1-1 AN ACT
1-2 relating to the procurement methods a political subdivision or a
1-3 related entity or certain educational institutions 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. Section 252.043, Local Government Code, is
2-2 amended to read as follows:
2-3 Sec. 252.043. Award of Contract. (a) If the competitive
2-4 sealed bidding requirement applies to the contract for goods or
2-5 services, the contract must be awarded to the lowest responsible
2-6 bidder or to the bidder who provides goods or services at the best
2-7 value for the municipality.
2-8 (b) In determining the best value for the municipality, the
2-9 municipality may consider:
2-10 (1) the purchase price;
2-11 (2) the reputation of the bidder and of the bidder's
2-12 goods or services;
2-13 (3) the quality of the bidder's goods or services;
2-14 (4) the extent to which the goods or services meet the
2-15 municipality's needs;
2-16 (5) the bidder's past relationship with the
2-17 municipality;
2-18 (6) the impact on the ability of the municipality to
2-19 comply with laws and rules relating to contracting with
2-20 historically underutilized businesses and nonprofit organizations
2-21 employing persons with disabilities;
2-22 (7) the total long-term cost to the municipality to
2-23 acquire the bidder's goods or services; and
2-24 (8) any relevant criteria specifically listed in the
2-25 request for bids or proposals.
2-26 (c) Before awarding a contract under this section, a
3-1 municipality must indicate in the bid specifications and
3-2 requirements that the contract may be awarded either to the lowest
3-3 responsible bidder or to the bidder who provides goods or services
3-4 at the best value for the municipality.
3-5 (d) The contract must be awarded to the lowest responsible
3-6 bidder if the competitive sealed bidding requirement applies to the
3-7 contract for construction of:
3-8 (1) highways, roads, streets, bridges, utilities,
3-9 water supply projects, water plants, wastewater plants, water and
3-10 wastewater distribution or conveyance facilities, wharves, docks,
3-11 airport runways and taxiways, drainage projects, or related types
3-12 of projects associated with civil engineering construction; or
3-13 (2) buildings or structures that are incidental to
3-14 projects that are primarily civil engineering construction
3-15 projects.
3-16 (e) If the competitive sealed bidding requirement applies to
3-17 the contract for construction of a facility, as that term is
3-18 defined by Section 271.111, the contract must be awarded to the
3-19 lowest responsible bidder or awarded under the method described by
3-20 Subchapter H, Chapter 271.
3-21 (f) The governing body may reject any and all bids.
3-22 (g) A bid that has been opened may not be changed for the
3-23 purpose of correcting an error in the bid price. This chapter does
3-24 not change the common law right of a bidder to withdraw a bid due
3-25 to a material mistake in the bid.
3-26 (h) [(b)] If the competitive sealed proposals requirement
4-1 applies to the contract, the contract must be awarded to the
4-2 responsible offeror whose proposal is determined to be the most
4-3 advantageous to the municipality considering the relative
4-4 importance of price and the other evaluation factors included in
4-5 the request for proposals.
4-6 (i) This section does not apply to a contract for
4-7 professional services, as that term is defined by Section 2254.002,
4-8 Government Code.
4-9 SECTION 4. Subsections (a) and (b), Section 262.023, Local
4-10 Government Code, are amended to read as follows:
4-11 (a) Before a county may purchase one or more items under a
4-12 contract that will require an expenditure exceeding $25,000, the
4-13 commissioners court of the county must comply with the competitive
4-14 bidding or competitive proposal procedures prescribed by this
4-15 subchapter or with a method described by Subchapter H, Chapter 271.
4-16 All bids or proposals must be sealed.
4-17 (b) The competitive bidding and competitive proposal
4-18 requirements established by Subsection (a) apply [only] to
4-19 contracts for which payment will be made from current funds or bond
4-20 funds or through time warrants. Contracts [However, contracts] for
4-21 which payments will be made through certificates of obligation are
4-22 governed by The Certificate of Obligation Act of 1971 (Subchapter
4-23 C, Chapter 271). Contracts for which payment will be made through
4-24 anticipation notes are subject to the competitive bidding
4-25 provisions of The Certificate of Obligation Act of 1971 (Subchapter
4-26 C, Chapter 271) in the same manner as certificates of obligation.
5-1 SECTION 5. Chapter 271, Local Government Code, is amended by
5-2 adding Subchapter H to read as follows:
5-3 SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN
5-4 PROJECTS
5-5 Sec. 271.111. DEFINITIONS. In this subchapter:
5-6 (1) "Architect" means an individual registered as an
5-7 architect under Chapter 478, Acts of the 45th Legislature, Regular
5-8 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
5-9 (2) "Contractor" in the context of a contract for the
5-10 construction, rehabilitation, alteration, or repair of a facility
5-11 means a sole proprietorship, partnership, corporation, or other
5-12 legal entity that assumes the risk for constructing,
5-13 rehabilitating, altering, or repairing all or part of the facility
5-14 at the contracted price.
5-15 (3) "Design-build contract" means a single contract
5-16 with a design-build firm for the design and construction of a
5-17 facility.
5-18 (4) "Design-build firm" means a partnership,
5-19 corporation, or other legal entity or team that includes an
5-20 engineer or architect and builder qualified to engage in building
5-21 construction in Texas.
5-22 (5) "Design criteria package" means a set of documents
5-23 that provides sufficient information to permit a design-build firm
5-24 to prepare a response to a governmental entity's request for
5-25 qualifications and any additional information requested, including
5-26 criteria for selection. The design criteria package must specify
6-1 criteria the governmental entity considers necessary to describe
6-2 the project and may include, as appropriate, the legal description
6-3 of the site, survey information concerning the site, interior space
6-4 requirements, special material requirements, material quality
6-5 standards, conceptual criteria for the project, special equipment
6-6 requirements, cost or budget estimates, time schedules, quality
6-7 assurance and quality control requirements, site development
6-8 requirements, applicable codes and ordinances, provisions for
6-9 utilities, parking requirements, or any other requirement, as
6-10 applicable.
