By Ratliff                                             S.B. No. 669
         76R5489 CAS-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to school district purchases and contracts and to
 1-3     construction and repair of improvements by institutions of higher
 1-4     education.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Sections 44.031(a), (d), (f), (g), (h), (i), (j),
 1-7     and (l), Education Code, are amended to read as follows:
 1-8           (a)  Except as provided by this subchapter, all school
 1-9     district contracts, except contracts for the purchase of produce or
1-10     vehicle fuel, valued at $25,000 or more in the aggregate for each
1-11     12-month period shall be made by the method, of the following
1-12     methods, that provides the best value for [to] the district:
1-13                 (1)  competitive bidding;
1-14                 (2)  competitive sealed proposals;
1-15                 (3)  a request for proposals, for services other than
1-16     construction services;
1-17                 (4)  a catalogue purchase as provided by Subchapter B,
1-18     Chapter 2157, Government Code;
1-19                 (5)  an interlocal contract;
1-20                 (6)  a design/build contract;
1-21                 (7)  a contract to construct, rehabilitate, alter, or
1-22     repair facilities that involves using a construction manager; or
1-23                 (8)  a job order contract for the minor construction,
1-24     repair, rehabilitation, or alteration of a facility.
 2-1           (d)  The board of trustees of the district may adopt rules
 2-2     and procedures for the acquisition of goods or services.
 2-3           (f)  This section does not apply to contracts [fees received]
 2-4     for professional services [rendered, including architect's fees,
 2-5     attorney's fees, and fees for fiscal agents].
 2-6           (g)  Notice of the time by when and place where the bids or
 2-7     proposals, or the responses to a request for qualifications, will
 2-8     be received shall be published in the county in which the
 2-9     district's central administrative office is located, once a week
2-10     for at least two weeks before the deadline for receiving bids,
2-11     proposals, or responses to a request for qualifications;  except
2-12     that on contracts involving less than $25,000, the advertising may
2-13     be limited to two successive issues of any newspaper published in
2-14     the county in which the district's central administrative office is
2-15     located, and if there is not a newspaper in that county, the
2-16     advertising shall be published in a newspaper in the county nearest
2-17     the county seat of the county in which the district's central
2-18     administrative office is located.  In a two-step procurement
2-19     process, the time and place where the second-step bids, proposals,
2-20     or responses will be received are not required to be published
2-21     separately.
2-22           (h)  If school equipment or facilities are [is] destroyed or
2-23     severely damaged, and the board of trustees determines that the
2-24     delay posed by the procurement [competitive bidding] process
2-25     prescribed by this subchapter would prevent or substantially impair
2-26     the conduct of classes or other essential school activities, then
2-27     contracts for the replacement or repair of the equipment or
 3-1     facilities may be made on terms the board of trustees determines to
 3-2     be appropriate under the circumstances [without competitive bidding
 3-3     as otherwise required by this section].
 3-4           (i)  A [The board of trustees of a] school district may
 3-5     acquire computers and computer-related equipment, including
 3-6     computer software, through the General Services Commission under
 3-7     contracts entered into in accordance with Chapter 2157, Government
 3-8     Code.  Before issuing an invitation for bids, the commission shall
 3-9     consult with the agency concerning the computer and
3-10     computer-related equipment needs of school districts.  To the
3-11     extent possible the resulting contract shall provide for such
3-12     needs.
3-13           (j)  Without complying with Subsection (a), [the board of
3-14     trustees of] a school district may purchase an item that is
3-15     available from only one source, including:
3-16                 (1)  an item for which competition is precluded because
3-17     of the existence of a patent, copyright, secret process, or
3-18     monopoly;
3-19                 (2)  a film, manuscript, or book;
3-20                 (3)  a utility service, including electricity, gas, or
3-21     water; and
3-22                 (4)  a captive replacement part or component for
3-23     equipment.
3-24           (l)  Each contract proposed to be made by [the board of
3-25     trustees of] a school district for the purchase or lease of one or
3-26     more school buses, including a lease with an option to purchase,
3-27     must be submitted to competitive bidding when the contract is
 4-1     valued at $20,000 or more.
 4-2           SECTION 2.  Subchapter B, Chapter 44, Education Code, is
 4-3     amended by adding Section 44.0311 to read as follows:
 4-4           Sec. 44.0311.  DELEGATION.  (a)  The board of trustees of the
 4-5     district may, as appropriate, delegate its authority under this
 4-6     subchapter regarding an action authorized or required by this
 4-7     subchapter to be taken by a school district to a designated person,
 4-8     representative, or committee.  The district shall provide notice of
 4-9     the delegation and the limits of the delegation in the request for
4-10     bids, proposals, or qualifications, or in an addendum to the
4-11     request.  If the district fails to provide that notice, a ranking,
4-12     selection, or evaluation of bids, proposals, or qualifications
4-13     other than by the board of trustees in an open public meeting is
4-14     advisory only.
4-15           (b)  The board may not delegate the authority to act
4-16     regarding an action authorized or required by this subchapter to be
4-17     taken by the board of trustees of a school district.
4-18           SECTION 3.  Section 44.032(f), Education Code, is amended to
4-19     read as follows:
4-20           (f)  A court may enjoin performance of a contract made in
4-21     violation of this subchapter [Section 44.031(a) or (b)].  A county
4-22     attorney, a district attorney, a criminal district attorney, [or] a
4-23     citizen of the county in which the school district is located, or
4-24     any interested party may bring an action for an injunction.  A
4-25     party [citizen] who prevails in an action brought under this
4-26     subsection is entitled to reasonable attorney's fees as approved by
4-27     the court.
 5-1           SECTION 4.  Section 44.035, Education Code, is amended to
 5-2     read as follows:
 5-3           Sec. 44.035.  EVALUATION OF BIDS AND [COMPETITIVE SEALED]
 5-4     PROPOSALS FOR CONSTRUCTION SERVICES.  (a)  The board of trustees of
 5-5     a school district that is considering a construction contract using
 5-6     a method specified by Section 44.031(a) must, before advertising,
 5-7     determine which method [Except as otherwise provided by this
 5-8     subchapter, a school district using competitive sealed proposals to
 5-9     select a contractor for construction services, to select a
5-10     construction manager, or to award a job order contract for
5-11     construction services shall base its selection or award on a
5-12     combination of price and other factors that the district
5-13     determines] provides the best value for [to] the district.
