By: Armbrister, Truan S.B. No. 510
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the procurement methods a political subdivision or a
1-3 related entity may use.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsections (a) and (c), Section 252.021, Local
1-6 Government Code, are amended to read as follows:
1-7 (a) Before a municipality may enter into a contract that
1-8 requires an expenditure of more than $15,000 from one or more
1-9 municipal funds, the municipality must comply with the procedure
1-10 prescribed by this subchapter and Subchapter C [chapter] for
1-11 competitive sealed bidding or competitive sealed proposals or with
1-12 a method described by Subchapter H, Chapter 271.
1-13 (c) A municipality may use the competitive sealed proposal
1-14 procedure [only] for high technology procurements and [or], in a
1-15 municipality with a population of 75,000 or more, for the purchase
1-16 of insurance.
1-17 SECTION 2. Section 252.022, Local Government Code, is
1-18 amended by adding Subsection (d) to read as follows:
1-19 (d) This chapter does not apply to an expenditure described
1-20 by Section 252.021(a) if the governing body of a municipality
1-21 determines that a method described by Subchapter H, Chapter 271
1-22 provides a better value for the municipality with respect to that
1-23 expenditure than the procedures described in this chapter and the
1-24 municipality adopts and uses a method described in that subchapter
1-25 with respect to that expenditure.
2-1 SECTION 3. Subsections (a) and (b), Section 262.023, Local
2-2 Government Code, are amended to read as follows:
2-3 (a) Before a county may purchase one or more items under a
2-4 contract that will require an expenditure exceeding $25,000, the
2-5 commissioners court of the county must comply with the competitive
2-6 bidding or competitive proposal procedures prescribed by this
2-7 subchapter or with a method described by Subchapter H, Chapter 271.
2-8 All bids or proposals must be sealed.
2-9 (b) The competitive bidding and competitive proposal
2-10 requirements established by Subsection (a) apply [only] to
2-11 contracts for which payment will be made from current funds or bond
2-12 funds or through time warrants. Contracts [However, contracts] for
2-13 which payments will be made through certificates of obligation are
2-14 governed by The Certificate of Obligation Act of 1971 (Subchapter
2-15 C, Chapter 271). Contracts for which payment will be made through
2-16 anticipation notes are subject to the competitive bidding
2-17 provisions of The Certificate of Obligation Act of 1971 (Subchapter
2-18 C, Chapter 271) in the same manner as certificates of obligation.
2-19 SECTION 4. Chapter 271, Local Government Code, is amended by
2-20 adding Subchapter H to read as follows:
2-21 SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR
2-22 CERTAIN MUNICIPAL AND COUNTY PROJECTS
2-23 Sec. 271.111. DEFINITIONS. In this subchapter:
2-24 (1) "Architect" means an individual registered as an
2-25 architect under Chapter 478, Acts of the 45th Legislature, Regular
2-26 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
3-1 (2) "Contractor" in the context of a contract for the
3-2 construction, rehabilitation, alteration, or repair of a facility
3-3 means a sole proprietorship, partnership, corporation, or other
3-4 legal entity that assumes the risk for constructing,
3-5 rehabilitating, altering, or repairing all or part of the facility
3-6 at the contracted price.
3-7 (3) "Design-build contract" means a single contract
3-8 with a design-build firm for the design and construction of a
3-9 facility.
3-10 (4) "Design-build firm" means a partnership,
3-11 corporation, or other legal entity or team that includes an
3-12 engineer or architect and builder qualified to engage in building
3-13 construction in Texas.
3-14 (5) "Design criteria package" means a set of documents
3-15 that provides sufficient information to permit a design-build firm
3-16 to prepare a response to a governmental entity's request for
3-17 qualifications and any additional information requested, including
3-18 criteria for selection. The design criteria package must specify
3-19 criteria the governmental entity considers necessary to describe
3-20 the project and may include, as appropriate, the legal description
3-21 of the site, survey information concerning the site, interior space
3-22 requirements, special material requirements, material quality
3-23 standards, conceptual criteria for the project, special equipment
3-24 requirements, cost or budget estimates, time schedules, quality
3-25 assurance and quality control requirements, site development
3-26 requirements, applicable codes and ordinances, provisions for
4-1 utilities, parking requirements, or any other requirement, as
4-2 applicable.
