77R11127 ATP-D
By Armbrister, et al. S.B. No. 510
Substitute the following for S.B. No. 510:
By Callegari C.S.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. Sections 252.021(a) and (c), Local Government
1-6 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
2-1 with respect to that expenditure.
2-2 SECTION 3. Sections 262.023(a) and (b), Local Government
2-3 Code, are amended to read as follows:
2-4 (a) Before a county may purchase one or more items under a
2-5 contract that will require an expenditure exceeding $25,000, the
2-6 commissioners court of the county must comply with the competitive
2-7 bidding or competitive proposal procedures prescribed by this
2-8 subchapter or with a method described by Subchapter H, Chapter 271.
2-9 All bids or proposals must be sealed.
2-10 (b) The competitive bidding and competitive proposal
2-11 requirements established by Subsection (a) apply [only] to
2-12 contracts for which payment will be made from current funds or bond
2-13 funds or through time warrants. Contracts [However, contracts] for
2-14 which payments will be made through certificates of obligation are
2-15 governed by The Certificate of Obligation Act of 1971 (Subchapter
2-16 C, Chapter 271). Contracts for which payment will be made through
2-17 anticipation notes are subject to the competitive bidding
2-18 provisions of The Certificate of Obligation Act of 1971 (Subchapter
2-19 C, Chapter 271) in the same manner as certificates of obligation.
2-20 SECTION 4. Chapter 271, Local Government Code, is amended by
2-21 adding Subchapter H to read as follows:
2-22 SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN
2-23 PROJECTS
2-24 Sec. 271.111. DEFINITIONS. In this subchapter:
2-25 (1) "Architect" means an individual registered as an
2-26 architect under Chapter 478, Acts of the 45th Legislature, Regular
2-27 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
3-27 utilities, parking requirements, or any other requirement, as
4-1 applicable.
4-2 (6) "Engineer" means an individual registered as a
4-3 professional engineer under The Texas Engineering Practice Act
4-4 (Article 3271a, Vernon's Texas Civil Statutes).
4-5 (7) "Facility" means a building or structure the
4-6 design and construction of which is governed by accepted building
4-7 codes. The term does not include:
4-8 (A) highways, roads, streets, bridges,
4-9 utilities, water supply projects, water plants, wastewater plants,
4-10 water and wastewater distribution or conveyance facilities,
4-11 wharves, docks, airport runways and taxiways, drainage projects, or
4-12 related types of projects associated with civil engineering
4-13 construction; or
4-14 (B) buildings or structures that are incidental
4-15 to projects that are primarily civil engineering construction
4-16 projects.
4-17 (8) "Fee" in the context of a contract for the
4-18 construction, rehabilitation, alteration, or repair of a facility
4-19 means the payment a construction manager receives for its overhead
4-20 and profit in performing its services.
4-21 (9) "General conditions" in the context of a contract
4-22 for the construction, rehabilitation, alteration, or repair of a
4-23 facility means on-site management, administrative personnel,
4-24 insurance, bonds, equipment, utilities, and incidental work,
4-25 including minor field labor and materials.
4-26 (10) "Governmental entity" means a municipality,
4-27 county, or river authority.
5-1 Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision
5-2 in the charter of a home-rule municipality or any regulation of a
5-3 county or river authority that requires the use of competitive
5-4 bidding or competitive sealed proposals or that prescribes
5-5 procurement procedures and that is in conflict with this subchapter
5-6 controls over this subchapter unless the governing body of the
5-7 governmental entity elects to have this subchapter supersede the
5-8 charter or regulation.
5-9 (b) The purchasing requirements of Section 361.426, Health
5-10 and Safety Code, apply to purchases by a governmental entity made
5-11 under this subchapter.
5-12 (c) Except as provided by this section, to the extent of any
5-13 conflict, this subchapter prevails over any other law relating to
5-14 the purchasing of goods and services except a law relating to
5-15 contracting with historically underutilized businesses.
5-16 (d) For a contract entered into by a municipality or river
5-17 authority under any of the methods provided by this subchapter, the
5-18 municipality or river authority shall publish notice of the time
5-19 and place the bids or proposals, or the responses to a request for
5-20 qualifications, will be received and opened. The notice must be
5-21 published in a newspaper of general circulation in the county in
5-22 which the municipality's central administrative office is located
5-23 or the county in which the greatest amount of the river authority's
5-24 territory is located once each week for at least two weeks before
5-25 the deadline for receiving bids, proposals, or responses. If there
5-26 is not a newspaper of general circulation in that county, the
5-27 notice shall be published in a newspaper of general circulation in
6-1 the county nearest the county seat of the county in which the
6-2 municipality's central administrative office is located or the
6-3 county in which the greatest amount of the river authority's
6-4 territory is located. In a two-step procurement process, the time
6-5 and place the second step bids, proposals, or responses will be
6-6 received are not required to be published separately.
