2 other factors that the board determines] provides the best value
21-3 for [to] the institution.
21-4 (b) The [An] institution shall base its selection among the
21-5 offerors on criteria established by the institution. The
21-6 institution shall publish in the request for bids, proposals, or
21-7 qualifications the specific criteria that will be used to evaluate
21-8 the offerors and the relative weights, if any, given to the
21-9 criteria [using competitive sealed proposals may discuss proposals
21-10 with offerors after proposals have been opened to allow for
21-11 clarification and changes. The institution shall take adequate
21-12 precautions to ensure that information from competing proposals is
21-13 not disclosed to other offerors].
21-14 (c) The institution shall document the basis of its
21-15 selection and shall make the evaluations public on or before the
21-16 award of the contract.
21-17 SECTION 12. Subdivision (3), Subsection (a), Section 51.780,
21-18 Education Code, is amended to read as follows:
21-19 (3) "Design criteria package" means a set of documents
21-20 that provides sufficient information to permit a design-build firm
21-21 to prepare a response to an institution's request for
21-22 qualifications and any additional information requested, including
21-23 criteria for selection [proposals]. The design criteria package
21-24 must specify criteria the institution considers necessary to
21-25 describe the project and may include, as appropriate, the legal
21-26 description of the site, survey information concerning the site,
22-1 interior space requirements, special material requirements,
22-2 material quality standards, conceptual criteria for the project,
22-3 special equipment requirements, cost or budget estimates, time
22-4 schedules, quality assurance and quality control requirements, site
22-5 development requirements, applicable codes and ordinances,
22-6 provisions for utilities, parking requirements, or any other
22-7 requirement, as applicable.
22-8 SECTION 13. Subsections (f) and (k), Section 51.780,
22-9 Education Code, are amended to read as follows:
22-10 (f) The board or its representative shall evaluate
22-11 statements of qualifications [proposals] and select a design-build
22-12 firm in two phases:
22-13 (1) In phase one, the board or its representative
22-14 shall prepare a request for qualifications and evaluate each
22-15 offeror's experience, technical competence, and capability to
22-16 perform, the past performance of the offeror's team and members of
22-17 the team, and other appropriate factors submitted by the team or
22-18 firm in response to the request for qualifications, except that
22-19 cost-related or price-related evaluation factors are not permitted.
22-20 Each offeror must certify to the board that each engineer or
22-21 architect that is a member of its team was selected based on
22-22 demonstrated competence and qualifications. The board or its
22-23 representative shall qualify a maximum of five [potential] offerors
22-24 to submit additional information and, if the board or its
22-25 representative chooses, to interview for final selection [regarding
22-26 technical proposals, implementation, and costing methodologies in
23-1 response to a formal request for proposals based on the design
23-2 criteria package].
23-3 (2) In phase two, the board or its representative
23-4 shall evaluate the information submitted by the offerors on the
23-5 basis of the selection criteria stated in the request for
23-6 qualifications and the results of any interview. The board or its
23-7 representative may request additional information regarding
23-8 demonstrated competence and qualifications, considerations of the
23-9 safety and long-term durability of the project, the feasibility of
23-10 implementing the project as proposed, the ability of the offeror to
23-11 meet schedules, costing methodology, or other factors as
23-12 appropriate. The board or its representative [institution] may not
23-13 require offerors to submit detailed engineering or architectural
23-14 designs [design] as part of the proposal. The board or its
23-15 representative shall rank each proposal submitted on the basis of
23-16 the criteria specified in the request for qualifications. The
23-17 board or its representative shall select the design-build firm that
23-18 submits the proposal offering the best value for the institution on
23-19 the basis of the published selection criteria and on its ranking
23-20 evaluations. The board or its representative shall first attempt
23-21 in good faith to negotiate with the selected offeror a contract on
23-22 fair and reasonable terms. If the board or its representative is
23-23 unable to negotiate a satisfactory contract with the selected
23-24 offeror, the institution shall, formally and in writing, end all
23-25 negotiations with that offeror and proceed to negotiate with the
23-26 next offeror in the order of the selection ranking until a contract
24-1 is reached or negotiations with all ranked offerors end.
