By Madla S.B. No. 110
77R443 BDH-F
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
1-24 construction in Texas.
2-1 (5) "Design criteria package" means a set of documents
2-2 that provides sufficient information to permit a design-build firm
2-3 to prepare a response to the department's request for
2-4 qualifications and any additional information requested, including
2-5 criteria for selection. The design criteria package must specify
2-6 criteria the department considers necessary to describe the project
2-7 and may include, as appropriate, the legal description of the site,
2-8 survey information concerning the site, interior space
2-9 requirements, special material requirements, material quality
2-10 standards, conceptual criteria for the project, special equipment
2-11 requirements, cost or budget estimates, time schedules, quality
2-12 assurance and quality control requirements, site development
2-13 requirements, applicable codes and ordinances, provisions for
2-14 utilities, parking requirements, or any other requirement, as
2-15 applicable.
2-16 (6) "Engineer" means an individual registered as a
2-17 professional engineer under The Texas Engineering Practice Act
2-18 (Article 3271a, Vernon's Texas Civil Statutes).
2-19 (7) "Facility" means real property, including
2-20 buildings and associated structures, infrastructure, and improved
2-21 or unimproved land.
2-22 (b) The department may use the design-build method for the
2-23 construction, rehabilitation, alteration, or repair of a facility.
2-24 In using that method and in entering into a contract for the
2-25 services of a design-build firm, the department and the
2-26 design-build firm shall follow the procedures provided by this
2-27 section.
3-1 (c) The department may designate an engineer or architect to
3-2 act as its representative in administering this section with regard
3-3 to a project. If the department's engineer or architect is not a
3-4 full-time employee of the department, any engineer or architect
3-5 designated shall be selected on the basis of demonstrated
3-6 competence and qualifications in accordance with Subchapter A,
3-7 Chapter 2254, Government Code.
3-8 (d) The department shall prepare a request for
3-9 qualifications that includes general information on the project
3-10 site, project scope, budget, special systems, selection criteria,
3-11 and other information that may assist potential design-build firms
3-12 in submitting proposals for the project. The department shall also
3-13 prepare a design criteria package for the project. If the
3-14 preparation of the design criteria package requires engineering or
3-15 architectural services that constitute the practice of engineering
3-16 under The Texas Engineering Practice Act (Article 3271a, Vernon's
3-17 Texas Civil Statutes) or the practice of architecture under Chapter
3-18 478, Acts of the 45th Legislature, Regular Session, 1937 (Article
3-19 249a, Vernon's Texas Civil Statutes), those services must be
3-20 provided in accordance with the applicable law.
3-21 (e) The department shall evaluate statements of
3-22 qualifications and select a design-build firm in two phases as
3-23 provided by Subsections (f) and (g).
3-24 (f) In phase one, the department shall prepare a request for
3-25 qualifications and evaluate each offeror's experience, technical
3-26 competence, and capability to perform, the past performance of the
3-27 offeror's team and members of the team, and other appropriate
4-1 factors submitted by the team or firm in response to the request
4-2 for qualifications, except that the department may not consider
4-3 cost-related or price-related evaluation factors. Each offeror
4-4 must certify to the department that each engineer or architect that
4-5 is a member of its team was selected based on demonstrated
4-6 competence and qualifications. The department shall qualify not
4-7 more than five offerors to submit additional information and, if
4-8 the department chooses, to interview for final selection.
4-9 (g) In phase two, the department shall evaluate the
4-10 information submitted by the offerors on the basis of the selection
4-11 criteria stated in the request for qualifications and the results
4-12 of any interview. The department may request additional
4-13 information regarding demonstrated competence and qualifications,
4-14 considerations of the safety and long-term durability of the
4-15 project, the feasibility of implementing the project as proposed,
4-16 the ability of the offeror to meet schedules, costing methodology,
4-17 or other factors as appropriate. The department may not require
4-18 offerors to submit detailed engineering or architectural designs as
4-19 part of the proposal. The department shall rank each proposal
4-20 submitted on the basis of the criteria set forth in the request for
4-21 qualifications. The department shall select the design-build firm
4-22 that submits the proposal offering the best value for the
4-23 department on the basis of the published selection criteria and on
4-24 its ranking evaluations. The department shall first attempt to
4-25 negotiate a contract with the selected offeror. If the department
4-26 is unable to negotiate a satisfactory contract with the selected
4-27 offeror, the department shall formally and in writing end
5-1 negotiations with that offeror and proceed to negotiate with the
5-2 next offeror in the order of the selection ranking until a contract
5-3 is entered into or negotiations with all ranked offerors end.
5-4 (h) Following selection of a design-build firm under
5-5 Subsection (g), the firm's engineers or architects shall complete
5-6 the design, submitting all design elements for review and
5-7 determination of scope compliance to the department or department's
5-8 engineer or architect before or concurrently with construction.
5-9 (i) In carrying out a project under a design-build contract:
5-10 (1) an engineer must be assigned responsibility for
5-11 compliance with the engineering design requirements and all other
5-12 applicable requirements of The Texas Engineering Practice Act
5-13 (Article 3271a, Vernon's Texas Civil Statutes); and
5-14 (2) an architect must be assigned responsibility for
5-15 compliance with the requirements of Chapter 478, Acts of the 45th
5-16 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
5-17 Civil Statutes).
5-18 (j) The department shall provide or contract for,
5-19 independently of the design-build firm, the inspection services,
5-20 the testing of construction materials engineering, and the
5-21 verification testing services necessary for acceptance of the
5-22 facility by the department. The department shall select those
5-23 services for which it contracts in accordance with Section
5-24 2254.004, Government Code.
5-25 (k) The design-build firm shall supply a signed and sealed
5-26 set of construction documents for the project to the department at
5-27 the conclusion of construction.
6-1 (l) A design-build contract under this section is governed
6-2 by Chapter 2253, Government Code, except that a payment or
6-3 performance bond is not required for and may not provide coverage
6-4 for the portion of a design-build contract under this section that
6-5 includes design services only. If a fixed contract amount or
6-6 guaranteed maximum price has not been determined at the time a
6-7 design-build contract is awarded, the performance bond and payment
6-8 bond must each be in an amount equal to the project budget, as
6-9 specified in the design criteria package. The design-build firm
6-10 shall deliver the bonds to the department not later than the 10th
6-11 day after the date the design-build firm executes the contract
6-12 unless the design-build firm furnishes a bid bond or other
6-13 financial security acceptable to the department to ensure that the
6-14 design-build firm will furnish the required performance and payment
6-15 bonds when a guaranteed maximum price is established.
6-16 SECTION 2. This Act takes effect September 1, 2001. The
6-17 change in law made by this Act applies only to a contract for which
6-18 requests for bids, proposals, or qualifications are published or
6-19 distributed on or after that date.