By Brown of Kaufman H.B. No. 833
77R3572 MI-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a municipality to use a design-build
1-3 contract for public facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter C, Chapter 252, Local Government Code,
1-6 is amended by adding Section 252.051 to read as follows:
1-7 Sec. 252.051. DESIGN-BUILD CONTRACTS FOR MUNICIPAL PUBLIC
1-8 FACILITIES. (a) In this section:
1-9 (1) "Design-build contract" means a single contract
1-10 with a design-build firm for the design and construction of a
1-11 public facility.
1-12 (2) "Design-build firm" means a partnership,
1-13 corporation, or other legal entity or team that includes an
1-14 engineer or architect and builder qualified to engage in building
1-15 construction in this state.
1-16 (3) "Design criteria package" means a set of documents
1-17 that provides sufficient information to permit a design-build firm
1-18 to prepare a response to a municipality's request for proposals.
1-19 The design criteria package must specify criteria the municipality
1-20 considers necessary to describe the project and may include, as
1-21 appropriate, the legal description of the site, survey information
1-22 concerning the site, interior space requirements, special material
1-23 requirements, material quality standards, conceptual criteria for
1-24 the project, special equipment requirements, cost or budget
2-1 estimates, time schedules, quality assurance and quality control
2-2 requirements, site development requirements, applicable codes and
2-3 ordinances, provisions for utilities, parking requirements, or any
2-4 other requirement, as applicable.
2-5 (b) A municipality may use the design-build method for the
2-6 construction, rehabilitation, alteration, or repair of a public
2-7 facility. In using that method and in entering into a contract for
2-8 the services of a design-build firm, the contracting municipality
2-9 and the design-build firm shall follow the procedures provided by
2-10 this section.
2-11 (c) The municipality may designate an engineer or architect
2-12 to act as its representative. If the municipality's engineer or
2-13 architect is not a full-time employee of the municipality, any
2-14 engineer or architect designated shall be selected on the basis of
2-15 demonstrated competence and qualifications in accordance with
2-16 Subchapter A, Chapter 2254, Government Code.
2-17 (d) The municipality shall prepare a request for
2-18 qualifications that includes general information on the project
2-19 site, project scope, budget, special systems, selection criteria,
2-20 and other information that may assist potential design-build firms
2-21 in submitting proposals for the project. The municipality shall
2-22 also prepare the design criteria package that includes more
2-23 detailed information on the project. If the preparation of the
2-24 design criteria package requires engineering or architectural
2-25 services that constitute the practice of engineering within the
2-26 meaning of The Texas Engineering Practice Act (Article 3271a,
2-27 Vernon's Texas Civil Statutes) or the practice of architecture
3-1 within the meaning of Chapter 478, Acts of the 45th Legislature,
3-2 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
3-3 Statutes), those services shall be provided in accordance with the
3-4 applicable law.
3-5 (e) The municipality shall evaluate proposals and select a
3-6 design-build firm in two phases:
3-7 (1) In phase one, the municipality shall evaluate each
3-8 offeror's experience, technical competence, and capability to
3-9 perform, the past performance of the offeror's team and members of
3-10 the team, and other appropriate factors submitted by the team or
3-11 firm in response to the request for qualifications, except that
3-12 cost-related or price-related evaluation factors are not permitted.
3-13 Each offeror must certify to the municipality that each engineer or
3-14 architect that is a member of its team was selected based on
3-15 demonstrated competence and qualifications. The municipality shall
3-16 qualify a maximum of five potential offerors to submit additional
3-17 information and, if the municipality chooses, to interview for
3-18 final selection.
3-19 (2) In phase two, the municipality shall evaluate
3-20 offerors on the basis of demonstrated competence and
3-21 qualifications, considerations of the safety and long-term
3-22 durability of the project, the feasibility of implementing the
3-23 project as proposed, the ability of the offeror to meet schedules,
3-24 costing methodology, or other factors as appropriate. The
3-25 municipality may not require offerors to submit detailed
3-26 engineering or architectural design as part of the proposal. The
3-27 municipality shall select the design-build firm that submits the
4-1 proposal offering the best value for the municipality.