24-2 (k) A payment or performance bond is not required for, and
24-3 may not provide coverage for, the portion of a design-build
24-4 contract under this section that includes design services only. If
24-5 a fixed contract amount or guaranteed maximum price has not been
24-6 determined at the time a design-build contract is awarded, the
24-7 penal sums of the performance and payment bonds delivered to the
24-8 institution shall each be in an amount equal to the project budget,
24-9 as specified in the design criteria package. The design-build firm
24-10 shall deliver the bonds not later than the 10th day after the date
24-11 the design-build firm executes the contract unless the design-build
24-12 firm furnishes a bid bond or other financial security acceptable to
24-13 the institution to ensure that the design-build firm will furnish
24-14 the required performance and payment bonds when a guaranteed
24-15 maximum price is established.
24-16 SECTION 14. Subsections (b) and (c), Section 51.781,
24-17 Education Code, are amended to read as follows:
24-18 (b) A construction manager-agent is a sole proprietorship,
24-19 partnership, corporation, or other legal entity that provides
24-20 consultation to the institution regarding construction,
24-21 rehabilitation, alteration, or repair of the facility. An
24-22 institution using the construction manager-agent method may, under
24-23 the contract between the institution and the construction
24-24 manager-agent, require the construction manager-agent to provide
24-25 administrative personnel, equipment necessary to perform duties
24-26 under this section, and on-site management and other services
25-1 specified in the contract. A construction manager-agent represents
25-2 the institution in a fiduciary capacity[, except that it may
25-3 perform general conditions as provided by the contract].
25-4 (c) Before or concurrently with selecting a construction
25-5 manager-agent, the board shall select or designate an engineer or
25-6 architect who shall prepare the construction documents for the
25-7 project and who has full responsibility for complying with The
25-8 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
25-9 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
25-10 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
25-11 applicable. If the engineer or architect is not a full-time
25-12 employee of the institution, the board shall select the engineer or
25-13 architect on the basis of demonstrated competence and
25-14 qualifications as provided by Section 2254.004, Government Code.
25-15 The institution's engineer or architect may not serve, alone or in
25-16 combination with another person, as the construction manager-agent
25-17 unless the engineer or architect is hired to serve as the
25-18 construction manager-agent under a separate or concurrent
25-19 procurement conducted in accordance with this subchapter. This
25-20 subsection does not prohibit the institution's engineer or
25-21 architect from providing customary construction phase services
25-22 under the engineer's or architect's original professional service
25-23 agreement in accordance with applicable licensing laws.
25-24 SECTION 15. Sections 51.782, 51.783, and 51.784, Education
25-25 Code, are amended to read as follows:
25-26 Sec. 51.782. CONTRACTS FOR FACILITIES: CONSTRUCTION
26-1 MANAGER-AT-RISK. (a) An institution may use the construction
26-2 manager-at-risk method for the construction, rehabilitation,
26-3 alteration, or repair of a facility. In using that method and in
26-4 entering into a contract for the services of a construction
26-5 manager-at-risk, a board shall follow the procedures prescribed by
26-6 this section.
26-7 (b) A construction manager-at-risk is a sole proprietorship,
26-8 partnership, corporation, or other legal entity that assumes the
26-9 risk for construction, rehabilitation, alteration, or repair of a
26-10 facility at the contracted price as a general contractor and
26-11 provides consultation to the institution regarding construction
26-12 during and after the design of the facility.
26-13 (c) Before or concurrently with selecting a construction
26-14 manager-at-risk, the board shall select or designate an engineer or
26-15 architect who shall prepare the construction documents for the
26-16 project and who has full responsibility for complying with The
26-17 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
26-18 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
26-19 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
26-20 applicable. If the engineer or architect is not a full-time
26-21 employee of the institution, the board shall select the engineer or
26-22 architect on the basis of demonstrated competence and
26-23 qualifications as provided by Section 2254.004, Government Code.
26-24 The institution's engineer, architect, or construction
26-25 manager-agent for a project may not serve, alone or in combination
26-26 with another, as the construction manager-at-risk.