4-3 (6) "Engineer" means an individual registered as a
4-4 professional engineer under The Texas Engineering Practice Act
4-5 (Article 3271a, Vernon's Texas Civil Statutes).
4-6 (7) "Facility" means a building the design and
4-7 construction of which is governed by building codes. The term does
4-8 not include highways, roads, streets, bridges, utilities, water
4-9 supply projects, water plants, wastewater plants, water and
4-10 wastewater distribution and conveyance facilities, wharves, docks,
4-11 drainage projects, airport runways and taxiways, or related types
4-12 of projects associated with civil engineering construction. The
4-13 term also does not include buildings or structures that are
4-14 incidental to projects that are primarily civil engineering
4-15 construction projects.
4-16 (8) "Fee" in the context of a contract for the
4-17 construction, rehabilitation, alteration, or repair of a facility
4-18 means the payment a construction manager receives for its overhead
4-19 and profit in performing its services.
4-20 (9) "General conditions" in the context of a contract
4-21 for the construction, rehabilitation, alteration, or repair of a
4-22 facility means on-site management, administrative personnel,
4-23 insurance, bonds, equipment, utilities, and incidental work,
4-24 including minor field labor and materials.
4-25 (10) "Governmental entity" means a municipality or a
4-26 county.
5-1 Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision
5-2 in the charter of a home-rule municipality or any county regulation
5-3 that requires the use of competitive bidding or competitive sealed
5-4 proposals or that prescribes procurement procedures and that is in
5-5 conflict with this subchapter controls over this subchapter unless
5-6 the governing body of the municipality or county elects to have
5-7 this subchapter supersede the charter or regulation.
5-8 (b) The purchasing requirements of Section 361.426, Health
5-9 and Safety Code, apply to purchases by a governmental entity made
5-10 under this subchapter.
5-11 (c) Except as provided by this section, to the extent of any
5-12 conflict, this subchapter prevails over any other law relating to
5-13 the purchasing of goods and services except a law relating to
5-14 contracting with historically underutilized businesses.
5-15 (d) For a contract entered into under any of the methods
5-16 provided in this subchapter by a municipality, the municipality
5-17 shall publish notice of the time and place the bids or proposals,
5-18 or the responses to a request for qualifications, will be received
5-19 and opened in the county in which the municipality's central
5-20 administrative office is located, once a week for at least two
5-21 weeks before the deadline for receiving bids, proposals, or
5-22 responses. If there is not a newspaper in that county, the notice
5-23 shall be published in a newspaper in the county nearest the county
5-24 seat of the county in which the municipality's central
5-25 administrative office is located. In a two-step procurement
5-26 process, the time and place the second step bids, proposals, or
6-1 responses will be received are not required to be published
6-2 separately.
6-3 (e) For a contract entered into under any of the methods
6-4 provided in this subchapter by a county, the county shall publish
6-5 notice of the time and place the bids or proposals, or the
6-6 responses to a request for qualifications, will be received and
6-7 opened, once a week for at least two weeks before the deadline for
6-8 receiving bids, proposals, or responses. If there is not a
6-9 newspaper in the county, the notice shall be posted at the
6-10 courthouse door of the county and the notice shall be published in
6-11 a newspaper published in the nearest county.
6-12 (f) A contract entered into or an arrangement made in
6-13 violation of this subchapter is contrary to public policy and is
6-14 void. A court may enjoin performance of a contract made in
6-15 violation of this subchapter. A county attorney, a district
6-16 attorney, a criminal district attorney, a citizen of the county
6-17 which is or in which the governmental entity is located, or any
6-18 interested party may bring an action for an injunction. A party
6-19 who prevails in an action brought under this subsection is entitled
6-20 to reasonable attorney's fees as approved by the court.
