1-1 By: Ratliff S.B. No. 669
1-2 (In the Senate - Filed February 24, 1999; February 25, 1999,
1-3 read first time and referred to Committee on Education;
1-4 March 8, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; March 8, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 669 By: Ratliff
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to certain contracting procedures for school districts and
1-11 institutions of higher education.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsections (a), (d), (f), (g), (h), (i), (j),
1-14 and (l), Section 44.031, Education Code, are amended to read as
1-15 follows:
1-16 (a) Except as provided by this subchapter, all school
1-17 district contracts, except contracts for the purchase of produce or
1-18 vehicle fuel, valued at $25,000 or more in the aggregate for each
1-19 12-month period shall be made by the method, of the following
1-20 methods, that provides the best value for [to] the district:
1-21 (1) competitive bidding;
1-22 (2) competitive sealed proposals;
1-23 (3) a request for proposals, for services other than
1-24 construction services;
1-25 (4) a catalogue purchase as provided by Subchapter B,
1-26 Chapter 2157, Government Code;
1-27 (5) an interlocal contract;
1-28 (6) a design/build contract;
1-29 (7) a contract to construct, rehabilitate, alter, or
1-30 repair facilities that involves using a construction manager; or
1-31 (8) a job order contract for the minor construction,
1-32 repair, rehabilitation, or alteration of a facility.
1-33 (d) The board of trustees of the district may adopt rules
1-34 and procedures for the acquisition of goods or services.
1-35 (f) This section does not apply to contracts [fees received]
1-36 for professional services [rendered, including architect's fees,
1-37 attorney's fees, and fees for fiscal agents].
1-38 (g) Notice of the time by when and place where the bids or
1-39 proposals, or the responses to a request for qualifications, will
1-40 be received shall be published in the county in which the
1-41 district's central administrative office is located, once a week
1-42 for at least two weeks before the deadline for receiving bids,
1-43 proposals, or responses to a request for qualifications; except
1-44 that on contracts involving less than $25,000, the advertising may
1-45 be limited to two successive issues of any newspaper published in
1-46 the county in which the district's central administrative office is
1-47 located, and if there is not a newspaper in that county, the
1-48 advertising shall be published in a newspaper in the county nearest
1-49 the county seat of the county in which the district's central
1-50 administrative office is located. In a two-step procurement
1-51 process, the time and place where the second-step bids, proposals,
1-52 or responses will be received are not required to be published
1-53 separately.
1-54 (h) If school equipment or facilities are [is] destroyed or
1-55 severely damaged, and the board of trustees determines that the
1-56 delay posed by the procurement [competitive bidding] process
1-57 prescribed by this subchapter would prevent or substantially impair
1-58 the conduct of classes or other essential school activities, then
1-59 contracts for the replacement or repair of the equipment or
1-60 facilities may be made on terms the board of trustees determines to
1-61 be appropriate under the circumstances [without competitive bidding
1-62 as otherwise required by this section].
1-63 (i) A [The board of trustees of a] school district may
1-64 acquire computers and computer-related equipment, including
2-1 computer software, through the General Services Commission under
2-2 contracts entered into in accordance with Chapter 2157, Government
2-3 Code. Before issuing an invitation for bids, the commission shall
2-4 consult with the agency concerning the computer and
2-5 computer-related equipment needs of school districts. To the
2-6 extent possible the resulting contract shall provide for such
2-7 needs.
2-8 (j) Without complying with Subsection (a), [the board of
2-9 trustees of] a school district may purchase an item that is
2-10 available from only one source, including:
2-11 (1) an item for which competition is precluded because
2-12 of the existence of a patent, copyright, secret process, or
2-13 monopoly;
2-14 (2) a film, manuscript, or book;
2-15 (3) a utility service, including electricity, gas, or
2-16 water; and
2-17 (4) a captive replacement part or component for
2-18 equipment.
2-19 (l) Each contract proposed to be made by [the board of
2-20 trustees of] a school district for the purchase or lease of one or
2-21 more school buses, including a lease with an option to purchase,
2-22 must be submitted to competitive bidding when the contract is
2-23 valued at $20,000 or more.
2-24 SECTION 2. Subchapter B, Chapter 44, Education Code, is
2-25 amended by adding Section 44.0311 to read as follows:
2-26 Sec. 44.0311. DELEGATION. (a) The board of trustees of the
2-27 district may, as appropriate, delegate its authority under this
2-28 subchapter regarding an action authorized or required by this
2-29 subchapter to be taken by a school district to a designated person,
2-30 representative, or committee. The district shall provide notice of
2-31 the delegation and the limits of the delegation in the request for
2-32 bids, proposals, or qualifications or in an addendum to the
2-33 request. If the district fails to provide that notice, a ranking,
2-34 selection, or evaluation of bids, proposals, or qualifications
2-35 other than by the board of trustees in an open public meeting is
2-36 advisory only.
2-37 (b) The board may not delegate the authority to act
2-38 regarding an action authorized or required by this subchapter to be
2-39 taken by the board of trustees of a school district.
2-40 SECTION 3. Subsection (f), Section 44.032, Education Code,
2-41 is amended to read as follows:
2-42 (f) A court may enjoin performance of a contract made in
2-43 violation of this subchapter [Section 44.031(a) or (b)]. A county
2-44 attorney, a district attorney, a criminal district attorney, [or] a
2-45 citizen of the county in which the school district is located, or
2-46 any interested party may bring an action for an injunction. A
2-47 party [citizen] who prevails in an action brought under this
2-48 subsection is entitled to reasonable attorney's fees as approved by
2-49 the court.
2-50 SECTION 4. Section 44.035, Education Code, is amended to
2-51 read as follows:
2-52 Sec. 44.035. EVALUATION OF BIDS AND [COMPETITIVE SEALED]
2-53 PROPOSALS FOR CONSTRUCTION SERVICES. (a) The board of trustees of
2-54 a school district that is considering a construction contract using
2-55 a method specified by Section 44.031(a) must, before advertising,
2-56 determine which method [Except as otherwise provided by this
2-57 subchapter, a school district using competitive sealed proposals to
2-58 select a contractor for construction services, to select a
2-59 construction manager, or to award a job order contract for
2-60 construction services shall base its selection or award on a
2-61 combination of price and other factors that the district
2-62 determines] provides the best value for [to] the district.