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 select the construction manager-at-risk
27-8 in either a one-step or two-step process. The board shall prepare
27-9 a request for [competitive sealed] proposals, in the case of a
27-10 one-step process, or a request for qualifications, in the case of a
27-11 two-step process, that includes general information on the project
27-12 site, project scope, schedule, selection criteria, estimated
27-13 budget, and the time and place for receipt of proposals or
27-14 qualifications, as applicable, a statement as to whether the
27-15 selection process is a one-step or two-step process, and other
27-16 information that may assist the board in its selection of a
27-17 construction manager-at-risk. The board shall state the selection
27-18 criteria in the request for proposals or qualifications, as
27-19 applicable. The selection criteria may include the offeror's
27-20 experience, past performance, safety record, proposed personnel and
27-21 methodology, and other appropriate factors that demonstrate the
27-22 capability of the construction manager-at-risk. If a one-step
27-23 process is used, the board may request, as part of the offeror's
27-24 proposal, proposed fees and prices for fulfilling the general
27-25 conditions. If a two-step process is used, the board may not
27-26 request fees or prices in step one. In step two, the [The] board
28-1 may request that five or fewer offerors, selected solely on the
28-2 basis of qualifications, provide additional information, including
28-3 [proposals provide] the construction manager-at-risk's [manager's]
28-4 proposed fee and its price for fulfilling the general conditions.
28-5 [The board shall state the selection criteria in the request for
28-6 proposals. The selection criteria may include the offeror's
28-7 experience, past performance, safety record, proposed personnel and
28-8 methodology, and other appropriate factors that demonstrate the
28-9 capability of the construction manager.]
28-10 (f) The board shall publish the request for qualifications
28-11 [proposals] in a manner prescribed by the board.
28-12 (g) At each step, the [The board may provide for
28-13 prequalifying offerors before proposals are submitted.
28-14 Prequalification may not be a conclusive determination that an
28-15 offeror offers the best value to the institution, and a
28-16 prequalified offeror may be rejected on the basis of subsequently
28-17 discovered information. A failure to prequalify does not bar a
28-18 subsequent determination that an offeror offers the best value to
28-19 the institution with respect to a given proposal.]
28-20 [(h) The] board shall receive, publicly open, and read aloud
28-21 the names of the offerors. At the appropriate step, the board
28-22 shall also read aloud all fees and prices stated in [and the
28-23 monetary proposals, if any, for] each proposal. Within 45 days
28-24 after the date of opening the proposals, the board or its
28-25 representative shall evaluate and rank each proposal submitted in
28-26 relation to the criteria set forth in the request for proposals.
29-1 (h) [(i)] The board or its representative shall select the
29-2 offeror that submits the proposal that offers the best value for
29-3 [to] the institution based on the published selection criteria and
29-4 on its ranking evaluation. The board or its representative shall
29-5 first attempt in good faith to negotiate with the selected offeror
29-6 a contract on fair and reasonable terms. If the board or its
29-7 representative is unable to negotiate [reach] a satisfactory
29-8 contract [agreement] with the selected offeror, the board or its
29-9 representative shall, formally and in writing, end negotiations
29-10 with that offeror [terminate further discussions] and proceed to
29-11 negotiate with the next offeror in the order of the selection
29-12 ranking until a contract [agreement] is reached or negotiations
29-13 with all ranked offerors end [all proposals are rejected].
29-14 (i) [(j)] A construction manager-at-risk shall publicly
29-15 advertise, in the manner prescribed by the institution, and receive
29-16 bids or [and solicit either competitive bids or competitive sealed]
29-17 proposals from trade contractors or subcontractors for the
29-18 performance of all major elements of the work other than the minor
29-19 work that may be included in the general conditions. A
29-20 construction manager-at-risk may seek to perform portions of the
29-21 work itself if the construction manager-at-risk submits its bid or
29-22 proposal for those portions of the work in the same manner as all
29-23 other trade contractors or subcontractors and if the board
29-24 determines that the construction manager-at-risk's bid or proposal
29-25 provides the best value for the institution.
