1-1 By: Truan S.B. No. 1909
1-2 (In the Senate - Filed May 10, 1999; May 10, 1999, read first
1-3 time and referred to Committee on Intergovernmental Relations;
1-4 May 13, 1999, reported favorably by the following vote: Yeas 4,
1-5 Nays 0; May 13, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the authority of a municipality to use a design-build
1-9 contract for public improvement projects and facilities.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subchapter C, Chapter 252, Local Government Code,
1-12 is amended by adding Section 252.051 to read as follows:
1-13 Sec. 252.051. DESIGN-BUILD CONTRACTS FOR MUNICIPAL PUBLIC
1-14 IMPROVEMENT PROJECTS OR FACILITIES. (a) In this section:
1-15 (1) "Design-build contract" means a single contract
1-16 with a design-build firm for the design and construction of a
1-17 public improvement project or facility.
1-18 (2) "Design-build firm" means a partnership,
1-19 corporation, or other legal entity or team that includes an
1-20 engineer or architect and builder qualified to engage in building
1-21 construction in this state.
1-22 (3) "Design criteria package" means a set of documents
1-23 that provides sufficient information to permit a design-build firm
1-24 to prepare a response to a municipality's request for proposals.
1-25 The design criteria package must specify criteria the municipality
1-26 considers necessary to describe the project or facility and may
1-27 include, as appropriate, the legal description of the site, survey
1-28 information concerning the site, interior space requirements,
1-29 special material requirements, material quality standards,
1-30 conceptual criteria for the project or facility, special equipment
1-31 requirements, costs or budget estimates, time schedules, quality
1-32 assurance and quality control requirements, site development
1-33 requirements, applicable codes and ordinances, provisions for
1-34 utilities, parking requirements, or any other requirement, as
1-35 applicable.
1-36 (b) A municipality may use the design-build method for the
1-37 construction, rehabilitation, alteration, or repair of a public
1-38 building project and associated site work that has a total
1-39 projected cost of $50 million or more, but a municipality may not
1-40 use the design-build method for a separate public road, highway
1-41 bridge, or utility project. In using that method and in entering
1-42 into a contract for the services of a design-build firm, the
1-43 contracting municipality and the design-build firm shall follow the
1-44 procedures provided by this section.
1-45 (c) The municipality may designate an engineer or architect
1-46 to act as its representative. If the municipality's engineer or
1-47 architect is not a full-time employee of the municipality, any
1-48 engineer or architect designated shall be selected on the basis of
1-49 demonstrated competence and qualifications in accordance with
1-50 Subchapter A, Chapter 2254, Government Code.
1-51 (d) The municipality shall prepare a request for
1-52 qualifications that includes general information on the project
1-53 site, project scope, budget, special systems, selection criteria,
1-54 and other information that may assist potential design-build firms
1-55 in submitting proposals for the project or facility. The
1-56 municipality shall also prepare the design criteria package that
1-57 includes more detailed information on the project or facility. If
1-58 the preparation of the design criteria package requires engineering
1-59 or architectural services that constitute the practice of
1-60 engineering within the meaning of The Texas Engineering Practice
1-61 Act (Article 3271a, Vernon's Texas Civil Statutes) or the practice
1-62 of architecture within the meaning of Chapter 478, Acts of the 45th
1-63 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
1-64 Civil Statutes), those services shall be provided in accordance
2-1 with the applicable law.
2-2 (e) The municipality shall evaluate proposals and select a
2-3 design-build firm in two phases:
2-4 (1) In phase one, the municipality shall evaluate each
2-5 offeror's experience, technical competence, and capability to
2-6 perform, the past performance of the offeror's team and members of
2-7 the team, and other appropriate factors submitted by the team or
2-8 firm in response to the request for qualifications, except that
2-9 cost-related or price-related evaluation factors are not permitted.
2-10 Each offeror must certify to the municipality that each engineer or
2-11 architect that is a member of the team was selected based on
2-12 demonstrated competence and qualifications. The municipality shall
2-13 qualify a maximum of five potential offerors to submit additional
2-14 information regarding technical proposals, implementation, and
2-15 costing methodologies in response to a formal request for proposals
2-16 based on the design criteria package.
