By Walker H.B. No. 1411
77R4363 ATP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the procurement methods a political subdivision or a
1-3 related entity may use.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 252.021(a) and (c), Local Government
1-6 Code, are amended to read as follows:
1-7 (a) Before a municipality may enter into a contract that
1-8 requires an expenditure of more than $15,000 from one or more
1-9 municipal funds, the municipality must comply with the procedure
1-10 prescribed by this subchapter [chapter] for competitive sealed
1-11 bidding or competitive sealed proposals or with a method described
1-12 by Subchapter E.
1-13 (c) A municipality may use the competitive sealed proposal
1-14 procedure [only] for high technology procurements and [or], in a
1-15 municipality with a population of 75,000 or more, for the purchase
1-16 of insurance.
1-17 SECTION 2. Section 252.022, Local Government Code, is
1-18 amended by adding Subsection (d) to read as follows:
1-19 (d) This chapter does not apply to an expenditure described
1-20 by Section 252.021(a) if the governing body of a municipality
1-21 determines that a method described by Subchapter E provides a
1-22 better value for the municipality with respect to that expenditure
1-23 than the procedures described in this chapter, and the municipality
1-24 adopts and uses a method described in that subchapter with respect
2-1 to that expenditure.
2-2 SECTION 3. Chapter 252, Local Government Code, is amended by
2-3 adding Subchapter E to read as follows:
2-4 SUBCHAPTER E. ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN
2-5 MUNICIPAL PROJECTS
2-6 Sec. 252.111. DEFINITIONS. In this subchapter:
2-7 (1) "Architect" means an individual registered as an
2-8 architect under Chapter 478, Acts of the 45th Legislature, Regular
2-9 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
2-10 (2) "Contractor" in the context of a contract for the
2-11 construction, rehabilitation, alteration, or repair of a facility
2-12 means a sole proprietorship, partnership, corporation, or other
2-13 legal entity that assumes the risk for constructing,
2-14 rehabilitating, altering, or repairing all or part of the facility
2-15 at the contracted price.
2-16 (3) "Design-build contract" means a single contract
2-17 with a design-build firm for the design and construction of a
2-18 facility.
2-19 (4) "Design-build firm" means a partnership,
2-20 corporation, or other legal entity or team that includes an
2-21 engineer or architect and builder qualified to engage in building
2-22 construction in Texas.
2-23 (5) "Design criteria package" means a set of documents
2-24 that provides sufficient information to permit a design-build firm
2-25 to prepare a response to a municipality's request for
2-26 qualifications and any additional information requested, including
2-27 criteria for selection. The design criteria package must specify
3-1 criteria the municipality considers necessary to describe the
3-2 project and may include, as appropriate, the legal description of
3-3 the site, survey information concerning the site, interior space
3-4 requirements, special material requirements, material quality
3-5 standards, conceptual criteria for the project, special equipment
3-6 requirements, cost or budget estimates, time schedules, quality
3-7 assurance and quality control requirements, site development
3-8 requirements, applicable codes and ordinances, provisions for
3-9 utilities, parking requirements, or any other requirement, as
3-10 applicable.
3-11 (6) "Engineer" means an individual registered as a
3-12 professional engineer under The Texas Engineering Practice Act
3-13 (Article 3271a, Vernon's Texas Civil Statutes).
3-14 (7) "Facility" means a building or structure intended
3-15 primarily for human habitation and office use, the design and
3-16 construction of which is governed by accepted building codes. The
3-17 term does not include highways, roads, streets, bridges, utilities,
3-18 water supply projects, water plants, wastewater plants, water and
3-19 wastewater distribution or conveyance facilities, wharves, docks,
3-20 electric generation or distribution facilities, drainage projects,
3-21 or related types of projects associated with civil engineering
3-22 construction.
3-23 (8) "Fee" in the context of a contract for the
3-24 construction, rehabilitation, alteration, or repair of a facility
3-25 means the payment a construction manager receives for its overhead
3-26 and profit in performing its services.
