By Hamric                                             H.B. No. 3237
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to contracts for the development of transportation
 1-3     projects by the Texas Department of Transportation and the Texas
 1-4     Turnpike Authority division of the Texas Department of
 1-5     Transportation.
 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-7           SECTION 1. Chapter 223, Transportation Code, is amended by
 1-8     adding Subchapter E to read as follows:
 1-9          SUBCHAPTER E.  DESIGN-BUILD CONTRACTS FOR TRANSPORTATION
1-10                                  PROJECTS
1-11           Sec. 223.161.  DEFINITIONS. In this subchapter:
1-12                 (1)  "Authority" means the Texas Turnpike Authority
1-13     division of the department.
1-14                 (2)  "Design-build contract" means a single contract
1-15     for any combination of the following:
1-16                       (A)  preconstruction services, including
1-17     planning, environmental review, right-of-way services, design
1-18     services, and engineering services;
1-19                       (B)  construction services; and
1-20                       (C)  post-construction services, including
1-21     operations and maintenance.
1-22                 (3)  "Design-build firm" means a legal entity or team
1-23     that includes:
 2-1                       (A)  an engineer or an architect; and
 2-2                       (B)  a builder qualified to engage in highway
 2-3     construction in this state.
 2-4                 (4)  "Design criteria package" means a set of documents
 2-5     that provides sufficient information to permit a design-build firm
 2-6     to prepare a response to the department's or the authority's
 2-7     request for qualifications and request for proposals and includes
 2-8     the criteria for selection.  A design criteria package may include,
 2-9     as appropriate, the legal description of the site, survey
2-10     information, cost or budget requirements, time schedules, quality
2-11     assurance and quality control requirements, special material
2-12     requirements, applicable ordinances, provisions for utilities, and
2-13     any other applicable requirements.
2-14                 (5)  "Transportation project" means:
2-15                       (A)  an improvement, addition, or extension to
2-16     the state highway system that is undertaken by the department; or
2-17                       (B)  a turnpike project, as defined by Section
2-18     361.001, that is undertaken by the authority.
2-19           Sec. 223.162.  POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.
2-20     Notwithstanding any other law of this state, for a transportation
2-21     project that has an estimated total cost of more than $50 million,
2-22     the department or the authority may:
2-23                 (1)  use the design-build method in this subchapter for
2-24     the development of a transportation project; and
2-25                 (2)  enter into one or more design-build contracts
2-26     under this subchapter for the services of a design-build firm.
 3-1           Sec. 223.163.  REQUEST FOR QUALIFICATIONS. The department or
 3-2     the authority shall prepare a request for qualifications that
 3-3     includes general information about the transportation project,
 3-4     proposed location, project scope, budget, time schedules, selection
 3-5     criteria, and other information that may assist design-build firms
 3-6     in submitting qualifications for the transportation project.
 3-7           Sec. 223.164.  EVALUATION AND SELECTION OF DESIGN-BUILD FIRM.
 3-8     (a)  The department or the authority shall evaluate and select a
 3-9     design-build firm in two phases.
3-10           (b)  In phase one, the department or the authority shall
3-11     prepare a request for qualifications and evaluate each responding
3-12     design-build firm's experience, technical competence, and
3-13     capability to perform, the past performance of the design-build
3-14     firm and the members of that firm, and other appropriate factors
3-15     submitted by that firm, except that cost-related or price-related
3-16     evaluation factors may not be used.
3-17           (c)  Each design-build firm that responds to the request for
3-18     qualifications must certify to the department or authority that
3-19     each engineer or architect who is a member of the design-build firm
3-20     was selected on the basis of demonstrated competence and
3-21     qualifications in the manner required by Section 2254.004,
3-22     Government Code.
3-23           (d)  The department or the authority may interview the
3-24     design-build firms that respond to the request for qualifications,
3-25     and if the department or authority interviews firms, the department
3-26     or authority must qualify at least two but not more than four firms
 4-1     for phase two of the evaluation and selection process.
 4-2           (e)  In phase two, the department or the authority shall
 4-3     prepare and provide to qualified firms a design criteria package
 4-4     and a request for proposals seeking additional information
 4-5     regarding demonstrated competence and qualifications,
 4-6     considerations of the safety and long-term durability of the
 4-7     transportation project, the feasibility of developing the project
 4-8     as proposed, the ability of the offeror to meet schedules,
 4-9     conceptual engineering plans and designs, costing methodology, and
4-10     any other factor the department or authority considers relevant or
4-11     necessary.
4-12           (f)  The department or the authority may interview one or
4-13     more of the design-build firms responding to the request for
4-14     proposals.
4-15           (g)  The department or the authority shall rank each
4-16     responding design-build firm on the basis of the criteria in the
4-17     request for proposals and select the design-build firm submitting
4-18     the proposal that offers the best value considering price, time for
4-19     project completion, technical evaluation factors, and any other
4-20     factor described in the request for proposals.
4-21           Sec. 223.165.  NEGOTIATIONS WITH SELECTED DESIGN-BUILD FIRM.
4-22     (a)  The department or the authority shall first attempt to
4-23     negotiate a contract with the selected design-build firm.