2-17 (2) In phase two, the municipality shall evaluate
2-18 offerors on the basis of demonstrated competence and
2-19 qualifications, considerations of the safety and long-term
2-20 durability of the project, the feasibility of implementing the
2-21 project or facility as proposed, the ability of the offeror to meet
2-22 schedules, costing methodology, or other factors as appropriate.
2-23 The municipality may not require offerors to submit detailed
2-24 engineering or architectural design as part of the proposal. The
2-25 municipality shall select the design-build firm that submits the
2-26 proposal offering the best value for the municipality.
2-27 (f) Following selection of a design-build firm under
2-28 Subsection (e), that firm's engineers or architects shall complete
2-29 the design, submitting all design elements for review and
2-30 determination of scope compliance by the municipality's engineer or
2-31 architect before or concurrently with construction.
2-32 (g) An engineer shall have responsibility for compliance
2-33 with the engineering design requirements and all other applicable
2-34 requirements of The Texas Engineering Practice Act (Article 3271a,
2-35 Vernon's Texas Civil Statutes). An architect shall have
2-36 responsibility for compliance with the requirements of Chapter 478,
2-37 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
2-38 Vernon's Texas Civil Statutes).
2-39 (h) The municipality shall provide or contract for,
2-40 independent of the design-build firm, the inspection services, the
2-41 testing of construction materials engineering, and the verification
2-42 testing services necessary for acceptance of the project or
2-43 facility by the municipality. The municipality shall select those
2-44 services for which it contracts in accordance with Section
2-45 2254.004, Government Code.
2-46 (i) The design-build firm shall supply a signed and sealed
2-47 set of construction documents for the project or facility to the
2-48 municipality at the conclusion of construction.
2-49 (j) A payment or performance bond is not required for, and
2-50 may not provide coverage for, the portion of a design-build
2-51 contract under this section that includes design services only.
2-52 SECTION 2. Subsection (a), Section 262.024, Local Government
2-53 Code, is amended to read as follows:
2-54 (a) A contract for the purchase of any of the following
2-55 items is exempt from the requirement established by Section 262.023
2-56 if the commissioners court by order grants the exemption:
2-57 (1) an item that must be purchased in a case of public
2-58 calamity if it is necessary to make the purchase promptly to
2-59 relieve the necessity of the citizens or to preserve the property
2-60 of the county;
2-61 (2) an item necessary to preserve or protect the
2-62 public health or safety of the residents of the county;
2-63 (3) an item necessary because of unforeseen damage to
2-64 public property;
2-65 (4) a personal or professional service;
2-66 (5) any individual work performed and paid for by the
2-67 day, as the work progresses, provided that no individual is
2-68 compensated under this subsection for more than 20 working days in
2-69 any three month period;
3-1 (6) any land or right-of-way;
3-2 (7) an item that can be obtained from only one source,
3-3 including:
3-4 (A) items for which competition is precluded
3-5 because of the existence of patents, copyrights, secret processes,
3-6 or monopolies;
3-7 (B) films, manuscripts, or books;
3-8 (C) electric power, gas, water, and other
3-9 utility services; and
3-10 (D) captive replacement parts or components for
3-11 equipment;
3-12 (8) an item of food;
3-13 (9) personal property sold:
3-14 (A) at an auction by a state licensed
3-15 auctioneer;
3-16 (B) at a going out of business sale held in
3-17 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
3-18 or
3-19 (C) by a political subdivision of this state, a
3-20 state agency of this state, or an entity of the federal government;
3-21 [or]
3-22 (10) any work performed under a contract for community
3-23 and economic development made by a county under Section 381.004; or
3-24 (11) contracts let pursuant to procurement methodology
3-25 authorized by Subchapter C, Chapter 252, Section 252.051.
3-26 SECTION 3. This Act takes effect September 1, 1999. The
3-27 changes in law made by this Act apply only to a contract for which
3-28 requests for qualifications are distributed or published on or
3-29 after that date.
3-30 SECTION 4. The importance of this legislation and the
3-31 crowded condition of the calendars in both houses create an
3-32 emergency and an imperative public necessity that the
3-33 constitutional rule requiring bills to be read on three several
3-34 days in each house be suspended, and this rule is hereby suspended.
3-35 * * * * *