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.