5-14           (b)  The [A school] district shall base its selection among
5-15     offerors on criteria authorized to be used under Section 44.031(b).
5-16     The district shall publish in the request for bids, proposals, or
5-17     qualifications the specific criteria that will be used to evaluate
5-18     the offerors and the relative weights, if any, given to the
5-19     criteria [using competitive sealed proposals may discuss proposals
5-20     with offerors after proposals have been opened to allow for
5-21     clarification and changes.  The district shall take adequate
5-22     precautions to ensure that information from competing proposals is
5-23     not disclosed to other offerors].
5-24           (c)  The district shall document the basis of its selection
5-25     and shall make the evaluations public on or before awarding the
5-26     contract.
5-27           SECTION 5.  Section 44.036(a)(3), Education Code, is amended
 6-1     to read as follows:
 6-2                 (3)  "Design criteria package" means a set of documents
 6-3     that provides sufficient information to permit a design-build firm
 6-4     to prepare a response to a school district's request for
 6-5     qualifications and any additional information requested, including
 6-6     criteria for selection [proposals].  The design criteria package
 6-7     must specify criteria the district considers necessary to describe
 6-8     the project and may include, as appropriate, the legal description
 6-9     of the site, survey information concerning the site, interior space
6-10     requirements, special material requirements, material quality
6-11     standards, conceptual criteria for the project, special equipment
6-12     requirements, cost or budget estimates, time schedules, quality
6-13     assurance and quality control requirements, site development
6-14     requirements, applicable codes and ordinances, provisions for
6-15     utilities, parking requirements, or any other requirement, as
6-16     applicable.
6-17           SECTION 6.  Sections 44.036(e), (f), and (j), Education Code,
6-18     are amended to read as follows:
6-19           (e)  The district shall evaluate statements of qualifications
6-20     [proposals] and select a design-build firm in two phases:
6-21                 (1)  In phase one, the district shall prepare a request
6-22     for qualifications and evaluate each offeror's experience,
6-23     technical competence, and capability to perform, the past
6-24     performance of the offeror's team and members of the team, and
6-25     other appropriate factors submitted by the team or firm in response
6-26     to the request for qualifications, except that cost-related or
6-27     price-related evaluation factors are not permitted.  Each offeror
 7-1     must certify to the district that each engineer or architect that
 7-2     is a member of its team was selected based on demonstrated
 7-3     competence and qualifications.  The district shall qualify a
 7-4     maximum of five [potential] offerors to submit additional
 7-5     information and, if the district chooses, to interview for final
 7-6     selection [regarding technical proposals, implementation, and
 7-7     costing methodologies in response to a formal request for proposals
 7-8     based on the design criteria package].
 7-9                 (2)  In phase two, the district shall evaluate the
7-10     information submitted by the offerors on the basis of the selection
7-11     criteria stated in the request for qualifications and the results
7-12     of any interview.  The district may request additional information
7-13     regarding demonstrated competence and qualifications,
7-14     considerations of the safety and long-term durability of the
7-15     project, the feasibility of implementing the project as proposed,
7-16     the ability of the offeror to meet schedules, costing methodology,
7-17     or other factors as appropriate.  The district may not require
7-18     offerors to submit detailed engineering or architectural designs as
7-19     part of the proposal.  The district shall rank each proposal
7-20     submitted on the basis of the criteria set forth in the request for
7-21     qualifications.  The district shall select the design-build firm
7-22     that submits the proposal offering the best value for the district
7-23     on the basis of the published selection criteria and on its ranking
7-24     evaluations.  The district shall first attempt in good faith to
7-25     negotiate with the selected offeror a contract on fair and
7-26     reasonable terms.  If the district is unable to negotiate a
7-27     satisfactory contract with the selected offeror, the district
 8-1     shall, formally and in writing, end negotiations with that offeror
 8-2     and proceed to negotiate with the next offeror in the order of the
 8-3     selection ranking until a contract is reached or negotiations with
 8-4     all ranked offerors end.
 8-5           (f)  Following selection of a design-build firm under
 8-6     Subsection (e), that firm's engineers or architects shall complete
 8-7     the design, submitting all design elements for review and
 8-8     determination of scope compliance to [by] the district or
 8-9     district's engineer or architect before or concurrently with
8-10     construction.
8-11           (j)  A payment or performance bond is not required for, and
8-12     may not provide coverage for, the portion of a design-build
8-13     contract under this section that includes design services only.  If
8-14     a fixed contract amount or guaranteed maximum price has not been
8-15     determined at the time a design-build contract is awarded, the
8-16     penal sums of the performance and payment bonds delivered to the
8-17     district must each be in an amount equal to the project budget, as
8-18     specified in the design criteria package.  The design-build firm
8-19     shall deliver the bonds not later than the 10th day after the date
8-20     the design-build firm executes the contract unless the design-build
8-21     firm furnishes a bid bond or other financial security acceptable to
8-22     the district to ensure that the design-build firm will furnish the
8-23     required performance and payment bonds when a guaranteed maximum
8-24     price is established.
8-25           SECTION 7.  Sections 44.037(b) and (c), Education Code, are
8-26     amended to read as follows:
8-27           (b)  A construction manager-agent is a sole proprietorship,
 9-1     partnership, corporation, or other legal entity that provides
 9-2     consultation to the school district regarding construction,
 9-3     rehabilitation, alteration, or repair of the facility.  A
 9-4     construction manager-agent's services are services other than the
 9-5     design services customarily performed by an engineer or architect.
 9-6     A construction manager-agent represents the district in a fiduciary
 9-7     capacity[, except that it may perform general conditions as
 9-8     provided by the contract].
 9-9           (c)  Before or concurrently with selecting a construction
9-10     manager-agent, the district shall select or designate an engineer
9-11     or architect who shall prepare the construction documents for the
9-12     project and who has full responsibility for complying with The
9-13     Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
9-14     Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
9-15     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
9-16     applicable.  If the engineer or architect is not a full-time
9-17     employee of the district, the district shall select the engineer or
9-18     architect on the basis of demonstrated competence and
9-19     qualifications as provided by Section 2254.004, Government Code.