6-11 (6) "Engineer" means an individual registered as a
6-12 professional engineer under The Texas Engineering Practice Act
6-13 (Article 3271a, Vernon's Texas Civil Statutes).
6-14 (7) "Facility" means buildings the design and
6-15 construction of which are governed by accepted building codes. The
6-16 term does not include:
6-17 (A) highways, roads, streets, bridges,
6-18 utilities, water supply projects, water plants, wastewater plants,
6-19 water and wastewater distribution or conveyance facilities,
6-20 wharves, docks, airport runways and taxiways, drainage projects, or
6-21 related types of projects associated with civil engineering
6-22 construction; or
6-23 (B) buildings or structures that are incidental
6-24 to projects that are primarily civil engineering construction
6-25 projects.
6-26 (8) "Fee" in the context of a contract for the
7-1 construction, rehabilitation, alteration, or repair of a facility
7-2 means the payment a construction manager receives for its overhead
7-3 and profit in performing its services.
7-4 (9) "General conditions" in the context of a contract
7-5 for the construction, rehabilitation, alteration, or repair of a
7-6 facility means on-site management, administrative personnel,
7-7 insurance, bonds, equipment, utilities, and incidental work,
7-8 including minor field labor and materials.
7-9 (10) "Governmental entity" means a municipality,
7-10 county, or river authority.
7-11 Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision
7-12 in the charter of a home-rule municipality or any regulation of a
7-13 county or river authority that requires the use of competitive
7-14 bidding or competitive sealed proposals or that prescribes
7-15 procurement procedures and that is in conflict with this subchapter
7-16 controls over this subchapter unless the governing body of the
7-17 governmental entity elects to have this subchapter supersede the
7-18 charter or regulation.
7-19 (b) The purchasing requirements of Section 361.426, Health
7-20 and Safety Code, apply to purchases by a governmental entity made
7-21 under this subchapter.
7-22 (c) Except as provided by this section, to the extent of any
7-23 conflict, this subchapter prevails over any other law relating to
7-24 the purchasing of goods and services except a law relating to
7-25 contracting with historically underutilized businesses.
7-26 (d) For a contract entered into by a municipality or river
8-1 authority under any of the methods provided by this subchapter, the
8-2 municipality or river authority shall publish notice of the time
8-3 and place the bids or proposals, or the responses to a request for
8-4 qualifications, will be received and opened. The notice must be
8-5 published in a newspaper of general circulation in the county in
8-6 which the municipality's central administrative office is located
8-7 or the county in which the greatest amount of the river authority's
8-8 territory is located once each week for at least two weeks before
8-9 the deadline for receiving bids, proposals, or responses. If there
8-10 is not a newspaper of general circulation in that county, the
8-11 notice shall be published in a newspaper of general circulation in
8-12 the county nearest the county seat of the county in which the
8-13 municipality's central administrative office is located or the
8-14 county in which the greatest amount of the river authority's
8-15 territory is located. In a two-step procurement process, the time
8-16 and place the second step bids, proposals, or responses will be
8-17 received are not required to be published separately.
8-18 (e) For a contract entered into by a county under any of the
8-19 methods provided by this subchapter, the county shall publish
8-20 notice of the time and place the bids or proposals, or the
8-21 responses to a request for qualifications, will be received and
8-22 opened. The notice must be published in a newspaper of general
8-23 circulation in the county once each week for at least two weeks
8-24 before the deadline for receiving bids, proposals, or responses.
8-25 If there is not a newspaper of general circulation in the county,
8-26 the notice shall be:
9-1 (1) posted at the courthouse door of the county; and
9-2 (2) published in a newspaper of general circulation in
9-3 the nearest county.
9-4 (f) A contract entered into or an arrangement made in
9-5 violation of this subchapter is contrary to public policy and is
9-6 void. A court may enjoin performance of a contract made in
9-7 violation of this subchapter. A county attorney, a district
9-8 attorney, a criminal district attorney, a resident of a county that
9-9 enters into a contract under this subchapter or of a county in
9-10 which a municipality or a river authority that enters into a
9-11 contract under this subchapter is located, or any interested party
9-12 may bring an action for an injunction. A party who prevails in an
9-13 action brought under this subsection is entitled to reasonable
9-14 attorney's fees as approved by the court.
9-15 Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into
9-16 a contract for the construction of a facility, a governmental
9-17 entity may use any of the following methods that provides the best
9-18 value for the governmental entity:
9-19 (1) competitive bidding;
9-20 (2) competitive sealed proposals for construction
9-21 services;
9-22 (3) a design-build contract;
9-23 (4) a contract to construct, rehabilitate, alter, or
9-24 repair facilities that involves using a construction manager; or
9-25 (5) a job order contract for the minor repair,
9-26 rehabilitation, or alteration of a facility.
10-1 (b) Except as provided by this subchapter, in determining to
10-2 whom to award a contract, the governmental entity may consider:
10-3 (1) the purchase price;
10-4 (2) the reputation of the vendor and of the vendor's
10-5 goods or services;
10-6 (3) the quality of the vendor's goods or services;
10-7 (4) the extent to which the goods or services meet the
10-8 governmental entity's needs;
10-9 (5) the vendor's past relationship with the
10-10 governmental entity;
10-11 (6) the impact on the ability of the governmental
10-12 entity to comply with rules relating to historically underutilized
10-13 businesses;
10-14 (7) the total long-term cost to the governmental
10-15 entity to acquire the vendor's goods or services; and
10-16 (8) any other relevant factor specifically listed in
10-17 the request for bids or proposals.
