By Shapleigh S.B. No. 227
77R2296 MI-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a municipality or county to use a
1-3 design-build contract for transportation projects.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 6, Transportation Code, is
1-6 amended by adding Chapter 258 to read as follows:
1-7 CHAPTER 258. DESIGN-BUILD CONTRACTS FOR COUNTY
1-8 TRANSPORTATION PROJECTS
1-9 Sec. 258.001. DEFINITIONS. In this chapter:
1-10 (1) "Design-build contract" means a single contract
1-11 with a design-build firm for the design and construction of a
1-12 transportation project.
1-13 (2) "Design-build firm" means a partnership,
1-14 corporation, or other legal entity or team that includes an
1-15 engineer and a builder qualified to engage in the construction of a
1-16 road, bridge, or other transportation project in this state.
1-17 (3) "Design criteria package" means a set of documents
1-18 that provides sufficient information to permit a design-build firm
1-19 to prepare a response to a county's request for proposals. The
1-20 design criteria package must specify criteria the county considers
1-21 necessary to describe the project and may include, as appropriate,
1-22 the legal description of the site, survey information concerning
1-23 the site, special material requirements, material quality
1-24 standards, conceptual criteria for the project, 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, or any other
2-4 requirement, as applicable.
2-5 Sec. 258.002. AUTHORITY TO USE DESIGN-BUILD METHOD. A county
2-6 may use the design-build method for the construction or repair of a
2-7 transportation project and associated site work that has a total
2-8 projected cost of $250 million or more. In using that method and in
2-9 entering into a contract for the services of a design-build firm,
2-10 the contracting county and the design-build firm shall follow the
2-11 procedures provided by this chapter.
2-12 Sec. 258.003. DESIGNATION OF ENGINEER. (a) The county may
2-13 designate an engineer to act as its representative.
2-14 (b) If the county's engineer is not a full-time employee of
2-15 the county, any engineer designated shall be selected on the basis
2-16 of demonstrated competence and qualifications in accordance with
2-17 Subchapter A, Chapter 2254, Government Code.
2-18 Sec. 258.004. REQUEST FOR QUALIFICATIONS; DESIGN CRITERIA
2-19 PACKAGE. (a) The county shall prepare a request for qualifications
2-20 that includes general information on the project site, project
2-21 scope, budget, special systems, selection criteria, and other
2-22 information that may assist potential design-build firms in
2-23 submitting proposals for the project.
2-24 (b) The county shall also prepare a design criteria package
2-25 that includes more detailed information on the project. If the
2-26 preparation of the design criteria package requires engineering
2-27 services that constitute the practice of engineering within the
3-1 meaning of The Texas Engineering Practice Act (Article 3271a,
3-2 Vernon's Texas Civil Statutes), those services shall be provided in
3-3 accordance with that Act.
3-4 Sec. 258.005. SELECTION OF DESIGN-BUILD FIRM. (a) The
3-5 county shall evaluate proposals and select a design-build firm in
3-6 two phases.
3-7 (b) In phase one, the county shall evaluate each offeror's
3-8 experience, technical competence, and capability to perform, the
3-9 past performance of the offeror's team and members of the team, and
3-10 other appropriate factors submitted by the team or firm in response
3-11 to the request for qualifications, except that cost-related or
3-12 price-related evaluation factors are not permitted. Each offeror
3-13 must certify to the county that each engineer that is a member of
3-14 its team was selected based on demonstrated competence and
3-15 qualifications. The county shall qualify a maximum of five
3-16 potential offerors to submit additional information regarding
3-17 technical proposals, implementation, and costing methodologies in
3-18 response to a formal request for proposals based on the design
3-19 criteria package.
3-20 (c) In phase two, the county shall evaluate offerors on the
3-21 basis of demonstrated competence and qualifications, considerations
3-22 of the safety and long-term durability of the project, the
3-23 feasibility of implementing the project as proposed, the ability of
3-24 the offeror to meet schedules, costing methodology, or other
3-25 factors as appropriate. The county may not require offerors to
3-26 submit detailed engineering design as part of the proposal. The
3-27 county shall select the design-build firm that submits the proposal
4-1 offering the best value for the county.
