SRC-SEW S.B. 510 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 510
77R4363 ATP-DBy: Armbrister
Intergovernmental Relations
2/26/2001
As Filed


DIGEST AND PURPOSE 

Under current law, no authority exists for municipalities to utilize
design-build procedures in order to provide flexibility in constructing
needed facilities and possibly save time in design and construction.  As
proposed, S.B. 510 authorizes municipalities to use design-build
procedures. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Sections 252.021(a) and (c), Local Government Code, to
require a municipality, before entering into a contract that requires an
expenditure of more than $15,000 from one or more municipal funds, to
comply with the procedure prescribed by this subchapter for competitive
sealed bidding or competitive sealed proposals or with a method described
by Subchapter E.  Authorizes a municipality to use the competitive sealed
proposal procedure for high technology procurements and, in a municipality
with a population of 75,000 or more, for the purchase of insurance. 

SECTION 2.  Amends Section 252.022, Local Government Code, by adding
Subsection (d) to provide that this chapter does not apply to an
expenditure described by Section 252.021 if the governing body of a
municipality determines that a method described by Subchapter E provides a
better value for the municipality with respect to that expenditure than the
procedures described in this chapter, and the municipality adopts and uses
a method described in that subchapter with respect to that expenditure. 

SECTION 3.  Amends Chapter 252, Local Government Code, by adding Subchapter
E, as follows:   

SUBCHAPTER E.  ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN MUNICIPAL
PROJECTS 

Sec.  252.111.  DEFINITIONS.  Defines "architect," "contractor,"
"design-build contract," "design-build firm," "design criteria package,"
"engineer," "facility," "fee," and  "general conditions." 

Sec. 252.112.  APPLICABILITY; OTHER LAW.  Provides that any provision in
the charter of a home-rule municipality that requires the use of
competitive bidding or competitive sealed proposals or that prescribes
procurement procedures and that is in conflict with this subchapter
controls over this subchapter unless the governing body of the municipality
elects to have this subchapter supersede the charter.  Provides that the
purchasing requirements of Section 361.426 (Governmental Entity Preference
for Recycled Products), Health and Safety Code, apply to purchases by a
municipality made under this subchapter.  Provides that, except as provided
by this section, to the extent of any conflict, this subchapter prevails
over any other law relating to the purchasing of goods and services except
a law relating to contracting with  historically underutilized businesses. 




Sec. 252.113.  PROCUREMENT PROCEDURES.  Authorizes a municipality, in
entering into a contract for the construction of a facility, to use any of
a number of stated methods that provides the best value for the
municipality.  Authorizes the municpality, except as provided by this
subchapter, to consider a number of stated factors in determining whom to
award a contract. 

Sec. 252.114.  EVALUATION OF BIDS AND PROPOSALS FOR CONSTRUCTION SERVICES.
Requires the governing body of a municipality that is considering a
construction contract using a method specified by Section 252.113(a) other
than a competitive bidding, before advertising, to determine which method
provides the best value for the municipality. Requires the municipality to
base its selection among offerors on criteria authorized to be used under
Section 252.113(b).  Requires the municipality to publish in the request
for bids, proposals, or qualifications the criteria that will be used to
evaluate the offerors and the relative weights, if known at the time of
publication, given to the criteria.  Requires the municipality to document
the basis of its selection and to make the evaluations public not later
than the seventh day after the date the contract is awarded.   

Sec. 252.115.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH
COMPETITIVE BIDDING.  Authorizes a municipality, except to the extent
prohibited by other law and to the extent consistent with this subchapter,
to use competitive bidding to select a contractor to perform certain
services.  Provides that, except as otherwise specifically provided by this
subsection, Chapter 271B does not apply to a competitive bidding process
under this section.  Provides that Sections 271.026, 271.027(a), and
271.0275 apply to a competitive bidding process under this section.
Requires a municipality to award a competitively bid contract at the bid
amount to the bidder offering the best value to the municipality according
to the selection criteria that were established by the municipality.
Authorizes the selection criteria to include the factors listed in Section
252.113(b). 

Sec. 252.116.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH
COMPETITIVE SEALED PROPOSALS.  (a) Requires a municipality to follow the
procedures prescribed by this section in selecting a contractor to perform
certain services for a facility through competitive sealed proposals. 

(b) Requires the municipality to select or designate an engineer or
architect to prepare construction documents for the project.  Provides that
the selected or designated engineer or architect has full responsibility
for complying with The Texas Engineering Practice Act (Article 3271a,
V.T.C.S.) or Chapter 478 (Regulation of Practice of Architecture), Acts of
the 45th Legislature, Regular Session, 1937 (Article 249a, V.T.C.S.), as
applicable.  Requires the municipality, if the engineer or architect is not
a full-time employee of the municipality, to select the engineer or
architect on the basis of demonstrated competence and qualifications as
provided by Section 2254.004 (Contract for Professional Services of
Architect, Engineer, or Surveyor), Government Code. 