10-18 Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR
10-19 CONSTRUCTION SERVICES. (a) The governing body of a governmental
10-20 entity that is considering a construction contract using a method
10-21 specified by Section 271.113(a) other than competitive bidding
10-22 must, before advertising, determine which method provides the best
10-23 value for the governmental entity. The governing body may, as
10-24 appropriate, delegate its authority under this section to a
10-25 designated representative.
10-26 (b) The governmental entity shall base its selection among
11-1 offerors on criteria authorized to be used under Section
11-2 271.113(b). The governmental entity shall publish in the request
11-3 for bids, proposals, or qualifications all the criteria that will
11-4 be used to evaluate the offerors and the relative weights given to
11-5 the criteria.
11-6 (c) The governmental entity shall document the basis of its
11-7 selection and shall make the evaluations public not later than the
11-8 seventh day after the date the contract is awarded.
11-9 Sec. 271.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
11-10 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
11-11 by other law and to the extent consistent with this subchapter, a
11-12 governmental entity may use competitive bidding to select a
11-13 contractor to perform construction, rehabilitation, alteration, or
11-14 repair services for a facility.
11-15 (b) Except as otherwise specifically provided by this
11-16 subsection, Subchapter B does not apply to a competitive bidding
11-17 process under this section. Sections 271.026, 271.027(a), and
11-18 271.0275 apply to a competitive bidding process under this section.
11-19 (c) A governmental entity shall award a competitively bid
11-20 contract at the bid amount to the bidder offering the best value to
11-21 the governmental entity according to the selection criteria that
11-22 were established by the governmental entity. The selection
11-23 criteria may include the factors listed in Section 271.113(b).
11-24 Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
11-25 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
11-26 contractor for construction, rehabilitation, alteration, or repair
12-1 services for a facility through competitive sealed proposals, a
12-2 governmental entity shall follow the procedures prescribed by this
12-3 section.
12-4 (b) The governmental entity shall select or designate an
12-5 engineer or architect to prepare construction documents for the
12-6 project. The selected or designated engineer or architect has full
12-7 responsibility for complying with The Texas Engineering Practice
12-8 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
12-9 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
12-10 Vernon's Texas Civil Statutes), as applicable. If the engineer or
12-11 architect is not a full-time employee of the governmental entity,
12-12 the governmental entity shall select the engineer or architect on
12-13 the basis of demonstrated competence and qualifications as provided
12-14 by Section 2254.004, Government Code.
12-15 (c) The governmental entity shall provide or contract for,
12-16 independently of the contractor, the inspection services, the
12-17 testing of construction materials engineering, and the verification
12-18 testing services necessary for acceptance of the facility by the
12-19 governmental entity. The governmental entity shall select those
12-20 services for which it contracts in accordance with Section
12-21 2254.004, Government Code, and shall identify them in the request
12-22 for proposals.
12-23 (d) The governmental entity shall prepare a request for
12-24 competitive sealed proposals that includes construction documents,
12-25 selection criteria, estimated budget, project scope, schedule, and
12-26 other information that contractors may require to respond to the
13-1 request. The governmental entity shall state in the request for
13-2 proposals the selection criteria that will be used in selecting the
13-3 successful offeror.
13-4 (e) The governmental entity shall receive, publicly open,
13-5 and read aloud the names of the offerors and, if any are required
13-6 to be stated, all prices stated in each proposal. Not later than
13-7 the 45th day after the date of opening the proposals, the
13-8 governmental entity shall evaluate and rank each proposal submitted
13-9 in relation to the published selection criteria.
13-10 (f) The governmental entity shall select the offeror that
13-11 offers the best value for the governmental entity based on the
13-12 published selection criteria and on its ranking evaluation. The
13-13 governmental entity shall first attempt to negotiate a contract
13-14 with the selected offeror. The governmental entity and its
13-15 engineer or architect may discuss with the selected offeror options
13-16 for a scope or time modification and any price change associated
13-17 with the modification. If the governmental entity is unable to
13-18 negotiate a contract with the selected offeror, the governmental
13-19 entity shall, formally and in writing, end negotiations with that
13-20 offeror and proceed to the next offeror in the order of the
13-21 selection ranking until a contract is reached or all proposals are
13-22 rejected.
13-23 (g) In determining best value for the governmental entity,
13-24 the governmental entity is not restricted to considering price
13-25 alone, but may consider any other factor stated in the selection
13-26 criteria.
14-1 Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION
14-2 MANAGER-AGENT. (a) A governmental entity may use the construction
14-3 manager-agent method for the construction, rehabilitation,
14-4 alteration, or repair of a facility. In using that method and in
14-5 entering into a contract for the services of a construction
14-6 manager-agent, a governmental entity shall follow the procedures
14-7 prescribed by this section.
14-8 (b) A construction manager-agent is a sole proprietorship,
14-9 partnership, corporation, or other legal entity that provides
14-10 consultation to the governmental entity regarding construction,
14-11 rehabilitation, alteration, or repair of the facility. A
14-12 governmental entity using the construction manager-agent method
14-13 may, under the contract between the governmental entity and the
14-14 construction manager-agent, require the construction manager-agent
14-15 to provide administrative personnel, equipment necessary to perform
14-16 duties under this section, and on-site management and other
14-17 services specified in the contract. A construction manager-agent
14-18 represents the governmental entity in a fiduciary capacity.
