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.