6-7 (e) For a contract entered into by a county under any of the
6-8 methods provided by this subchapter, the county shall publish
6-9 notice of the time and place the bids or proposals, or the
6-10 responses to a request for qualifications, will be received and
6-11 opened. The notice must be published in a newspaper of general
6-12 circulation in the county once each week for at least two weeks
6-13 before the deadline for receiving bids, proposals, or responses.
6-14 If there is not a newspaper of general circulation in the county,
6-15 the notice shall be:
6-16 (1) posted at the courthouse door of the county; and
6-17 (2) published in a newspaper of general circulation in
6-18 the nearest county.
6-19 (f) A contract entered into or an arrangement made in
6-20 violation of this subchapter is contrary to public policy and is
6-21 void. A court may enjoin performance of a contract made in
6-22 violation of this subchapter. A county attorney, a district
6-23 attorney, a criminal district attorney, a resident of a county that
6-24 enters into a contract under this subchapter or of a county in
6-25 which a municipality or a river authority that enters into a
6-26 contract under this subchapter is located, or any interested party
6-27 may bring an action for an injunction. A party who prevails in an
7-1 action brought under this subsection is entitled to reasonable
7-2 attorney's fees as approved by the court.
7-3 Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into
7-4 a contract for the construction of a facility, a governmental
7-5 entity may use any of the following methods that provides the best
7-6 value for the governmental entity:
7-7 (1) competitive bidding;
7-8 (2) competitive sealed proposals for construction
7-9 services;
7-10 (3) a design-build contract;
7-11 (4) a contract to construct, rehabilitate, alter, or
7-12 repair facilities that involves using a construction manager; or
7-13 (5) a job order contract for the minor repair,
7-14 rehabilitation, or alteration of a facility.
7-15 (b) Except as provided by this subchapter, in determining to
7-16 whom to award a contract, the governmental entity may consider:
7-17 (1) the purchase price;
7-18 (2) the reputation of the vendor and of the vendor's
7-19 goods or services;
7-20 (3) the quality of the vendor's goods or services;
7-21 (4) the extent to which the goods or services meet the
7-22 governmental entity's needs;
7-23 (5) the vendor's past relationship with the
7-24 governmental entity;
7-25 (6) the impact on the ability of the governmental
7-26 entity to comply with rules relating to historically underutilized
7-27 businesses;
8-1 (7) the total long-term cost to the governmental
8-2 entity to acquire the vendor's goods or services; and
8-3 (8) any other relevant factor that a private business
8-4 entity would consider in selecting a vendor.
8-5 Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR
8-6 CONSTRUCTION SERVICES. (a) The governing body of a governmental
8-7 entity that is considering a construction contract using a method
8-8 specified by Section 271.113(a) other than competitive bidding
8-9 must, before advertising, determine which method provides the best
8-10 value for the governmental entity.
8-11 (b) The governmental entity shall base its selection among
8-12 offerors on criteria authorized to be used under Section
8-13 271.113(b). The governmental entity shall publish in the request
8-14 for bids, proposals, or qualifications the criteria that will be
8-15 used to evaluate the offerors and the relative weights given to the
8-16 criteria.
8-17 (c) The governmental entity shall document the basis of its
8-18 selection and shall make the evaluations public not later than the
8-19 seventh day after the date the contract is awarded.
8-20 Sec. 271.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
8-21 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
8-22 by other law and to the extent consistent with this subchapter, a
8-23 governmental entity may use competitive bidding to select a
8-24 contractor to perform construction, rehabilitation, alteration, or
8-25 repair services for a facility.
8-26 (b) Except as otherwise specifically provided by this
8-27 subsection, Subchapter B does not apply to a competitive bidding
9-1 process under this section. Sections 271.026, 271.027(a), and
9-2 271.0275 apply to a competitive bidding process under this section.
9-3 (c) A governmental entity shall award a competitively bid
9-4 contract at the bid amount to the bidder offering the best value to
9-5 the governmental entity according to the selection criteria that
9-6 were established by the governmental entity. The selection
9-7 criteria may include the factors listed in Section 271.113(b).