4-2 Sec. 258.006. SUBMISSION OF DESIGN. (a) Following selection
4-3 of a design-build firm under Section 258.005, that firm's engineers
4-4 shall complete the design, submitting all design elements for
4-5 review and determination of scope compliance by the county's
4-6 engineer before or concurrently with construction.
4-7 (b) An engineer shall have responsibility for compliance
4-8 with the engineering design requirements and all other applicable
4-9 requirements of The Texas Engineering Practice Act (Article 3271a,
4-10 Vernon's Texas Civil Statutes).
4-11 Sec. 258.007. INSPECTIONS AND TESTING. The county shall
4-12 provide or contract for, independent of the design-build firm, the
4-13 inspection services, the testing of construction materials
4-14 engineering, and the verification testing services necessary for
4-15 acceptance of the project by the county. The county shall select
4-16 those services for which it contracts in accordance with Section
4-17 2254.004, Government Code.
4-18 Sec. 258.008. CONSTRUCTION DOCUMENTS. The design-build firm
4-19 shall supply a signed and sealed set of construction documents for
4-20 the project to the county at the conclusion of construction.
4-21 Sec. 258.009. NO BOND REQUIRED FOR DESIGN SERVICES. A
4-22 payment or performance bond is not required for, and may not
4-23 provide coverage for, the portion of a design-build contract under
4-24 this chapter that includes design services only.
4-25 SECTION 2. Chapter 311, Transportation Code, is amended by
4-26 adding Subchapter F to read as follows:
4-27 SUBCHAPTER F. DESIGN-BUILD CONTRACTS FOR MUNICIPAL
5-1 TRANSPORTATION PROJECTS
5-2 Sec. 311.121. DEFINITIONS. In this subchapter:
5-3 (1) "Design-build contract" means a single contract
5-4 with a design-build firm for the design and construction of a
5-5 transportation project.
5-6 (2) "Design-build firm" means a partnership,
5-7 corporation, or other legal entity or team that includes an
5-8 engineer and a builder qualified to engage in the construction of a
5-9 road, bridge, or other transportation project in this state.
5-10 (3) "Design criteria package" means a set of documents
5-11 that provides sufficient information to permit a design-build firm
5-12 to prepare a response to a municipality's request for proposals.
5-13 The design criteria package must specify criteria the municipality
5-14 considers necessary to describe the project and may include, as
5-15 appropriate, the legal description of the site, survey information
5-16 concerning the site, special material requirements, material
5-17 quality standards, conceptual criteria for the project, special
5-18 equipment requirements, cost or budget estimates, time schedules,
5-19 quality assurance and quality control requirements, site
5-20 development requirements, applicable codes and ordinances, or any
5-21 other requirement, as applicable.
5-22 Sec. 311.122. AUTHORITY TO USE DESIGN-BUILD METHOD. A
5-23 municipality may use the design-build method for the construction
5-24 or repair of a transportation project and associated site work that
5-25 has a total projected cost of $250 million or more. In using that
5-26 method and in entering into a contract for the services of a
5-27 design-build firm, the contracting municipality and the
6-1 design-build firm shall follow the procedures provided by this
6-2 subchapter.
6-3 Sec. 311.123. DESIGNATION OF ENGINEER. (a) The municipality
6-4 may designate an engineer to act as its representative.
6-5 (b) If the municipality's engineer is not a full-time
6-6 employee of the municipality, any engineer designated shall be
6-7 selected on the basis of demonstrated competence and qualifications
6-8 in accordance with Subchapter A, Chapter 2254, Government Code.
6-9 Sec. 311.124. REQUEST FOR QUALIFICATIONS; DESIGN CRITERIA
6-10 PACKAGE. (a) The municipality shall prepare a request for
6-11 qualifications that includes general information on the project
6-12 site, project scope, budget, special systems, selection criteria,
6-13 and other information that may assist potential design-build firms
6-14 in submitting proposals for the project.