9-20     The district's engineer or architect may not serve, alone or in
9-21     combination with another person, as the construction manager-agent
9-22     unless the engineer or architect is hired to serve as the
9-23     construction manager-agent through a separate or concurrent
9-24     procurement process conducted in accordance with this subchapter.
9-25           SECTION 8.  Sections 44.038 and 44.039, Education Code, are
9-26     amended to read as follows:
9-27           Sec. 44.038.  CONTRACTS FOR FACILITIES:  CONSTRUCTION
 10-1    MANAGER-AT-RISK.  (a)  A school district may use the construction
 10-2    manager-at-risk method for the construction, rehabilitation,
 10-3    alteration, or repair of a facility.  In using that method and in
 10-4    entering into a contract for the services of a construction
 10-5    manager-at-risk, a district shall follow the procedures prescribed
 10-6    by this section.
 10-7          (b)  A construction manager-at-risk is a sole proprietorship,
 10-8    partnership, corporation, or other legal entity that assumes the
 10-9    risk for construction, rehabilitation, alteration, or repair of a
10-10    facility at the contracted price as a general contractor and
10-11    provides consultation to the school district regarding construction
10-12    during and after the design of the facility.
10-13          (c)  Before or concurrently with selecting a construction
10-14    manager-at-risk, the district shall select or designate an engineer
10-15    or architect who shall prepare the construction documents for the
10-16    project and who has full responsibility for complying with The
10-17    Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
10-18    Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
10-19    Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
10-20    applicable.  If the engineer or architect is not a full-time
10-21    employee of the district, the district shall select the engineer or
10-22    architect on the basis of demonstrated competence and
10-23    qualifications as provided by Section 2254.004, Government Code.
10-24    The district's engineer, architect, or construction manager-agent
10-25    for a project may not serve, alone or in combination with another,
10-26    as the construction manager-at-risk.
10-27          (d)  The district shall provide or contract for,
 11-1    independently of the construction manager-at-risk, the inspection
 11-2    services, the testing of construction materials engineering, and
 11-3    the verification testing services necessary for acceptance of the
 11-4    facility by the district.  The district shall select those services
 11-5    for which it contracts in accordance with Section 2254.004,
 11-6    Government Code.
 11-7          (e)  The district shall select the construction
 11-8    manager-at-risk in either a one-step or two-step process.  The
 11-9    district shall prepare a request for [competitive sealed]
11-10    proposals, in the case of a one-step process, or a request for
11-11    qualifications, in the case of a two-step process, that includes
11-12    general information on the project site, project scope, schedule,
11-13    selection criteria, estimated budget, and the time and place for
11-14    receipt of proposals or qualifications, as applicable, a statement
11-15    as to whether the selection process is a one-step or two-step
11-16    process, and other information that may assist the district in its
11-17    selection of a construction manager-at-risk.  The district shall
11-18    state the selection criteria in the request for proposals or
11-19    qualifications, as applicable.  The selection criteria may include
11-20    the offeror's experience, past performance, safety record, proposed
11-21    personnel and methodology, and other appropriate factors that
11-22    demonstrate the capability of the construction manager-at-risk.  If
11-23    a one-step process is used, the district shall request, as part of
11-24    the offeror's proposal, proposed fees and prices for fulfilling the
11-25    general conditions.  If a two-step process is used, the district
11-26    may not request fees or prices in step one.  In step two, the [The]
11-27    district may request that five or fewer offerors, selected solely
 12-1    on the basis of qualifications, provide additional information,
 12-2    including [proposals provide] the construction manager-at-risk's
 12-3    [manager's] proposed fee and its price for fulfilling the general
 12-4    conditions.  [The district shall state the selection criteria in
 12-5    the request for proposals.  The selection criteria may include the
 12-6    offeror's experience, past performance, safety record, proposed
 12-7    personnel and methodology, and other appropriate factors that
 12-8    demonstrate the capability of the construction manager.]
 12-9          (f)  At each step, the [The district may provide for
12-10    prequalifying offerors before proposals are submitted.
12-11    Prequalification may not be a conclusive determination that an
12-12    offeror offers the best value to the district, and a prequalified
12-13    offeror may be rejected on the basis of subsequently discovered
12-14    information.  A failure to prequalify does not bar a subsequent
12-15    determination that an offeror offers the best value to the district
12-16    with respect to a given proposal.]
12-17          [(g)  The] district shall receive, publicly open, and read
12-18    aloud the  names of the offerors.  At the appropriate step, the
12-19    district shall also read aloud all fees and  prices stated in [and
12-20    the monetary proposals, if any, for] each proposal.  Within 45 days
12-21    after the date of opening the proposals, the district shall
12-22    evaluate and rank each proposal submitted in relation to the
12-23    criteria set forth in the request for proposals.
12-24          (g) [(h)]  The district shall select the offeror that submits
12-25    the proposal that offers the best value for [to] the district based
12-26    on the published selection criteria and on its ranking evaluation.
12-27    The district shall first attempt in good faith to negotiate with
 13-1    the selected offeror a contract on fair and reasonable terms.  If
 13-2    the district is unable to negotiate [reach] a satisfactory contract
 13-3    [agreement] with the selected offeror, the district shall, formally
 13-4    and in writing, end negotiations with that offeror [terminate
 13-5    further discussions] and proceed to negotiate with the next offeror
 13-6    in the order of the selection ranking until a contract [agreement]
 13-7    is reached or negotiations with all ranked offerors end [all
 13-8    proposals are rejected].
 13-9          (h) [(i)]  A construction manager-at-risk shall publicly
13-10    advertise, in accordance with Section 44.031(g), and receive bids
13-11    or [and solicit either competitive bids or competitive sealed]
13-12    proposals from trade contractors or subcontractors for the
13-13    performance of all major elements of the work other than the minor
13-14    work that may be included in the general conditions.  A
13-15    construction manager-at-risk may seek to perform portions of the
13-16    work itself if the construction manager-at-risk submits its bid or
13-17    proposal for those portions of the work in the same manner as all
13-18    other trade contractors or subcontractors and if the district
13-19    determines that the construction manager-at-risk's bid or proposal
13-20    provides the best value for the district.