2-63 (b) The [A school] district shall base its selection among
2-64 offerors on criteria authorized to be used under Section 44.031(b).
2-65 The district shall publish in the request for bids, proposals, or
2-66 qualifications the specific criteria that will be used to evaluate
2-67 the offerors and the relative weights, if any, given to the
2-68 criteria [using competitive sealed proposals may discuss proposals
2-69 with offerors after proposals have been opened to allow for
3-1 clarification and changes. The district shall take adequate
3-2 precautions to ensure that information from competing proposals is
3-3 not disclosed to other offerors].
3-4 (c) The district shall document the basis of its selection
3-5 and shall make the evaluations public on or before the award of the
3-6 contract.
3-7 SECTION 5. Subdivision (3), Subsection (a), Section 44.036,
3-8 Education Code, is amended to read as follows:
3-9 (3) "Design criteria package" means a set of documents
3-10 that provides sufficient information to permit a design-build firm
3-11 to prepare a response to a school district's request for
3-12 qualifications and any additional information requested, including
3-13 criteria for selection [proposals]. The design criteria package
3-14 must specify criteria the district considers necessary to describe
3-15 the project and may include, as appropriate, the legal description
3-16 of the site, survey information concerning the site, interior space
3-17 requirements, special material requirements, material quality
3-18 standards, conceptual criteria for the project, special equipment
3-19 requirements, cost or budget estimates, time schedules, quality
3-20 assurance and quality control requirements, site development
3-21 requirements, applicable codes and ordinances, provisions for
3-22 utilities, parking requirements, or any other requirement, as
3-23 applicable.
3-24 SECTION 6. Subsections (e), (f), and (j), Section 44.036,
3-25 Education Code, are amended to read as follows:
3-26 (e) The district shall evaluate statements of qualifications
3-27 [proposals] and select a design-build firm in two phases:
3-28 (1) In phase one, the district shall prepare a request
3-29 for qualifications and evaluate each offeror's experience,
3-30 technical competence, and capability to perform, the past
3-31 performance of the offeror's team and members of the team, and
3-32 other appropriate factors submitted by the team or firm in response
3-33 to the request for qualifications, except that cost-related or
3-34 price-related evaluation factors are not permitted. Each offeror
3-35 must certify to the district that each engineer or architect that
3-36 is a member of its team was selected based on demonstrated
3-37 competence and qualifications. The district shall qualify a
3-38 maximum of five [potential] offerors to submit additional
3-39 information and, if the district chooses, to interview for final
3-40 selection [regarding technical proposals, implementation, and
3-41 costing methodologies in response to a formal request for proposals
3-42 based on the design criteria package].
3-43 (2) In phase two, the district shall evaluate the
3-44 information submitted by the offerors on the basis of the selection
3-45 criteria stated in the request for qualifications and the results
3-46 of any interview. The district may request additional information
3-47 regarding demonstrated competence and qualifications,
3-48 considerations of the safety and long-term durability of the
3-49 project, the feasibility of implementing the project as proposed,
3-50 the ability of the offeror to meet schedules, costing methodology,
3-51 or other factors as appropriate. The district may not require
3-52 offerors to submit detailed engineering or architectural designs as
3-53 part of the proposal. The district shall rank each proposal
3-54 submitted on the basis of the criteria set forth in the request for
3-55 qualifications. The district shall select the design-build firm
3-56 that submits the proposal offering the best value for the district
3-57 on the basis of the published selection criteria and on its ranking
3-58 evaluations. The district shall first attempt in good faith to
3-59 negotiate with the selected offeror a contract on fair and
3-60 reasonable terms. If the district is unable to negotiate a
3-61 satisfactory contract with the selected offeror, the district
3-62 shall, formally and in writing, end negotiations with that offeror
3-63 and proceed to negotiate with the next offeror in the order of the
3-64 selection ranking until a contract is reached or negotiations with
3-65 all ranked offerors end.
3-66 (f) Following selection of a design-build firm under
3-67 Subsection (e), that firm's engineers or architects shall complete
3-68 the design, submitting all design elements for review and
3-69 determination of scope compliance to [by] the district or
4-1 district's engineer or architect before or concurrently with
4-2 construction.
4-3 (j) A payment or performance bond is not required for, and
4-4 may not provide coverage for, the portion of a design-build
4-5 contract under this section that includes design services only. If
4-6 a fixed contract amount or guaranteed maximum price has not been
4-7 determined at the time a design-build contract is awarded, the
4-8 penal sums of the performance and payment bonds delivered to the
4-9 district must each be in an amount equal to the project budget, as
4-10 specified in the design criteria package. The design-build firm
4-11 shall deliver the bonds not later than the 10th day after the date
4-12 the design-build firm executes the contract unless the design-build
4-13 firm furnishes a bid bond or other financial security acceptable to
4-14 the district to ensure that the design-build firm will furnish the
4-15 required performance and payment bonds when a guaranteed maximum
4-16 price is established.
4-17 SECTION 7. Subsections (b) and (c), Section 44.037,
4-18 Education Code, are amended to read as follows:
4-19 (b) A construction manager-agent is a sole proprietorship,
4-20 partnership, corporation, or other legal entity that provides
4-21 consultation to the school district regarding construction,
4-22 rehabilitation, alteration, or repair of the facility. A district
4-23 using the construction manager-agent method may, under the contract
4-24 between the district and the construction manager-agent, require
4-25 the construction manager-agent to provide administrative personnel,
4-26 equipment necessary to perform duties under this section, and
4-27 on-site management and other services specified in the contract. A
4-28 construction manager-agent represents the district in a fiduciary
4-29 capacity[, except that it may perform general conditions as
4-30 provided by the contract].
