By Madla S.B. No. 298
77R413 JD-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to contracts for the development of transportation
1-3 projects by the Texas Department of Transportation and the Texas
1-4 Turnpike Authority division of the Texas Department of
1-5 Transportation.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 223, Transportation Code, is amended by
1-8 adding Subchapter E to read as follows:
1-9 SUBCHAPTER E. DESIGN-BUILD CONTRACTS FOR TRANSPORTATION
1-10 PROJECTS
1-11 Sec. 223.161. DEFINITIONS. In this subchapter:
1-12 (1) "Authority" means the Texas Turnpike Authority
1-13 division of the department.
1-14 (2) "Design-build contract" means a single contract
1-15 for any combination of the following:
1-16 (A) preconstruction services, including
1-17 planning, environmental review, right-of-way services, design
1-18 services, and engineering services;
1-19 (B) construction services; and
1-20 (C) post-construction services, including
1-21 operations and maintenance.
1-22 (3) "Design-build firm" means a legal entity or team
1-23 that includes:
1-24 (A) an engineer or an architect; and
2-1 (B) a builder qualified to engage in highway
2-2 construction in this state.
2-3 (4) "Transportation project" means:
2-4 (A) an improvement, addition, or extension to
2-5 the state highway system that is undertaken by the department; or
2-6 (B) a turnpike project, as defined by Section
2-7 361.001, that is undertaken by the authority.
2-8 Sec. 223.162. POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.
2-9 Notwithstanding any other law of this state, for a transportation
2-10 project that has an estimated total cost of more than $50 million,
2-11 the department or the authority may:
2-12 (1) use the design-build method in this subchapter for
2-13 the development of a transportation project; and
2-14 (2) enter into one or more design-build contracts
2-15 under this subchapter for the services of a design-build firm.
2-16 Sec. 223.163. REQUEST FOR QUALIFICATIONS. (a) The
2-17 department or the authority shall prepare a request for
2-18 qualifications that includes general information about the
2-19 transportation project, proposed location, project scope, budget,
2-20 time schedules, selection criteria, and other information that may
2-21 assist design-build firms in submitting qualifications for the
2-22 transportation project. The department or the authority shall also
2-23 prepare a request for proposals that includes more detailed
2-24 information on the project.
2-25 (b) If the preparation of the request for qualifications or
2-26 request for proposals requires engineering or architectural
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) or the practice of architecture
3-3 within the meaning of Chapter 478, Acts of the 45th Legislature,
3-4 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
3-5 Statutes), those services must be provided in accordance with the
3-6 applicable law.
3-7 Sec. 223.164. EVALUATION AND SELECTION OF DESIGN-BUILD FIRM.
3-8 (a) The department or the authority shall evaluate and select a
3-9 design-build firm in two phases.
3-10 (b) In phase one, the department or the authority shall
3-11 prepare a request for qualifications and evaluate each responding
3-12 design-build firm's experience, technical competence, and
3-13 capability to perform, the past performance of the design-build
3-14 firm and the members of that firm, and other appropriate factors
3-15 submitted by that firm, except that cost-related or price-related
3-16 evaluation factors may not be used.
3-17 (c) Each design-build firm that responds to the request for
3-18 qualifications must certify to the department or authority that
3-19 each engineer or architect who is a member of the design-build firm
3-20 was selected on the basis of demonstrated competence and
3-21 qualifications.
3-22 (d) The department or the authority may interview the
3-23 design-build firms that respond to the request for qualifications,
3-24 and if the department or authority interviews firms, the department
3-25 or authority must qualify at least two firms for phase two of the
3-26 evaluation and selection process.
3-27 (e) In phase two, the department or the authority shall
4-1 prepare a request for proposals seeking additional information
4-2 regarding demonstrated competence and qualifications,
4-3 considerations of the safety and long-term durability of the
4-4 transportation project, the feasibility of developing the project
4-5 as proposed, the ability of the offeror to meet schedules, costing
4-6 methodology, and any other factor the department or authority
4-7 considers relevant or necessary.
4-8 (f) The department or the authority may require the
4-9 design-build firms to submit detailed engineering or architectural
4-10 designs as part of the proposal and interview one or more of the
4-11 design-build firms responding to the request for proposals.
4-12 (g) The department or the authority shall rank each
4-13 responding design-build firm on the basis of the criteria in the
4-14 request for proposals and select the design-build firm submitting
4-15 the proposal that offers the best value considering price, time for
4-16 project completion, technical evaluation factors, and any other
4-17 factor described in the request for proposals.
4-18 Sec. 223.165. NEGOTIATIONS WITH SELECTED DESIGN-BUILD FIRM.
4-19 (a) The department or the authority shall first attempt to
4-20 negotiate a contract with the selected design-build firm.
4-21 (b) If the department or the authority cannot negotiate a
4-22 satisfactory contract with the selected design-build firm, it
4-23 shall:
4-24 (1) formally and in writing end negotiations with that
4-25 firm; and
4-26 (2) attempt to negotiate with the next design-build
4-27 firm in the order of the selection ranking until:
5-1 (A) a contract is entered into;
5-2 (B) negotiations with all ranked firms end; or
5-3 (C) the department or the authority determines
5-4 that it is no longer in the best interest of this state to enter
5-5 into a design-build contract for the proposed transportation
5-6 project.