6-21 Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into
6-22 a contract for the construction of a facility, a governmental
6-23 entity may use any of the following methods that provides the best
6-24 value for the governmental entity:
6-25 (1) competitive bidding;
6-26 (2) competitive sealed proposals for construction
7-1 services;
7-2 (3) a design-build contract;
7-3 (4) a contract to construct, rehabilitate, alter, or
7-4 repair facilities that involves using a construction manager; or
7-5 (5) a job order contract for the minor repair,
7-6 rehabilitation, or alteration of a facility.
7-7 (b) Except as provided by this subchapter, in determining to
7-8 whom to award a contract, the governmental entity may consider:
7-9 (1) the purchase price;
7-10 (2) the reputation of the vendor and of the vendor's
7-11 goods or services;
7-12 (3) the quality of the vendor's goods or services;
7-13 (4) the extent to which the goods or services meet the
7-14 governmental entity's needs;
7-15 (5) the vendor's past relationship with the
7-16 governmental entity;
7-17 (6) the impact on the ability of the governmental
7-18 entity to comply with rules relating to historically underutilized
7-19 businesses; and
7-20 (7) the total long-term cost to the governmental
7-21 entity to acquire the vendor's goods or services.
7-22 Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR
7-23 CONSTRUCTION SERVICES. (a) The governing body of a governmental
7-24 entity that is considering a construction contract using a method
7-25 specified by Section 271.113(a) other than competitive bidding
7-26 must, before advertising, determine which method provides the best
8-1 value for the governmental entity.
8-2 (b) The governmental entity shall base its selection among
8-3 offerors on criteria authorized to be used under Section
8-4 271.113(b). The governmental entity shall publish in the request
8-5 for bids, proposals, or qualifications all of the criteria that
8-6 will be used to evaluate the offerors and the relative weights.
8-7 (c) The governmental entity shall document the basis of its
8-8 selection and shall make the evaluations public not later than the
8-9 seventh day after the date the contract is awarded.
8-10 Sec. 271.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
8-11 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
8-12 by other law and to the extent consistent with this subchapter, a
8-13 governmental entity may use competitive bidding to select a
8-14 contractor to perform construction, rehabilitation, alteration, or
8-15 repair services for a facility.
8-16 (b) Except as otherwise specifically provided by this
8-17 subsection, Subchapter B does not apply to a competitive bidding
8-18 process under this section. Sections 271.026, 271.027(a), and
8-19 271.0275 apply to a competitive bidding process under this section.
8-20 (c) A governmental entity shall award a competitively bid
8-21 contract at the bid amount to the bidder offering the best value to
8-22 the governmental entity according to the selection criteria that
8-23 were established by the governmental entity. The selection
8-24 criteria may include the factors listed in Section 271.113(b).
8-25 Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
8-26 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
9-1 contractor for construction, rehabilitation, alteration, or repair
9-2 services for a facility through competitive sealed proposals, a
9-3 governmental entity shall follow the procedures prescribed by this
9-4 section.
9-5 (b) The governmental entity shall select or designate an
9-6 engineer or architect to prepare construction documents for the
9-7 project. The selected or designated engineer or architect has full
9-8 responsibility for complying with The Texas Engineering Practice
9-9 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
9-10 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
9-11 Vernon's Texas Civil Statutes), as applicable. If the engineer or
9-12 architect is not a full-time employee of the governmental entity,
9-13 the governmental entity shall select the engineer or architect on
9-14 the basis of demonstrated competence and qualifications as provided
9-15 by Section 2254.004, Government Code.
9-16 (c) The governmental entity shall provide or contract for,
9-17 independently of the contractor, the inspection services, the
9-18 testing of construction materials engineering, and the verification
9-19 testing services necessary for acceptance of the facility by the
9-20 governmental entity. The governmental entity shall select those
9-21 services for which it contracts in accordance with Section
9-22 2254.004, Government Code, and shall identify them in the request
9-23 for proposals.
9-24 (d) The governmental entity shall prepare a request for
9-25 competitive sealed proposals that includes construction documents,
9-26 selection criteria, estimated budget, project scope, schedule, and
10-1 other information that contractors may require to respond to the
10-2 request. The governmental entity shall state in the request for
10-3 proposals the selection criteria that will be used in selecting the
10-4 successful offeror.