4-31 (c) Before or concurrently with selecting a construction
4-32 manager-agent, the district shall select or designate an engineer
4-33 or architect who shall prepare the construction documents for the
4-34 project and who has full responsibility for complying with The
4-35 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
4-36 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
4-37 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
4-38 applicable. If the engineer or architect is not a full-time
4-39 employee of the district, the district shall select the engineer or
4-40 architect on the basis of demonstrated competence and
4-41 qualifications as provided by Section 2254.004, Government Code.
4-42 The district's engineer or architect may not serve, alone or in
4-43 combination with another person, as the construction manager-agent
4-44 unless the engineer or architect is hired to serve as the
4-45 construction manager-agent under a separate or concurrent
4-46 procurement conducted in accordance with this subchapter. This
4-47 subsection does not prohibit the district's engineer or architect
4-48 from providing customary construction phase services under the
4-49 engineer's or architect's original professional service agreement
4-50 in accordance with applicable licensing laws.
4-51 SECTION 8. Sections 44.038 and 44.039, Education Code, are
4-52 amended to read as follows:
4-53 Sec. 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
4-54 MANAGER-AT-RISK. (a) A school district may use the construction
4-55 manager-at-risk method for the construction, rehabilitation,
4-56 alteration, or repair of a facility. In using that method and in
4-57 entering into a contract for the services of a construction
4-58 manager-at-risk, a district shall follow the procedures prescribed
4-59 by this section.
4-60 (b) A construction manager-at-risk is a sole proprietorship,
4-61 partnership, corporation, or other legal entity that assumes the
4-62 risk for construction, rehabilitation, alteration, or repair of a
4-63 facility at the contracted price as a general contractor and
4-64 provides consultation to the school district regarding construction
4-65 during and after the design of the facility.
4-66 (c) Before or concurrently with selecting a construction
4-67 manager-at-risk, the district shall select or designate an engineer
4-68 or architect who shall prepare the construction documents for the
4-69 project and who has full responsibility for complying with The
5-1 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
5-2 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
5-3 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
5-4 applicable. If the engineer or architect is not a full-time
5-5 employee of the district, the district shall select the engineer or
5-6 architect on the basis of demonstrated competence and
5-7 qualifications as provided by Section 2254.004, Government Code.
5-8 The district's engineer, architect, or construction manager-agent
5-9 for a project may not serve, alone or in combination with another,
5-10 as the construction manager-at-risk.
5-11 (d) The district shall provide or contract for,
5-12 independently of the construction manager-at-risk, the inspection
5-13 services, the testing of construction materials engineering, and
5-14 the verification testing services necessary for acceptance of the
5-15 facility by the district. The district shall select those services
5-16 for which it contracts in accordance with Section 2254.004,
5-17 Government Code.
5-18 (e) The district shall select the construction
5-19 manager-at-risk in either a one-step or two-step process. The
5-20 district shall prepare a request for [competitive sealed]
5-21 proposals, in the case of a one-step process, or a request for
5-22 qualifications, in the case of a two-step process, that includes
5-23 general information on the project site, project scope, schedule,
5-24 selection criteria, estimated budget, and the time and place for
5-25 receipt of proposals or qualifications, as applicable, a statement
5-26 as to whether the selection process is a one-step or two-step
5-27 process, and other information that may assist the district in its
5-28 selection of a construction manager-at-risk. The district shall
5-29 state the selection criteria in the request for proposals or
5-30 qualifications, as applicable. The selection criteria may include
5-31 the offeror's experience, past performance, safety record, proposed
5-32 personnel and methodology, and other appropriate factors that
5-33 demonstrate the capability of the construction manager-at-risk. If
5-34 a one-step process is used, the district may request, as part of
5-35 the offeror's proposal, proposed fees and prices for fulfilling the
5-36 general conditions. If a two-step process is used, the district
5-37 may not request fees or prices in step one. In step two, the [The]
5-38 district may request that five or fewer offerors, selected solely
5-39 on the basis of qualifications, provide additional information,
5-40 including [proposals provide] the construction manager-at-risk's
5-41 [manager's] proposed fee and its price for fulfilling the general
5-42 conditions. [The district shall state the selection criteria in
5-43 the request for proposals. The selection criteria may include the
5-44 offeror's experience, past performance, safety record, proposed
5-45 personnel and methodology, and other appropriate factors that
5-46 demonstrate the capability of the construction manager.]
5-47 (f) At each step, the [The district may provide for
5-48 prequalifying offerors before proposals are submitted.
5-49 Prequalification may not be a conclusive determination that an
5-50 offeror offers the best value to the district, and a prequalified
5-51 offeror may be rejected on the basis of subsequently discovered
5-52 information. A failure to prequalify does not bar a subsequent
5-53 determination that an offeror offers the best value to the district
5-54 with respect to a given proposal.]
5-55 [(g) The] district shall receive, publicly open, and read
5-56 aloud the names of the offerors. At the appropriate step, the
5-57 district shall also read aloud all fees and prices stated in [and
5-58 the monetary proposals, if any, for] each proposal. Within 45 days
5-59 after the date of opening the proposals, the district shall
5-60 evaluate and rank each proposal submitted in relation to the
5-61 criteria set forth in the request for proposals.
5-62 (g) [(h)] The district shall select the offeror that submits
5-63 the proposal that offers the best value for [to] the district based
5-64 on the published selection criteria and on its ranking evaluation.
5-65 The district shall first attempt in good faith to negotiate with
5-66 the selected offeror a contract on fair and reasonable terms. If
5-67 the district is unable to negotiate [reach] a satisfactory contract
5-68 [agreement] with the selected offeror, the district shall, formally
5-69 and in writing, end negotiations with that offeror [terminate
6-1 further discussions] and proceed to negotiate with the next offeror
6-2 in the order of the selection ranking until a contract [agreement]
6-3 is reached or negotiations with all ranked offerors end [all
6-4 proposals are rejected].
6-5 (h) [(i)] A construction manager-at-risk shall publicly
6-6 advertise, in accordance with Section 44.031(g), and receive bids
6-7 or [and solicit either competitive bids or competitive sealed]
6-8 proposals from trade contractors or subcontractors for the
6-9 performance of all major elements of the work other than the minor
6-10 work that may be included in the general conditions. A
6-11 construction manager-at-risk may seek to perform portions of the
6-12 work itself if the construction manager-at-risk submits its bid or
6-13 proposal for those portions of the work in the same manner as all
6-14 other trade contractors or subcontractors and if the district
6-15 determines that the construction manager-at-risk's bid or proposal
6-16 provides the best value for the district.