13-21          (i) [(j)]  The construction manager-at-risk and the district
13-22    or its representative shall review [receive and open] all trade
13-23    contractor or subcontractor bids or proposals in a manner that does
13-24    not disclose the contents of the bid or proposal during the
13-25    selection process to a person not employed by the construction
13-26    manager-at-risk, engineer, architect, or  district.  All bids or
13-27    proposals shall be made public within seven days after the date of
 14-1    final selection.
 14-2          (j) [(k)]  If the construction manager-at-risk reviews,
 14-3    evaluates, and recommends to the district a bid or proposal from a
 14-4    trade contractor or subcontractor but the district requires another
 14-5    bid or proposal to be accepted, the district shall compensate the
 14-6    construction manager-at-risk by a change in price, time, or
 14-7    guaranteed maximum cost for any additional cost and risk that the
 14-8    construction manager-at-risk may incur because of the district's
 14-9    requirement that another bid or proposal be accepted.
14-10          (k)  If a selected trade contractor or subcontractor defaults
14-11    in the performance of its work or fails to execute a subcontract
14-12    after being selected in accordance with this section, the
14-13    construction manager-at-risk may, without advertising, itself
14-14    fulfill the contract requirements or select a replacement trade
14-15    contractor or subcontractor to fulfill the contract requirements.
14-16          (l)  If a fixed contract amount or guaranteed maximum price
14-17    has not been determined at the time the contract is awarded, the
14-18    penal sums of the performance and payment bonds delivered to the
14-19    district must each be in an amount equal to the project budget, as
14-20    specified in the request for qualifications.  The construction
14-21    manager shall deliver the bonds not later than the 10th day after
14-22    the date the construction manager executes the contract unless the
14-23    construction manager furnishes a bid bond or other financial
14-24    security acceptable to the district to ensure that the construction
14-25    manager will furnish the required performance and payment bonds
14-26    when a guaranteed maximum price is established.
14-27          Sec. 44.039.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
 15-1    THROUGH COMPETITIVE SEALED PROPOSALS.  (a)  In selecting a
 15-2    contractor for construction, rehabilitation, alteration, or repair
 15-3    services for a facility through competitive sealed proposals, a
 15-4    school district shall follow the procedures prescribed by this
 15-5    section.
 15-6          (b)  The district shall select or designate an engineer or
 15-7    architect to prepare construction documents for the project.  The
 15-8    selected or designated engineer or architect has full
 15-9    responsibility for complying with The Texas Engineering Practice
15-10    Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
15-11    Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
15-12    Vernon's Texas Civil Statutes), as applicable.  If the engineer or
15-13    architect is not a full-time employee of the district, the district
15-14    shall select the engineer or architect on the basis of demonstrated
15-15    competence and qualifications as provided by Section 2254.004,
15-16    Government Code.
15-17          (c)  The district shall provide or contract for,
15-18    independently of the contractor, the inspection services, the
15-19    testing of construction materials engineering, and the verification
15-20    testing services necessary for acceptance of the facility by the
15-21    district.  The district shall select those services for which it
15-22    contracts in accordance with Section 2254.004, Government Code, and
15-23    shall identify them in the request for proposals.
15-24          (d)  The district shall prepare a request for competitive
15-25    sealed proposals that includes construction documents, selection
15-26    criteria, estimated budget, project scope, schedule, and other
15-27    information that contractors may require to respond to the request.
 16-1    The district shall state in the request for proposals the selection
 16-2    criteria that will be used in selecting the successful offeror [in
 16-3    the request for proposals].  [The selection criteria may include
 16-4    the offeror's experience, past performance, safety record, proposed
 16-5    personnel and methodology, and other appropriate factors that
 16-6    demonstrate the capability of the contractor.]
 16-7          (e)  [The district may provide for prequalifying offerors
 16-8    before proposals are submitted.  Prequalification may not be a
 16-9    conclusive determination that an offeror offers the best value to
16-10    the district, and a prequalified offeror may be rejected on the
16-11    basis of subsequently discovered information.  A failure to
16-12    prequalify does not bar a subsequent determination that an offeror
16-13    offers the best value to the district with respect to a given
16-14    proposal.]
16-15          [(f)]  The district shall receive, publicly open, and read
16-16    aloud the names of the offerors and, if any are required to be
16-17    stated, all prices [the monetary proposals, if any,] stated in each
16-18    proposal.  Within 45 days after the date of opening the proposals,
16-19    the district shall evaluate and rank each proposal submitted in
16-20    relation to the published selection criteria.
16-21          (f) [(g)]  The district shall select the offeror that offers
16-22    the best value for [to] the district based on the published
16-23    selection criteria and on its ranking evaluation.  The district
16-24    shall first attempt in good faith to negotiate with the selected
16-25    offeror a contract on fair and reasonable terms.  The district and
16-26    its engineer or architect may discuss with the selected offeror
16-27    options for a scope or time modification and any price change
 17-1    associated with the modification [cost reduction].  If the district
 17-2    is unable to negotiate [reach] a contract [agreement] with the
 17-3    selected offeror, the district shall, formally and in writing, end
 17-4    negotiations with that offeror [terminate further discussions] and
 17-5    proceed to the next offeror in the order of the selection ranking
 17-6    until a contract [agreement] is reached or all proposals are
 17-7    rejected.
 17-8          (g) [(h)]  In determining best value for the district, the
 17-9    district is not restricted to considering price alone, but may
17-10    consider any other factor stated in the selection criteria.
17-11          SECTION 9.  Section 44.040(b), Education Code, is amended to
17-12    read as follows:
17-13          (b)  Sections 271.021, 271.022, 271.026, 271.027(a), and
17-14    271.0275-271.030, Local Government Code, apply to a competitive
17-15    bidding process under this section.  Section 271.027(b), Local
17-16    Government Code, does not apply to a bid or proposal submitted
17-17    under this section.
17-18          SECTION 10.  Section 44.041, Education Code, is amended to
17-19    read as follows:
17-20          Sec. 44.041.  JOB ORDER CONTRACTS FOR FACILITIES REPAIR.