4-2 (f) Following selection of a design-build firm under
4-3 Subsection (e), that firm's engineers or architects shall complete
4-4 the design, submitting all design elements for review and
4-5 determination of scope compliance by the municipality's engineer or
4-6 architect before or concurrently with construction.
4-7 (g) An engineer shall have responsibility for compliance
4-8 with the engineering design requirements and all other applicable
4-9 requirements of The Texas Engineering Practice Act (Article 3271a,
4-10 Vernon's Texas Civil Statutes). An architect shall have
4-11 responsibility for compliance with the requirements of Chapter 478,
4-12 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
4-13 Vernon's Texas Civil Statutes).
4-14 (h) The municipality shall provide or contract for,
4-15 independent of the design-build firm, the inspection services, the
4-16 testing of construction materials engineering, and the verification
4-17 testing services necessary for acceptance of the project by the
4-18 municipality. The municipality shall select those services for
4-19 which it contracts in accordance with Section 2254.004, Government
4-20 Code.
4-21 (i) The design-build firm shall supply a signed and sealed
4-22 set of construction documents for the project to the municipality
4-23 at the conclusion of construction.
4-24 (j) A payment or performance bond is not required for, and
4-25 may not provide coverage for, the portion of a design-build
4-26 contract under this section that includes design services only.
4-27 SECTION 2. Section 252.022(a), Local Government Code, is
5-1 amended to read as follows:
5-2 (a) This chapter does not apply to an expenditure for:
5-3 (1) a procurement made because of a public calamity
5-4 that requires the immediate appropriation of money to relieve the
5-5 necessity of the municipality's residents or to preserve the
5-6 property of the municipality;
5-7 (2) a procurement necessary to preserve or protect the
5-8 public health or safety of the municipality's residents;
5-9 (3) a procurement necessary because of unforeseen
5-10 damage to public machinery, equipment, or other property;
5-11 (4) a procurement for personal, professional, or
5-12 planning services;
5-13 (5) a procurement for work that is performed and paid
5-14 for by the day as the work progresses;
5-15 (6) a purchase of land or a right-of-way;
5-16 (7) a procurement of items that are available from
5-17 only one source, including:
5-18 (A) items that are available from only one
5-19 source because of patents, copyrights, secret processes, or natural
5-20 monopolies;
5-21 (B) films, manuscripts, or books;
5-22 (C) gas, water, and other utility services;
5-23 (D) captive replacement parts or components for
5-24 equipment;
5-25 (E) books, papers, and other library materials
5-26 for a public library that are available only from the persons
5-27 holding exclusive distribution rights to the materials; and
6-1 (F) management services provided by a nonprofit
6-2 organization to a municipal museum, park, zoo, or other facility to
6-3 which the organization has provided significant financial or other
6-4 benefits;
6-5 (8) a purchase of rare books, papers, and other
6-6 library materials for a public library;
6-7 (9) paving drainage, street widening, and other public
6-8 improvements, or related matters, if at least one-third of the cost
6-9 is to be paid by or through special assessments levied on property
6-10 that will benefit from the improvements;
6-11 (10) a public improvement project, already in
6-12 progress, authorized by the voters of the municipality, for which
6-13 there is a deficiency of funds for completing the project in
6-14 accordance with the plans and purposes authorized by the voters;
6-15 (11) a payment under a contract by which a developer
6-16 participates in the construction of a public improvement as
6-17 provided by Subchapter C, Chapter 212;
6-18 (12) personal property sold:
6-19 (A) at an auction by a state licensed
6-20 auctioneer;
6-21 (B) at a going out of business sale held in
6-22 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
6-23 (C) by a political subdivision of this state, a
6-24 state agency of this state, or an entity of the federal government;
6-25 or
6-26 (D) under an interlocal contract for cooperative
6-27 purchasing administered by a regional planning commission
7-1 established under Chapter 391;
7-2 (13) services performed by blind or severely disabled
7-3 persons;
7-4 (14) goods purchased by a municipality for subsequent
7-5 retail sale by the municipality; [or]
7-6 (15) electricity; or
7-7 (16) a contract let under a purchasing method
7-8 authorized by Section 252.051.
7-9 SECTION 3. This Act takes effect September 1, 2001. The
7-10 changes in law made by this Act apply only to a contract for which
7-11 requests for qualifications are distributed or published on or
7-12 after that date.