6-17 (i) [(j)] The construction manager-at-risk and the district
6-18 or its representative shall review [receive and open] all trade
6-19 contractor or subcontractor bids or proposals in a manner that does
6-20 not disclose the contents of the bid or proposal during the
6-21 selection process to a person not employed by the construction
6-22 manager-at-risk, engineer, architect, or district. All bids or
6-23 proposals shall be made public within seven days after the date of
6-24 final selection.
6-25 (j) [(k)] If the construction manager-at-risk reviews,
6-26 evaluates, and recommends to the district a bid or proposal from a
6-27 trade contractor or subcontractor but the district requires another
6-28 bid or proposal to be accepted, the district shall compensate the
6-29 construction manager-at-risk by a change in price, time, or
6-30 guaranteed maximum cost for any additional cost and risk that the
6-31 construction manager-at-risk may incur because of the district's
6-32 requirement that another bid or proposal be accepted.
6-33 (k) If a selected trade contractor or subcontractor defaults
6-34 in the performance of its work or fails to execute a subcontract
6-35 after being selected in accordance with this section, the
6-36 construction manager-at-risk may, without advertising, itself
6-37 fulfill the contract requirements or select a replacement trade
6-38 contractor or subcontractor to fulfill the contract requirements.
6-39 (l) If a fixed contract amount or guaranteed maximum price
6-40 has not been determined at the time the contract is awarded, the
6-41 penal sums of the performance and payment bonds delivered to the
6-42 district must each be in an amount equal to the project budget, as
6-43 specified in the request for qualifications. The construction
6-44 manager shall deliver the bonds not later than the 10th day after
6-45 the date the construction manager executes the contract unless the
6-46 construction manager furnishes a bid bond or other financial
6-47 security acceptable to the district to ensure that the construction
6-48 manager will furnish the required performance and payment bonds
6-49 when a guaranteed maximum price is established.
6-50 Sec. 44.039. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
6-51 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
6-52 contractor for construction, rehabilitation, alteration, or repair
6-53 services for a facility through competitive sealed proposals, a
6-54 school district shall follow the procedures prescribed by this
6-55 section.
6-56 (b) The district shall select or designate an engineer or
6-57 architect to prepare construction documents for the project. The
6-58 selected or designated engineer or architect has full
6-59 responsibility for complying with The Texas Engineering Practice
6-60 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
6-61 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
6-62 Vernon's Texas Civil Statutes), as applicable. If the engineer or
6-63 architect is not a full-time employee of the district, the district
6-64 shall select the engineer or architect on the basis of demonstrated
6-65 competence and qualifications as provided by Section 2254.004,
6-66 Government Code.
6-67 (c) The district shall provide or contract for,
6-68 independently of the contractor, the inspection services, the
6-69 testing of construction materials engineering, and the verification
7-1 testing services necessary for acceptance of the facility by the
7-2 district. The district shall select those services for which it
7-3 contracts in accordance with Section 2254.004, Government Code, and
7-4 shall identify them in the request for proposals.
7-5 (d) The district shall prepare a request for competitive
7-6 sealed proposals that includes construction documents, selection
7-7 criteria, estimated budget, project scope, schedule, and other
7-8 information that contractors may require to respond to the request.
7-9 The district shall state in the request for proposals the selection
7-10 criteria that will be used in selecting the successful offeror [in
7-11 the request for proposals]. [The selection criteria may include
7-12 the offeror's experience, past performance, safety record, proposed
7-13 personnel and methodology, and other appropriate factors that
7-14 demonstrate the capability of the contractor.]
7-15 (e) [The district may provide for prequalifying offerors
7-16 before proposals are submitted. Prequalification may not be a
7-17 conclusive determination that an offeror offers the best value to
7-18 the district, and a prequalified offeror may be rejected on the
7-19 basis of subsequently discovered information. A failure to
7-20 prequalify does not bar a subsequent determination that an offeror
7-21 offers the best value to the district with respect to a given
7-22 proposal.]
7-23 [(f)] The district shall receive, publicly open, and read
7-24 aloud the names of the offerors and, if any are required to be
7-25 stated, all prices [the monetary proposals, if any,] stated in each
7-26 proposal. Within 45 days after the date of opening the proposals,
7-27 the district shall evaluate and rank each proposal submitted in
7-28 relation to the published selection criteria.
7-29 (f) [(g)] The district shall select the offeror that offers
7-30 the best value for [to] the district based on the published
7-31 selection criteria and on its ranking evaluation. The district
7-32 shall first attempt in good faith to negotiate with the selected
7-33 offeror a contract on fair and reasonable terms. The district and
7-34 its engineer or architect may discuss with the selected offeror
7-35 options for a scope or time modification and any price change
7-36 associated with the modification [cost reduction]. If the district
7-37 is unable to negotiate [reach] a contract [agreement] with the
7-38 selected offeror, the district shall, formally and in writing, end
7-39 negotiations with that offeror [terminate further discussions] and
7-40 proceed to the next offeror in the order of the selection ranking
7-41 until a contract [agreement] is reached or all proposals are
7-42 rejected.
7-43 (g) [(h)] In determining best value for the district, the
7-44 district is not restricted to considering price alone, but may
7-45 consider any other factor stated in the selection criteria.
7-46 SECTION 9. Subsection (b), Section 44.040, Education Code,
7-47 is amended to read as follows:
7-48 (b) Sections 271.021, 271.022, 271.026, 271.027(a), and
7-49 271.0275-271.030, Local Government Code, apply to a competitive
7-50 bidding process under this section. Section 271.027(b), Local
7-51 Government Code, does not apply to a bid or proposal submitted
7-52 under this section.
