By Najera H.B. No. 3605
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 use of the design-build method for construction or
1-3 repair projects by the Texas Department of Criminal Justice.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 495, Government Code, is
1-6 amended by adding Section 495.025 to read as follows:
1-7 Sec. 495.025. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
1-8 this section:
1-9 (1) "Architect" means an individual registered as an
1-10 architect under Chapter 478, Acts of the 45th Legislature, Regular
1-11 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
1-12 (2) "Contractor" in the context of a contract for the
1-13 construction, rehabilitation, alteration, or repair of a facility
1-14 means a sole proprietorship, partnership, corporation, or other
1-15 legal entity that assumes the risk for constructing,
1-16 rehabilitating, altering, or repairing all or part of the facility
1-17 at the contracted price.
1-18 (3) "Design-build contract" means a single contract
1-19 with a design-build firm for the design and construction of a
1-20 facility.
1-21 (4) "Design-build firm" means a partnership,
1-22 corporation, or other legal entity or team that includes an
1-23 engineer or architect and builder qualified to engage in building
2-1 construction in Texas.
2-2 (5) "Design criteria package" means a set of documents
2-3 that provides sufficient information to permit a design-build firm
2-4 to prepare a response to the department's request for
2-5 qualifications and any additional information requested, including
2-6 criteria for selection. The design criteria package must specify
2-7 criteria the department considers necessary to describe the project
2-8 and may include, as appropriate, the legal description of the site,
2-9 survey information concerning the site, interior space
2-10 requirements, special material requirements, material quality
2-11 standards, conceptual criteria for the project, special equipment
2-12 requirements, cost or budget estimates, time schedules, quality
2-13 assurance and quality control requirements, site development
2-14 requirements, applicable codes and ordinances, provisions for
2-15 utilities, parking requirements, or any other requirement, as
2-16 applicable.
2-17 (6) "Engineer" means an individual registered as a
2-18 professional engineer under The Texas Engineering Practice Act
2-19 (Article 3271a, Vernon's Texas Civil Statutes).
2-20 (7) "Facility" means real property, including
2-21 buildings and associated structures, infrastructure, and improved
2-22 or unimproved land.
2-23 (b) The department may use the design-build method for the
2-24 construction, rehabilitation, alteration, or repair of a facility.
2-25 In using that method and in entering into a contract for the
2-26 services of a design-build firm, the department and the
3-1 design-build firm shall follow the procedures provided by this
3-2 section.
3-3 (c) The department may designate an engineer or architect to
3-4 act as its representative in administering this section with regard
3-5 to a project. If the department's engineer or architect is not a
3-6 full-time employee of the department, any engineer or architect
3-7 designated shall be selected on the basis of demonstrated
3-8 competence and qualifications in accordance with Subchapter A,
3-9 Chapter 2254, Government Code.
3-10 (d) The department shall prepare a request for
3-11 qualifications that includes general information on the project
3-12 site, project scope, budget, special systems, selection criteria,
3-13 and other information that may assist potential design-build firms
3-14 in submitting proposals for the project. The department shall also
3-15 prepare a design criteria package for the project. If the
3-16 preparation of the design criteria package requires engineering or
3-17 architectural services that constitute the practice of engineering
3-18 under The Texas Engineering Practice Act (Article 3271a, Vernon's
3-19 Texas Civil Statutes) or the practice of architecture under Chapter
3-20 478, Acts of the 45th Legislature, Regular Session, 1937 (Article
3-21 249a, Vernon's Texas Civil Statutes), those services must be
3-22 provided in accordance with the applicable law.
3-23 (e) The department shall evaluate statements of
3-24 qualifications and select a design-build firm in two phases as
3-25 provided by Subsections (f) and (g).