9-8 Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
9-9 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
9-10 contractor for construction, rehabilitation, alteration, or repair
9-11 services for a facility through competitive sealed proposals, a
9-12 governmental entity shall follow the procedures prescribed by this
9-13 section.
9-14 (b) The governmental entity shall select or designate an
9-15 engineer or architect to prepare construction documents for the
9-16 project. The selected or designated engineer or architect has full
9-17 responsibility for complying with The Texas Engineering Practice
9-18 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
9-19 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
9-20 Vernon's Texas Civil Statutes), as applicable. If the engineer or
9-21 architect is not a full-time employee of the governmental entity,
9-22 the governmental entity shall select the engineer or architect on
9-23 the basis of demonstrated competence and qualifications as provided
9-24 by Section 2254.004, Government Code.
9-25 (c) The governmental entity shall provide or contract for,
9-26 independently of the contractor, the inspection services, the
9-27 testing of construction materials engineering, and the verification
10-1 testing services necessary for acceptance of the facility by the
10-2 governmental entity. The governmental entity shall select those
10-3 services for which it contracts in accordance with Section
10-4 2254.004, Government Code, and shall identify them in the request
10-5 for proposals.
10-6 (d) The governmental entity shall prepare a request for
10-7 competitive sealed proposals that includes construction documents,
10-8 selection criteria, estimated budget, project scope, schedule, and
10-9 other information that contractors may require to respond to the
10-10 request. The governmental entity shall state in the request for
10-11 proposals the selection criteria that will be used in selecting the
10-12 successful offeror.
10-13 (e) The governmental entity shall receive, publicly open,
10-14 and read aloud the names of the offerors and, if any are required
10-15 to be stated, all prices stated in each proposal. Not later than
10-16 the 45th day after the date of opening the proposals, the
10-17 governmental entity shall evaluate and rank each proposal submitted
10-18 in relation to the published selection criteria.
10-19 (f) The governmental entity shall select the offeror that
10-20 offers the best value for the governmental entity based on the
10-21 published selection criteria and on its ranking evaluation. The
10-22 governmental entity shall first attempt to negotiate a contract
10-23 with the selected offeror. The governmental entity and its
10-24 engineer or architect may discuss with the selected offeror options
10-25 for a scope or time modification and any price change associated
10-26 with the modification. If the governmental entity is unable to
10-27 negotiate a contract with the selected offeror, the governmental
11-1 entity shall, formally and in writing, end negotiations with that
11-2 offeror and proceed to the next offeror in the order of the
11-3 selection ranking until a contract is reached or all proposals are
11-4 rejected.
11-5 (g) In determining best value for the governmental entity,
11-6 the governmental entity is not restricted to considering price
11-7 alone, but may consider any other factor stated in the selection
11-8 criteria.
11-9 Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION
11-10 MANAGER-AGENT. (a) A governmental entity may use the construction
11-11 manager-agent method for the construction, rehabilitation,
11-12 alteration, or repair of a facility. In using that method and in
11-13 entering into a contract for the services of a construction
11-14 manager-agent, a governmental entity shall follow the procedures
11-15 prescribed by this section.
11-16 (b) A construction manager-agent is a sole proprietorship,
11-17 partnership, corporation, or other legal entity that provides
11-18 consultation to the governmental entity regarding construction,
11-19 rehabilitation, alteration, or repair of the facility. A
11-20 governmental entity using the construction manager-agent method
11-21 may, under the contract between the governmental entity and the
11-22 construction manager-agent, require the construction manager-agent
11-23 to provide administrative personnel, equipment necessary to perform
11-24 duties under this section, and on-site management and other
11-25 services specified in the contract. A construction manager-agent
11-26 represents the governmental entity in a fiduciary capacity.
11-27 (c) Before or concurrently with selecting a construction
12-1 manager-agent, the governmental entity shall select or designate an
12-2 engineer or architect who shall prepare the construction documents
12-3 for the project and who has full responsibility for complying with
12-4 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
12-5 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
12-6 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
12-7 Statutes), as applicable. If the engineer or architect is not a
12-8 full-time employee of the governmental entity, the governmental
12-9 entity shall select the engineer or architect on the basis of
12-10 demonstrated competence and qualifications as provided by Section
12-11 2254.004, Government Code. The governmental entity's engineer or
12-12 architect may not serve, alone or in combination with another
12-13 person, as the construction manager-agent unless the engineer or
12-14 architect is hired to serve as the construction manager-agent under
12-15 a separate or concurrent procurement conducted in accordance with
12-16 this subchapter. This subsection does not prohibit the
12-17 governmental entity's engineer or architect from providing
12-18 customary construction phase services under the engineer's or
12-19 architect's original professional service agreement in accordance
12-20 with applicable licensing laws.