7-53 SECTION 10. Section 44.041, Education Code, is amended to
7-54 read as follows:
7-55 Sec. 44.041. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION
7-56 OR REPAIR. (a) A school district may award job order contracts
7-57 for the minor construction, repair, rehabilitation, or alteration
7-58 of a facility if the work is of a recurring nature but the delivery
7-59 times are indefinite and indefinite quantities and orders are
7-60 awarded substantially on the basis of predescribed and prepriced
7-61 tasks.
7-62 (b) The school district may establish contractual unit
7-63 prices for a job order contract by:
7-64 (1) specifying one or more published construction unit
7-65 price books and the applicable divisions or line items; or
7-66 (2) providing a list of work items and requiring the
7-67 offerors to bid or propose one or more coefficients or multipliers
7-68 to be applied to the price book or work items as the price
7-69 proposal.
8-1 (c) The school district shall advertise for, receive, and
8-2 publicly open [competitive] sealed proposals for job order
8-3 contracts [based on time and material rates for various types and
8-4 classifications of work. The rates under a job order contract
8-5 shall be in effect for at least six months and for not longer than
8-6 two years].
8-7 (d) [(c)] The district may require offerors to submit
8-8 additional information besides rates, including experience, past
8-9 performance, and proposed personnel and methodology.
8-10 (e) [(d)] The district may award job order contracts to one
8-11 or more job order contractors in connection with each solicitation
8-12 of bids or [based on price] proposals[, experience, past
8-13 performance, proposed personnel and methodology, safety record, and
8-14 other appropriate factors].
8-15 (f) [(e)] An order for a job or project under the job order
8-16 contract must be signed by the district's representative and the
8-17 contractor. The order may be a fixed price, lump-sum contract
8-18 based substantially on contractual unit pricing applied to
8-19 estimated quantities [a statement of work negotiated between the
8-20 district or its representative and the contractor,] or [the order]
8-21 may be a unit price order based on the [estimated] quantities and
8-22 line items delivered.
8-23 (g) The contractor shall provide payment and performance
8-24 bonds, if required by law, based on the amount or estimated amount
8-25 of any order.
8-26 (h) The base term of a job order contract is for the period
8-27 and with any renewal option that the district sets forth in the
8-28 request for proposals. If the district fails to advertise that
8-29 term, the base term may not exceed two years and is not renewable
8-30 without further advertisement and solicitation of proposals.
8-31 (i) If a job order contract or an order issued under the
8-32 contract requires engineering or architectural services that
8-33 constitute the practice of engineering within the meaning of The
8-34 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
8-35 Statutes) or the practice of architecture within the meaning of
8-36 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
8-37 (Article 249a, Vernon's Texas Civil Statutes), those services shall
8-38 be provided in accordance with applicable law.
8-39 SECTION 11. Section 51.779, Education Code, is amended to
8-40 read as follows:
8-41 Sec. 51.779. EVALUATION OF BIDS AND [COMPETITIVE SEALED]
8-42 PROPOSALS FOR CONSTRUCTION SERVICES. (a) An institution that is
8-43 considering a construction contract using a method authorized by
8-44 this subchapter must, before advertising, determine which method
8-45 [Except as otherwise provided by this subchapter, the board of an
8-46 institution using competitive sealed proposals to select a
8-47 contractor for construction services, to select a construction
8-48 manager, or to award a job order contract for construction services
8-49 shall base its selection or award on a combination of price and
8-50 other factors that the board determines] provides the best value
8-51 for [to] the institution.
8-52 (b) The [An] institution shall base its selection among the
8-53 offerors on criteria established by the institution. The
8-54 institution shall publish in the request for bids, proposals, or
8-55 qualifications the specific criteria that will be used to evaluate
8-56 the offerors and the relative weights, if any, given to the
8-57 criteria [using competitive sealed proposals may discuss proposals
8-58 with offerors after proposals have been opened to allow for
8-59 clarification and changes. The institution shall take adequate
8-60 precautions to ensure that information from competing proposals is
8-61 not disclosed to other offerors].
8-62 (c) The institution shall document the basis of its
8-63 selection and shall make the evaluations public on or before the
8-64 award of the contract.
8-65 SECTION 12. Subdivision (3), Subsection (a), Section 51.780,
8-66 Education Code, is amended to read as follows:
8-67 (3) "Design criteria package" means a set of documents
8-68 that provides sufficient information to permit a design-build firm
8-69 to prepare a response to an institution's request for
9-1 qualifications and any additional information requested, including
9-2 criteria for selection [proposals]. The design criteria package
9-3 must specify criteria the institution considers necessary to
9-4 describe the project and may include, as appropriate, the legal
9-5 description of the site, survey information concerning the site,
9-6 interior space requirements, special material requirements,
9-7 material quality standards, conceptual criteria for the project,
9-8 special equipment requirements, cost or budget estimates, time
9-9 schedules, quality assurance and quality control requirements, site
9-10 development requirements, applicable codes and ordinances,
9-11 provisions for utilities, parking requirements, or any other
9-12 requirement, as applicable.
9-13 SECTION 13. Subsections (f) and (k), Section 51.780,
9-14 Education Code, are amended to read as follows:
9-15 (f) The board or its representative shall evaluate
9-16 statements of qualifications [proposals] and select a design-build
9-17 firm in two phases:
9-18 (1) In phase one, the board or its representative
9-19 shall prepare a request for qualifications and evaluate each
9-20 offeror's experience, technical competence, and capability to
9-21 perform, the past performance of the offeror's team and members of
9-22 the team, and other appropriate factors submitted by the team or
9-23 firm in response to the request for qualifications, except that
9-24 cost-related or price-related evaluation factors are not permitted.
9-25 Each offeror must certify to the board that each engineer or
9-26 architect that is a member of its team was selected based on
9-27 demonstrated competence and qualifications. The board or its
9-28 representative shall qualify a maximum of five [potential] offerors
9-29 to submit additional information and, if the board or its
9-30 representative chooses, to interview for final selection [regarding
9-31 technical proposals, implementation, and costing methodologies in
9-32 response to a formal request for proposals based on the design
9-33 criteria package].