3-27 (9) "General conditions" in the context of a contract
4-1 for the construction, rehabilitation, alteration, or repair of a
4-2 facility means on-site management, administrative personnel,
4-3 insurance, bonds, equipment, utilities, and incidental work,
4-4 including minor field labor and materials.
4-5 Sec. 252.112. APPLICABILITY; OTHER LAW. (a) Any provision
4-6 in the charter of a home-rule municipality that requires the use of
4-7 competitive bidding or competitive sealed proposals or that
4-8 prescribes procurement procedures and that is in conflict with this
4-9 subchapter controls over this subchapter unless the governing body
4-10 of the municipality elects to have this subchapter supersede the
4-11 charter.
4-12 (b) The purchasing requirements of Section 361.426, Health
4-13 and Safety Code, apply to purchases by a municipality made under
4-14 this subchapter.
4-15 (c) Except as provided by this section, to the extent of any
4-16 conflict, this subchapter prevails over any other law relating to
4-17 the purchasing of goods and services except a law relating to
4-18 contracting with historically underutilized businesses.
4-19 Sec. 252.113. PROCUREMENT PROCEDURES. (a) In entering into
4-20 a contract for the construction of a facility, a municipality may
4-21 use any of the following methods that provides the best value for
4-22 the municipality:
4-23 (1) competitive bidding;
4-24 (2) competitive sealed proposals for construction
4-25 services;
4-26 (3) a design-build contract;
4-27 (4) a contract to construct, rehabilitate, alter, or
5-1 repair facilities that involves using a construction manager; or
5-2 (5) a job order contract for the minor repair,
5-3 rehabilitation, or alteration of a facility.
5-4 (b) Except as provided by this subchapter, in determining to
5-5 whom to award a contract, the municipality may consider:
5-6 (1) the purchase price;
5-7 (2) the reputation of the vendor and of the vendor's
5-8 goods or services;
5-9 (3) the quality of the vendor's goods or services;
5-10 (4) the extent to which the goods or services meet the
5-11 municipality's needs;
5-12 (5) the vendor's past relationship with the
5-13 municipality;
5-14 (6) the impact on the ability of the municipality to
5-15 comply with rules relating to historically underutilized
5-16 businesses;
5-17 (7) the total long-term cost to the municipality to
5-18 acquire the vendor's goods or services; and
5-19 (8) any other relevant factor that a private business
5-20 entity would consider in selecting a vendor.
5-21 Sec. 252.114. EVALUATION OF BIDS AND PROPOSALS FOR
5-22 CONSTRUCTION SERVICES. (a) The governing body of a municipality
5-23 that is considering a construction contract using a method
5-24 specified by Section 252.113(a) other than competitive bidding
5-25 must, before advertising, determine which method provides the best
5-26 value for the municipality.
5-27 (b) The municipality shall base its selection among offerors
6-1 on criteria authorized to be used under Section 252.113(b). The
6-2 municipality shall publish in the request for bids, proposals, or
6-3 qualifications the criteria that will be used to evaluate the
6-4 offerors and the relative weights, if known at the time of
6-5 publication, given to the criteria.
6-6 (c) The municipality shall document the basis of its
6-7 selection and shall make the evaluations public not later than the
6-8 seventh day after the date the contract is awarded.
6-9 Sec. 252.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
6-10 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
6-11 by other law and to the extent consistent with this subchapter, a
6-12 municipality may use competitive bidding to select a contractor to
6-13 perform construction, rehabilitation, alteration, or repair
6-14 services for a facility.
6-15 (b) Except as otherwise specifically provided by this
6-16 subsection, Subchapter B, Chapter 271, does not apply to a
6-17 competitive bidding process under this section. Sections 271.026,
6-18 271.027(a), and 271.0275 apply to a competitive bidding process
6-19 under this section.
6-20 (c) A municipality shall award a competitively bid contract
6-21 at the bid amount to the bidder offering the best value to the
6-22 municipality according to the selection criteria that were
6-23 established by the municipality. The selection criteria may
6-24 include the factors listed in Section 252.113(b).
6-25 Sec. 252.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
6-26 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
6-27 contractor for construction, rehabilitation, alteration, or repair
7-1 services for a facility through competitive sealed proposals, a
7-2 municipality shall follow the procedures prescribed by this
7-3 section.