4-24           (b)  If the department or the authority cannot negotiate a
4-25     satisfactory contract with the selected design-build firm, it
4-26     shall:
 5-1                 (1)  formally and in writing end negotiations with that
 5-2     firm; and
 5-3                 (2)  attempt to negotiate with the next design-build
 5-4     firm in the order of the selection ranking until:
 5-5                       (A)  a contract is entered into;
 5-6                       (B)  negotiations with all ranked firms end; or
 5-7                       (C)  the department or the authority determines
 5-8     that it is no longer in the best interest of this state to enter
 5-9     into a design-build contract for the proposed transportation
5-10     project.
5-11           Sec. 223.166.  COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD
5-12     FIRM. (a)  The engineers or architects of the design-build firm
5-13     with which the department or authority contracts shall complete the
5-14     design of the transportation project and submit all design elements
5-15     for review and determination of scope compliance to the department
5-16     or the authority before or concurrently with construction of the
5-17     transportation project.
5-18           (b)  An engineer shall have responsibility for compliance
5-19     with the engineering design requirements and all other applicable
5-20     requirements of The Texas Engineering Practice Act (Article 3271a,
5-21     Vernon's Texas Civil Statutes).
5-22           Sec. 223.167.  INSPECTION AND TESTING SERVICES. (a)  The
5-23     department or the authority shall provide or contract for,
5-24     independently of the design-build firm, any inspection services,
5-25     testing of construction materials, or verification testing services
5-26     necessary for acceptance of the transportation project.
 6-1           (b)  Section 2254.004, Government Code, applies to the
 6-2     procurement of services contracted for under Subsection (a).
 6-3           Sec. 223.168.  PERFORMANCE AND PAYMENT BONDS. (a)  If a fixed
 6-4     contract amount or guaranteed maximum price has not been determined
 6-5     when a design-build contract is awarded, the penal sums of the
 6-6     performance and payment bonds or equivalent security or collateral
 6-7     delivered by the design-build firm must be in an amount equal to
 6-8     the transportation project budget, as specified in the request for
 6-9     proposals.
6-10           (b)  The design-build firm shall deliver the bonds not later
6-11     than the 10th day after the date the design-build firm executes a
6-12     contract unless the design-build firm furnishes a bid bond or other
6-13     financial security acceptable to the department or authority to
6-14     ensure that the design-build firm will furnish the required
6-15     performance and payment bonds when a guaranteed maximum price is
6-16     established.
6-17           Sec. 223.169.  PAYMENT TO UNSUCCESSFUL DESIGN-BUILD FIRMS.
6-18     (a)  The department or the authority shall pay an unsuccessful
6-19     design-build firm that submits a response to a request for
6-20     proposals the stipulated amount of at least one-half of one percent
6-21     of the final contract price for any costs incurred in preparing
6-22     that proposal.
6-23           (b)  After payment of the stipulated amount, the department
6-24     or the authority may make use of any design contained in the
6-25     proposal, including the technologies, techniques, methods,
6-26     processes, and information contained in the design. The use by the
 7-1     department or the authority of any design element contained in an
 7-2     unsuccessful proposal is at the sole risk and discretion of the
 7-3     department or the authority and does not confer liability on the
 7-4     recipient of the stipulated amount under this section.
 7-5           (c)  The methodology for computing the stipulated amount must
 7-6     be stated in the request for proposals.
 7-7           Sec. 223.170.  DISADVANTAGED AND SMALL BUSINESSES. The
 7-8     department and the authority shall:
 7-9                 (1)  ensure that disadvantaged and small businesses
7-10     have an opportunity to participate in the performance of contracts
7-11     under this subchapter; and
7-12                 (2)  use the same procedures that exist for removing
7-13     barriers to participation by disadvantaged and small businesses in
7-14     other department and authority construction and design contracts.
7-15           Sec. 223.171.  PROJECTS FUNDED BY FEDERAL FUNDS. If a
7-16     transportation project procured under this subchapter is funded in
7-17     whole or in part by federal funds and subject to federal
7-18     procurement laws, rules, regulations, and procedures, the
7-19     requirements of this subchapter shall be applied in a manner
7-20     consistent with the applicable federal procurement laws, rules,
7-21     regulations, and procedures.
7-22           Sec. 223.172.  RULES. The department and the authority shall
7-23     each adopt rules to implement and administer this subchapter.
7-24           Sec. 223.173.  PILOT PROGRAM; INTERIM STUDY; REPORTS. (a)
7-25     The use of design-build contracts by the department and the
7-26     authority under this subchapter is a pilot program.
 8-1           (b)  Before December 31, 2009, the department and the
 8-2     authority may not use design-build contracts under this subchapter
 8-3     for more than 24 projects.
 8-4           (c)  Money spent by the department or the authority for a
 8-5     project under the pilot program is not included in computing the
 8-6     amount required to be spent for engineering and design contracts
 8-7     under Section 223.041 in any fiscal year.
 8-8           (d)  Not later than February 1 of each odd-numbered year, the
 8-9     department and the authority shall each submit a report to the
8-10     legislature relating to the use of design-build contracts under
8-11     this subchapter during the preceding two years.
8-12           (e)  Not later than December 1, 2008, the state auditor, the
8-13     department, and the authority shall each submit a final report to
8-14     the legislature relating to the use of design-build contracts under
8-15     this subchapter as part of the review of the department in 2009 by
8-16     the Sunset Advisory Commission under Chapter 325, Government Code
8-17     (Texas Sunset Act).
8-18           (f)  This section expires December 31, 2009.
8-19           SECTION 2.  This Act takes effect September 1, 2001.