10-5 (e) The governmental entity shall receive, publicly open,
10-6 and read aloud the names of the offerors and, if any are required
10-7 to be stated, all prices stated in each proposal. Not later than
10-8 the 45th day after the date of opening the proposals, the
10-9 governmental entity shall evaluate and rank each proposal submitted
10-10 in relation to the published selection criteria.
10-11 (f) The governmental entity shall select the offeror that
10-12 offers the best value for the governmental entity based on the
10-13 published selection criteria and on its ranking evaluation. The
10-14 governmental entity shall first attempt to negotiate a contract
10-15 with the selected offeror. The governmental entity and its
10-16 engineer or architect may discuss with the selected offeror options
10-17 for a scope or time modification and any price change associated
10-18 with the modification. If the governmental entity is unable to
10-19 negotiate a contract with the selected offeror, the governmental
10-20 entity shall, formally and in writing, end negotiations with that
10-21 offeror and proceed to the next offeror in the order of the
10-22 selection ranking until a contract is reached or all proposals are
10-23 rejected.
10-24 (g) In determining best value for the governmental entity,
10-25 the governmental entity is not restricted to considering price
10-26 alone, but may consider any other factor stated in the selection
11-1 criteria.
11-2 Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION
11-3 MANAGER-AGENT. (a) A governmental entity may use the construction
11-4 manager-agent method for the construction, rehabilitation,
11-5 alteration, or repair of a facility. In using that method and in
11-6 entering into a contract for the services of a construction
11-7 manager-agent, a governmental entity shall follow the procedures
11-8 prescribed by this section.
11-9 (b) A construction manager-agent is a sole proprietorship,
11-10 partnership, corporation, or other legal entity that provides
11-11 consultation to the governmental entity regarding construction,
11-12 rehabilitation, alteration, or repair of the facility. A
11-13 governmental entity using the construction manager-agent method
11-14 may, under the contract between the governmental entity and the
11-15 construction manager-agent, require the construction manager-agent
11-16 to provide administrative personnel, equipment necessary to perform
11-17 duties under this section, and on-site management and other
11-18 services specified in the contract. A construction manager-agent
11-19 represents the governmental entity in a fiduciary capacity.
11-20 (c) Before or concurrently with selecting a construction
11-21 manager-agent, the governmental entity shall select or designate an
11-22 engineer or architect who shall prepare the construction documents
11-23 for the project and who has full responsibility for complying with
11-24 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
11-25 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
11-26 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
12-1 Statutes), as applicable. If the engineer or architect is not a
12-2 full-time employee of the governmental entity, the governmental
12-3 entity shall select the engineer or architect on the basis of
12-4 demonstrated competence and qualifications as provided by Section
12-5 2254.004, Government Code. The governmental entity's engineer or
12-6 architect may not serve, alone or in combination with another
12-7 person, as the construction manager-agent unless the engineer or
12-8 architect is hired to serve as the construction manager-agent under
12-9 a separate or concurrent procurement conducted in accordance with
12-10 this subchapter. This subsection does not prohibit the
12-11 governmental entity's engineer or architect from providing
12-12 customary construction phase services under the engineer's or
12-13 architect's original professional service agreement in accordance
12-14 with applicable licensing laws.
12-15 (d) A governmental entity shall select a construction
12-16 manager-agent on the basis of demonstrated competence and
12-17 qualifications in the same manner as provided for the selection of
12-18 engineers or architects under Section 2254.004, Government Code,
12-19 except that notice must be published as provided by Section
12-20 271.112(d).
12-21 (e) A governmental entity using the construction
12-22 manager-agent method shall procure, in accordance with applicable
12-23 law, a general contractor, trade contractors, or subcontractors who
12-24 will serve as the prime contractor for their specific portion of
12-25 the work.
12-26 (f) The governmental entity or the construction
13-1 manager-agent shall procure in accordance with Section 2254.004,
13-2 Government Code, all of the testing of construction materials
13-3 engineering, the inspection services, and the verification testing
13-4 services necessary for acceptance of the facility by the
13-5 governmental entity.