6-15 (b) The municipality shall also prepare a design criteria
6-16 package that includes more detailed information on the project. If
6-17 the preparation of the design criteria package requires engineering
6-18 services that constitute the practice of engineering within the
6-19 meaning of The Texas Engineering Practice Act (Article 3271a,
6-20 Vernon's Texas Civil Statutes), those services shall be provided in
6-21 accordance with that Act.
6-22 Sec. 311.125. SELECTION OF DESIGN-BUILD FIRM. (a) The
6-23 municipality shall evaluate proposals and select a design-build
6-24 firm in two phases.
6-25 (b) In phase one, the municipality shall evaluate each
6-26 offeror's experience, technical competence, and capability to
6-27 perform, the past performance of the offeror's team and members of
7-1 the team, and other appropriate factors submitted by the team or
7-2 firm in response to the request for qualifications, except that
7-3 cost-related or price-related evaluation factors are not permitted.
7-4 Each offeror must certify to the municipality that each engineer
7-5 that is a member of its team was selected based on demonstrated
7-6 competence and qualifications. The municipality shall qualify a
7-7 maximum of five potential offerors to submit additional information
7-8 regarding technical proposals, implementation, and costing
7-9 methodologies in response to a formal request for proposals based
7-10 on the design criteria package.
7-11 (c) In phase two, the municipality shall evaluate offerors
7-12 on the basis of demonstrated competence and qualifications,
7-13 considerations of the safety and long-term durability of the
7-14 project, the feasibility of implementing the project as proposed,
7-15 the ability of the offeror to meet schedules, costing methodology,
7-16 or other factors as appropriate. The municipality may not require
7-17 offerors to submit detailed engineering design as part of the
7-18 proposal. The municipality shall select the design-build firm that
7-19 submits the proposal offering the best value for the municipality.
7-20 Sec. 311.126. SUBMISSION OF DESIGN. (a) Following selection
7-21 of a design-build firm under Section 311.125, that firm's engineers
7-22 or architects shall complete the design, submitting all design
7-23 elements for review and determination of scope compliance by the
7-24 municipality's engineer before or concurrently with construction.
7-25 (b) An engineer shall have responsibility for compliance
7-26 with the engineering design requirements and all other applicable
7-27 requirements of The Texas Engineering Practice Act (Article 3271a,
8-1 Vernon's Texas Civil Statutes).
8-2 Sec. 311.127. INSPECTIONS AND TESTING. The municipality
8-3 shall provide or contract for, independent of the design-build
8-4 firm, the inspection services, the testing of construction
8-5 materials engineering, and the verification testing services
8-6 necessary for acceptance of the project by the municipality. The
8-7 municipality shall select those services for which it contracts in
8-8 accordance with Section 2254.004, Government Code.
8-9 Sec. 311.128. CONSTRUCTION DOCUMENTS. The design-build firm
8-10 shall supply a signed and sealed set of construction documents for
8-11 the project to the municipality at the conclusion of construction.
8-12 Sec. 311.129. NO BOND REQUIRED FOR DESIGN SERVICES. A
8-13 payment or performance bond is not required for, and may not
8-14 provide coverage for, the portion of a design-build contract under
8-15 this subchapter that includes design services only.