(c) Requires the municipality to provide or contract for, independently of
the contractor, certain inspection and testing services necessary for
acceptance of the facility by the municipality.  Requires the municipality
to select those services for which it contracts in accordance with Section
2254.004, Government Code, and to identify them in the request for
proposals. 

 (d) Requires the municipality to prepare a request for competitive sealed
proposals that includes certain elements that contractors may require to
respond to the request. Requires the municipality to state in the request
for proposals the selection criteria that will be used in selecting the
successful offeror. 

  

(e)  Requires the municipality to receive, publicly open, and read aloud
the names of the offerors and, if any are required to be stated, all prices
stated in each proposals. Requires the municipality, not later than the
45th day after the date of opening the proposals, to evaluate and rank each
proposal submitted in relation to the published selection criteria. 

(f) Requires the municipality to select the offeror that offers the best
value based on the published selection criteria and on its ranking
evaluation.  Requires the municipality to first attempt to negotiate a
contract with the selected offeror.  Authorizes the municipality and its
engineer or architect to discuss with the selected offeror options for a
scope or time modification and any price change associated with the
modification. Requires the municipality, if unable to negotiate a contract
with the selected offeror, formally and in writing, to end negotiations
with that offeror and proceed to the next offeror in the order of the
selection ranking until a contract is reached or all proposals are
rejected.   

(g) Provides that, in determining best value, the municipality is not
restricted to considering price alone, but is authorized to consider any
other factor stated in the criteria. 

Sec. 252.117.  CONTRACTS FOR FACILITIES:  CONSTRUCTION MANAGERAGENT.
Authorizes a municipality to use the construction manager-agent method for
the construction, rehabilitation, alteration, or repair of a facility.
Requires a municipality to follow the procedures prescribed by this section
in using that method and in entering into a contract for the services of a
construction manager-agent. 

(b) Sets forth boundaries for the term "construction manager-agent" and
establishes the capacity in which such an entity represents the
municipality.  Authorizes a municipality using the construction
manager-agent method, under the contract between the municipality and the
construction manager-agent, to require the construction manageragent to
provide certain services specified in the contract 

(c)  Makes a conforming change regarding a municipality being required,
before or concurrently with the selection a construction manager-agent, to
select or designate an engineer or architect who is required to prepare the
construction documents and regarding the basis of selection.  Prohibits the
municipality's engineer or architect from serving, alone or in combination
with another person, as the construction manageragent unless the engineer
or architect is hired to serve as the construction manageragent under a
separate or concurrent procurement conducted in accordance with this
subchapter.  Provides that this subsection does not prohibit the
municipality's engineer or architect from providing customary construction
phase services under the engineer's or architect's original professional
service agreement in accordance with applicable licensing laws. 

(d) Makes a conforming change regarding a municipality's selection of a
construction manager-agent. 

(e) Requires a municipality using the construction manager-agent method to
procure, an  accordance with applicable law, a general contractor, trade
contractors, or subcontractors who will serve as the prime contractor for
their specific portion of the work 

(f) Makes a conforming change requiring the municipality or the
construction manageragent to procure certain inspection and testing
services necessary for acceptance of the facility by the municipality. 



Sec. 252.118.  CONTRACTS FOR FACILITIES:  CONSTRUCTION MANAGER-ATRISK. (a)
Makes a conforming change regarding a municipality's use of the
construction manager-at-risk method. 

  (b) Sets forth boundaries for the term "construction manager-at-risk."

(c) Makes a conforming change regarding the municipality selecting or
designating an engineer or architect before or concurrently with the
selection of a construction manager-at-risk.  Makes a conforming change
prohibiting the municipality's engineer, architect, or construction from
serving as the construction manager-at-risk except under certain
conditions. 

(d) Makes a conforming change requiring the municipality to procure,
independently of the construction manager-at-risk, certain inspection and
testing services. 

(e) Requires the municipality to select the construction manager-at-risk in
either a onestep or two-step process.  Requires the municipality to prepare
a request for proposals, in the case of a one-step process, or a request
for qualification, in the case of a twostep process, that includes certain
stated information, including the selection criteria. Authorizes the
selection criteria to include certain factors that demonstrate the
capability of the construction manager-at-risk.  Sets forth guidelines
regarding both the one-step and the two-step processes.   

(f) Makes conforming changes regarding the names of the offerors and the
fees and prices stated in each proposal and the evaluation and ranking of
proposals. 

(g) Makes conforming changes regarding the selection of the offeror and the
successful or unsuccessful  negotiation of a contract with the offeror. 

(h) Requires a construction manager-at-risk to publicly advertise, as
prescribed for a governmental entity by Section 271.025, and receive bids
or proposals from trade contractors or subcontractors for the performance
of all major elements of the work other than the minor work that may be
included in the general conditions.  Authorizes a construction
manager-at-risk to seek to perform portions of the work itself if the
construction manager-at-risk submits its bid or proposal for those portions
of the work in the same manner as all other trade contractors or
subcontractors and if the municipality determines that the construction
manager-at-risk's bid or proposal provides the best value for the
municipality. 

