By Truan S.B. No. 155
77R309 MI-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a municipality to use a design-build
1-3 contract for public improvement projects and facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter C, Chapter 252, Local Government Code,
1-6 is amended by adding Section 252.051 to read as follows:
1-7 Sec. 252.051. DESIGN-BUILD CONTRACTS FOR MUNICIPAL PUBLIC
1-8 IMPROVEMENT PROJECTS OR FACILITIES. (a) In this section:
1-9 (1) "Design-build contract" means a single contract
1-10 with a design-build firm for the design and construction of a
1-11 public improvement project or facility.
1-12 (2) "Design-build firm" means a partnership,
1-13 corporation, or other legal entity or team that includes an
1-14 engineer or architect and builder qualified to engage in building
1-15 construction in this state.
1-16 (3) "Design criteria package" means a set of documents
1-17 that provides sufficient information to permit a design-build firm
1-18 to prepare a response to a municipality's request for proposals.
1-19 The design criteria package must specify criteria the municipality
1-20 considers necessary to describe the project or facility and may
1-21 include, as appropriate, the legal description of the site, survey
1-22 information concerning the site, interior space requirements,
1-23 special material requirements, material quality standards,
1-24 conceptual criteria for the project or facility, special equipment
2-1 requirements, cost or budget estimates, time schedules, quality
2-2 assurance and quality control requirements, site development
2-3 requirements, applicable codes and ordinances, provisions for
2-4 utilities, parking requirements, or any other requirement, as
2-5 applicable.
2-6 (b) A municipality may use the design-build method for the
2-7 construction, rehabilitation, alteration, or repair of a public
2-8 building project and associated site work that has a total
2-9 projected cost of $50 million or more. A municipality may not use
2-10 the design-build method for a separate public road, highway bridge,
2-11 or utility project. In using that method and in entering into a
2-12 contract for the services of a design-build firm, the contracting
2-13 municipality and the design-build firm shall follow the procedures
2-14 provided by this section.
2-15 (c) The municipality may designate an engineer or architect
2-16 to act as its representative. If the municipality's engineer or
2-17 architect is not a full-time employee of the municipality, any
2-18 engineer or architect designated shall be selected on the basis of
2-19 demonstrated competence and qualifications in accordance with
2-20 Subchapter A, Chapter 2254, Government Code.
2-21 (d) The municipality shall prepare a request for
2-22 qualifications that includes general information on the project
2-23 site, project scope, budget, special systems, selection criteria,
2-24 and other information that may assist potential design-build firms
2-25 in submitting proposals for the project or facility. The
2-26 municipality shall also prepare the design criteria package that
2-27 includes more detailed information on the project or facility. If
3-1 the preparation of the design criteria package requires engineering
3-2 or architectural services that constitute the practice of
3-3 engineering within the meaning of The Texas Engineering Practice
3-4 Act (Article 3271a, Vernon's Texas Civil Statutes) or the practice
3-5 of architecture within the meaning of Chapter 478, Acts of the 45th
3-6 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
3-7 Civil Statutes), those services shall be provided in accordance
3-8 with the applicable law.
3-9 (e) The municipality shall evaluate proposals and select a
3-10 design-build firm in two phases:
3-11 (1) In phase one, the municipality shall evaluate each
3-12 offeror's experience, technical competence, and capability to
3-13 perform, the past performance of the offeror's team and members of
3-14 the team, and other appropriate factors submitted by the team or
3-15 firm in response to the request for qualifications, except that
3-16 cost-related or price-related evaluation factors are not permitted.
3-17 Each offeror must certify to the municipality that each engineer or
3-18 architect that is a member of its team was selected based on
3-19 demonstrated competence and qualifications. The municipality shall
3-20 qualify a maximum of five potential offerors to submit additional
3-21 information regarding technical proposals, implementation, and
3-22 costing methodologies in response to a formal request for proposals
3-23 based on the design criteria package.
3-24 (2) In phase two, the municipality shall evaluate
3-25 offerors on the basis of demonstrated competence and
3-26 qualifications, considerations of the safety and long-term
3-27 durability of the project, the feasibility of implementing the
4-1 project or facility as proposed, the ability of the offeror to meet
4-2 schedules, costing methodology, or other factors as appropriate.
4-3 The municipality may not require offerors to submit detailed
4-4 engineering or architectural design as part of the proposal. The
4-5 municipality shall select the design-build firm that submits the
4-6 proposal offering the best value for the municipality.