14-19 (c) Before or concurrently with selecting a construction
14-20 manager-agent, the governmental entity shall select or designate an
14-21 engineer or architect who shall prepare the construction documents
14-22 for the project and who has full responsibility for complying with
14-23 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
14-24 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
14-25 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
14-26 Statutes), as applicable. If the engineer or architect is not a
15-1 full-time employee of the governmental entity, the governmental
15-2 entity shall select the engineer or architect on the basis of
15-3 demonstrated competence and qualifications as provided by Section
15-4 2254.004, Government Code. The governmental entity's engineer or
15-5 architect may not serve, alone or in combination with another
15-6 person, as the construction manager-agent unless the engineer or
15-7 architect is hired to serve as the construction manager-agent under
15-8 a separate or concurrent procurement conducted in accordance with
15-9 this subchapter. This subsection does not prohibit the
15-10 governmental entity's engineer or architect from providing
15-11 customary construction phase services under the engineer's or
15-12 architect's original professional service agreement in accordance
15-13 with applicable licensing laws.
15-14 (d) A governmental entity shall select a construction
15-15 manager-agent on the basis of demonstrated competence and
15-16 qualifications in the same manner as provided for the selection of
15-17 engineers or architects under Section 2254.004, Government Code,
15-18 except that notice must be published as provided by Section
15-19 271.112(d).
15-20 (e) A governmental entity using the construction
15-21 manager-agent method shall procure, in accordance with applicable
15-22 law, a general contractor, trade contractors, or subcontractors who
15-23 will serve as the prime contractor for their specific portion of
15-24 the work.
15-25 (f) The governmental entity or the construction
15-26 manager-agent shall procure in accordance with Section 2254.004,
16-1 Government Code, all of the testing of construction materials
16-2 engineering, the inspection services, and the verification testing
16-3 services necessary for acceptance of the facility by the
16-4 governmental entity.
16-5 Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION
16-6 MANAGER-AT-RISK. (a) A governmental entity may use the
16-7 construction manager-at-risk method for the construction,
16-8 rehabilitation, alteration, or repair of a facility. In using that
16-9 method and in entering into a contract for the services of a
16-10 construction manager-at-risk, a governmental entity shall follow
16-11 the procedures prescribed by this section.
16-12 (b) A construction manager-at-risk is a sole proprietorship,
16-13 partnership, corporation, or other legal entity that assumes the
16-14 risk for construction, rehabilitation, alteration, or repair of a
16-15 facility at the contracted price as a general contractor and
16-16 provides consultation to the governmental entity regarding
16-17 construction during and after the design of the facility.
16-18 (c) Before or concurrently with selecting a construction
16-19 manager-at-risk, the governmental entity shall select or designate
16-20 an engineer or architect who shall prepare the construction
16-21 documents for the project and who has full responsibility for
16-22 complying with The Texas Engineering Practice Act (Article 3271a,
16-23 Vernon's Texas Civil Statutes) or Chapter 478, Acts of the 45th
16-24 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
16-25 Civil Statutes), as applicable. If the engineer or architect is
16-26 not a full-time employee of the governmental entity, the
17-1 governmental entity shall select the engineer or architect on the
17-2 basis of demonstrated competence and qualifications as provided by
17-3 Section 2254.004, Government Code. The governmental entity's
17-4 engineer, architect, or construction manager-agent for a project
17-5 may not serve, alone or in combination with another, as the
17-6 construction manager-at-risk unless the engineer or architect is
17-7 hired to serve as the construction manager-at-risk under a separate
17-8 or concurrent procurement conducted in accordance with this
17-9 subchapter.
17-10 (d) The governmental entity shall provide or contract for,
17-11 independently of the construction manager-at-risk, the inspection
17-12 services, the testing of construction materials engineering, and
17-13 the verification testing services necessary for acceptance of the
17-14 facility by the governmental entity. The governmental entity shall
17-15 select those services for which it contracts in accordance with
17-16 Section 2254.004, Government Code.
17-17 (e) The governmental entity shall select the construction
17-18 manager-at-risk in either a one-step or two-step process. The
17-19 governmental entity shall prepare a request for proposals, in the
17-20 case of a one-step process, or a request for qualifications, in the
17-21 case of a two-step process, that includes general information on
17-22 the project site, project scope, schedule, selection criteria,
17-23 estimated budget, and the time and place for receipt of proposals
17-24 or qualifications, as applicable, and other information that may
17-25 assist the governmental entity in its selection of a construction
17-26 manager-at-risk. The governmental entity shall state the selection
18-1 criteria in the request for proposals or qualifications, as
18-2 applicable. The selection criteria may include the offeror's
18-3 experience, past performance, safety record, proposed personnel and
18-4 methodology, and other appropriate factors that demonstrate the
18-5 capability of the construction manager-at-risk. If a one-step
18-6 process is used, the governmental entity may request, as part of
18-7 the offeror's proposal, proposed fees and prices for fulfilling the
18-8 general conditions. If a two-step process is used, the
18-9 governmental entity may not request fees or prices in step one. In
18-10 step two, the governmental entity may request that five or fewer
18-11 offerors, selected solely on the basis of qualifications, provide
18-12 additional information, including the construction
18-13 manager-at-risk's proposed fee and its price for fulfilling the
18-14 general conditions.
18-15 (f) At each step, the governmental entity shall receive,
18-16 publicly open, and read aloud the names of the offerors. At the
18-17 appropriate step, the governmental entity shall also read aloud the
18-18 fees and prices, if any, stated in each proposal as the proposal is
18-19 opened. Not later than the 45th day after the date of opening the
18-20 proposals, the governmental entity shall evaluate and rank each
18-21 proposal submitted in relation to the criteria set forth in the
18-22 request for proposals.