9-34 (2) In phase two, the board or its representative
9-35 shall evaluate the information submitted by the offerors on the
9-36 basis of the selection criteria stated in the request for
9-37 qualifications and the results of any interview. The board or its
9-38 representative may request additional information regarding
9-39 demonstrated competence and qualifications, considerations of the
9-40 safety and long-term durability of the project, the feasibility of
9-41 implementing the project as proposed, the ability of the offeror to
9-42 meet schedules, costing methodology, or other factors as
9-43 appropriate. The board or its representative [institution] may not
9-44 require offerors to submit detailed engineering or architectural
9-45 designs [design] as part of the proposal. The board or its
9-46 representative shall rank each proposal submitted on the basis of
9-47 the criteria specified in the request for qualifications. The
9-48 board or its representative shall select the design-build firm that
9-49 submits the proposal offering the best value for the institution on
9-50 the basis of the published selection criteria and on its ranking
9-51 evaluations. The board or its representative shall first attempt
9-52 in good faith to negotiate with the selected offeror a contract on
9-53 fair and reasonable terms. If the board or its representative is
9-54 unable to negotiate a satisfactory contract with the selected
9-55 offeror, the institution shall, formally and in writing, end all
9-56 negotiations with that offeror and proceed to negotiate with the
9-57 next offeror in the order of the selection ranking until a contract
9-58 is reached or negotiations with all ranked offerors end.
9-59 (k) A payment or performance bond is not required for, and
9-60 may not provide coverage for, the portion of a design-build
9-61 contract under this section that includes design services only. If
9-62 a fixed contract amount or guaranteed maximum price has not been
9-63 determined at the time a design-build contract is awarded, the
9-64 penal sums of the performance and payment bonds delivered to the
9-65 institution shall each be in an amount equal to the project budget,
9-66 as specified in the design criteria package. The design-build firm
9-67 shall deliver the bonds not later than the 10th day after the date
9-68 the design-build firm executes the contract unless the design-build
9-69 firm furnishes a bid bond or other financial security acceptable to
10-1 the institution to ensure that the design-build firm will furnish
10-2 the required performance and payment bonds when a guaranteed
10-3 maximum price is established.
10-4 SECTION 14. Subsections (b) and (c), Section 51.781,
10-5 Education Code, are amended to read as follows:
10-6 (b) A construction manager-agent is a sole proprietorship,
10-7 partnership, corporation, or other legal entity that provides
10-8 consultation to the institution regarding construction,
10-9 rehabilitation, alteration, or repair of the facility. An
10-10 institution using the construction manager-agent method may, under
10-11 the contract between the institution and the construction
10-12 manager-agent, require the construction manager-agent to provide
10-13 administrative personnel, equipment necessary to perform duties
10-14 under this section, and on-site management and other services
10-15 specified in the contract. A construction manager-agent represents
10-16 the institution in a fiduciary capacity[, except that it may
10-17 perform general conditions as provided by the contract].
10-18 (c) Before or concurrently with selecting a construction
10-19 manager-agent, the board shall select or designate an engineer or
10-20 architect who shall prepare the construction documents for the
10-21 project and who has full responsibility for complying with The
10-22 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
10-23 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
10-24 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
10-25 applicable. If the engineer or architect is not a full-time
10-26 employee of the institution, the board shall select the engineer or
10-27 architect on the basis of demonstrated competence and
10-28 qualifications as provided by Section 2254.004, Government Code.
10-29 The institution's engineer or architect may not serve, alone or in
10-30 combination with another person, as the construction manager-agent
10-31 unless the engineer or architect is hired to serve as the
10-32 construction manager-agent under a separate or concurrent
10-33 procurement conducted in accordance with this subchapter. This
10-34 subsection does not prohibit the institution's engineer or
10-35 architect from providing customary construction phase services
10-36 under the engineer's or architect's original professional service
10-37 agreement in accordance with applicable licensing laws.
10-38 SECTION 15. Sections 51.782, 51.783, and 51.784, Education
10-39 Code, are amended to read as follows:
10-40 Sec. 51.782. CONTRACTS FOR FACILITIES: CONSTRUCTION
10-41 MANAGER-AT-RISK. (a) An institution may use the construction
10-42 manager-at-risk method for the construction, rehabilitation,
10-43 alteration, or repair of a facility. In using that method and in
10-44 entering into a contract for the services of a construction
10-45 manager-at-risk, a board shall follow the procedures prescribed by
10-46 this section.
10-47 (b) A construction manager-at-risk is a sole proprietorship,
10-48 partnership, corporation, or other legal entity that assumes the
10-49 risk for construction, rehabilitation, alteration, or repair of a
10-50 facility at the contracted price as a general contractor and
10-51 provides consultation to the institution regarding construction
10-52 during and after the design of the facility.
10-53 (c) Before or concurrently with selecting a construction
10-54 manager-at-risk, the board shall select or designate an engineer or
10-55 architect who shall prepare the construction documents for the
10-56 project and who has full responsibility for complying with The
10-57 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
10-58 Statutes) or Chapter 478, Acts of the 45th Legislature, Regular
10-59 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), as
10-60 applicable. If the engineer or architect is not a full-time
10-61 employee of the institution, the board shall select the engineer or
10-62 architect on the basis of demonstrated competence and
10-63 qualifications as provided by Section 2254.004, Government Code.
10-64 The institution's engineer, architect, or construction
10-65 manager-agent for a project may not serve, alone or in combination
10-66 with another, as the construction manager-at-risk.
10-67 (d) The board shall provide or contract for, independently
10-68 of the construction manager-at-risk, the inspection services, the
10-69 testing of construction materials engineering, and the verification
11-1 testing services necessary for acceptance of the facility by the
11-2 institution. The board shall select those services for which it
11-3 contracts in accordance with Section 2254.004, Government Code.