7-4 (b) The municipality shall select or designate an engineer
7-5 or architect to prepare construction documents for the project.
7-6 The selected or designated engineer or architect has full
7-7 responsibility for complying with The Texas Engineering Practice
7-8 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
7-9 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
7-10 Vernon's Texas Civil Statutes), as applicable. If the engineer or
7-11 architect is not a full-time employee of the municipality, the
7-12 municipality shall select the engineer or architect on the basis of
7-13 demonstrated competence and qualifications as provided by Section
7-14 2254.004, Government Code.
7-15 (c) The municipality shall provide or contract for,
7-16 independently of the contractor, the inspection services, the
7-17 testing of construction materials engineering, and the verification
7-18 testing services necessary for acceptance of the facility by the
7-19 municipality. The municipality shall select those services for
7-20 which it contracts in accordance with Section 2254.004, Government
7-21 Code, and shall identify them in the request for proposals.
7-22 (d) The municipality shall prepare a request for competitive
7-23 sealed proposals that includes construction documents, selection
7-24 criteria, estimated budget, project scope, schedule, and other
7-25 information that contractors may require to respond to the request.
7-26 The municipality shall state in the request for proposals the
7-27 selection criteria that will be used in selecting the successful
8-1 offeror.
8-2 (e) The municipality shall receive, publicly open, and read
8-3 aloud the names of the offerors and, if any are required to be
8-4 stated, all prices stated in each proposal. Not later than the
8-5 45th day after the date of opening the proposals, the municipality
8-6 shall evaluate and rank each proposal submitted in relation to the
8-7 published selection criteria.
8-8 (f) The municipality shall select the offeror that offers
8-9 the best value for the municipality based on the published
8-10 selection criteria and on its ranking evaluation. The municipality
8-11 shall first attempt to negotiate a contract with the selected
8-12 offeror. The municipality and its engineer or architect may
8-13 discuss with the selected offeror options for a scope or time
8-14 modification and any price change associated with the modification.
8-15 If the municipality is unable to negotiate a contract with the
8-16 selected offeror, the municipality shall, formally and in writing,
8-17 end negotiations with that offeror and proceed to the next offeror
8-18 in the order of the selection ranking until a contract is reached
8-19 or all proposals are rejected.
8-20 (g) In determining best value for the municipality, the
8-21 municipality is not restricted to considering price alone, but may
8-22 consider any other factor stated in the selection criteria.
8-23 Sec. 252.117. CONTRACTS FOR FACILITIES: CONSTRUCTION
8-24 MANAGER-AGENT. (a) A municipality may use the construction
8-25 manager-agent method for the construction, rehabilitation,
8-26 alteration, or repair of a facility. In using that method and in
8-27 entering into a contract for the services of a construction
9-1 manager-agent, a municipality shall follow the procedures
9-2 prescribed by this section.
9-3 (b) A construction manager-agent is a sole proprietorship,
9-4 partnership, corporation, or other legal entity that provides
9-5 consultation to the municipality regarding construction,
9-6 rehabilitation, alteration, or repair of the facility. A
9-7 municipality using the construction manager-agent method may, under
9-8 the contract between the municipality and the construction
9-9 manager-agent, require the construction manager-agent to provide
9-10 administrative personnel, equipment necessary to perform duties
9-11 under this section, and on-site management and other services
9-12 specified in the contract. A construction manager-agent represents
9-13 the municipality in a fiduciary capacity.
9-14 (c) Before or concurrently with selecting a construction
9-15 manager-agent, the municipality shall select or designate an
9-16 engineer or architect who shall prepare the construction documents
9-17 for the project and who has full responsibility for complying with
9-18 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
9-19 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
9-20 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
9-21 Statutes), as applicable. If the engineer or architect is not a
9-22 full-time employee of the municipality, the municipality shall
9-23 select the engineer or architect on the basis of demonstrated
9-24 competence and qualifications as provided by Section 2254.004,
9-25 Government Code. The municipality's engineer or architect may not
9-26 serve, alone or in combination with another person, as the
9-27 construction manager-agent unless the engineer or architect is
10-1 hired to serve as the construction manager-agent under a separate
10-2 or concurrent procurement conducted in accordance with this
10-3 subchapter. This subsection does not prohibit the municipality's
10-4 engineer or architect from providing customary construction phase
10-5 services under the engineer's or architect's original professional
10-6 service agreement in accordance with applicable licensing laws.