17-21    (a)  A school district may award job order contracts for the minor
17-22    construction, repair, rehabilitation, or alteration of a facility
17-23    if the work is of a recurring nature but the delivery times are
17-24    indefinite and indefinite quantities and orders are awarded
17-25    substantially on the basis of predescribed and prepriced tasks.
17-26          (b)  The school district may establish contractual unit
17-27    prices for a job order contract by:
 18-1                (1)  specifying one or more published construction unit
 18-2    price books and the applicable divisions or line items; or
 18-3                (2)  providing a list of work items and requiring the
 18-4    offerors to bid or propose one or more coefficients or multipliers
 18-5    to be applied to the price book or work items as the price
 18-6    proposal.
 18-7          (c)  The school district shall advertise for, receive, and
 18-8    publicly open [competitive] sealed proposals for job order
 18-9    contracts [based on time and material rates for various types and
18-10    classifications of work.  The rates under a job order contract
18-11    shall be in effect for at least six months and for not longer than
18-12    two years].
18-13          (d) [(c)]  The district may require offerors to submit
18-14    additional information besides rates, including experience, past
18-15    performance, and proposed personnel and methodology.
18-16          (e) [(d)]  The district may award job order contracts to one
18-17    or more job order contractors in connection with each solicitation
18-18    of bids or [based on price] proposals [, experience, past
18-19    performance, proposed personnel and methodology, safety record, and
18-20    other appropriate factors].
18-21          (f) [(e)]  An order for a job or project under the job order
18-22    contract must be signed by the district's representative and the
18-23    contractor.  The order may be a fixed price, lump-sum contract
18-24    based substantially on contractual unit pricing applied to
18-25    estimated quantities [a statement of work negotiated between the
18-26    district or its representative and the contractor,] or [the order]
18-27    may be a unit price order based on the [estimated] quantities and
 19-1    line items delivered.
 19-2          (g)  The contractor shall provide payment and performance
 19-3    bonds, if required by law, based on the amount or estimated amount
 19-4    of any order.
 19-5          (h)  The base term of a job order contract is for the period
 19-6    and with any renewal option that the district sets forth in the
 19-7    request for proposals.  If the district fails to advertise that
 19-8    term, the base term may not exceed two years and is not renewable
 19-9    without further advertisement and solicitation of proposals.
19-10          (i)  If a job order contract or an order issued under the
19-11    contract requires engineering or architectural services that
19-12    constitute the practice of engineering within the meaning of The
19-13    Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
19-14    Statutes) or the practice of architecture within the meaning of
19-15    Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
19-16    (Article 249a, Vernon's Texas Civil Statutes), those services shall
19-17    be provided in accordance with applicable law.
19-18          SECTION 11.  Section 51.779, Education Code, is amended to
19-19    read as follows:
19-20          Sec. 51.779.  EVALUATION OF BIDS AND [COMPETITIVE SEALED]
19-21    PROPOSALS FOR CONSTRUCTION SERVICES.  (a)  An institution that is
19-22    considering a construction contract using a method authorized by
19-23    this subchapter must, before advertising, determine which method
19-24    [Except as otherwise provided by this subchapter, the board of an
19-25    institution using competitive sealed proposals to select a
19-26    contractor for construction services, to select a construction
19-27    manager, or to award a job order contract for construction services
 20-1    shall base its selection or award on a combination of price and
 20-2    other factors that the board determines] provides the best value
 20-3    for [to] the institution.
 20-4          (b)  The [An] institution shall base its selection among the
 20-5    offerors on criteria established by the institution.  The
 20-6    institution shall publish in the request for bids, proposals, or
 20-7    qualifications the specific criteria that will be used to evaluate
 20-8    the offerors and the relative weights, if any, given to the
 20-9    criteria [using competitive sealed proposals may discuss proposals
20-10    with offerors after proposals have been opened to allow for
20-11    clarification and changes.  The institution shall take adequate
20-12    precautions to ensure that information from competing proposals is
20-13    not disclosed to other offerors].
20-14          (c)  The institution shall document the basis of its
20-15    selection  and shall make the evaluations public on or before the
20-16    award of the contract.
20-17          SECTION 12.  Section 51.780(a)(3), Education Code, is amended
20-18    to read as follows:
20-19                (3)  "Design criteria package" means a set of documents
20-20    that provides sufficient information to permit a design-build firm
20-21    to prepare a response to an institution's request for
20-22    qualifications and any additional information requested, including
20-23    criteria for selection [proposals].  The design criteria package
20-24    must specify criteria the institution considers necessary to
20-25    describe the project and may include, as appropriate, the legal
20-26    description of the site, survey information concerning the site,
20-27    interior space requirements, special material requirements,
 21-1    material quality standards, conceptual criteria for the project,
 21-2    special equipment requirements, cost or budget estimates, time
 21-3    schedules, quality assurance and quality control requirements, site
 21-4    development requirements, applicable codes and ordinances,
 21-5    provisions for utilities, parking requirements, or any other
 21-6    requirement, as applicable.
 21-7          SECTION 13.  Sections 51.780(f) and (k), Education Code, are
 21-8    amended to read as follows:
 21-9          (f)  The board or its representative shall evaluate
21-10    statements of qualifications [proposals] and select a design-build
21-11    firm in two phases:
21-12                (1)  In phase one, the board or its representative
21-13    shall prepare a request for qualifications and evaluate each
21-14    offeror's experience, technical competence, and capability to
21-15    perform, the past performance of the offeror's team and members of
21-16    the team, and other appropriate factors submitted by the team or
21-17    firm in response to the request for qualifications, except that
21-18    cost-related or price-related evaluation factors are not permitted.
21-19    Each offeror must certify to the board that each engineer or
21-20    architect that is a member of its team was selected based on
21-21    demonstrated competence and qualifications.  The board or its
21-22    representative shall qualify a maximum of five [potential] offerors
21-23    to submit additional information and, if the board or its
21-24    representative chooses, to interview for final selection [regarding
21-25    technical proposals, implementation, and costing methodologies in
21-26    response to a formal request for proposals based on the design
21-27    criteria package].
