1-1     By:  Madla                                             S.B. No. 110
 1-2           (In the Senate - Filed November 15, 2000; January 11, 2001,
 1-3     read first time and referred to Committee on Criminal Justice;
 1-4     April 30, 2001, reported favorably by the following vote:  Yeas 5,
 1-5     Nays 0, 1 present, not voting; April 30, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to use of the design-build method for construction or
 1-9     repair projects by the Texas Department of Criminal Justice.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Subchapter B, Chapter 495, Government Code, is
1-12     amended by adding Section 495.025 to read as follows:
1-13           Sec. 495.025.  DESIGN-BUILD CONTRACTS FOR FACILITIES.
1-14     (a)  In this section:
1-15                 (1)  "Architect" means an individual registered as an
1-16     architect under Chapter 478, Acts of the 45th Legislature, Regular
1-17     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
1-18                 (2)  "Contractor" in the context of a contract for the
1-19     construction, rehabilitation, alteration, or repair of a facility
1-20     means a sole proprietorship, partnership, corporation, or other
1-21     legal entity that assumes the risk for constructing,
1-22     rehabilitating, altering, or repairing all or part of the facility
1-23     at the contracted price.
1-24                 (3)  "Design-build contract" means a single contract
1-25     with a design-build firm for the design and construction of a
1-26     facility.
1-27                 (4)  "Design-build firm" means a partnership,
1-28     corporation, or other legal entity or team that includes an
1-29     engineer or architect and builder qualified to engage in building
1-30     construction in Texas.
1-31                 (5)  "Design criteria package" means a set of documents
1-32     that provides sufficient information to permit a design-build firm
1-33     to prepare a response to the department's request for
1-34     qualifications and any additional information requested, including
1-35     criteria for selection.  The design criteria package must specify
1-36     criteria the department considers necessary to describe the project
1-37     and may include, as appropriate, the legal description of the site,
1-38     survey information concerning the site, interior space
1-39     requirements, special material requirements, material quality
1-40     standards, conceptual criteria for the project, special equipment
1-41     requirements, cost or budget estimates, time schedules, quality
1-42     assurance and quality control requirements, site development
1-43     requirements, applicable codes and ordinances, provisions for
1-44     utilities, parking requirements, or any other requirement, as
1-45     applicable.
1-46                 (6)  "Engineer" means an individual registered as a
1-47     professional engineer under The Texas Engineering Practice Act
1-48     (Article 3271a, Vernon's Texas Civil Statutes).
1-49                 (7)  "Facility" means real property, including
1-50     buildings and associated structures, infrastructure, and improved
1-51     or unimproved land.
1-52           (b)  The department may use the design-build method for the
1-53     construction, rehabilitation, alteration, or repair of a facility.
1-54     In using that method and in entering into a contract for the
1-55     services of a design-build firm, the department and the
1-56     design-build firm shall follow the procedures provided by this
1-57     section.
1-58           (c)  The department may designate an engineer or architect to
1-59     act as its representative in administering this section with regard
1-60     to a project.  If the department's engineer or architect is not a
1-61     full-time employee of the department, any engineer or architect
1-62     designated shall be selected on the basis of demonstrated
1-63     competence and qualifications in accordance with Subchapter A,
1-64     Chapter 2254, Government Code.
 2-1           (d)  The department shall prepare a request for
 2-2     qualifications that includes general information on the project
 2-3     site, project scope, budget, special systems, selection criteria,
 2-4     and other information that may assist potential design-build firms
 2-5     in submitting proposals for the project.  The department shall also
 2-6     prepare a design criteria package for the project.  If the
 2-7     preparation of the design criteria package requires engineering or
 2-8     architectural services that constitute the practice of engineering
 2-9     under The Texas Engineering Practice Act (Article 3271a, Vernon's
2-10     Texas Civil Statutes) or the practice of architecture under Chapter
2-11     478, Acts of the 45th Legislature, Regular Session, 1937 (Article
2-12     249a, Vernon's Texas Civil Statutes), those services must be
2-13     provided in accordance with the applicable law.
2-14           (e)  The department shall evaluate statements of
2-15     qualifications and select a design-build firm in two phases as
2-16     provided by Subsections (f) and (g).
