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                                  * * * * *