12-21 (d) A governmental entity shall select a construction
12-22 manager-agent on the basis of demonstrated competence and
12-23 qualifications in the same manner as provided for the selection of
12-24 engineers or architects under Section 2254.004, Government Code,
12-25 except that notice must be published as provided by Section
12-26 271.112(d).
12-27 (e) A governmental entity using the construction
13-1 manager-agent method shall procure, in accordance with applicable
13-2 law, a general contractor, trade contractors, or subcontractors who
13-3 will serve as the prime contractor for their specific portion of
13-4 the work.
13-5 (f) The governmental entity or the construction
13-6 manager-agent shall procure in accordance with Section 2254.004,
13-7 Government Code, all of the testing of construction materials
13-8 engineering, the inspection services, and the verification testing
13-9 services necessary for acceptance of the facility by the
13-10 governmental entity.
13-11 Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION
13-12 MANAGER-AT-RISK. (a) A governmental entity may use the
13-13 construction manager-at-risk method for the construction,
13-14 rehabilitation, alteration, or repair of a facility. In using that
13-15 method and in entering into a contract for the services of a
13-16 construction manager-at-risk, a governmental entity shall follow
13-17 the procedures prescribed by this section.
13-18 (b) A construction manager-at-risk is a sole proprietorship,
13-19 partnership, corporation, or other legal entity that assumes the
13-20 risk for construction, rehabilitation, alteration, or repair of a
13-21 facility at the contracted price as a general contractor and
13-22 provides consultation to the governmental entity regarding
13-23 construction during and after the design of the facility.
13-24 (c) Before or concurrently with selecting a construction
13-25 manager-at-risk, the governmental entity shall select or designate
13-26 an engineer or architect who shall prepare the construction
13-27 documents for the project and who has full responsibility for
14-1 complying with The Texas Engineering Practice Act (Article 3271a,
14-2 Vernon's Texas Civil Statutes) or Chapter 478, Acts of the 45th
14-3 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
14-4 Civil Statutes), as applicable. If the engineer or architect is
14-5 not a full-time employee of the governmental entity, the
14-6 governmental entity shall select the engineer or architect on the
14-7 basis of demonstrated competence and qualifications as provided by
14-8 Section 2254.004, Government Code. The governmental entity's
14-9 engineer, architect, or construction manager-agent for a project
14-10 may not serve, alone or in combination with another, as the
14-11 construction manager-at-risk unless the engineer or architect is
14-12 hired to serve as the construction manager-at-risk under a separate
14-13 or concurrent procurement conducted in accordance with this
14-14 subchapter.
14-15 (d) The governmental entity shall provide or contract for,
14-16 independently of the construction manager-at-risk, the inspection
14-17 services, the testing of construction materials engineering, and
14-18 the verification testing services necessary for acceptance of the
14-19 facility by the governmental entity. The governmental entity shall
14-20 select those services for which it contracts in accordance with
14-21 Section 2254.004, Government Code.
14-22 (e) The governmental entity shall select the construction
14-23 manager-at-risk in either a one-step or two-step process. The
14-24 governmental entity shall prepare a request for proposals, in the
14-25 case of a one-step process, or a request for qualifications, in the
14-26 case of a two-step process, that includes general information on
14-27 the project site, project scope, schedule, selection criteria,
15-1 estimated budget, and the time and place for receipt of proposals
15-2 or qualifications, as applicable, and other information that may
15-3 assist the governmental entity in its selection of a construction
15-4 manager-at-risk. The governmental entity shall state the selection
15-5 criteria in the request for proposals or qualifications, as
15-6 applicable. The selection criteria may include the offeror's
15-7 experience, past performance, safety record, proposed personnel and
15-8 methodology, and other appropriate factors that demonstrate the
15-9 capability of the construction manager-at-risk. If a one-step
15-10 process is used, the governmental entity may request, as part of
15-11 the offeror's proposal, proposed fees and prices for fulfilling the
15-12 general conditions. If a two-step process is used, the
15-13 governmental entity may not request fees or prices in step one. In
15-14 step two, the governmental entity may request that five or fewer
15-15 offerors, selected solely on the basis of qualifications, provide
15-16 additional information, including the construction
15-17 manager-at-risk's proposed fee and its price for fulfilling the
15-18 general conditions.