2-17           (f)  In phase one, the department shall prepare a request for
2-18     qualifications and evaluate each offeror's experience, technical
2-19     competence, and capability to perform, the past performance of the
2-20     offeror's team and members of the team, and other appropriate
2-21     factors submitted by the team or firm in response to the request
2-22     for qualifications, except that the department may not consider
2-23     cost-related or price-related evaluation factors.  Each offeror
2-24     must certify to the department that each engineer or architect that
2-25     is a member of its team was selected based on demonstrated
2-26     competence and qualifications.  The department shall qualify not
2-27     more than five offerors to submit additional information and, if
2-28     the department chooses, to interview for final selection.
2-29           (g)  In phase two, the department shall evaluate the
2-30     information submitted by the offerors on the basis of the selection
2-31     criteria stated in the request for qualifications and the results
2-32     of any interview.  The department may request additional
2-33     information regarding demonstrated competence and qualifications,
2-34     considerations of the safety and long-term durability of the
2-35     project, the feasibility of implementing the project as proposed,
2-36     the ability of the offeror to meet schedules, costing methodology,
2-37     or other factors as appropriate.  The department may not require
2-38     offerors to submit detailed engineering or architectural designs as
2-39     part of the proposal.  The department shall rank each proposal
2-40     submitted on the basis of the criteria set forth in the request for
2-41     qualifications.  The department shall select the design-build firm
2-42     that submits the proposal offering the best value for the
2-43     department on the basis of the published selection criteria and on
2-44     its ranking evaluations.  The department shall first attempt to
2-45     negotiate a contract with the selected offeror.  If the department
2-46     is unable to negotiate a satisfactory contract with the selected
2-47     offeror, the department shall formally and in writing end
2-48     negotiations with that offeror and proceed to negotiate with the
2-49     next offeror in the order of the selection ranking until a contract
2-50     is entered into or negotiations with all ranked offerors end.
2-51           (h)  Following selection of a design-build firm under
2-52     Subsection (g), the firm's engineers or architects shall complete
2-53     the design, submitting all design elements for review and
2-54     determination of scope compliance to the department or the
2-55     department's engineer or architect before or concurrently with
2-56     construction.
2-57           (i)  In carrying out a project under a design-build contract:
2-58                 (1)  an engineer must be assigned responsibility for
2-59     compliance with the engineering design requirements and all other
2-60     applicable requirements of The Texas Engineering Practice Act
2-61     (Article 3271a, Vernon's Texas Civil Statutes); and
2-62                 (2)  an architect must be assigned responsibility for
2-63     compliance with the requirements of Chapter 478, Acts of the 45th
2-64     Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
2-65     Civil Statutes).
2-66           (j)  The department shall provide or contract for,
2-67     independently of the design-build firm, the inspection services,
2-68     the testing of construction materials engineering, and the
2-69     verification testing services necessary for acceptance of the
 3-1     facility by the department.  The department shall select those
 3-2     services for which it contracts in accordance with Section
 3-3     2254.004, Government Code.
 3-4           (k)  The design-build firm shall supply a signed and sealed
 3-5     set of construction documents for the project to the department at
 3-6     the conclusion of construction.
 3-7           (l)  A design-build contract under this section is governed
 3-8     by Chapter 2253, Government Code, except that a payment or
 3-9     performance bond is not required for and may not provide coverage
3-10     for the portion of a design-build contract under this section that
3-11     includes design services only.  If a fixed contract amount or
3-12     guaranteed maximum price has not been determined at the time a
3-13     design-build contract is awarded, the performance bond and payment
3-14     bond must each be in an amount equal to the project budget, as
3-15     specified in the design criteria package.  The design-build firm
3-16     shall deliver the bonds to the department not later than the 10th
3-17     day after the date the design-build firm executes the contract
3-18     unless the design-build firm furnishes a bid bond or other
3-19     financial security acceptable to the department to ensure that the
3-20     design-build firm will furnish the required performance and payment
3-21     bonds when a guaranteed maximum price is established.
3-22           SECTION 2.  This Act takes effect September 1, 2001.  The
3-23     change in law made by this Act applies only to a contract for which
3-24     requests for bids, proposals, or qualifications are published or
3-25     distributed on or after that date.
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