5-7 Sec. 223.166. COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD
5-8 FIRM. (a) The engineers or architects of the design-build firm
5-9 with which the department or authority contracts shall complete the
5-10 design of the transportation project and submit all design elements
5-11 for review and determination of scope compliance to the department
5-12 or the authority before or concurrently with construction of the
5-13 transportation project.
5-14 (b) An engineer shall have responsibility for compliance
5-15 with the engineering design requirements and all other applicable
5-16 requirements of The Texas Engineering Practice Act (Article 3271a,
5-17 Vernon's Texas Civil Statutes).
5-18 (c) An architect shall have responsibility for compliance
5-19 with the requirements of Chapter 478, Acts of the 45th Legislature,
5-20 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
5-21 Statutes).
5-22 Sec. 223.167. INSPECTION AND TESTING SERVICES. (a) The
5-23 department or the authority shall provide or contract for,
5-24 independently of the design-build firm, any inspection services,
5-25 testing of construction materials engineering, or verification
5-26 testing services necessary for acceptance of the transportation
5-27 project.
6-1 (b) Section 2254.004, Government Code, applies to the
6-2 procurement of services contracted for under Subsection (a).
6-3 Sec. 223.168. PERFORMANCE AND PAYMENT BONDS. (a) If a fixed
6-4 contract amount or guaranteed maximum price has not been determined
6-5 when a design-build contract is awarded, the penal sums of the
6-6 performance and payment bonds or equivalent security or collateral
6-7 delivered by the design-build firm must be in an amount equal to
6-8 the transportation project budget, as specified in the request for
6-9 proposals.
6-10 (b) The design-build firm shall deliver the bonds not later
6-11 than the 10th day after the date the design-build firm executes a
6-12 contract unless the design-build firm furnishes a bid bond or other
6-13 financial security acceptable to the department or authority to
6-14 ensure that the design-build firm will furnish the required
6-15 performance and payment bonds when a guaranteed maximum price is
6-16 established.
6-17 Sec. 223.169. PAYMENT TO UNSUCCESSFUL DESIGN-BUILD FIRMS.
6-18 (a) The department or the authority shall pay an unsuccessful
6-19 design-build firm that submits a response to a request for
6-20 proposals the stipulated amount computed using the stated
6-21 methodology for any design costs incurred in preparing that
6-22 proposal.
6-23 (b) After payment of the stipulated amount, the department
6-24 or the authority owns all of the rights to reproduce, transfer,
6-25 publish, or otherwise use or make use of any design contained in
6-26 the proposal, including the technologies, techniques, methods,
6-27 processes, and information contained in the design.
7-1 (c) The methodology for computing the stipulated amount must
7-2 be stated in the request for proposals.
7-3 Sec. 223.170. DISADVANTAGED AND SMALL BUSINESSES. The
7-4 department and the authority shall:
7-5 (1) ensure that disadvantaged and small businesses
7-6 have an opportunity to participate in the performance of contracts
7-7 under this subchapter; and
7-8 (2) use the same procedures that exist for removing
7-9 barriers to participation by disadvantaged and small businesses in
7-10 other department and authority construction and design contracts.
7-11 Sec. 223.171. PROJECTS FUNDED BY FEDERAL FUNDS. If a
7-12 transportation project procured under this subchapter is funded in
7-13 whole or in part by federal funds and subject to federal
7-14 procurement laws, rules, regulations, and procedures, the
7-15 requirements of this subchapter shall be applied in a manner
7-16 consistent with the applicable federal procurement laws, rules,
7-17 regulations, and procedures.
7-18 Sec. 223.172. RULES. The department and the authority shall
7-19 each adopt rules to implement and administer this subchapter.
7-20 Sec. 223.173. PILOT PROGRAM; INTERIM STUDY; REPORTS. (a)
7-21 The use of design-build contracts by the department and the
7-22 authority under this subchapter is a pilot program.
7-23 (b) Before December 31, 2009:
7-24 (1) the department may not use design-build contracts
7-25 under this subchapter for more than 16 transportation projects; and
7-26 (2) the authority may not use design-build contracts
7-27 under this subchapter for more than 24 transportation projects.
8-1 (c) Money spent by the department or the authority for a
8-2 project under the pilot program is not included in computing the
8-3 amount required to be spent for engineering and design contracts
8-4 under Section 223.041 in any fiscal year.
8-5 (d) Not later than February 1 of each odd-numbered year, the
8-6 department and the authority shall each submit a report to the
8-7 legislature relating to the use of design-build contracts under
8-8 this subchapter during the preceding two years.
8-9 (e) In addition to submitting the reports required by
8-10 Subsection (d), the department and the authority shall each conduct
8-11 a study to examine the use of design-build contracts under this
8-12 subchapter. In conducting the study, the department and the
8-13 authority may include any aspect of design-build contracts that the
8-14 department or the authority considers appropriate. The department
8-15 and the authority shall each submit to the 79th Legislature a
8-16 written report regarding the findings of its interim study,
8-17 accompanied by any proposals for recommended legislation. The
8-18 reports must be submitted not later than February 1, 2005.
8-19 (f) Not later than February 1, 2009, the department and the
8-20 authority shall each submit a final report to the legislature
8-21 relating to the use of design-build contracts under this subchapter
8-22 as part of the review of the department in 2009 by the Sunset
8-23 Advisory Commission under Chapter 325, Government Code (Texas
8-24 Sunset Act).
8-25 (g) This section expires December 31, 2009.
8-26 SECTION 2. This Act takes effect September 1, 2001.