29-26 (j) [(k)] The construction manager-at-risk and the board or
30-1 its representative shall review [receive and open] all trade
30-2 contractor or subcontractor bids or proposals in a manner that does
30-3 not disclose the contents of the bid or proposal during the
30-4 selection process to a person not employed by the construction
30-5 manager-at-risk, engineer, architect, or institution. All bids or
30-6 proposals shall be made public within seven days after the date of
30-7 final selection.
30-8 (k) [(l)] If the construction manager-at-risk reviews,
30-9 evaluates, and recommends to the board a bid or proposal from a
30-10 trade contractor or subcontractor but the board requires another
30-11 bid or proposal to be accepted, the institution shall compensate
30-12 the construction manager-at-risk by a change in price, time, or
30-13 guaranteed maximum cost for any additional cost and risk that the
30-14 construction manager-at-risk may incur because of the board's
30-15 requirement that another bid or proposal be accepted.
30-16 (l) If a selected trade contractor or subcontractor defaults
30-17 in the performance of its work or fails to execute a subcontract
30-18 after being selected in accordance with this section, the
30-19 construction manager-at-risk may, without advertising, itself
30-20 fulfill the contract requirements or select a replacement trade
30-21 contractor or subcontractor to fulfill the contract requirements.
30-22 (m) If a fixed contract amount or guaranteed maximum price
30-23 has not been determined at the time the contract is awarded, the
30-24 penal sums of the performance and payment bonds delivered to the
30-25 institution must each be in an amount equal to the project budget,
30-26 as set forth in the request for qualifications. The construction
31-1 manager shall deliver the bonds not later than the 10th day after
31-2 the date the construction manager executes the contract unless the
31-3 construction manager furnishes a bid bond or other financial
31-4 security acceptable to the institution to ensure that the
31-5 construction manager will furnish the required performance and
31-6 payment bonds when a guaranteed maximum price is established.
31-7 Sec. 51.783. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
31-8 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
31-9 contractor for construction, rehabilitation, alteration, or repair
31-10 services for a facility through competitive sealed proposals, a
31-11 board shall follow the procedures prescribed by this section.
31-12 (b) The board shall select or designate an engineer or
31-13 architect to prepare construction documents for the project. The
31-14 selected or designated engineer or architect has full
31-15 responsibility for complying with The Texas Engineering Practice
31-16 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
31-17 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
31-18 Vernon's Texas Civil Statutes), as applicable. If the engineer or
31-19 architect is not a full-time employee of the institution, the board
31-20 shall select the engineer or architect on the basis of demonstrated
31-21 competence and qualifications as provided by Section 2254.004,
31-22 Government Code.
31-23 (c) The board shall provide or contract for, independently
31-24 of the contractor, the inspection services, the testing of
31-25 construction materials engineering, and the verification testing
31-26 services necessary for acceptance of the facility by the
32-1 institution. The board shall select those services for which it
32-2 contracts in accordance with Section 2254.004, Government Code, and
32-3 shall identify them in the request for proposals.
32-4 (d) The board shall prepare a request for competitive sealed
32-5 proposals that includes construction documents, selection criteria,
32-6 estimated budget, project scope, schedule, and other information
32-7 that contractors may require to respond to the request. The board
32-8 shall state in the request for proposals the selection criteria
32-9 that will be used in selecting the successful offeror [in the
32-10 request for proposals]. [The selection criteria may include the
32-11 offeror's experience, past performance, safety record, proposed
32-12 personnel and methodology, and other appropriate factors that
32-13 demonstrate the capability of the contractor.]
32-14 (e) The board shall publish notice of the request for
32-15 proposals in a manner prescribed by the board.
32-16 (f) [The board may provide for prequalifying offerors before
32-17 proposals are submitted. Prequalification may not be a conclusive
32-18 determination that an offeror offers the best value to the
32-19 institution, and a prequalified offeror may be rejected on the
32-20 basis of subsequently discovered information. A failure to
32-21 prequalify does not bar a subsequent determination that an offeror
32-22 offers the best value to the institution with respect to a given
32-23 proposal.]
32-24 [(g)] The board shall receive, publicly open, and read aloud
32-25 the names of the offerors and, if any are required to be stated,
32-26 all prices [the monetary proposals, if any,] stated in each
33-1 proposal. Within 45 days after the date of opening the proposals
33-2 the board shall evaluate and rank each proposal submitted in
33-3 relation to the published selection criteria.