8-16 SECTION 3. Section 252.022(a), Local Government Code, is
8-17 amended to read as follows:
8-18 (a) This chapter does not apply to an expenditure for:
8-19 (1) a procurement made because of a public calamity
8-20 that requires the immediate appropriation of money to relieve the
8-21 necessity of the municipality's residents or to preserve the
8-22 property of the municipality;
8-23 (2) a procurement necessary to preserve or protect the
8-24 public health or safety of the municipality's residents;
8-25 (3) a procurement necessary because of unforeseen
8-26 damage to public machinery, equipment, or other property;
8-27 (4) a procurement for personal, professional, or
9-1 planning services;
9-2 (5) a procurement for work that is performed and paid
9-3 for by the day as the work progresses;
9-4 (6) a purchase of land or a right-of-way;
9-5 (7) a procurement of items that are available from
9-6 only one source, including:
9-7 (A) items that are available from only one
9-8 source because of patents, copyrights, secret processes, or natural
9-9 monopolies;
9-10 (B) films, manuscripts, or books;
9-11 (C) gas, water, and other utility services;
9-12 (D) captive replacement parts or components for
9-13 equipment;
9-14 (E) books, papers, and other library materials
9-15 for a public library that are available only from the persons
9-16 holding exclusive distribution rights to the materials; and
9-17 (F) management services provided by a nonprofit
9-18 organization to a municipal museum, park, zoo, or other facility to
9-19 which the organization has provided significant financial or other
9-20 benefits;
9-21 (8) a purchase of rare books, papers, and other
9-22 library materials for a public library;
9-23 (9) paving drainage, street widening, and other public
9-24 improvements, or related matters, if at least one-third of the cost
9-25 is to be paid by or through special assessments levied on property
9-26 that will benefit from the improvements;
9-27 (10) a public improvement project, already in
10-1 progress, authorized by the voters of the municipality, for which
10-2 there is a deficiency of funds for completing the project in
10-3 accordance with the plans and purposes authorized by the voters;
10-4 (11) a payment under a contract by which a developer
10-5 participates in the construction of a public improvement as
10-6 provided by Subchapter C, Chapter 212;
10-7 (12) personal property sold:
10-8 (A) at an auction by a state licensed
10-9 auctioneer;
10-10 (B) at a going out of business sale held in
10-11 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
10-12 (C) by a political subdivision of this state,
10-13 state agency of this state, or an entity of the federal government;
10-14 or
10-15 (D) under an interlocal contract for cooperative
10-16 purchasing administered by a regional planning commission
10-17 established under Chapter 391;
10-18 (13) services performed by blind or severely disabled
10-19 persons;
10-20 (14) goods purchased by a municipality for subsequent
10-21 retail sale by the municipality; [or]
10-22 (15) electricity; or
10-23 (16) a contract made under a purchasing method
10-24 authorized by Subchapter F, Chapter 311, Transportation Code.
10-25 SECTION 4. Section 262.024(a), Local Government Code, is
10-26 amended to read as follows:
10-27 (a) A contract for the purchase of any of the following
11-1 items is exempt from the requirement established by Section 262.023
11-2 if the commissioners court by order grants the exemption:
11-3 (1) an item that must be purchased in a case of public
11-4 calamity if it is necessary to make the purchase promptly to
11-5 relieve the necessity of the citizens or to preserve the property
11-6 of the county;
11-7 (2) an item necessary to preserve or protect the
11-8 public health or safety of the residents of the county;
11-9 (3) an item necessary because of unforeseen damage to
11-10 public property;
11-11 (4) a personal or professional service;
11-12 (5) any individual work performed and paid for by the
11-13 day, as the work progresses, provided that no individual is
11-14 compensated under this subsection for more than 20 working days in
11-15 any three month period;
11-16 (6) any land or right-of-way;
11-17 (7) an item that can be obtained from only one source,
11-18 including:
11-19 (A) items for which competition is precluded
11-20 because of the existence of patents, copyrights, secret processes,
11-21 or monopolies;
11-22 (B) films, manuscripts, or books;
11-23 (C) electric power, gas, water, and other
11-24 utility services; and
11-25 (D) captive replacement parts or components for
11-26 equipment;
11-27 (8) an item of food;
12-1 (9) personal property sold:
12-2 (A) at an auction by a state licensed
12-3 auctioneer;
12-4 (B) at a going out of business sale held in
12-5 compliance with Subchapter F, Chapter 17, Business & Commerce Code;
12-6 or
12-7 (C) by a political subdivision of this state, a
12-8 state agency of this state, or an entity of the federal government;
12-9 [or]
12-10 (10) any work performed under a contract for community
12-11 and economic development made by a county under Section 381.004; or
12-12 (11) work performed or items purchased under a
12-13 contract made under Chapter 258, Transportation Code.
12-14 SECTION 5. This Act takes effect September 1, 2001. The
12-15 changes in law made by this Act apply only to a contract for which
12-16 requests for qualifications are distributed or published on or
12-17 after that date.