13-6 Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION
13-7 MANAGER-AT-RISK. (a) A governmental entity may use the
13-8 construction manager-at-risk method for the construction,
13-9 rehabilitation, alteration, or repair of a facility. In using that
13-10 method and in entering into a contract for the services of a
13-11 construction manager-at-risk, a governmental entity shall follow
13-12 the procedures prescribed by this section.
13-13 (b) A construction manager-at-risk is a sole proprietorship,
13-14 partnership, corporation, or other legal entity that assumes the
13-15 risk for construction, rehabilitation, alteration, or repair of a
13-16 facility at the contracted price as a general contractor and
13-17 provides consultation to the governmental entity regarding
13-18 construction during and after the design of the facility.
13-19 (c) Before or concurrently with selecting a construction
13-20 manager-at-risk, the governmental entity shall select or designate
13-21 an engineer or architect who shall prepare the construction
13-22 documents for the project and who has full responsibility for
13-23 complying with The Texas Engineering Practice Act (Article 3271a,
13-24 Vernon's Texas Civil Statutes) or Chapter 478, Acts of the 45th
13-25 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
13-26 Civil Statutes), as applicable. If the engineer or architect is
14-1 not a full-time employee of the governmental entity, the
14-2 governmental entity shall select the engineer or architect on the
14-3 basis of demonstrated competence and qualifications as provided by
14-4 Section 2254.004, Government Code. The governmental entity's
14-5 engineer, architect, or construction manager-agent for a project
14-6 may not serve, alone or in combination with another, as the
14-7 construction manager-at-risk unless the engineer or architect is
14-8 hired to serve as the construction manager-at-risk under a separate
14-9 or concurrent procurement conducted in accordance with this
14-10 subchapter.
14-11 (d) The governmental entity shall provide or contract for,
14-12 independently of the construction manager-at-risk, the inspection
14-13 services, the testing of construction materials engineering, and
14-14 the verification testing services necessary for acceptance of the
14-15 facility by the governmental entity. The governmental entity shall
14-16 select those services for which it contracts in accordance with
14-17 Section 2254.004, Government Code.
14-18 (e) The governmental entity shall select the construction
14-19 manager-at-risk in either a one-step or two-step process. The
14-20 governmental entity shall prepare a request for proposals, in the
14-21 case of a one-step process, or a request for qualifications, in the
14-22 case of a two-step process, that includes general information on
14-23 the project site, project scope, schedule, selection criteria,
14-24 estimated budget, and the time and place for receipt of proposals
14-25 or qualifications, as applicable, and other information that may
14-26 assist the governmental entity in its selection of a construction
15-1 manager-at-risk. The governmental entity shall state the selection
15-2 criteria in the request for proposals or qualifications, as
15-3 applicable. The selection criteria may include the offeror's
15-4 experience, past performance, safety record, proposed personnel and
15-5 methodology, and other appropriate factors that demonstrate the
15-6 capability of the construction manager-at-risk. If a one-step
15-7 process is used, the governmental entity may request, as part of
15-8 the offeror's proposal, proposed fees and prices for fulfilling the
15-9 general conditions. If a two-step process is used, the
15-10 governmental entity may not request fees or prices in step one. In
15-11 step two, the governmental entity may request that five or fewer
15-12 offerors, selected solely on the basis of qualifications, provide
15-13 additional information, including the construction
15-14 manager-at-risk's proposed fee and its price for fulfilling the
15-15 general conditions.
15-16 (f) At each step, the governmental entity shall receive,
15-17 publicly open, and read aloud the names of the offerors. At the
15-18 appropriate step, the governmental entity shall also read aloud the
15-19 fees and prices, if any, stated in each proposal as the proposal is
15-20 opened. Not later than the 45th day after the date of opening the
15-21 proposals, the governmental entity shall evaluate and rank each
15-22 proposal submitted in relation to the criteria set forth in the
15-23 request for proposals.