10-7 (d) A municipality shall select a construction manager-agent
10-8 on the basis of demonstrated competence and qualifications in the
10-9 same manner as provided for the selection of engineers or
10-10 architects under Section 2254.004, Government Code.
10-11 (e) A municipality using the construction manager-agent
10-12 method shall procure, in accordance with applicable law, a general
10-13 contractor, trade contractors, or subcontractors who will serve as
10-14 the prime contractor for their specific portion of the work.
10-15 (f) The municipality or the construction manager-agent shall
10-16 procure in accordance with Section 2254.004, Government Code, all
10-17 of the testing of construction materials engineering, the
10-18 inspection services, and the verification testing services
10-19 necessary for acceptance of the facility by the municipality.
10-20 Sec. 252.118. CONTRACTS FOR FACILITIES: CONSTRUCTION
10-21 MANAGER-AT-RISK. (a) A municipality may use the construction
10-22 manager-at-risk method for the construction, rehabilitation,
10-23 alteration, or repair of a facility. In using that method and in
10-24 entering into a contract for the services of a construction
10-25 manager-at-risk, a municipality shall follow the procedures
10-26 prescribed by this section.
10-27 (b) A construction manager-at-risk is a sole proprietorship,
11-1 partnership, corporation, or other legal entity that assumes the
11-2 risk for construction, rehabilitation, alteration, or repair of a
11-3 facility at the contracted price as a general contractor and
11-4 provides consultation to the municipality regarding construction
11-5 during and after the design of the facility.
11-6 (c) Before or concurrently with selecting a construction
11-7 manager-at-risk, the municipality shall select or designate an
11-8 engineer or architect who shall prepare the construction documents
11-9 for the project and who has full responsibility for complying with
11-10 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
11-11 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
11-12 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
11-13 Statutes), as applicable. If the engineer or architect is not a
11-14 full-time employee of the municipality, the municipality shall
11-15 select the engineer or architect on the basis of demonstrated
11-16 competence and qualifications as provided by Section 2254.004,
11-17 Government Code. The municipality's engineer, architect, or
11-18 construction manager-agent for a project may not serve, alone or in
11-19 combination with another, as the construction manager-at-risk
11-20 unless the engineer or architect is hired to serve as the
11-21 construction manager-at-risk under a separate or concurrent
11-22 procurement conducted in accordance with this subchapter.
11-23 (d) The municipality shall provide or contract for,
11-24 independently of the construction manager-at-risk, the inspection
11-25 services, the testing of construction materials engineering, and
11-26 the verification testing services necessary for acceptance of the
11-27 facility by the municipality. The municipality shall select those
12-1 services for which it contracts in accordance with Section
12-2 2254.004, Government Code.
12-3 (e) The municipality shall select the construction
12-4 manager-at-risk in either a one-step or two-step process. The
12-5 municipality shall prepare a request for proposals, in the case of
12-6 a one-step process, or a request for qualifications, in the case of
12-7 a two-step process, that includes general information on the
12-8 project site, project scope, schedule, selection criteria,
12-9 estimated budget, and the time and place for receipt of proposals
12-10 or qualifications, as applicable, and other information that may
12-11 assist the municipality in its selection of a construction
12-12 manager-at-risk. The municipality shall state the selection
12-13 criteria in the request for proposals or qualifications, as
12-14 applicable. The selection criteria may include the offeror's
12-15 experience, past performance, safety record, proposed personnel and
12-16 methodology, and other appropriate factors that demonstrate the
12-17 capability of the construction manager-at-risk. If a one-step
12-18 process is used, the municipality may request, as part of the
12-19 offeror's proposal, proposed fees and prices for fulfilling the
12-20 general conditions. If a two-step process is used, the
12-21 municipality may not request fees or prices in step one. In step
12-22 two, the municipality may request that five or fewer offerors,
12-23 selected solely on the basis of qualifications, provide additional
12-24 information, including the construction manager-at-risk's proposed
12-25 fee and its price for fulfilling the general conditions.