15-19 (f) At each step, the governmental entity shall receive,
15-20 publicly open, and read aloud the names of the offerors. At the
15-21 appropriate step, the governmental entity shall also read aloud the
15-22 fees and prices, if any, stated in each proposal as the proposal is
15-23 opened. Not later than the 45th day after the date of opening the
15-24 proposals, the governmental entity shall evaluate and rank each
15-25 proposal submitted in relation to the criteria set forth in the
15-26 request for proposals.
15-27 (g) The governmental entity shall select the offeror that
16-1 submits the proposal that offers the best value for the
16-2 governmental entity based on the published selection criteria and
16-3 on its ranking evaluation. The governmental entity shall first
16-4 attempt to negotiate a contract with the selected offeror. If the
16-5 governmental entity is unable to negotiate a satisfactory contract
16-6 with the selected offeror, the governmental entity shall, formally
16-7 and in writing, end negotiations with that offeror and proceed to
16-8 negotiate with the next offeror in the order of the selection
16-9 ranking until a contract is reached or negotiations with all ranked
16-10 offerors end.
16-11 (h) A construction manager-at-risk shall publicly advertise,
16-12 as prescribed for a governmental entity under Section 271.025, and
16-13 receive bids or proposals from trade contractors or subcontractors
16-14 for the performance of all major elements of the work other than
16-15 the minor work that may be included in the general conditions. A
16-16 construction manager-at-risk may seek to perform portions of the
16-17 work itself if the construction manager-at-risk submits its bid or
16-18 proposal for those portions of the work in the same manner as all
16-19 other trade contractors or subcontractors and if the governmental
16-20 entity determines that the construction manager-at-risk's bid or
16-21 proposal provides the best value for the governmental entity.
16-22 (i) The construction manager-at-risk and the governmental
16-23 entity or its representative shall review all trade contractor or
16-24 subcontractor bids or proposals in a manner that does not disclose
16-25 the contents of the bid or proposal during the selection process to
16-26 a person not employed by the construction manager-at-risk,
16-27 engineer, architect, or governmental entity. All bids or proposals
17-1 shall be made public after the award of the contract or not later
17-2 than the seventh day after the date of final selection of bids or
17-3 proposals, whichever is later.
17-4 (j) If the construction manager-at-risk reviews, evaluates,
17-5 and recommends to the governmental entity a bid or proposal from a
17-6 trade contractor or subcontractor but the governmental entity
17-7 requires another bid or proposal to be accepted, the governmental
17-8 entity shall compensate the construction manager-at-risk by a
17-9 change in price, time, or guaranteed maximum cost for any
17-10 additional cost and risk that the construction manager-at-risk may
17-11 incur because of the governmental entity's requirement that another
17-12 bid or proposal be accepted.
17-13 (k) If a selected trade contractor or subcontractor defaults
17-14 in the performance of its work or fails to execute a subcontract
17-15 after being selected in accordance with this section, the
17-16 construction manager-at-risk may, without advertising, fulfill the
17-17 contract requirements itself or select a replacement trade
17-18 contractor or subcontractor to fulfill the contract requirements.
17-19 (l) If a fixed contract amount or guaranteed maximum price
17-20 has not been determined at the time the contract is awarded, the
17-21 penal sums of the performance and payment bonds delivered to the
17-22 governmental entity must each be in an amount equal to the project
17-23 budget, as specified in the request for qualifications. The
17-24 construction manager shall deliver the bonds not later than the
17-25 10th day after the date the construction manager executes the
17-26 contract unless the construction manager furnishes a bid bond or
17-27 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 select or designate an
18-12 engineer or architect independent of the design-build firm to act
18-13 as its representative for the duration of the work on the facility.
18-14 If the governmental entity's engineer or architect is not a
18-15 full-time employee of the governmental entity, the governmental
18-16 entity shall select the engineer or architect on the basis of
18-17 demonstrated competence and qualifications as provided by Section
18-18 2254.004, 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
18-27 services that constitute the practice of engineering within the
19-1 meaning of The Texas Engineering Practice Act (Article 3271a,
19-2 Vernon's Texas Civil Statutes) or the practice of architecture
19-3 within the meaning of Chapter 478, Acts of the 45th Legislature,
19-4 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
19-5 Statutes), those services shall be provided in accordance with the
19-6 applicable law.