4-7 (f) Following selection of a design-build firm under
4-8 Subsection (e), that firm's engineers or architects shall complete
4-9 the design, submitting all design elements for review and
4-10 determination of scope compliance by the municipality's engineer or
4-11 architect before or concurrently with construction.
4-12 (g) An engineer shall have responsibility for compliance
4-13 with the engineering design requirements and all other applicable
4-14 requirements of The Texas Engineering Practice Act (Article 3271a,
4-15 Vernon's Texas Civil Statutes). An architect shall have
4-16 responsibility for compliance with the requirements of Chapter 478,
4-17 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
4-18 Vernon's Texas Civil Statutes).
4-19 (h) The municipality shall provide or contract for,
4-20 independent of the design-build firm, the inspection services, the
4-21 testing of construction materials engineering, and the verification
4-22 testing services necessary for acceptance of the project or
4-23 facility by the municipality. The municipality shall select those
4-24 services for which it contracts in accordance with Section
4-25 2254.004, Government Code.
4-26 (i) The design-build firm shall supply a signed and sealed
4-27 set of construction documents for the project or facility to the
5-1 municipality at the conclusion of construction.
5-2 (j) A payment or performance bond is not required for, and
5-3 may not provide coverage for, the portion of a design-build
5-4 contract under this section that includes design services only.
5-5 SECTION 2. Section 252.022(a), Local Government Code, is
5-6 amended to read as follows:
5-7 (a) This chapter does not apply to an expenditure for:
5-8 (1) a procurement made because of a public calamity
5-9 that requires the immediate appropriation of money to relieve the
5-10 necessity of the municipality's residents or to preserve the
5-11 property of the municipality;
5-12 (2) a procurement necessary to preserve or protect the
5-13 public health or safety of the municipality's residents;
5-14 (3) a procurement necessary because of unforeseen
5-15 damage to public machinery, equipment, or other property;
5-16 (4) a procurement for personal, professional, or
5-17 planning services;
5-18 (5) a procurement for work that is performed and paid
5-19 for by the day as the work progresses;
5-20 (6) a purchase of land or a right-of-way;
5-21 (7) a procurement of items that are available from
5-22 only one source, including:
5-23 (A) items that are available from only one
5-24 source because of patents, copyrights, secret processes, or natural
5-25 monopolies;
5-26 (B) films, manuscripts, or books;
5-27 (C) gas, water, and other utility services;
6-1 (D) captive replacement parts or components for
6-2 equipment;
6-3 (E) books, papers, and other library materials
6-4 for a public library that are available only from the persons
6-5 holding exclusive distribution rights to the materials; and
6-6 (F) management services provided by a nonprofit
6-7 organization to a municipal museum, park, zoo, or other facility to
6-8 which the organization has provided significant financial or other
6-9 benefits;
6-10 (8) a purchase of rare books, papers, and other
6-11 library materials for a public library;
6-12 (9) paving drainage, street widening, and other public
6-13 improvements, or related matters, if at least one-third of the cost
6-14 is to be paid by or through special assessments levied on property
6-15 that will benefit from the improvements;
6-16 (10) a public improvement project, already in
6-17 progress, authorized by the voters of the municipality, for which
6-18 there is a deficiency of funds for completing the project in
6-19 accordance with the plans and purposes authorized by the voters;
6-20 (11) a payment under a contract by which a developer
6-21 participates in the construction of a public improvement as
6-22 provided by Subchapter C, Chapter 212;
6-23 (12) personal property sold:
6-24 (A) at an auction by a state licensed
6-25 auctioneer;
6-26 (B) at a going out of business sale held in
6-27 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
7-1 (C) by a political subdivision of this state,
7-2 state agency of this state, or an entity of the federal government;
7-3 or
7-4 (D) under an interlocal contract for cooperative
7-5 purchasing administered by a regional planning commission
7-6 established under Chapter 391;
7-7 (13) services performed by blind or severely disabled
7-8 persons;
7-9 (14) goods purchased by a municipality for subsequent
7-10 retail sale by the municipality; [or]
7-11 (15) electricity; or
7-12 (16) a contract let under a purchasing method
7-13 authorized by Section 252.051.
7-14 SECTION 3. This Act takes effect September 1, 2001. The
7-15 changes in law made by this Act apply only to a contract for which
7-16 requests for qualifications are distributed or published on or
7-17 after that date.