 22-1                (2)  In phase two, the board or its representative
 22-2    shall evaluate the information submitted by the offerors on the
 22-3    basis of selection criteria stated in the request for
 22-4    qualifications and the results of any interview.  The board or its
 22-5    representative may request additional information regarding
 22-6    demonstrated competence and qualifications, considerations of the
 22-7    safety and long-term durability of the project, the feasibility of
 22-8    implementing the project as proposed, the ability of the offeror to
 22-9    meet schedules, costing methodology, or other factors as
22-10    appropriate.  The board or its representative [institution] may not
22-11    require offerors to submit detailed engineering or architectural
22-12    designs [design] as part of the proposal.  The board or its
22-13    representative shall rank each proposal submitted on the basis of
22-14    the criteria specified in the request for qualifications.  The
22-15    board or its representative shall select the design-build firm that
22-16    submits the proposal offering the best value for the institution on
22-17    the basis of the published selection criteria and on its ranking
22-18    evaluations.  The board or its representative shall first attempt
22-19    in good faith to negotiate with the selected offeror a contract on
22-20    fair and reasonable terms.  If the board or its representative is
22-21    unable to negotiate a satisfactory contract with the selected
22-22    offeror, the institution shall, formally and in writing, end all
22-23    negotiations with that offeror and proceed to negotiate with the
22-24    next offeror in the order of the selection ranking until a contract
22-25    is reached or negotiations with all ranked offerors end.
22-26          (k)  A payment or performance bond is not required for, and
22-27    may not provide coverage for, the portion of a design-build
 23-1    contract under this section that includes design services only.  If
 23-2    a fixed contract amount or guaranteed maximum price has not been
 23-3    determined at the time a design-build contract is awarded, the
 23-4    penal sums of the performance and payment bonds delivered to the
 23-5    institution shall each be in an amount equal to the project budget,
 23-6    as specified in the design criteria package.  The design-build firm
 23-7    shall deliver the bonds not later than the 10th day after the date
 23-8    the design-build firm executes the contract unless the design-build
 23-9    firm furnishes a bid bond or other financial security acceptable to
23-10    the institution to ensure that the design-build firm will furnish
23-11    the required performance and payment bonds when a guaranteed
23-12    maximum price is established.
23-13          SECTION 14.  Sections 51.781(b) and (c), Education Code, are
23-14    amended to read as follows:
23-15          (b)  A construction manager-agent is a sole proprietorship,
23-16    partnership, corporation, or other legal entity that provides
23-17    consultation to the institution regarding construction,
23-18    rehabilitation, alteration, or repair of the facility.  A
23-19    construction manager-agent's services are services other than the
23-20    design services customarily performed by an engineer or architect.
23-21    A construction manager-agent represents the institution in a
23-22    fiduciary capacity [, except that it may perform general conditions
23-23    as provided by the contract].
23-24          (c)  Before or concurrently with selecting a construction
23-25    manager-agent, the board shall select or designate an engineer or
23-26    architect who shall prepare the construction documents for the
23-27    project and who has full responsibility for complying with The
 24-1    Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
 24-2    Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
 24-3    Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
 24-4    applicable.  If the engineer or architect is not a full-time
 24-5    employee of the institution, the board shall select the engineer or
 24-6    architect on the basis of demonstrated competence and
 24-7    qualifications as provided by Section 2254.004, Government Code.
 24-8    The institution's engineer or architect may not serve, alone or in
 24-9    combination with another person, as the construction manager-agent
24-10    unless the engineer or architect is hired to serve as the
24-11    construction manager-agent through a separate or concurrent
24-12    procurement process conducted in accordance with this subchapter.
24-13          SECTION 15.  Sections 51.782-51.784, Education Code, are
24-14    amended to read as follows:
24-15          Sec. 51.782.  CONTRACTS FOR FACILITIES:  CONSTRUCTION
24-16    MANAGER-AT-RISK.  (a)  An institution may use the construction
24-17    manager-at-risk method for the construction, rehabilitation,
24-18    alteration, or repair of a facility.  In using that method and in
24-19    entering into a contract for the services of a construction
24-20    manager-at-risk, a board shall follow the procedures prescribed by
24-21    this section.
24-22          (b)  A construction manager-at-risk is a sole proprietorship,
24-23    partnership, corporation, or other legal entity that assumes the
24-24    risk for construction, rehabilitation, alteration, or repair of a
24-25    facility at the contracted price as a general contractor and
24-26    provides consultation to the institution regarding construction
24-27    during and after the design of the facility.
 25-1          (c)  Before or concurrently with selecting a construction
 25-2    manager-at-risk, the board shall select or designate an engineer or
 25-3    architect who shall prepare the construction documents for the
 25-4    project and who has full responsibility for complying with The
 25-5    Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
 25-6    Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
 25-7    Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
 25-8    applicable.  If the engineer or architect is not a full-time
 25-9    employee of the institution, the board shall select the engineer or
25-10    architect on the basis of demonstrated competence and
25-11    qualifications as provided by Section 2254.004, Government Code.
25-12    The institution's engineer, architect, or construction
25-13    manager-agent for a project may not serve, alone or in combination
25-14    with another, as the construction manager-at-risk.
25-15          (d)  The board shall provide or contract for, independently
25-16    of the construction manager-at-risk, the inspection services, the
25-17    testing of construction materials engineering, and the verification
25-18    testing services necessary for acceptance of the facility by the
25-19    institution.  The board shall select those services for which it
25-20    contracts in accordance with Section 2254.004, Government Code.