18-23 (g) The governmental entity shall select the offeror that
18-24 submits the proposal that offers the best value for the
18-25 governmental entity based on the published selection criteria and
18-26 on its ranking evaluation. The governmental entity shall first
19-1 attempt to negotiate a contract with the selected offeror. If the
19-2 governmental entity is unable to negotiate a satisfactory contract
19-3 with the selected offeror, the governmental entity shall, formally
19-4 and in writing, end negotiations with that offeror and proceed to
19-5 negotiate with the next offeror in the order of the selection
19-6 ranking until a contract is reached or negotiations with all ranked
19-7 offerors end.
19-8 (h) A construction manager-at-risk shall publicly advertise,
19-9 as prescribed for a governmental entity under Section 271.025, and
19-10 receive bids or proposals from trade contractors or subcontractors
19-11 for the performance of all major elements of the work other than
19-12 the minor work that may be included in the general conditions. A
19-13 construction manager-at-risk may seek to perform portions of the
19-14 work itself if the construction manager-at-risk submits its bid or
19-15 proposal for those portions of the work in the same manner as all
19-16 other trade contractors or subcontractors and if the governmental
19-17 entity determines that the construction manager-at-risk's bid or
19-18 proposal provides the best value for the governmental entity.
19-19 (i) The construction manager-at-risk and the governmental
19-20 entity or its representative shall review all trade contractor or
19-21 subcontractor bids or proposals in a manner that does not disclose
19-22 the contents of the bid or proposal during the selection process to
19-23 a person not employed by the construction manager-at-risk,
19-24 engineer, architect, or governmental entity. All bids or proposals
19-25 shall be made public after the award of the contract or not later
19-26 than the seventh day after the date of final selection of bids or
20-1 proposals, whichever is later.
20-2 (j) If the construction manager-at-risk reviews, evaluates,
20-3 and recommends to the governmental entity a bid or proposal from a
20-4 trade contractor or subcontractor but the governmental entity
20-5 requires another bid or proposal to be accepted, the governmental
20-6 entity shall compensate the construction manager-at-risk by a
20-7 change in price, time, or guaranteed maximum cost for any
20-8 additional cost and risk that the construction manager-at-risk may
20-9 incur because of the governmental entity's requirement that another
20-10 bid or proposal be accepted.
20-11 (k) If a selected trade contractor or subcontractor defaults
20-12 in the performance of its work or fails to execute a subcontract
20-13 after being selected in accordance with this section, the
20-14 construction manager-at-risk may, without advertising, fulfill the
20-15 contract requirements itself or select a replacement trade
20-16 contractor or subcontractor to fulfill the contract requirements.
20-17 (l) If a fixed contract amount or guaranteed maximum price
20-18 has not been determined at the time the contract is awarded, the
20-19 penal sums of the performance and payment bonds delivered to the
20-20 governmental entity must each be in an amount equal to the project
20-21 budget, as specified in the request for qualifications. The
20-22 construction manager shall deliver the bonds not later than the
20-23 10th day after the date the construction manager executes the
20-24 contract unless the construction manager furnishes a bid bond or
20-25 other financial security acceptable to the governmental entity to
20-26 ensure that the construction manager will furnish the required
21-1 performance and payment bonds when a guaranteed maximum price is
21-2 established.
21-3 Sec. 271.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A
21-4 governmental entity may use the design-build method for the
21-5 construction, rehabilitation, alteration, or repair of a facility.
21-6 In using that method and in entering into a contract for the
21-7 services of a design-build firm, the contracting governmental
21-8 entity and the design-build firm shall follow the procedures
21-9 provided by this section.
21-10 (b) The governmental entity shall select or designate an
21-11 engineer or architect independent of the design-build firm to act
21-12 as its representative for the duration of the work on the facility.
21-13 If the governmental entity's engineer or architect is not a
21-14 full-time employee of the governmental entity, the governmental
21-15 entity shall select the engineer or architect on the basis of
21-16 demonstrated competence and qualifications as provided by Section
21-17 2254.004, Government Code.
21-18 (c) The governmental entity shall prepare a request for
21-19 qualifications that includes general information on the project
21-20 site, project scope, budget, special systems, selection criteria,
21-21 and other information that may assist potential design-build firms
21-22 in submitting proposals for the project. The governmental entity
21-23 shall also prepare a design criteria package that includes more
21-24 detailed information on the project. If the preparation of the
21-25 design criteria package requires engineering or architectural
21-26 services that constitute the practice of engineering within the
22-1 meaning of The Texas Engineering Practice Act (Article 3271a,
22-2 Vernon's Texas Civil Statutes) or the practice of architecture
22-3 within the meaning of Chapter 478, Acts of the 45th Legislature,
22-4 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
22-5 Statutes), those services shall be provided in accordance with the
22-6 applicable law.
22-7 (d) The governmental entity shall evaluate statements of
22-8 qualifications and select a design-build firm in two phases:
22-9 (1) In phase one, the governmental entity shall
22-10 prepare a request for qualifications and evaluate each offeror's
22-11 experience, technical competence, and capability to perform, the
22-12 past performance of the offeror's team and members of the team, and
22-13 other appropriate factors submitted by the team or firm in response
22-14 to the request for qualifications, except that cost-related or
22-15 price-related evaluation factors are not permitted. Each offeror
22-16 must certify to the governmental entity that each engineer or
22-17 architect that is a member of its team was selected based on
22-18 demonstrated competence and qualifications in the manner provided
22-19 by Section 2254.004, Government Code. The governmental entity
22-20 shall qualify a maximum of five offerors to submit additional
22-21 information and, if the governmental entity chooses, to interview
22-22 for final selection.