33-4 (g) [(h)] The board shall select the offeror that offers the
33-5 best value for [to] the institution based on the published
33-6 selection criteria and on its ranking evaluation. The board shall
33-7 first attempt in good faith to negotiate with the selected offeror
33-8 a contract on fair and reasonable terms. The board and its
33-9 engineer or architect may discuss with the selected offeror options
33-10 for a scope or time modification and any price change associated
33-11 with the modification [cost reduction]. If the board is unable to
33-12 reach a contract [agreement] with the selected offeror, the board
33-13 shall, formally and in writing, end negotiations with that offeror
33-14 [terminate further discussions] and proceed to the next offeror in
33-15 the order of the selection ranking until a contract [agreement] is
33-16 reached or all proposals are rejected.
33-17 (h) [(i)] In determining best value for the institution, the
33-18 board is not restricted to considering price alone but may consider
33-19 any other factor stated in the selection criteria.
33-20 Sec. 51.784. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION
33-21 OR REPAIR. (a) An institution may award job order contracts for
33-22 the minor construction, repair, rehabilitation, or alteration of a
33-23 facility if the work is of a recurring nature but the delivery
33-24 times are indefinite and indefinite quantities and orders are
33-25 awarded substantially on the basis of predescribed and prepriced
33-26 tasks.
34-1 (b) The institution may establish contractual unit prices
34-2 for a job order contract by:
34-3 (1) specifying one or more published construction unit
34-4 price books and the applicable divisions or line items; or
34-5 (2) providing a list of work items and requiring the
34-6 offerors to bid or propose one or more coefficients or multipliers
34-7 to be applied to the price book or work items as the price
34-8 proposal.
34-9 (c) The board shall advertise for, receive, and publicly
34-10 open [competitive] sealed proposals for job order contracts [based
34-11 on time and material rates for various types and classifications of
34-12 work. The rates under a job order contract shall be in effect for
34-13 at least six months and for not longer than two years].
34-14 (d) [(c)] The board may require offerors to submit
34-15 additional information besides rates, including experience, past
34-16 performance, and proposed personnel and methodology.
34-17 (e) [(d)] The board may award job order contracts to one or
34-18 more job order contractors in connection with each solicitation of
34-19 bids or [based on price] proposals[, experience, past performance,
34-20 proposed personnel and methodology, safety record, and other
34-21 appropriate factors].
34-22 (f) [(e)] An order for a job or project under the job order
34-23 contract must be signed by the board's representative and the
34-24 contractor. The order may be a fixed price, lump-sum contract
34-25 based substantially on contractual unit pricing applied to
34-26 estimated quantities [a statement of work negotiated between the
35-1 board or its representative and the contractor,] or [the order] may
35-2 be a unit price order based on the [estimated] quantities and line
35-3 items delivered.
35-4 (g) The contractor shall provide payment and performance
35-5 bonds, if required by law, based on the amount or estimated amount
35-6 of any order.
35-7 (h) The base term of a job order contract is for the period
35-8 and with any renewal options that the institution sets forth in the
35-9 request for proposals. If the institution fails to advertise that
35-10 term, the base term may not exceed two years and is not renewable
35-11 without further advertisement and solicitation of proposals.
35-12 (i) If a job order contract or an order issued under the
35-13 contract requires engineering or architectural services that
35-14 constitute the practice of engineering within the meaning of The
35-15 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
35-16 Statutes) or the practice of architecture within the meaning of
35-17 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
35-18 (Article 249a, Vernon's Texas Civil Statutes), those services shall
35-19 be provided in accordance with applicable law.
35-20 SECTION 16. This Act takes effect September 1, 1999. The
35-21 changes in law made by this Act apply only to a contract for which
35-22 requests for bids, proposals, or qualifications are published or
35-23 distributed on or after that date.
35-24 SECTION 17. The importance of this legislation and the
35-25 crowded condition of the calendars in both houses create an
35-26 emergency and an imperative public necessity that the
36-1 constitutional rule requiring bills to be read on three several
36-2 days in each house be suspended, and this rule is hereby suspended.