25-21          (e)  The board shall select the construction manager-at-risk
25-22    in either a one-step or two-step process.  The board shall prepare
25-23    a request for [competitive sealed] proposals, in the case of a
25-24    one-step process, or a request for qualifications, in the case of a
25-25    two-step process, that includes general information on the project
25-26    site, project scope, schedule, selection criteria, estimated
25-27    budget, and the time and place for receipt of proposals or
 26-1    qualifications, as applicable, a statement as to whether the
 26-2    selection process is a one-step or two-step process, and other
 26-3    information that may assist the board in its selection of a
 26-4    construction manager-at-risk.  The board shall state the selection
 26-5    criteria in the request for proposals or qualifications, as
 26-6    applicable.  The selection criteria may include the offeror's
 26-7    experience, past performance, safety record, proposed personnel and
 26-8    methodology, and other appropriate factors that demonstrate the
 26-9    capability of the construction manager-at-risk.  If a one-step
26-10    process is used, the board shall request, as part of the offeror's
26-11    proposal, proposed fees and prices for fulfilling the general
26-12    conditions.  If a two-step process is used, the board may not
26-13    request fees or prices in step one.  In step two, the  [The] board
26-14    may request that five or fewer offerors, selected solely on the
26-15    basis of qualifications, provide additional information, including
26-16    [proposals provide] the construction manager-at-risk's [manager's]
26-17    proposed fee and its price for fulfilling the general conditions.
26-18    [The board shall state the selection criteria in the request for
26-19    proposals.  The selection criteria may include the offeror's
26-20    experience, past performance, safety record, proposed personnel and
26-21    methodology, and other appropriate factors that demonstrate the
26-22    capability of the construction manager.]
26-23          (f)  The board shall publish the request for qualifications
26-24    [proposals] in a manner prescribed by the board.
26-25          (g)  At each step, the [The board may provide for
26-26    prequalifying offerors before proposals are submitted.
26-27    Prequalification may not be a conclusive determination that an
 27-1    offeror offers the best value to the institution, and a
 27-2    prequalified offeror may be rejected on the basis of subsequently
 27-3    discovered information.  A failure to prequalify does not bar a
 27-4    subsequent determination that an offeror offers the best value to
 27-5    the institution with respect to a given proposal.]
 27-6          [(h)  The] board shall receive, publicly open, and read aloud
 27-7    the names of the offerors.  At the appropriate step, the board
 27-8    shall also read aloud all fees and prices stated in [and the
 27-9    monetary proposals, if any, for] each proposal.  Within 45 days
27-10    after the date of opening the proposals, the board or its
27-11    representative shall evaluate and rank each proposal submitted in
27-12    relation to the criteria set forth in the request for proposals.
27-13          (h) [(i)]  The board or its representative shall select the
27-14    offeror that submits the proposal that offers the best value for
27-15    [to] the institution based on the published  selection criteria and
27-16    on its ranking evaluation.  The board or its representative shall
27-17    first attempt in good faith to negotiate with the selected offeror
27-18    a contract on fair and reasonable terms.  If the board or its
27-19    representative is unable to negotiate [reach] a satisfactory
27-20    contract [agreement] with the selected offeror, the board or its
27-21    representative shall, formally and in writing, end negotiations
27-22    with that offeror [terminate further discussions] and proceed to
27-23    negotiate with the next offeror in the order of the selection
27-24    ranking until a contract [agreement] is reached or negotiations
27-25    with all ranked offerors end [all proposals are rejected].
27-26          (i) [(j)]  A construction manager-at-risk shall publicly
27-27    advertise, in the manner prescribed by the institution, and receive
 28-1    bids or [and solicit either competitive bids or competitive sealed]
 28-2    proposals from trade contractors or subcontractors for the
 28-3    performance of all major elements of the work other than the minor
 28-4    work that may be included in the general conditions.  A
 28-5    construction manager-at-risk may seek to perform portions of the
 28-6    work itself if the construction manager-at-risk submits its bid or
 28-7    proposal for those portions of the work in the same manner as all
 28-8    other trade contractors or subcontractors and if the board
 28-9    determines that the construction manager-at-risk's bid or proposal
28-10    provides the best value for the institution.
28-11          (j) [(k)]  The construction manager-at-risk and the board or
28-12    its representative shall review [receive and open] all trade
28-13    contractor or subcontractor bids or proposals in a manner that does
28-14    not disclose the contents of the bid or proposal during the
28-15    selection process to any person who is not employed by the
28-16    construction manager-at-risk, the engineer, architect, or
28-17    institution.  All bids or proposals shall be made public within
28-18    seven days after the date of final selection.
28-19          (k) [(l)]  If the construction manager-at-risk reviews,
28-20    evaluates, and recommends to the board a bid or proposal from a
28-21    trade contractor or subcontractor but the board requires another
28-22    bid or proposal to be accepted, the institution shall compensate
28-23    the construction manager-at-risk by a change in price, time, or
28-24    guaranteed maximum cost for any additional cost and risk that the
28-25    construction manager-at-risk may incur because of the board's
28-26    requirement that another bid or proposal be accepted.
28-27          (l)  If a selected trade contractor or subcontractor defaults
 29-1    in the performance of its work or fails to execute a subcontract
 29-2    after being selected in accordance with this section, the
 29-3    construction manager-at-risk may, without advertising, itself
 29-4    fulfill the contract requirements or select a replacement trade
 29-5    contractor or subcontractor to fulfill the contract requirements.
 29-6          (m)  If a fixed contract amount or guaranteed maximum price
 29-7    has not been determined at the time the contract is awarded, the
 29-8    penal sums of the performance and payment bonds delivered to the
 29-9    institution must each be in an amount equal to the project budget,
29-10    as set forth in the request for qualifications.  The construction
29-11    manager shall deliver the bonds not later than the 10th day after
29-12    the date the construction manager executes the contract unless the
29-13    construction manager furnishes a bid bond or other financial
29-14    security acceptable to the institution to ensure that the
29-15    construction manager will furnish the required performance and
29-16    payment bonds when a guaranteed maximum price is established.
29-17          Sec. 51.783.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
29-18    THROUGH COMPETITIVE SEALED PROPOSALS.  (a)  In selecting a
29-19    contractor for construction, rehabilitation, alteration, or repair
29-20    services for a facility through competitive sealed proposals, a
29-21    board shall follow the procedures prescribed by this section.
29-22          (b)  The board shall select or designate an engineer or
29-23    architect to prepare construction documents for the project.  The
29-24    selected or designated engineer or architect has full
29-25    responsibility for complying with The Texas Engineering Practice
29-26    Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
29-27    Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
 30-1    Vernon's Texas Civil Statutes), as applicable.  If the engineer or
 30-2    architect is not a full-time employee of the institution, the board
 30-3    shall select the engineer or architect on the basis of demonstrated
 30-4    competence and qualifications as provided by Section 2254.004,
 30-5    Government Code.