15-24 (g) The governmental entity shall select the offeror that
15-25 submits the proposal that offers the best value for the
15-26 governmental entity based on the published selection criteria and
16-1 on its ranking evaluation. The governmental entity shall first
16-2 attempt to negotiate a contract with the selected offeror. If the
16-3 governmental entity is unable to negotiate a satisfactory contract
16-4 with the selected offeror, the governmental entity shall, formally
16-5 and in writing, end negotiations with that offeror and proceed to
16-6 negotiate with the next offeror in the order of the selection
16-7 ranking until a contract is reached or negotiations with all ranked
16-8 offerors end.
16-9 (h) A construction manager-at-risk shall publicly advertise,
16-10 as prescribed for a governmental entity by Section 271.025, and
16-11 receive bids or proposals from trade contractors or subcontractors
16-12 for the performance of all major elements of the work other than
16-13 the minor work that may be included in the general conditions. A
16-14 construction manager-at-risk may seek to perform portions of the
16-15 work itself if the construction manager-at-risk submits its bid or
16-16 proposal for those portions of the work in the same manner as all
16-17 other trade contractors or subcontractors and if the governmental
16-18 entity determines that the construction manager-at-risk's bid or
16-19 proposal provides the best value for the governmental entity.
16-20 (i) The construction manager-at-risk and the governmental
16-21 entity or its representative shall review all trade contractor or
16-22 subcontractor bids or proposals in a manner that does not disclose
16-23 the contents of the bid or proposal during the selection process to
16-24 a person not employed by the construction manager-at-risk,
16-25 engineer, architect, or governmental entity. All bids or proposals
16-26 shall be made public after the award of the contract or not later
17-1 than the seventh day after the date of final selection of bids or
17-2 proposals, whichever is later.
17-3 (j) If the construction manager-at-risk reviews, evaluates,
17-4 and recommends to the governmental entity a bid or proposal from a
17-5 trade contractor or subcontractor but the governmental entity
17-6 requires another bid or proposal to be accepted, the governmental
17-7 entity shall compensate the construction manager-at-risk by a
17-8 change in price, time, or guaranteed maximum cost for any
17-9 additional cost and risk that the construction manager-at-risk may
17-10 incur because of the governmental entity's requirement that another
17-11 bid or proposal be accepted.
17-12 (k) If a selected trade contractor or subcontractor defaults
17-13 in the performance of its work or fails to execute a subcontract
17-14 after being selected in accordance with this section, the
17-15 construction manager-at-risk may, without advertising, fulfill the
17-16 contract requirements itself or select a replacement trade
17-17 contractor or subcontractor to fulfill the contract requirements.
17-18 (l) If a fixed contract amount or guaranteed maximum price
17-19 has not been determined at the time the contract is awarded, the
17-20 penal sums of the performance and payment bonds delivered to the
17-21 governmental entity must each be in an amount equal to the project
17-22 budget, as specified in the request for qualifications. The
17-23 construction manager shall deliver the bonds not later than the
17-24 10th day after the date the construction manager executes the
17-25 contract unless the construction manager furnishes a bid bond or
17-26 other financial security acceptable to the governmental entity to
18-1 ensure that the construction manager will furnish the required
18-2 performance and payment bonds when a guaranteed maximum price is
18-3 established.
18-4 Sec. 271.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A
18-5 governmental entity may use the design-build method for the
18-6 construction, rehabilitation, alteration, or repair of a facility.
18-7 In using that method and in entering into a contract for the
18-8 services of a design-build firm, the contracting governmental
18-9 entity and the design-build firm shall follow the procedures
18-10 provided by this section.
18-11 (b) The governmental entity shall designate an engineer or
18-12 architect independent of the design-build firm to act as the
18-13 governmental entity's representative for the duration of the
18-14 project. If the governmental entity's engineer or architect is not
18-15 a full-time employee of the governmental entity, any engineer or
18-16 architect designated shall be selected on the basis of demonstrated
18-17 competence and qualifications in accordance with Section 2254.004,
18-18 Government Code.