19-7 (d) The governmental entity shall evaluate statements of
19-8 qualifications and select a design-build firm in two phases:
19-9 (1) In phase one, the governmental entity shall
19-10 prepare a request for qualifications and evaluate each offeror's
19-11 experience, technical competence, and capability to perform, the
19-12 past performance of the offeror's team and members of the team, and
19-13 other appropriate factors submitted by the team or firm in response
19-14 to the request for qualifications, except that cost-related or
19-15 price-related evaluation factors are not permitted. Each offeror
19-16 must certify to the governmental entity that each engineer or
19-17 architect that is a member of its team was selected based on
19-18 demonstrated competence and qualifications in the manner provided
19-19 by Section 2254.004, Government Code. The governmental entity
19-20 shall qualify a maximum of five offerors to submit additional
19-21 information and, if the governmental entity chooses, to interview
19-22 for final selection.
19-23 (2) In phase two, the governmental entity shall
19-24 evaluate the information submitted by the offerors on the basis of
19-25 the selection criteria stated in the request for qualifications and
19-26 the results of an interview. The governmental entity may request
19-27 additional information regarding demonstrated competence and
20-1 qualifications, considerations of the safety and long-term
20-2 durability of the project, the feasibility of implementing the
20-3 project as proposed, the ability of the offeror to meet schedules,
20-4 costing methodology, or other factors as appropriate. The
20-5 governmental entity may not require offerors to submit detailed
20-6 engineering or architectural designs as part of the proposal. The
20-7 governmental entity shall rank each proposal submitted on the basis
20-8 of the criteria set forth in the request for qualifications. The
20-9 governmental entity shall select the design-build firm that submits
20-10 the proposal offering the best value for the governmental entity on
20-11 the basis of the published selection criteria and on its ranking
20-12 evaluations. The governmental entity shall first attempt to
20-13 negotiate a contract with the selected offeror. If the
20-14 governmental entity is unable to negotiate a satisfactory contract
20-15 with the selected offeror, the governmental entity shall, formally
20-16 and in writing, end negotiations with that offeror and proceed to
20-17 negotiate with the next offeror in the order of the selection
20-18 ranking until a contract is reached or negotiations with all ranked
20-19 offerors end.
20-20 (e) Following selection of a design-build firm under
20-21 Subsection (d), that firm's engineers or architects shall complete
20-22 the design, submitting all design elements for review and
20-23 determination of scope compliance to the governmental entity or the
20-24 governmental entity's engineer or architect before or concurrently
20-25 with construction.
20-26 (f) An engineer shall have responsibility for compliance
20-27 with the engineering design requirements and all other applicable
21-1 requirements of The Texas Engineering Practice Act (Article 3271a,
21-2 Vernon's Texas Civil Statutes). An architect shall have
21-3 responsibility for compliance with the requirements of Chapter 478,
21-4 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
21-5 Vernon's Texas Civil Statutes).
21-6 (g) The governmental entity shall provide or contract for,
21-7 independently of the design-build firm, the inspection services,
21-8 the testing of construction materials engineering, and the
21-9 verification testing services necessary for acceptance of the
21-10 facility by the governmental entity. The governmental entity shall
21-11 select those services for which it contracts in accordance with
21-12 Section 2254.004, Government Code.
21-13 (h) The design-build firm shall supply a signed and sealed
21-14 set of construction documents for the project to the governmental
21-15 entity at the conclusion of construction.
21-16 (i) A payment or performance bond is not required for, and
21-17 may not provide coverage for, the portion of a design-build
21-18 contract under this section that includes design services only. If
21-19 a fixed contract amount or guaranteed maximum price has not been
21-20 determined at the time a design-build contract is awarded, the
21-21 penal sums of the performance and payment bonds delivered to the
21-22 governmental entity must each be in an amount equal to the project
21-23 budget, as specified in the design criteria package. The
21-24 design-build firm shall deliver the bonds not later than the 10th
21-25 day after the date the design-build firm executes the contract
21-26 unless the design-build firm furnishes a bid bond or other
21-27 financial security acceptable to the governmental entity to ensure
22-1 that the design-build firm will furnish the required performance
22-2 and payment bonds when a guaranteed maximum price is established.