22-23 (2) In phase two, the governmental entity shall
22-24 evaluate the information submitted by the offerors on the basis of
22-25 the selection criteria stated in the request for qualifications and
22-26 the results of an interview. The governmental entity may request
23-1 additional information regarding demonstrated competence and
23-2 qualifications, considerations of the safety and long-term
23-3 durability of the project, the feasibility of implementing the
23-4 project as proposed, the ability of the offeror to meet schedules,
23-5 costing methodology, or other factors as appropriate. The
23-6 governmental entity may not require offerors to submit detailed
23-7 engineering or architectural designs as part of the proposal. The
23-8 governmental entity shall rank each proposal submitted on the basis
23-9 of the criteria set forth in the request for qualifications. The
23-10 governmental entity shall select the design-build firm that submits
23-11 the proposal offering the best value for the governmental entity on
23-12 the basis of the published selection criteria and on its ranking
23-13 evaluations. The governmental entity shall first attempt to
23-14 negotiate a contract with the selected offeror. If the
23-15 governmental entity is unable to negotiate a satisfactory contract
23-16 with the selected offeror, the governmental entity shall, formally
23-17 and in writing, end negotiations with that offeror and proceed to
23-18 negotiate with the next offeror in the order of the selection
23-19 ranking until a contract is reached or negotiations with all ranked
23-20 offerors end.
23-21 (e) Following selection of a design-build firm under
23-22 Subsection (d), that firm's engineers or architects shall complete
23-23 the design, submitting all design elements for review and
23-24 determination of scope compliance to the governmental entity or the
23-25 governmental entity's engineer or architect before or concurrently
23-26 with construction.
24-1 (f) An engineer shall have responsibility for compliance
24-2 with the engineering design requirements and all other applicable
24-3 requirements of The Texas Engineering Practice Act (Article 3271a,
24-4 Vernon's Texas Civil Statutes). An architect shall have
24-5 responsibility for compliance with the requirements of Chapter 478,
24-6 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
24-7 Vernon's Texas Civil Statutes).
24-8 (g) The governmental entity shall provide or contract for,
24-9 independently of the design-build firm, the inspection services,
24-10 the testing of construction materials engineering, and the
24-11 verification testing services necessary for acceptance of the
24-12 facility by the governmental entity. The governmental entity shall
24-13 select those services for which it contracts in accordance with
24-14 Section 2254.004, Government Code.
24-15 (h) The design-build firm shall supply a signed and sealed
24-16 set of construction documents for the project to the governmental
24-17 entity at the conclusion of construction.
24-18 (i) A payment or performance bond is not required for, and
24-19 may not provide coverage for, the portion of a design-build
24-20 contract under this section that includes design services only. If
24-21 a fixed contract amount or guaranteed maximum price has not been
24-22 determined at the time a design-build contract is awarded, the
24-23 penal sums of the performance and payment bonds delivered to the
24-24 governmental entity must each be in an amount equal to the project
24-25 budget, as specified in the design criteria package. The
24-26 design-build firm shall deliver the bonds not later than the 10th
25-1 day after the date the design-build firm executes the contract
25-2 unless the design-build firm furnishes a bid bond or other
25-3 financial security acceptable to the governmental entity to ensure
25-4 that the design-build firm will furnish the required performance
25-5 and payment bonds when a guaranteed maximum price is established.
25-6 Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES
25-7 CONSTRUCTION OR REPAIR. (a) A governmental entity may award job
25-8 order contracts for the minor construction, repair, rehabilitation,
25-9 or alteration of a facility if the work is of a recurring nature
25-10 but the delivery times are indefinite and indefinite quantities and
25-11 orders are awarded substantially on the basis of predescribed and
25-12 prepriced tasks.
25-13 (b) The governmental entity may establish contractual unit
25-14 prices for a job order contract by:
25-15 (1) specifying one or more published construction unit
25-16 price books and the applicable divisions or line items; or
25-17 (2) providing a list of work items and requiring the
25-18 offerors to bid or propose one or more coefficients or multipliers
25-19 to be applied to the price book or work items as the price
25-20 proposal.
25-21 (c) The governmental entity shall advertise for, receive,
25-22 and publicly open sealed proposals for job order contracts.
25-23 (d) The governmental entity may require offerors to submit
25-24 additional information besides rates, including experience, past
25-25 performance, and proposed personnel and methodology.
25-26 (e) The governmental entity may award job order contracts to
26-1 one or more job order contractors in connection with each
26-2 solicitation of bids or proposals.
26-3 (f) An order for a job or project under the job order
26-4 contract must be signed by the governmental entity's representative
26-5 and the contractor. The order may be a fixed price, lump-sum
26-6 contract based substantially on contractual unit pricing applied to
26-7 estimated quantities or may be a unit price order based on the
26-8 quantities and line times delivered.
26-9 (g) The contractor shall provide payment and performance
26-10 bonds, if required by law, based on the amount or estimated amount
26-11 of any order.
26-12 (h) The base term of a job order contract is for the period
26-13 and with any renewal options that the governmental entity sets
26-14 forth in the request for proposals. If the governmental entity
26-15 fails to advertise that term, the base term may not exceed two
26-16 years and is not renewable without further advertisement and
26-17 solicitation of proposals.
26-18 (i) If a job order contract or an order issued under the
26-19 contract requires engineering or architectural services that
26-20 constitute the practice of engineering within the meaning of The
26-21 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
26-22 Statutes) or the practice of architecture within the meaning of
26-23 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
26-24 (Article 249a, Vernon's Texas Civil Statutes), those services shall
26-25 be provided in accordance with applicable law.