18-19 (c) The governmental entity shall prepare a request for
18-20 qualifications that includes general information on the project
18-21 site, project scope, budget, special systems, selection criteria,
18-22 and other information that may assist potential design-build firms
18-23 in submitting proposals for the project. The governmental entity
18-24 shall also prepare a design criteria package that includes more
18-25 detailed information on the project. If the preparation of the
18-26 design criteria package requires engineering or architectural
19-1 services that constitute the practice of engineering within the
19-2 meaning of The Texas Engineering Practice Act (Article 3271a,
19-3 Vernon's Texas Civil Statutes) or the practice of architecture
19-4 within the meaning of Chapter 478, Acts of the 45th Legislature,
19-5 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
19-6 Statutes), those services shall be provided in accordance with the
19-7 applicable law.
19-8 (d) The governmental entity shall evaluate statements of
19-9 qualifications and select a design-build firm in two phases:
19-10 (1) In phase one, the governmental entity shall
19-11 prepare a request for qualifications and evaluate each offeror's
19-12 experience, technical competence, and capability to perform, the
19-13 past performance of the offeror's team and members of the team, and
19-14 other appropriate factors submitted by the team or firm in response
19-15 to the request for qualifications, except that cost-related or
19-16 price-related evaluation factors are not permitted. Each offeror
19-17 must certify to the governmental entity that each engineer or
19-18 architect that is a member of its team was selected based on
19-19 demonstrated competence and qualifications in the manner provided
19-20 by Section 2254.004, Government Code. The governmental entity
19-21 shall qualify a maximum of five offerors to submit additional
19-22 information and, if the governmental entity chooses, to interview
19-23 for final selection.
19-24 (2) In phase two, the governmental entity shall
19-25 evaluate the information submitted by the offerors on the basis of
19-26 the selection criteria stated in the request for qualifications and
20-1 the results of an interview. The governmental entity may request
20-2 additional information regarding demonstrated competence and
20-3 qualifications, considerations of the safety and long-term
20-4 durability of the project, the feasibility of implementing the
20-5 project as proposed, the ability of the offeror to meet schedules,
20-6 costing methodology, or other factors as appropriate. The
20-7 governmental entity may not require offerors to submit detailed
20-8 engineering or architectural designs as part of the proposal. The
20-9 governmental entity shall rank each proposal submitted on the basis
20-10 of the criteria set forth in the request for qualifications. The
20-11 governmental entity shall select the design-build firm that submits
20-12 the proposal offering the best value for the governmental entity on
20-13 the basis of the published selection criteria and on its ranking
20-14 evaluations. The governmental entity shall first attempt to
20-15 negotiate a contract with the selected offeror. If the
20-16 governmental entity is unable to negotiate a satisfactory contract
20-17 with the selected offeror, the governmental entity shall, formally
20-18 and in writing, end negotiations with that offeror and proceed to
20-19 negotiate with the next offeror in the order of the selection
20-20 ranking until a contract is reached or negotiations with all ranked
20-21 offerors end.
20-22 (e) Following selection of a design-build firm under
20-23 Subsection (d), that firm's engineers or architects shall complete
20-24 the design, submitting all design elements for review and
20-25 determination of scope compliance to the governmental entity or the
20-26 governmental entity's engineer or architect before or concurrently
21-1 with construction.
21-2 (f) An engineer shall have responsibility for compliance
21-3 with the engineering design requirements and all other applicable
21-4 requirements of The Texas Engineering Practice Act (Article 3271a,
21-5 Vernon's Texas Civil Statutes). An architect shall have
21-6 responsibility for compliance with the requirements of Chapter 478,
21-7 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
21-8 Vernon's Texas Civil Statutes).
21-9 (g) The governmental entity shall provide or contract for,
21-10 independently of the design-build firm, the inspection services,
21-11 the testing of construction materials engineering, and the
21-12 verification testing services necessary for acceptance of the
21-13 facility by the governmental entity. The governmental entity shall
21-14 select those services for which it contracts in accordance with
21-15 Section 2254.004, Government Code.
21-16 (h) The design-build firm shall supply a signed and sealed
21-17 set of construction documents for the project to the governmental
21-18 entity at the conclusion of construction.