22-3 Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES
22-4 CONSTRUCTION OR REPAIR. (a) A governmental entity may award job
22-5 order contracts for the minor construction, repair, rehabilitation,
22-6 or alteration of a facility if the work is of a recurring nature
22-7 but the delivery times are indefinite and indefinite quantities and
22-8 orders are awarded substantially on the basis of predescribed and
22-9 prepriced tasks.
22-10 (b) The governmental entity may establish contractual unit
22-11 prices for a job order contract by:
22-12 (1) specifying one or more published construction unit
22-13 price books and the applicable divisions or line items; or
22-14 (2) providing a list of work items and requiring the
22-15 offerors to bid or propose one or more coefficients or multipliers
22-16 to be applied to the price book or work items as the price
22-17 proposal.
22-18 (c) The governmental entity shall advertise for, receive,
22-19 and publicly open sealed proposals for job order contracts.
22-20 (d) The governmental entity may require offerors to submit
22-21 additional information besides rates, including experience, past
22-22 performance, and proposed personnel and methodology.
22-23 (e) The governmental entity may award job order contracts to
22-24 one or more job order contractors in connection with each
22-25 solicitation of bids or proposals.
22-26 (f) An order for a job or project under the job order
22-27 contract must be signed by the governmental entity's representative
23-1 and the contractor. The order may be a fixed price, lump-sum
23-2 contract based substantially on contractual unit pricing applied to
23-3 estimated quantities or may be a unit price order based on the
23-4 quantities and line times delivered.
23-5 (g) The contractor shall provide payment and performance
23-6 bonds, if required by law, based on the amount or estimated amount
23-7 of any order.
23-8 (h) The base term of a job order contract is for the period
23-9 and with any renewal options that the governmental entity sets
23-10 forth in the request for proposals. If the governmental entity
23-11 fails to advertise that term, the base term may not exceed two
23-12 years and is not renewable without further advertisement and
23-13 solicitation of proposals.
23-14 (i) If a job order contract or an order issued under the
23-15 contract requires engineering or architectural services that
23-16 constitute the practice of engineering within the meaning of The
23-17 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
23-18 Statutes) or the practice of architecture within the meaning of
23-19 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
23-20 (Article 249a, Vernon's Texas Civil Statutes), those services shall
23-21 be provided in accordance with applicable law.
23-22 Sec. 271.121. RIGHT TO WORK. (a) This section applies to a
23-23 governmental entity while the governmental entity is engaged in:
23-24 (1) procuring goods or services;
23-25 (2) awarding a contract; or
23-26 (3) overseeing procurement or construction for a
23-27 public work or public improvement.
24-1 (b) Notwithstanding any other provision of this chapter, a
24-2 governmental entity:
24-3 (1) may not consider whether a vendor is a member or
24-4 has another relationship with any organization; and
24-5 (2) shall ensure that its bid specifications and any
24-6 subsequent contract or other agreement do not deny or diminish the
24-7 right of a person to work because of the person's membership or
24-8 other relationship status with respect to any organization.
24-9 SECTION 5. Section 2254.002(1), Government Code, is amended
24-10 to read as follows:
24-11 (1) "Governmental entity" means:
24-12 (A) a state agency or department;
24-13 (B) a district, authority, county, municipality,
24-14 or other political subdivision of the state; [or]
24-15 (C) a local government corporation or another
24-16 entity created by or acting on behalf of a political subdivision;
24-17 or
24-18 (D) a publicly owned utility.
24-19 SECTION 6. Sections 44.036(c) and (e), Education Code, are
24-20 amended to read as follows:
24-21 (c) The district shall [may] designate an engineer or
24-22 architect independent of the design-build firm to act as its
24-23 representative for the duration of the work on the facility. If
24-24 the district's engineer or architect is not a full-time employee of
24-25 the district, any engineer or architect designated shall be
24-26 selected on the basis of demonstrated competence and qualifications
24-27 in accordance with Section 2254.004 [Subchapter A, Chapter 2254],
25-1 Government Code.
25-2 (e) The district shall evaluate statements of qualifications
25-3 and select a design-build firm in two phases:
25-4 (1) In phase one, the district shall prepare a request
25-5 for qualifications and evaluate each offeror's experience,
25-6 technical competence, and capability to perform, the past
25-7 performance of the offeror's team and members of the team, and
25-8 other appropriate factors submitted by the team or firm in response
25-9 to the request for qualifications, except that cost-related or
25-10 price-related evaluation factors are not permitted. Each offeror
25-11 must certify to the district that each engineer or architect that
25-12 is a member of its team was selected based on demonstrated
25-13 competence and qualifications, in the manner provided by Section
25-14 2254.004, Government Code. The district shall qualify a maximum of
25-15 five offerors to submit additional information and, if the district
25-16 chooses, to interview for final selection.