12-26 (f) At each step, the municipality shall receive, publicly
12-27 open, and read aloud the names of the offerors. At the appropriate
13-1 step, the municipality shall also read aloud the fees and prices,
13-2 if any, stated in each proposal as the proposal is opened. Not
13-3 later than the 45th day after the date of opening the proposals,
13-4 the municipality shall evaluate and rank each proposal submitted in
13-5 relation to the criteria set forth in the request for proposals.
13-6 (g) The municipality shall select the offeror that submits
13-7 the proposal that offers the best value for the municipality based
13-8 on the published selection criteria and on its ranking evaluation.
13-9 The municipality shall first attempt to negotiate a contract with
13-10 the selected offeror. If the municipality is unable to negotiate a
13-11 satisfactory contract with the selected offeror, the municipality
13-12 shall, formally and in writing, end negotiations with that offeror
13-13 and proceed to negotiate with the next offeror in the order of the
13-14 selection ranking until a contract is reached or negotiations with
13-15 all ranked offerors end.
13-16 (h) A construction manager-at-risk shall publicly advertise,
13-17 as prescribed for a governmental entity by Section 271.025, and
13-18 receive bids or proposals from trade contractors or subcontractors
13-19 for the performance of all major elements of the work other than
13-20 the minor work that may be included in the general conditions. A
13-21 construction manager-at-risk may seek to perform portions of the
13-22 work itself if the construction manager-at-risk submits its bid or
13-23 proposal for those portions of the work in the same manner as all
13-24 other trade contractors or subcontractors and if the municipality
13-25 determines that the construction manager-at-risk's bid or proposal
13-26 provides the best value for the municipality.
13-27 (i) The construction manager-at-risk and the municipality or
14-1 its representative shall review all trade contractor or
14-2 subcontractor bids or proposals in a manner that does not disclose
14-3 the contents of the bid or proposal during the selection process to
14-4 a person not employed by the construction manager-at-risk,
14-5 engineer, architect, or municipality. All bids or proposals shall
14-6 be made public after the award of the contract or not later than
14-7 the seventh day after the date of final selection of bids or
14-8 proposals, whichever is later.
14-9 (j) If the construction manager-at-risk reviews, evaluates,
14-10 and recommends to the municipality a bid or proposal from a trade
14-11 contractor or subcontractor but the municipality requires another
14-12 bid or proposal to be accepted, the municipality shall compensate
14-13 the construction manager-at-risk by a change in price, time, or
14-14 guaranteed maximum cost for any additional cost and risk that the
14-15 construction manager-at-risk may incur because of the
14-16 municipality's requirement that another bid or proposal be
14-17 accepted.
14-18 (k) If a selected trade contractor or subcontractor defaults
14-19 in the performance of its work or fails to execute a subcontract
14-20 after being selected in accordance with this section, the
14-21 construction manager-at-risk may, without advertising, fulfill the
14-22 contract requirements itself or select a replacement trade
14-23 contractor or subcontractor to fulfill the contract requirements.
14-24 (l) If a fixed contract amount or guaranteed maximum price
14-25 has not been determined at the time the contract is awarded, the
14-26 penal sums of the performance and payment bonds delivered to the
14-27 municipality must each be in an amount equal to the project budget,
15-1 as specified in the request for qualifications. The construction
15-2 manager shall deliver the bonds not later than the 10th day after
15-3 the date the construction manager executes the contract unless the
15-4 construction manager furnishes a bid bond or other financial
15-5 security acceptable to the municipality to ensure that the
15-6 construction manager will furnish the required performance and
15-7 payment bonds when a guaranteed maximum price is established.
15-8 Sec. 252.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A
15-9 municipality may use the design-build method for the construction,
15-10 rehabilitation, alteration, or repair of a facility. In using that
15-11 method and in entering into a contract for the services of a
15-12 design-build firm, the contracting municipality and the
15-13 design-build firm shall follow the procedures provided by this
15-14 section.