11-4 (e) The board shall select the construction manager-at-risk
11-5 in either a one-step or two-step process. The board shall prepare
11-6 a request for [competitive sealed] proposals, in the case of a
11-7 one-step process, or a request for qualifications, in the case of a
11-8 two-step process, that includes general information on the project
11-9 site, project scope, schedule, selection criteria, estimated
11-10 budget, and the time and place for receipt of proposals or
11-11 qualifications, as applicable, a statement as to whether the
11-12 selection process is a one-step or two-step process, and other
11-13 information that may assist the board in its selection of a
11-14 construction manager-at-risk. The board shall state the selection
11-15 criteria in the request for proposals or qualifications, as
11-16 applicable. The selection criteria may include the offeror's
11-17 experience, past performance, safety record, proposed personnel and
11-18 methodology, and other appropriate factors that demonstrate the
11-19 capability of the construction manager-at-risk. If a one-step
11-20 process is used, the board may request, as part of the offeror's
11-21 proposal, proposed fees and prices for fulfilling the general
11-22 conditions. If a two-step process is used, the board may not
11-23 request fees or prices in step one. In step two, the [The] board
11-24 may request that five or fewer offerors, selected solely on the
11-25 basis of qualifications, provide additional information, including
11-26 [proposals provide] the construction manager-at-risk's [manager's]
11-27 proposed fee and its price for fulfilling the general conditions.
11-28 [The board shall state the selection criteria in the request for
11-29 proposals. The selection criteria may include the offeror's
11-30 experience, past performance, safety record, proposed personnel and
11-31 methodology, and other appropriate factors that demonstrate the
11-32 capability of the construction manager.]
11-33 (f) The board shall publish the request for qualifications
11-34 [proposals] in a manner prescribed by the board.
11-35 (g) At each step, the [The board may provide for
11-36 prequalifying offerors before proposals are submitted.
11-37 Prequalification may not be a conclusive determination that an
11-38 offeror offers the best value to the institution, and a
11-39 prequalified offeror may be rejected on the basis of subsequently
11-40 discovered information. A failure to prequalify does not bar a
11-41 subsequent determination that an offeror offers the best value to
11-42 the institution with respect to a given proposal.]
11-43 [(h) The] board shall receive, publicly open, and read aloud
11-44 the names of the offerors. At the appropriate step, the board
11-45 shall also read aloud all fees and prices stated in [and the
11-46 monetary proposals, if any, for] each proposal. Within 45 days
11-47 after the date of opening the proposals, the board or its
11-48 representative shall evaluate and rank each proposal submitted in
11-49 relation to the criteria set forth in the request for proposals.
11-50 (h) [(i)] The board or its representative shall select the
11-51 offeror that submits the proposal that offers the best value for
11-52 [to] the institution based on the published selection criteria and
11-53 on its ranking evaluation. The board or its representative shall
11-54 first attempt in good faith to negotiate with the selected offeror
11-55 a contract on fair and reasonable terms. If the board or its
11-56 representative is unable to negotiate [reach] a satisfactory
11-57 contract [agreement] with the selected offeror, the board or its
11-58 representative shall, formally and in writing, end negotiations
11-59 with that offeror [terminate further discussions] and proceed to
11-60 negotiate with the next offeror in the order of the selection
11-61 ranking until a contract [agreement] is reached or negotiations
11-62 with all ranked offerors end [all proposals are rejected].
11-63 (i) [(j)] A construction manager-at-risk shall publicly
11-64 advertise, in the manner prescribed by the institution, and receive
11-65 bids or [and solicit either competitive bids or competitive sealed]
11-66 proposals from trade contractors or subcontractors for the
11-67 performance of all major elements of the work other than the minor
11-68 work that may be included in the general conditions. A
11-69 construction manager-at-risk may seek to perform portions of the
12-1 work itself if the construction manager-at-risk submits its bid or
12-2 proposal for those portions of the work in the same manner as all
12-3 other trade contractors or subcontractors and if the board
12-4 determines that the construction manager-at-risk's bid or proposal
12-5 provides the best value for the institution.
12-6 (j) [(k)] The construction manager-at-risk and the board or
12-7 its representative shall review [receive and open] all trade
12-8 contractor or subcontractor bids or proposals in a manner that does
12-9 not disclose the contents of the bid or proposal during the
12-10 selection process to a person not employed by the construction
12-11 manager-at-risk, engineer, architect, or institution. All bids or
12-12 proposals shall be made public within seven days after the date of
12-13 final selection.
12-14 (k) [(l)] If the construction manager-at-risk reviews,
12-15 evaluates, and recommends to the board a bid or proposal from a
12-16 trade contractor or subcontractor but the board requires another
12-17 bid or proposal to be accepted, the institution shall compensate
12-18 the construction manager-at-risk by a change in price, time, or
12-19 guaranteed maximum cost for any additional cost and risk that the
12-20 construction manager-at-risk may incur because of the board's
12-21 requirement that another bid or proposal be accepted.
12-22 (l) If a selected trade contractor or subcontractor defaults
12-23 in the performance of its work or fails to execute a subcontract
12-24 after being selected in accordance with this section, the
12-25 construction manager-at-risk may, without advertising, itself
12-26 fulfill the contract requirements or select a replacement trade
12-27 contractor or subcontractor to fulfill the contract requirements.
12-28 (m) If a fixed contract amount or guaranteed maximum price
12-29 has not been determined at the time the contract is awarded, the
12-30 penal sums of the performance and payment bonds delivered to the
12-31 institution must each be in an amount equal to the project budget,
12-32 as set forth in the request for qualifications. The construction
12-33 manager shall deliver the bonds not later than the 10th day after
12-34 the date the construction manager executes the contract unless the
12-35 construction manager furnishes a bid bond or other financial
12-36 security acceptable to the institution to ensure that the
12-37 construction manager will furnish the required performance and
12-38 payment bonds when a guaranteed maximum price is established.
12-39 Sec. 51.783. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
12-40 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
12-41 contractor for construction, rehabilitation, alteration, or repair
12-42 services for a facility through competitive sealed proposals, a
12-43 board shall follow the procedures prescribed by this section.
12-44 (b) The board shall select or designate an engineer or
12-45 architect to prepare construction documents for the project. The
12-46 selected or designated engineer or architect has full
12-47 responsibility for complying with The Texas Engineering Practice
12-48 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
12-49 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
12-50 Vernon's Texas Civil Statutes), as applicable. If the engineer or
12-51 architect is not a full-time employee of the institution, the board
12-52 shall select the engineer or architect on the basis of demonstrated
12-53 competence and qualifications as provided by Section 2254.004,
12-54 Government Code.