25-17 (2) In phase two, the district shall evaluate the
25-18 information submitted by the offerors on the basis of the selection
25-19 criteria stated in the request for qualifications and the results
25-20 of any interview. The district may request additional information
25-21 regarding demonstrated competence and qualifications,
25-22 considerations of the safety and long-term durability of the
25-23 project, the feasibility of implementing the project as proposed,
25-24 the ability of the offeror to meet schedules, costing methodology,
25-25 or other factors as appropriate. The district may not require
25-26 offerors to submit detailed engineering or architectural designs as
25-27 part of the proposal. The district shall rank each proposal
26-1 submitted on the basis of the criteria set forth in the request for
26-2 qualifications. The district shall select the design-build firm
26-3 that submits the proposal offering the best value for the district
26-4 on the basis of the published selection criteria and on its ranking
26-5 evaluations. The district shall first attempt to negotiate with
26-6 the selected offeror a contract. If the district is unable to
26-7 negotiate a satisfactory contract with the selected offeror, the
26-8 district shall, formally and in writing, end negotiations with that
26-9 offeror and proceed to negotiate with the next offeror in the order
26-10 of the selection ranking until a contract is reached or
26-11 negotiations with all ranked offerors end.
26-12 SECTION 7. Sections 51.780(c) and (f), Education Code, are
26-13 amended to read as follows:
26-14 (c) The board shall [may] designate an engineer or architect
26-15 independent of the design-build firm to act as its representative
26-16 for the duration of the work on the facility. If the board's
26-17 engineer or architect is not a full-time employee of the
26-18 institution, any engineer or architect designated shall be selected
26-19 on the basis of demonstrated competence and qualifications in
26-20 accordance with Section 2254.004 [Subchapter A, Chapter 2254],
26-21 Government Code.
26-22 (f) The board or its representative shall evaluate
26-23 statements of qualifications and select a design-build firm in two
26-24 phases:
26-25 (1) In phase one, the board or its representative
26-26 shall prepare a request for qualifications and evaluate each
26-27 offeror's experience, technical competence, and capability to
27-1 perform, the past performance of the offeror's team and members of
27-2 the team, and other appropriate factors submitted by the team or
27-3 firm in response to the request for qualifications, except that
27-4 cost-related or price-related evaluation factors are not permitted.
27-5 Each offeror must certify to the board that each engineer or
27-6 architect that is a member of its team was selected based on
27-7 demonstrated competence and qualifications in the manner provided
27-8 by Section 2254.004, Government Code. The board or its
27-9 representative shall qualify a maximum of five offerors to submit
27-10 additional information and, if the board or its representative
27-11 chooses, to interview for final selection.
27-12 (2) In phase two, the board or its representative
27-13 shall evaluate the information submitted by the offerors on the
27-14 basis of the selection criteria stated in the request for
27-15 qualifications and the results of any interview. The board or its
27-16 representative may request additional information regarding
27-17 demonstrated competence and qualifications, considerations of the
27-18 safety and long-term durability of the project, the feasibility of
27-19 implementing the project as proposed, the ability of the offeror to
27-20 meet schedules, costing methodology, or other factors as
27-21 appropriate. The board or its representative may not require
27-22 offerors to submit detailed engineering or architectural designs as
27-23 part of the proposal. The board or its representative shall rank
27-24 each proposal submitted on the basis of the criteria specified in
27-25 the request for qualifications. The board or its representative
27-26 shall select the design-build firm that submits the proposal
27-27 offering the best value for the institution on the basis of the
28-1 published selection criteria and on its ranking evaluations. The
28-2 board or its representative shall first attempt to negotiate with
28-3 the selected offeror a contract. If the board or its
28-4 representative is unable to negotiate a satisfactory contract with
28-5 the selected offeror, the institution shall, formally and in
28-6 writing, end all negotiations with that offeror and proceed to
28-7 negotiate with the next offeror in the order of the selection
28-8 ranking until a contract is reached or negotiations with all ranked
28-9 offerors end.
28-10 SECTION 8. The changes in law made by this Act apply only to
28-11 a contract for which requests for bids, requests for proposals, or
28-12 requests for qualifications are published or distributed after
28-13 September 1, 2001.
28-14 SECTION 9. This Act takes effect September 1, 2001.