21-19 (i) A payment or performance bond is not required for, and
21-20 may not provide coverage for, the portion of a design-build
21-21 contract under this section that includes design services only. If
21-22 a fixed contract amount or guaranteed maximum price has not been
21-23 determined at the time a design-build contract is awarded, the
21-24 penal sums of the performance and payment bonds delivered to the
21-25 governmental entity must each be in an amount equal to the project
21-26 budget, as specified in the design criteria package. The
22-1 design-build firm shall deliver the bonds not later than the 10th
22-2 day after the date the design-build firm executes the contract
22-3 unless the design-build firm furnishes a bid bond or other
22-4 financial security acceptable to the governmental entity to ensure
22-5 that the design-build firm will furnish the required performance
22-6 and payment bonds when a guaranteed maximum price is established.
22-7 Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES
22-8 CONSTRUCTION OR REPAIR. (a) A governmental entity may award job
22-9 order contracts for the minor construction, repair, rehabilitation,
22-10 or alteration of a facility if the work is of a recurring nature
22-11 but the delivery times are indefinite and indefinite quantities and
22-12 orders are awarded substantially on the basis of predescribed and
22-13 prepriced tasks.
22-14 (b) The governmental entity may establish contractual unit
22-15 prices for a job order contract by:
22-16 (1) specifying one or more published construction unit
22-17 price books and the applicable divisions or line items; or
22-18 (2) providing a list of work items and requiring the
22-19 offerors to bid or propose one or more coefficients or multipliers
22-20 to be applied to the price book or work items as the price
22-21 proposal.
22-22 (c) The governmental entity shall advertise for, receive,
22-23 and publicly open sealed proposals for job order contracts.
22-24 (d) The governmental entity may require offerors to submit
22-25 additional information besides rates, including experience, past
22-26 performance, and proposed personnel and methodology.
23-1 (e) The governmental entity may award job order contracts to
23-2 one or more job order contractors in connection with each
23-3 solicitation of bids or proposals.
23-4 (f) An order for a job or project under the job order
23-5 contract must be signed by the governmental entity's representative
23-6 and the contractor. The order may be a fixed price, lump-sum
23-7 contract based substantially on contractual unit pricing applied to
23-8 estimated quantities or may be a unit price order based on the
23-9 quantities and line times delivered.
23-10 (g) The contractor shall provide payment and performance
23-11 bonds, if required by law, based on the amount or estimated amount
23-12 of any order.
23-13 (h) The base term of a job order contract is for the period
23-14 and with any renewal options that the governmental entity sets
23-15 forth in the request for proposals. If the governmental entity
23-16 fails to advertise that term, the base term may not exceed two
23-17 years and is not renewable without further advertisement and
23-18 solicitation of proposals.
23-19 (i) If a job order contract or an order issued under the
23-20 contract requires engineering or architectural services that
23-21 constitute the practice of engineering within the meaning of The
23-22 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
23-23 Statutes) or the practice of architecture within the meaning of
23-24 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
23-25 (Article 249a, Vernon's Texas Civil Statutes), those services shall
23-26 be provided in accordance with applicable law.
24-1 Sec. 271.121. RIGHT TO WORK. Notwithstanding any other
24-2 provisions of this chapter, a governmental entity, when engaged in
24-3 procuring products or services, awarding a contract, or overseeing
24-4 procurement or construction for a public work or public
24-5 improvement, may not consider a vendor's membership or
24-6 nonmembership or other relationship with any organization and the
24-7 governmental entity shall ensure that its bid specifications and
24-8 any subsequent contract or other agreement do not deny or abridge
24-9 the right of a person to work because of membership or
24-10 nonmembership in any organization.
24-11 SECTION 5. Subdivision (1), Section 2254.002, Government
24-12 Code, is amended to read as follows:
24-13 (1) "Governmental entity" means:
24-14 (A) a state agency or department;
24-15 (B) a district, authority, county, municipality,
24-16 or other political subdivision of the state; [or]
24-17 (C) a local government corporation or another
24-18 entity created by or acting on behalf of a political subdivision;
24-19 or
24-20 (D) a publicly owned utility.
24-21 SECTION 6. The changes in law made by this Act apply only to
24-22 a contract for which requests for bids, requests for proposals, or
24-23 requests for qualifications are published or distributed on or
24-24 after September 1, 2001.
24-25 SECTION 7. This Act takes effect September 1, 2001.