3-26 (f) In phase one, the department shall prepare a request for
4-1 qualifications and evaluate each offeror's experience, technical
4-2 competence, and capability to perform, the past performance of the
4-3 offeror's team and members of the team, and other appropriate
4-4 factors submitted by the team or firm in response to the request
4-5 for qualifications, except that the department may not consider
4-6 cost-related or price-related evaluation factors. Each offeror
4-7 must certify to the department that each engineer or architect that
4-8 is a member of its team was selected based on demonstrated
4-9 competence and qualifications. The department shall qualify not
4-10 more than five offerors to submit additional information and, if
4-11 the department chooses, to interview for final selection.
4-12 (g) In phase two, the department shall evaluate the
4-13 information submitted by the offerors on the basis of the selection
4-14 criteria stated in the request for qualifications and the results
4-15 of any interview. The department may request additional
4-16 information regarding demonstrated competence and qualifications,
4-17 considerations of the safety and long-term durability of the
4-18 project, the feasibility of implementing the project as proposed,
4-19 the ability of the offeror to meet schedules, costing methodology,
4-20 or other factors as appropriate. The department may not require
4-21 offerors to submit detailed engineering or architectural designs as
4-22 part of the proposal. The department shall rank each proposal
4-23 submitted on the basis of the criteria set forth in the request for
4-24 qualifications. The department shall select the design-build firm
4-25 that submits the proposal offering the best value for the
4-26 department on the basis of the published selection criteria and on
5-1 its ranking evaluations. The department shall first attempt to
5-2 negotiate a contract with the selected offeror. If the department
5-3 is unable to negotiate a satisfactory contract with the selected
5-4 offeror, the department shall formally and in writing end
5-5 negotiations with that offeror and proceed to negotiate with the
5-6 next offeror in the order of the selection ranking until a contract
5-7 is entered into or negotiations with all ranked offerors end.
5-8 (h) Following selection of a design-build firm under
5-9 Subsection (g), the firm's engineers or architects shall complete
5-10 the design, submitting all design elements for review and
5-11 determination of scope compliance to the department or department's
5-12 engineer or architect before or concurrently with construction.
5-13 (i) In carrying out a project under a design-build contract:
5-14 (1) an engineer must be assigned responsibility for
5-15 compliance with the engineering design requirements and all other
5-16 applicable requirements of The Texas Engineering Practice Act
5-17 (Article 3271a, Vernon's Texas Civil Statutes); and
5-18 (2) an architect must be assigned responsibility for
5-19 compliance with the requirements of Chapter 478, Acts of the 45th
5-20 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
5-21 Civil Statutes).
5-22 (j) The department shall provide or contract for,
5-23 independently of the design-build firm, the inspection services,
5-24 the testing of construction materials engineering, and the
5-25 verification testing services necessary for acceptance of the
5-26 facility by the department. The department shall select those
6-1 services for which it contracts in accordance with Section
6-2 2254.004, Government Code.
6-3 (k) The design-build firm shall supply a signed and sealed
6-4 set of construction documents for the project to the department at
6-5 the conclusion of construction.
6-6 (l) A design-build contract under this section is governed
6-7 by Chapter 2253, Government Code, except that a payment or
6-8 performance bond is not required for and may not provide coverage
6-9 for the portion of a design-build contract under this section that
6-10 includes design services only. If a fixed contract amount or
6-11 guaranteed maximum price has not been determined at the time a
6-12 design-build contract is awarded, the performance bond and payment
6-13 bond must each be in an amount equal to the project budget, as
6-14 specified in the design criteria package. The design-build firm
6-15 shall deliver the bonds to the department not later than the 10th
6-16 day after the date the design-build firm executes the contract
6-17 unless the design-build firm furnishes a bid bond or other
6-18 financial security acceptable to the department to ensure that the
6-19 design-build firm will furnish the required performance and payment
6-20 bonds when a guaranteed maximum price is established.
6-21 SECTION 2. This Act takes effect September 1, 2001. The
6-22 change in law made by this Act applies only to a contract for which
6-23 requests for bids, proposals, or qualifications are published or
6-24 distributed on or after that date.