12-55 (c) The board shall provide or contract for, independently
12-56 of the contractor, the inspection services, the testing of
12-57 construction materials engineering, and the verification testing
12-58 services necessary for acceptance of the facility by the
12-59 institution. The board shall select those services for which it
12-60 contracts in accordance with Section 2254.004, Government Code, and
12-61 shall identify them in the request for proposals.
12-62 (d) The board shall prepare a request for competitive sealed
12-63 proposals that includes construction documents, selection criteria,
12-64 estimated budget, project scope, schedule, and other information
12-65 that contractors may require to respond to the request. The board
12-66 shall state in the request for proposals the selection criteria
12-67 that will be used in selecting the successful offeror [in the
12-68 request for proposals]. [The selection criteria may include the
12-69 offeror's experience, past performance, safety record, proposed
13-1 personnel and methodology, and other appropriate factors that
13-2 demonstrate the capability of the contractor.]
13-3 (e) The board shall publish notice of the request for
13-4 proposals in a manner prescribed by the board.
13-5 (f) [The board may provide for prequalifying offerors before
13-6 proposals are submitted. Prequalification may not be a conclusive
13-7 determination that an offeror offers the best value to the
13-8 institution, and a prequalified offeror may be rejected on the
13-9 basis of subsequently discovered information. A failure to
13-10 prequalify does not bar a subsequent determination that an offeror
13-11 offers the best value to the institution with respect to a given
13-12 proposal.]
13-13 [(g)] The board shall receive, publicly open, and read aloud
13-14 the names of the offerors and, if any are required to be stated,
13-15 all prices [the monetary proposals, if any,] stated in each
13-16 proposal. Within 45 days after the date of opening the proposals
13-17 the board shall evaluate and rank each proposal submitted in
13-18 relation to the published selection criteria.
13-19 (g) [(h)] The board shall select the offeror that offers the
13-20 best value for [to] the institution based on the published
13-21 selection criteria and on its ranking evaluation. The board shall
13-22 first attempt in good faith to negotiate with the selected offeror
13-23 a contract on fair and reasonable terms. The board and its
13-24 engineer or architect may discuss with the selected offeror options
13-25 for a scope or time modification and any price change associated
13-26 with the modification [cost reduction]. If the board is unable to
13-27 reach a contract [agreement] with the selected offeror, the board
13-28 shall, formally and in writing, end negotiations with that offeror
13-29 [terminate further discussions] and proceed to the next offeror in
13-30 the order of the selection ranking until a contract [agreement] is
13-31 reached or all proposals are rejected.
13-32 (h) [(i)] In determining best value for the institution, the
13-33 board is not restricted to considering price alone but may consider
13-34 any other factor stated in the selection criteria.
13-35 Sec. 51.784. JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION
13-36 OR REPAIR. (a) An institution may award job order contracts for
13-37 the minor construction, repair, rehabilitation, or alteration of a
13-38 facility if the work is of a recurring nature but the delivery
13-39 times are indefinite and indefinite quantities and orders are
13-40 awarded substantially on the basis of predescribed and prepriced
13-41 tasks.
13-42 (b) The institution may establish contractual unit prices
13-43 for a job order contract by:
13-44 (1) specifying one or more published construction unit
13-45 price books and the applicable divisions or line items; or
13-46 (2) providing a list of work items and requiring the
13-47 offerors to bid or propose one or more coefficients or multipliers
13-48 to be applied to the price book or work items as the price
13-49 proposal.
13-50 (c) The board shall advertise for, receive, and publicly
13-51 open [competitive] sealed proposals for job order contracts [based
13-52 on time and material rates for various types and classifications of
13-53 work. The rates under a job order contract shall be in effect for
13-54 at least six months and for not longer than two years].
13-55 (d) [(c)] The board may require offerors to submit
13-56 additional information besides rates, including experience, past
13-57 performance, and proposed personnel and methodology.
13-58 (e) [(d)] The board may award job order contracts to one or
13-59 more job order contractors in connection with each solicitation of
13-60 bids or [based on price] proposals[, experience, past performance,
13-61 proposed personnel and methodology, safety record, and other
13-62 appropriate factors].
13-63 (f) [(e)] An order for a job or project under the job order
13-64 contract must be signed by the board's representative and the
13-65 contractor. The order may be a fixed price, lump-sum contract
13-66 based substantially on contractual unit pricing applied to
13-67 estimated quantities [a statement of work negotiated between the
13-68 board or its representative and the contractor,] or [the order] may
13-69 be a unit price order based on the [estimated] quantities and line
14-1 items delivered.
14-2 (g) The contractor shall provide payment and performance
14-3 bonds, if required by law, based on the amount or estimated amount
14-4 of any order.
14-5 (h) The base term of a job order contract is for the period
14-6 and with any renewal options that the institution sets forth in the
14-7 request for proposals. If the institution fails to advertise that
14-8 term, the base term may not exceed two years and is not renewable
14-9 without further advertisement and solicitation of proposals.
14-10 (i) If a job order contract or an order issued under the
14-11 contract requires engineering or architectural services that
14-12 constitute the practice of engineering within the meaning of The
14-13 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
14-14 Statutes) or the practice of architecture within the meaning of
14-15 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
14-16 (Article 249a, Vernon's Texas Civil Statutes), those services shall
14-17 be provided in accordance with applicable law.
14-18 SECTION 16. This Act takes effect September 1, 1999. The
14-19 changes in law made by this Act apply only to a contract for which
14-20 requests for bids, proposals, or qualifications are published or
14-21 distributed on or after that date.
14-22 SECTION 17. The importance of this legislation and the
14-23 crowded condition of the calendars in both houses create an
14-24 emergency and an imperative public necessity that the
14-25 constitutional rule requiring bills to be read on three several
14-26 days in each house be suspended, and this rule is hereby suspended.
14-27 * * * * *