26-26 Sec. 271.121. RIGHT TO WORK. (a) This section applies to a
27-1 governmental entity while the governmental entity is engaged in:
27-2 (1) procuring goods or services;
27-3 (2) awarding a contract; or
27-4 (3) overseeing procurement or construction for a
27-5 public work or public improvement.
27-6 (b) Notwithstanding any other provision of this chapter, a
27-7 governmental entity:
27-8 (1) may not consider whether a vendor is a member of
27-9 or has another relationship with any organization; and
27-10 (2) shall ensure that its bid specifications and any
27-11 subsequent contract or other agreement do not deny or diminish the
27-12 right of a person to work because of the person's membership or
27-13 other relationship status with respect to any organization.
27-14 SECTION 6. Subsection (a), Section 292.001, Local Government
27-15 Code, is amended to read as follows:
27-16 (a) The commissioners court of a county may purchase,
27-17 construct, or provide by other means, including a lease or a lease
27-18 with an option to purchase, or may reconstruct, improve, or equip a
27-19 building or rooms, other than the courthouse, for the housing of
27-20 county or district offices, county or district courts, justice of
27-21 the peace courts, county records or equipment (including voting
27-22 machines), or county jail facilities, or for the conducting of
27-23 other public business, if the commissioners court determines that
27-24 the additional building or rooms are necessary. The commissioners
27-25 court may purchase and improve the necessary site for the building
27-26 or rooms.
28-1 SECTION 7. Subsection (b), Section 292.022, Local Government
28-2 Code, is amended to read as follows:
28-3 (b) The commissioners court of a county may acquire land for
28-4 a branch county office building, [and] may purchase, construct,
28-5 repair, equip, or improve the building, and may acquire the
28-6 building through a lease or lease with an option to purchase, at a
28-7 location in a municipality that:
28-8 (1) has a population of 10,000 or more;
28-9 (2) is not the county seat; and
28-10 (3) is not contiguous to the county seat.
28-11 SECTION 8. Subdivision (1), Section 2254.002, Government
28-12 Code, is amended to read as follows:
28-13 (1) "Governmental entity" means:
28-14 (A) a state agency or department;
28-15 (B) a district, authority, county, municipality,
28-16 or other political subdivision of the state; [or]
28-17 (C) a local government corporation or another
28-18 entity created by or acting on behalf of a political subdivision in
28-19 the planning and design of a construction project; or
28-20 (D) a publicly owned utility.
28-21 SECTION 9. Subsection (b), Section 44.031, Education Code,
28-22 is amended to read as follows:
28-23 (b) Except as provided by this subchapter, in determining to
28-24 whom to award a contract, the district may consider:
28-25 (1) the purchase price;
28-26 (2) the reputation of the vendor and of the vendor's
29-1 goods or services;
29-2 (3) the quality of the vendor's goods or services;
29-3 (4) the extent to which the goods or services meet the
29-4 district's needs;
29-5 (5) the vendor's past relationship with the district;
29-6 (6) the impact on the ability of the district to
29-7 comply with laws and rules relating to historically underutilized
29-8 businesses;
29-9 (7) the total long-term cost to the district to
29-10 acquire the vendor's goods or services; and
29-11 (8) any other relevant factor specifically listed in
29-12 the request for bids or proposals [that a private business entity
29-13 would consider in selecting a vendor].
29-14 SECTION 10. Subdivision (4), Section 44.0315, Education
29-15 Code, is amended to read as follows:
29-16 (4) "Facility" means real property, including
29-17 buildings and associated structures and improved or unimproved
29-18 land. The term does not include:
29-19 (A) highways, roads, streets, bridges,
29-20 utilities, water supply projects, water plants, wastewater plants,
29-21 water and wastewater distribution or conveyance facilities,
29-22 wharves, docks, airport runways and taxiways, drainage projects, or
29-23 related types of projects associated with civil engineering
29-24 construction; or
29-25 (B) buildings or structures that are incidental
29-26 to projects that are primarily civil engineering construction
30-1 projects.
30-2 SECTION 11. Subsection (b), Section 44.035, Education Code,
30-3 is amended to read as follows:
30-4 (b) The district shall base its selection among offerors on
30-5 criteria authorized to be used under Section 44.031(b). The
30-6 district shall publish in the request for bids, proposals, or
30-7 qualifications the criteria that will be used to evaluate the
30-8 offerors and the relative weights[, if known at the time of the
30-9 publication,] given to the criteria.
30-10 SECTION 12. Subsections (c) and (e), Section 44.036,
30-11 Education Code, are amended to read as follows:
30-12 (c) The district shall [may] designate an engineer or
30-13 architect independent of the design-build firm to act as its
30-14 representative for the duration of the work on the facility. If
30-15 the district's engineer or architect is not a full-time employee of
30-16 the district, any engineer or architect designated shall be
30-17 selected on the basis of demonstrated competence and qualifications
30-18 in accordance with Section 2254.004 [Subchapter A, Chapter 2254],
30-19 Government Code.
30-20 (e) The district shall evaluate statements of qualifications
30-21 and select a design-build firm in two phases:
30-22 (1) In phase one, the district shall prepare a request
30-23 for qualifications and evaluate each offeror's experience,
30-24 technical competence, and capability to perform, the past
30-25 performance of the offeror's team and members of the team, and
30-26 other appropriate factors submitted by the team or firm in response
31-1 to the request for qualifications, except that cost-related or
31-2 price-related evaluation factors are not permitted. Each offeror
31-3 must certify to the district that each engineer or architect that
31-4 is a member of its team was selected based on demonstrated
31-5 competence and qualifications, in the manner provided by Section
31-6 2254.004, Government Code. The district shall qualify a maximum of
31-7 five offerors to submit additional information and, if the district
31-8 chooses, to interview for final selection.