15-15 (b) The municipality shall designate an engineer or
15-16 architect to act as its representative. If the municipality's
15-17 engineer or architect is not a full-time employee of the
15-18 municipality, any engineer or architect designated shall be
15-19 selected on the basis of demonstrated competence and qualifications
15-20 in accordance with Subchapter A, Chapter 2254, Government Code.
15-21 (c) The municipality shall prepare a request for
15-22 qualifications that includes general information on the project
15-23 site, project scope, budget, special systems, selection criteria,
15-24 and other information that may assist potential design-build firms
15-25 in submitting proposals for the project. The municipality shall
15-26 also prepare a design criteria package that includes more detailed
15-27 information on the project. If the preparation of the design
16-1 criteria package requires engineering or architectural services
16-2 that constitute the practice of engineering within the meaning of
16-3 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
16-4 Civil Statutes) or the practice of architecture within the meaning
16-5 of Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
16-6 (Article 249a, Vernon's Texas Civil Statutes), those services shall
16-7 be provided in accordance with the applicable law.
16-8 (d) The municipality shall evaluate statements of
16-9 qualifications and select a design-build firm in two phases:
16-10 (1) In phase one, the municipality shall prepare a
16-11 request for qualifications and evaluate each offeror's experience,
16-12 technical competence, and capability to perform, the past
16-13 performance of the offeror's team and members of the team, and
16-14 other appropriate factors submitted by the team or firm in response
16-15 to the request for qualifications, except that cost-related or
16-16 price-related evaluation factors are not permitted. Each offeror
16-17 must certify to the municipality that each engineer or architect
16-18 that is a member of its team was selected based on demonstrated
16-19 competence and qualifications. The municipality shall qualify a
16-20 maximum of five offerors to submit additional information and, if
16-21 the municipality chooses, to interview for final selection.
16-22 (2) In phase two, the municipality shall evaluate the
16-23 information submitted by the offerors on the basis of the selection
16-24 criteria stated in the request for qualifications and the results
16-25 of an interview. The municipality may request additional
16-26 information regarding demonstrated competence and qualifications,
16-27 considerations of the safety and long-term durability of the
17-1 project, the feasibility of implementing the project as proposed,
17-2 the ability of the offeror to meet schedules, costing methodology,
17-3 or other factors as appropriate. The municipality may not require
17-4 offerors to submit detailed engineering or architectural designs as
17-5 part of the proposal. The municipality shall rank each proposal
17-6 submitted on the basis of the criteria set forth in the request for
17-7 qualifications. The municipality shall select the design-build
17-8 firm that submits the proposal offering the best value for the
17-9 municipality on the basis of the published selection criteria and
17-10 on its ranking evaluations. The municipality shall first attempt
17-11 to negotiate a contract with the selected offeror. If the
17-12 municipality is unable to negotiate a satisfactory contract with
17-13 the selected offeror, the municipality shall, formally and in
17-14 writing, end negotiations with that offeror and proceed to
17-15 negotiate with the next offeror in the order of the selection
17-16 ranking until a contract is reached or negotiations with all ranked
17-17 offerors end.
17-18 (e) Following selection of a design-build firm under
17-19 Subsection (d), that firm's engineers or architects shall complete
17-20 the design, submitting all design elements for review and
17-21 determination of scope compliance to the municipality or the
17-22 municipality's engineer or architect before or concurrently with
17-23 construction.
17-24 (f) An engineer shall have responsibility for compliance
17-25 with the engineering design requirements and all other applicable
17-26 requirements of The Texas Engineering Practice Act (Article 3271a,
17-27 Vernon's Texas Civil Statutes). An architect shall have
18-1 responsibility for compliance with the requirements of Chapter 478,
18-2 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
18-3 Vernon's Texas Civil Statutes).
18-4 (g) The municipality shall provide or contract for,
18-5 independently of the design-build firm, the inspection services,
18-6 the testing of construction materials engineering, and the
18-7 verification testing services necessary for acceptance of the
18-8 facility by the governmental entity. The municipality shall select
18-9 those services for which it contracts in accordance with Section
18-10 2254.004, Government Code.