 30-6          (c)  The board shall provide or contract for, independently
 30-7    of the contractor, the inspection services, the testing of
 30-8    construction materials engineering, and the verification testing
 30-9    services necessary for acceptance of the facility by the
30-10    institution.  The board shall select those services for which it
30-11    contracts in accordance with Section 2254.004, Government Code, and
30-12    shall identify them in the request for proposals.
30-13          (d)  The board shall prepare a request for competitive sealed
30-14    proposals that includes construction documents, selection criteria,
30-15    estimated budget, project scope, schedule, and other information
30-16    that contractors may require to respond to the request.  The board
30-17    shall state in the request for proposals the selection criteria
30-18    that will be used in selecting the successful offeror [in the
30-19    request for proposals].  [The selection criteria may include the
30-20    offeror's experience, past performance, safety record, proposed
30-21    personnel and methodology, and other appropriate factors that
30-22    demonstrate the capability of the contractor.]
30-23          (e)  The board shall publish notice of the request for
30-24    proposals in a manner prescribed by the board.
30-25          (f)  [The board may provide for prequalifying offerors before
30-26    proposals are submitted.  Prequalification may not be a conclusive
30-27    determination that an offeror offers the best value to the
 31-1    institution, and a prequalified offeror may be rejected on the
 31-2    basis of subsequently discovered information.  A failure to
 31-3    prequalify does not bar a subsequent determination that an offeror
 31-4    offers the best value to the institution with respect to a given
 31-5    proposal.]
 31-6          [(g)]  The board shall receive, publicly open, and read aloud
 31-7    the names of the offerors and, if any are required to be stated,
 31-8    all prices [the monetary proposals, if any,] stated in each
 31-9    proposal.  Within 45 days after the date of opening the proposals
31-10    the board shall evaluate and rank each proposal submitted in
31-11    relation to the published selection criteria.
31-12          (g) [(h)]  The board shall select the offeror that offers the
31-13    best value for [to] the institution based on the published
31-14    selection criteria and on its ranking evaluation.  The board shall
31-15    first attempt in good faith to negotiate with the selected offeror
31-16    a contract on fair and reasonable terms.  The board and its
31-17    engineer or architect may discuss with the selected offeror options
31-18    for scope and time modifications and price changes associated with
31-19    the modification or change [cost reduction].  If the board is
31-20    unable to reach a contract [agreement] with the selected offeror,
31-21    the board shall, formally and in writing, end negotiations with
31-22    that offeror [terminate further discussions] and proceed to the
31-23    next offeror in the order of the selection ranking until a contract
31-24    [agreement] is reached or all proposals are rejected.
31-25          (h) [(i)]  In determining best value for the institution, the
31-26    board is not restricted to considering price alone but may consider
31-27    any other factor stated in the selection criteria.
 32-1          Sec. 51.784.  JOB ORDER CONTRACTS FOR FACILITIES REPAIR.
 32-2    (a)  An institution may award job order contracts for the minor
 32-3    construction, repair, rehabilitation, or alteration of a facility
 32-4    if the work is of a recurring nature but the delivery times are
 32-5    indefinite and indefinite quantities and orders are awarded
 32-6    substantially on the basis of predescribed and prepriced tasks.
 32-7          (b)  The institution may establish the contractual unit
 32-8    prices for job order contracts by:
 32-9                (1)  specifying one or more published construction unit
32-10    price books and the applicable divisions or line items; or
32-11                (2)  providing a list of work items and requiring the
32-12    offerors to bid or propose one or more coefficients or multipliers
32-13    to be applied to the price book or work items as the price
32-14    proposal.
32-15          (c)  The board shall advertise for, receive, and publicly
32-16    open [competitive] sealed proposals for job order contracts [based
32-17    on time and material rates for various types and classifications of
32-18    work.  The rates under a job order contract shall be in effect for
32-19    at least six months and for not longer than two years].
32-20          (d) [(c)]  The board may require offerors to submit
32-21    additional information besides rates, including experience, past
32-22    performance, and proposed personnel and methodology.
32-23          (e) [(d)]  The board may award job order contracts to one or
32-24    more job order contractors in connection with each solicitation of
32-25    bids or [based on price] proposals [, experience, past performance,
32-26    proposed personnel and methodology, safety record, and other
32-27    appropriate factors].
 33-1          (f) [(e)]  An order for a job or project under the job order
 33-2    contract must be signed by the board's representative and the
 33-3    contractor.  The order may be a fixed price, lump-sum contract
 33-4    based substantially on contractual unit pricing applied to
 33-5    estimated quantities [a statement of work negotiated between the
 33-6    board or its representative and the contractor,] or [the order] may
 33-7    be a unit price order based on the [estimated] quantities and line
 33-8    items delivered.
 33-9          (g)  The contractor shall provide payment and performance
33-10    bonds, if required by law, based on the amount or estimated amount
33-11    of any order.
33-12          (h)  The base term of a job order contract is for the period
33-13    and with any renewal options that the institution sets forth in the
33-14    request for proposals.  If the institution fails to advertise that
33-15    term, the base term may not exceed two years and is not renewable
33-16    without further advertisement and solicitation of proposals.
33-17          (i)  If a job order contract or an order issued under the
33-18    contract requires engineering or architectural services that
33-19    constitute the practice of engineering within the meaning of the
33-20    Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
33-21    Statutes) or the practice of architecture within the meaning of
33-22    Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
33-23    (Article 249a, Vernon's Texas Civil Statutes), those services shall
33-24    be provided in accordance with applicable law.
33-25          SECTION 16.  This Act takes effect September 1, 1999.  The
33-26    changes in law made by this Act apply only to a contract for which
33-27    requests for bids, proposals, or qualifications are published or
 34-1    distributed on or after that date.
 34-2          SECTION 17.  The importance of this legislation and the
 34-3    crowded condition of the calendars in both houses create an
 34-4    emergency and an imperative public necessity that the
 34-5    constitutional rule requiring bills to be read on three several
 34-6    days in each house be suspended, and this rule is hereby suspended.