(i) Requires the construction manager-at-risk and the municipality or its
representative to review all trade contractor or subcontractor bids or
proposals in a manner that does not disclose the contents of the bid or
proposal during the selection process to a person not employed by the
construction manager-at-risk, engineer, architect, or municipality.
Requires all bids or proposals to be made public after the award of the
contract or not later than the seventh day after the date of final
selection of bids or proposals,  whichever is later. 

(j) Requires the municipality, if the construction manager-at-risk reviews,
evaluates, and recommends to the municipality a bid or proposal from a
trade contractor or subcontractor bu the municipality requires another bid
or proposal to be accepted, to compensate the construction manager-at-risk
by a change in price, time, or guaranteed maximum cost for any additional
cost and risk that the construction manager-at-risk may incur because of
the municipality's requirement that another bid or proposal be accepted. 

(k) Authorizes the construction manager-at-risk, if a selected trade
contractor or subcontractor defaults in the performance of its work or
fails to execute a subcontract after being selected in accordance with this
section, without advertising, to fulfill the contract requirements itself
or select a replacement trade contractor or subcontractor to fulfill the
contract requirements. 

(l) Requires the penal sums of the performance and payment bonds delivered
to the municipality, if a fixed contract amount or guaranteed maximum price
has not been determined at the time the contract is awarded, to be in an
amount equal to the project budget, as specified in the request for
qualifications.  Requires the construction manger to deliver the bonds not
later than the 10th day after the date the construction manager executes
the contract unless the construction manager furnishes a bid bond or other
financial security acceptable to the municipality to ensure that the
construction manager will furnish the required performance and payment
bonds when a guaranteed maximum price is established. 

Sec. 252.119.  DESIGN-BUILD CONTRACTS FOR FACILITIES.  (a) Makes a
conforming change regarding a municipality's use of the design-build
method. 

(b) Requires the municipality to designate an engineer or architect to act
as its representative.  Makes a conforming change regarding the selection
of an engineer or architect who is not a full-time employee of the
municipality in accordance with Chapter 2254A (Professional Services),
Government Code. 

(c) Requires the municipality to prepare a request for qualifications that
includes certain information that may assist potential design-build firms
in submitting proposals for the project.  Requires the municipality to also
prepare a design criteria package that includes more detailed information
on the project.  Requires that, if the design-criteria package requires
certain engineering or architectural services, those services be provided
in accordance with the applicable law. 

(d) Requires the municipality to evaluate statements of qualifications and
select a design-build firm in two phases and sets forth specific guidelines
for the requirements involved in each phase. 

(e) Requires that, following selection of a design-build firm under
Subsection (d), the firm's engineers complete the design, submitting all
design elements for review and determination of scope compliance to the
municipality or the municipality's engineer or architect before or
concurrently with construction. 

(f) Makes conforming changes regarding an engineer's and/or architect's
responsibility for compliance with applicable laws. 

(g) Makes a conforming change requiring the municipality to procure,
independently of the design-build firm, certain inspection and testing
services. 
 
(h) Requires the design-build firm to supply a signed and sealed set of
construction documents for the project to the municipality at the
conclusion of construction. 

(i) Provides that a payment or performance bond is not required for, and
prohibits such from providing coverage for, the portion of a design-build
contract under this section that includes design services only.  Makes a
conforming change regarding the delivery of penal sums of the performance
and payment bonds. 

Sec. 252.120.  JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION OR REPAIR.
(a) Authorizes a municipality to award job order contracts for the minor
construction, repair, rehabilitation, or alteration of a facility if the
work is of a recurring nature but the delivery times are indefinite and
indefinite quantities and orders are awarded substantially on the basis of
prescribed and prepriced tasks. 


(b) Establishes procedures by which the municipality is authorized to
establish contractual unit prices for a job order contract. 

(c) Requires the municipality to advertise for, receive, and publicly open
sealed proposals for job order contracts. 

(d) Authorizes the municipality to require offerors to submit certain types
of additional information besides certain stated types. 

(e) Authorizes the municipality to award job order contracts to one or more
job order contractors in connection with each solicitation of bids or
proposals. 

(f) Requires an order for a job or project under the job order contract to
be signed by the municipality's representative and the contractor.
Authorizes the order to be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated quantities
or a unit price based on the quantities and line times delivered. 

(g) Requires the contractor to provide payment and performance bonds, if
required by law, based on the amount or estimated amount of any order. 

(h) Provides that the base term of a job order contract is for the period
and with any renewal options that the municipality sets forth in the
request for proposals. 
Prohibits the base term, if the municipality fails to advertise that term,
from exceeding two years and provides that the term is not renewable
without further advertisement and solicitation of proposals. 

(i) Makes a conforming change requiring that engineering or architectural
services required by a job order contract or an order issued under the
contract be provided in accordance with applicable law. 

SECTION 4.  Amends Section 2254.002(1), Government Code, to redefine
"governmental entity." 

SECTION 5.  Makes application of this Act prospective.

SECTION 6.  Effective date:  September 1, 2001.