18-11 (h) The design-build firm shall supply a signed and sealed
18-12 set of construction documents for the project to the municipality
18-13 at the conclusion of construction.
18-14 (i) A payment or performance bond is not required for, and
18-15 may not provide coverage for, the portion of a design-build
18-16 contract under this section that includes design services only. If
18-17 a fixed contract amount or guaranteed maximum price has not been
18-18 determined at the time a design-build contract is awarded, the
18-19 penal sums of the performance and payment bonds delivered to the
18-20 municipality must each be in an amount equal to the project budget,
18-21 as specified in the design criteria package. The design-build firm
18-22 shall deliver the bonds not later than the 10th day after the date
18-23 the design-build firm executes the contract unless the design-build
18-24 firm furnishes a bid bond or other financial security acceptable to
18-25 the municipality to ensure that the design-build firm will furnish
18-26 the required performance and payment bonds when a guaranteed
18-27 maximum price is established.
19-1 Sec. 252.120. JOB ORDER CONTRACTS FOR FACILITIES
19-2 CONSTRUCTION OR REPAIR. (a) A municipality may award job order
19-3 contracts for the minor construction, repair, rehabilitation, or
19-4 alteration of a facility if the work is of a recurring nature but
19-5 the delivery times are indefinite and indefinite quantities and
19-6 orders are awarded substantially on the basis of predescribed and
19-7 prepriced tasks.
19-8 (b) The municipality may establish contractual unit prices
19-9 for a job order contract by:
19-10 (1) specifying one or more published construction unit
19-11 price books and the applicable divisions or line items; or
19-12 (2) providing a list of work items and requiring the
19-13 offerors to bid or propose one or more coefficients or multipliers
19-14 to be applied to the price book or work items as the price
19-15 proposal.
19-16 (c) The municipality shall advertise for, receive, and
19-17 publicly open sealed proposals for job order contracts.
19-18 (d) The municipality may require offerors to submit
19-19 additional information besides rates, including experience, past
19-20 performance, and proposed personnel and methodology.
19-21 (e) The municipality may award job order contracts to one or
19-22 more job order contractors in connection with each solicitation of
19-23 bids or proposals.
19-24 (f) An order for a job or project under the job order
19-25 contract must be signed by the municipality's representative and
19-26 the contractor. The order may be a fixed price, lump-sum contract
19-27 based substantially on contractual unit pricing applied to
20-1 estimated quantities or may be a unit price order based on the
20-2 quantities and line times delivered.
20-3 (g) The contractor shall provide payment and performance
20-4 bonds, if required by law, based on the amount or estimated amount
20-5 of any order.
20-6 (h) The base term of a job order contract is for the period
20-7 and with any renewal options that the municipality sets forth in
20-8 the request for proposals. If the municipality fails to advertise
20-9 that term, the base term may not exceed two years and is not
20-10 renewable without further advertisement and solicitation of
20-11 proposals.
20-12 (i) If a job order contract or an order issued under the
20-13 contract requires engineering or architectural services that
20-14 constitute the practice of engineering within the meaning of The
20-15 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
20-16 Statutes) or the practice of architecture within the meaning of
20-17 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
20-18 (Article 249a, Vernon's Texas Civil Statutes), those services shall
20-19 be provided in accordance with applicable law.
20-20 SECTION 4. Section 2254.002(1), Government Code, is amended
20-21 to read as follows:
20-22 (1) "Governmental entity" means:
20-23 (A) a state agency or department;
20-24 (B) a district, authority, county, municipality,
20-25 or other political subdivision of the state; [or]
20-26 (C) a local government corporation or another
20-27 entity created by or acting on behalf of a political subdivision;
21-1 or
21-2 (D) a publicly owned utility.
21-3 SECTION 5. The changes in law made by this Act apply only to
21-4 a contract for which requests for bids, requests for proposals, or
21-5 requests for qualifications are published or distributed after
21-6 September 1, 2001.
21-7 SECTION 6. This Act takes effect September 1, 2001.