31-9 (2) In phase two, the district shall evaluate the
31-10 information submitted by the offerors on the basis of the selection
31-11 criteria stated in the request for qualifications and the results
31-12 of any interview. The district may request additional information
31-13 regarding demonstrated competence and qualifications,
31-14 considerations of the safety and long-term durability of the
31-15 project, the feasibility of implementing the project as proposed,
31-16 the ability of the offeror to meet schedules, costing methodology,
31-17 or other factors as appropriate. The district may not require
31-18 offerors to submit detailed engineering or architectural designs as
31-19 part of the proposal. The district shall rank each proposal
31-20 submitted on the basis of the criteria set forth in the request for
31-21 qualifications. The district shall select the design-build firm
31-22 that submits the proposal offering the best value for the district
31-23 on the basis of the published selection criteria and on its ranking
31-24 evaluations. The district shall first attempt to negotiate with
31-25 the selected offeror a contract. If the district is unable to
31-26 negotiate a satisfactory contract with the selected offeror, the
32-1 district shall, formally and in writing, end negotiations with that
32-2 offeror and proceed to negotiate with the next offeror in the order
32-3 of the selection ranking until a contract is reached or
32-4 negotiations with all ranked offerors end.
32-5 SECTION 13. Subchapter B, Chapter 44, Education Code, is
32-6 amended by adding Section 44.043 to read as follows:
32-7 Sec. 44.043. RIGHT TO WORK. (a) This section applies to a
32-8 school district while the school district is engaged in:
32-9 (1) procuring goods or services;
32-10 (2) awarding a contract; or
32-11 (3) overseeing procurement or construction for a
32-12 public work or public improvement.
32-13 (b) Notwithstanding any other provision of this chapter, a
32-14 school district:
32-15 (1) may not consider whether a vendor is a member of
32-16 or has another relationship with any organization; and
32-17 (2) shall ensure that its bid specifications and any
32-18 subsequent contract or other agreement do not deny or diminish the
32-19 right of a person to work because of the person's membership or
32-20 other relationship status with respect to any organization.
32-21 SECTION 14. Subsections (c) and (f), Section 51.780,
32-22 Education Code, are amended to read as follows:
32-23 (c) The board may designate an engineer or architect
32-24 independent of the design-build firm to act as its representative
32-25 for the duration of the work on the facility. If the board's
32-26 engineer or architect is not a full-time employee of the
33-1 institution, any engineer or architect designated shall be selected
33-2 on the basis of demonstrated competence and qualifications in
33-3 accordance with Section 2254.004 [Subchapter A, Chapter 2254],
33-4 Government Code.
33-5 (f) The board or its representative shall evaluate
33-6 statements of qualifications and select a design-build firm in two
33-7 phases:
33-8 (1) In phase one, the board or its representative
33-9 shall prepare a request for qualifications and evaluate each
33-10 offeror's experience, technical competence, and capability to
33-11 perform, the past performance of the offeror's team and members of
33-12 the team, and other appropriate factors submitted by the team or
33-13 firm in response to the request for qualifications, except that
33-14 cost-related or price-related evaluation factors are not permitted.
33-15 Each offeror must certify to the board that each engineer or
33-16 architect that is a member of its team was selected based on
33-17 demonstrated competence and qualifications in the manner provided
33-18 by Section 2254.004, Government Code. The board or its
33-19 representative shall qualify a maximum of five offerors to submit
33-20 additional information and, if the board or its representative
33-21 chooses, to interview for final selection.
33-22 (2) In phase two, the board or its representative
33-23 shall evaluate the information submitted by the offerors on the
33-24 basis of the selection criteria stated in the request for
33-25 qualifications and the results of any interview. The board or its
33-26 representative may request additional information regarding
34-1 demonstrated competence and qualifications, considerations of the
34-2 safety and long-term durability of the project, the feasibility of
34-3 implementing the project as proposed, the ability of the offeror to
34-4 meet schedules, costing methodology, or other factors as
34-5 appropriate. The board or its representative may not require
34-6 offerors to submit detailed engineering or architectural designs as
34-7 part of the proposal. The board or its representative shall rank
34-8 each proposal submitted on the basis of the criteria specified in
34-9 the request for qualifications. The board or its representative
34-10 shall select the design-build firm that submits the proposal
34-11 offering the best value for the institution on the basis of the
34-12 published selection criteria and on its ranking evaluations. The
34-13 board or its representative shall first attempt to negotiate with
34-14 the selected offeror a contract. If the board or its
34-15 representative is unable to negotiate a satisfactory contract with
34-16 the selected offeror, the institution shall, formally and in
34-17 writing, end all negotiations with that offeror and proceed to
34-18 negotiate with the next offeror in the order of the selection
34-19 ranking until a contract is reached or negotiations with all ranked
34-20 offerors end.
34-21 SECTION 15. (a) The changes in law made by this Act apply
34-22 only to a contract for which requests for bids, requests for
34-23 proposals, or requests for qualifications are published or
34-24 distributed after September 1, 2001.
34-25 (b) The change in law made by this Act to Section 252.043,
34-26 Local Government Code, applies only to a contract awarded on or
S.B. No. 510
35-1 after the effective date of this Act.
35-2 SECTION 16. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 510 passed the Senate on
March 20, 2001, by a viva-voce vote; May 21, 2001, Senate refused
to concur in House amendments and requested appointment of
Conference Committee; May 22, 2001, House granted request of the
Senate; May 27, 2001, Senate adopted Conference Committee Report by
a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 510 passed the House, with
amendments, on May 18, 2001, by a non-record vote; May 22, 2001,
House granted request of the Senate for appointment of Conference
Committee; May 27, 2001, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor