1-1 By: Armbrister, Truan S.B. No. 510
1-2 (In the Senate - Filed February 1, 2001; February 5, 2001,
1-3 read first time and referred to Committee on Intergovernmental
1-4 Relations; March 15, 2001, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 6, Nays 0, 1
1-6 present, not voting; March 15, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 510 By: Cain
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the procurement methods a political subdivision or a
1-11 related entity may use.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsections (a) and (c), Section 252.021, Local
1-14 Government Code, are amended to read as follows:
1-15 (a) Before a municipality may enter into a contract that
1-16 requires an expenditure of more than $15,000 from one or more
1-17 municipal funds, the municipality must comply with the procedure
1-18 prescribed by this subchapter and Subchapter C [chapter] for
1-19 competitive sealed bidding or competitive sealed proposals or with
1-20 a method described by Subchapter H, Chapter 271.
1-21 (c) A municipality may use the competitive sealed proposal
1-22 procedure [only] for high technology procurements and [or], in a
1-23 municipality with a population of 75,000 or more, for the purchase
1-24 of insurance.
1-25 SECTION 2. Section 252.022, Local Government Code, is
1-26 amended by adding Subsection (d) to read as follows:
1-27 (d) This chapter does not apply to an expenditure described
1-28 by Section 252.021(a) if the governing body of a municipality
1-29 determines that a method described by Subchapter H, Chapter 271
1-30 provides a better value for the municipality with respect to that
1-31 expenditure than the procedures described in this chapter and the
1-32 municipality adopts and uses a method described in that subchapter
1-33 with respect to that expenditure.
1-34 SECTION 3. Subsections (a) and (b), Section 262.023, Local
1-35 Government Code, are amended to read as follows:
1-36 (a) Before a county may purchase one or more items under a
1-37 contract that will require an expenditure exceeding $25,000, the
1-38 commissioners court of the county must comply with the competitive
1-39 bidding or competitive proposal procedures prescribed by this
1-40 subchapter or with a method described by Subchapter H, Chapter 271.
1-41 All bids or proposals must be sealed.
1-42 (b) The competitive bidding and competitive proposal
1-43 requirements established by Subsection (a) apply [only] to
1-44 contracts for which payment will be made from current funds or bond
1-45 funds or through time warrants. Contracts [However, contracts] for
1-46 which payments will be made through certificates of obligation are
1-47 governed by The Certificate of Obligation Act of 1971 (Subchapter
1-48 C, Chapter 271). Contracts for which payment will be made through
1-49 anticipation notes are subject to the competitive bidding
1-50 provisions of The Certificate of Obligation Act of 1971 (Subchapter
1-51 C, Chapter 271) in the same manner as certificates of obligation.
1-52 SECTION 4. Chapter 271, Local Government Code, is amended by
1-53 adding Subchapter H to read as follows:
1-54 SUBCHAPTER H. ALTERNATIVE PROJECT DELIVERY METHODS FOR
1-55 CERTAIN MUNICIPAL AND COUNTY PROJECTS
1-56 Sec. 271.111. DEFINITIONS. In this subchapter:
1-57 (1) "Architect" means an individual registered as an
1-58 architect under Chapter 478, Acts of the 45th Legislature, Regular
1-59 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).
1-60 (2) "Contractor" in the context of a contract for the
1-61 construction, rehabilitation, alteration, or repair of a facility
1-62 means a sole proprietorship, partnership, corporation, or other
1-63 legal entity that assumes the risk for constructing,
1-64 rehabilitating, altering, or repairing all or part of the facility
2-1 at the contracted price.
2-2 (3) "Design-build contract" means a single contract
2-3 with a design-build firm for the design and construction of a
2-4 facility.
2-5 (4) "Design-build firm" means a partnership,
2-6 corporation, or other legal entity or team that includes an
2-7 engineer or architect and builder qualified to engage in building
2-8 construction in Texas.
2-9 (5) "Design criteria package" means a set of documents
2-10 that provides sufficient information to permit a design-build firm
2-11 to prepare a response to a governmental entity's request for
2-12 qualifications and any additional information requested, including
2-13 criteria for selection. The design criteria package must specify
2-14 criteria the governmental entity considers necessary to describe
2-15 the project and may include, as appropriate, the legal description
2-16 of the site, survey information concerning the site, interior space
2-17 requirements, special material requirements, material quality
2-18 standards, conceptual criteria for the project, special equipment
2-19 requirements, cost or budget estimates, time schedules, quality
2-20 assurance and quality control requirements, site development
2-21 requirements, applicable codes and ordinances, provisions for
2-22 utilities, parking requirements, or any other requirement, as
2-23 applicable.
2-24 (6) "Engineer" means an individual registered as a
2-25 professional engineer under The Texas Engineering Practice Act
2-26 (Article 3271a, Vernon's Texas Civil Statutes).
2-27 (7) "Facility" means a building the design and
2-28 construction of which is governed by building codes. The term does
2-29 not include highways, roads, streets, bridges, utilities, water
2-30 supply projects, water plants, wastewater plants, water and
2-31 wastewater distribution and conveyance facilities, wharves, docks,
2-32 drainage projects, airport runways and taxiways, or related types
2-33 of projects associated with civil engineering construction. The
2-34 term also does not include buildings or structures that are
2-35 incidental to projects that are primarily civil engineering
2-36 construction projects.
2-37 (8) "Fee" in the context of a contract for the
2-38 construction, rehabilitation, alteration, or repair of a facility
2-39 means the payment a construction manager receives for its overhead
2-40 and profit in performing its services.
2-41 (9) "General conditions" in the context of a contract
2-42 for the construction, rehabilitation, alteration, or repair of a
2-43 facility means on-site management, administrative personnel,
2-44 insurance, bonds, equipment, utilities, and incidental work,
2-45 including minor field labor and materials.
2-46 (10) "Governmental entity" means a municipality or a
2-47 county.
2-48 Sec. 271.112. APPLICABILITY; OTHER LAW. (a) Any provision
2-49 in the charter of a home-rule municipality or any county regulation
2-50 that requires the use of competitive bidding or competitive sealed
2-51 proposals or that prescribes procurement procedures and that is in
2-52 conflict with this subchapter controls over this subchapter unless
2-53 the governing body of the municipality or county elects to have
2-54 this subchapter supersede the charter or regulation.
2-55 (b) The purchasing requirements of Section 361.426, Health
2-56 and Safety Code, apply to purchases by a governmental entity made
2-57 under this subchapter.
2-58 (c) Except as provided by this section, to the extent of any
2-59 conflict, this subchapter prevails over any other law relating to
2-60 the purchasing of goods and services except a law relating to
2-61 contracting with historically underutilized businesses.
2-62 (d) For a contract entered into under any of the methods
2-63 provided in this subchapter by a municipality, the municipality
2-64 shall publish notice of the time and place the bids or proposals,
2-65 or the responses to a request for qualifications, will be received
2-66 and opened in the county in which the municipality's central
2-67 administrative office is located, once a week for at least two
2-68 weeks before the deadline for receiving bids, proposals, or
2-69 responses. If there is not a newspaper in that county, the notice
3-1 shall be published in a newspaper in the county nearest the county
3-2 seat of the county in which the municipality's central
3-3 administrative office is located. In a two-step procurement
3-4 process, the time and place the second step bids, proposals, or
3-5 responses will be received are not required to be published
3-6 separately.
3-7 (e) For a contract entered into under any of the methods
3-8 provided in this subchapter by a county, the county shall publish
3-9 notice of the time and place the bids or proposals, or the
3-10 responses to a request for qualifications, will be received and
3-11 opened, once a week for at least two weeks before the deadline for
3-12 receiving bids, proposals, or responses. If there is not a
3-13 newspaper in the county, the notice shall be posted at the
3-14 courthouse door of the county and the notice shall be published in
3-15 a newspaper published in the nearest county.
3-16 (f) A contract entered into or an arrangement made in
3-17 violation of this subchapter is contrary to public policy and is
3-18 void. A court may enjoin performance of a contract made in
3-19 violation of this subchapter. A county attorney, a district
3-20 attorney, a criminal district attorney, a citizen of the county
3-21 which is or in which the governmental entity is located, or any
3-22 interested party may bring an action for an injunction. A party
3-23 who prevails in an action brought under this subsection is entitled
3-24 to reasonable attorney's fees as approved by the court.
3-25 Sec. 271.113. PROCUREMENT PROCEDURES. (a) In entering into
3-26 a contract for the construction of a facility, a governmental
3-27 entity may use any of the following methods that provides the best
3-28 value for the governmental entity:
3-29 (1) competitive bidding;
3-30 (2) competitive sealed proposals for construction
3-31 services;
3-32 (3) a design-build contract;
3-33 (4) a contract to construct, rehabilitate, alter, or
3-34 repair facilities that involves using a construction manager; or
3-35 (5) a job order contract for the minor repair,
3-36 rehabilitation, or alteration of a facility.
3-37 (b) Except as provided by this subchapter, in determining to
3-38 whom to award a contract, the governmental entity may consider:
3-39 (1) the purchase price;
3-40 (2) the reputation of the vendor and of the vendor's
3-41 goods or services;
3-42 (3) the quality of the vendor's goods or services;
3-43 (4) the extent to which the goods or services meet the
3-44 governmental entity's needs;
3-45 (5) the vendor's past relationship with the
3-46 governmental entity;
3-47 (6) the impact on the ability of the governmental
3-48 entity to comply with rules relating to historically underutilized
3-49 businesses; and
3-50 (7) the total long-term cost to the governmental
3-51 entity to acquire the vendor's goods or services.
3-52 Sec. 271.114. EVALUATION OF BIDS AND PROPOSALS FOR
3-53 CONSTRUCTION SERVICES. (a) The governing body of a governmental
3-54 entity that is considering a construction contract using a method
3-55 specified by Section 271.113(a) other than competitive bidding
3-56 must, before advertising, determine which method provides the best
3-57 value for the governmental entity.
3-58 (b) The governmental entity shall base its selection among
3-59 offerors on criteria authorized to be used under Section
3-60 271.113(b). The governmental entity shall publish in the request
3-61 for bids, proposals, or qualifications all of the criteria that
3-62 will be used to evaluate the offerors and the relative weights.
3-63 (c) The governmental entity shall document the basis of its
3-64 selection and shall make the evaluations public not later than the
3-65 seventh day after the date the contract is awarded.
3-66 Sec. 271.115. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
3-67 THROUGH COMPETITIVE BIDDING. (a) Except to the extent prohibited
3-68 by other law and to the extent consistent with this subchapter, a
3-69 governmental entity may use competitive bidding to select a
4-1 contractor to perform construction, rehabilitation, alteration, or
4-2 repair services for a facility.
4-3 (b) Except as otherwise specifically provided by this
4-4 subsection, Subchapter B does not apply to a competitive bidding
4-5 process under this section. Sections 271.026, 271.027(a), and
4-6 271.0275 apply to a competitive bidding process under this section.
4-7 (c) A governmental entity shall award a competitively bid
4-8 contract at the bid amount to the bidder offering the best value to
4-9 the governmental entity according to the selection criteria that
4-10 were established by the governmental entity. The selection
4-11 criteria may include the factors listed in Section 271.113(b).
4-12 Sec. 271.116. SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES
4-13 THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
4-14 contractor for construction, rehabilitation, alteration, or repair
4-15 services for a facility through competitive sealed proposals, a
4-16 governmental entity shall follow the procedures prescribed by this
4-17 section.
4-18 (b) The governmental entity shall select or designate an
4-19 engineer or architect to prepare construction documents for the
4-20 project. The selected or designated engineer or architect has full
4-21 responsibility for complying with The Texas Engineering Practice
4-22 Act (Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478,
4-23 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
4-24 Vernon's Texas Civil Statutes), as applicable. If the engineer or
4-25 architect is not a full-time employee of the governmental entity,
4-26 the governmental entity shall select the engineer or architect on
4-27 the basis of demonstrated competence and qualifications as provided
4-28 by Section 2254.004, Government Code.
4-29 (c) The governmental entity shall provide or contract for,
4-30 independently of the contractor, the inspection services, the
4-31 testing of construction materials engineering, and the verification
4-32 testing services necessary for acceptance of the facility by the
4-33 governmental entity. The governmental entity shall select those
4-34 services for which it contracts in accordance with Section
4-35 2254.004, Government Code, and shall identify them in the request
4-36 for proposals.
4-37 (d) The governmental entity shall prepare a request for
4-38 competitive sealed proposals that includes construction documents,
4-39 selection criteria, estimated budget, project scope, schedule, and
4-40 other information that contractors may require to respond to the
4-41 request. The governmental entity shall state in the request for
4-42 proposals the selection criteria that will be used in selecting the
4-43 successful offeror.
4-44 (e) The governmental entity shall receive, publicly open,
4-45 and read aloud the names of the offerors and, if any are required
4-46 to be stated, all prices stated in each proposal. Not later than
4-47 the 45th day after the date of opening the proposals, the
4-48 governmental entity shall evaluate and rank each proposal submitted
4-49 in relation to the published selection criteria.
4-50 (f) The governmental entity shall select the offeror that
4-51 offers the best value for the governmental entity based on the
4-52 published selection criteria and on its ranking evaluation. The
4-53 governmental entity shall first attempt to negotiate a contract
4-54 with the selected offeror. The governmental entity and its
4-55 engineer or architect may discuss with the selected offeror options
4-56 for a scope or time modification and any price change associated
4-57 with the modification. If the governmental entity is unable to
4-58 negotiate a contract with the selected offeror, the governmental
4-59 entity shall, formally and in writing, end negotiations with that
4-60 offeror and proceed to the next offeror in the order of the
4-61 selection ranking until a contract is reached or all proposals are
4-62 rejected.
4-63 (g) In determining best value for the governmental entity,
4-64 the governmental entity is not restricted to considering price
4-65 alone, but may consider any other factor stated in the selection
4-66 criteria.
4-67 Sec. 271.117. CONTRACTS FOR FACILITIES: CONSTRUCTION
4-68 MANAGER-AGENT. (a) A governmental entity may use the construction
4-69 manager-agent method for the construction, rehabilitation,
5-1 alteration, or repair of a facility. In using that method and in
5-2 entering into a contract for the services of a construction
5-3 manager-agent, a governmental entity shall follow the procedures
5-4 prescribed by this section.
5-5 (b) A construction manager-agent is a sole proprietorship,
5-6 partnership, corporation, or other legal entity that provides
5-7 consultation to the governmental entity regarding construction,
5-8 rehabilitation, alteration, or repair of the facility. A
5-9 governmental entity using the construction manager-agent method
5-10 may, under the contract between the governmental entity and the
5-11 construction manager-agent, require the construction manager-agent
5-12 to provide administrative personnel, equipment necessary to perform
5-13 duties under this section, and on-site management and other
5-14 services specified in the contract. A construction manager-agent
5-15 represents the governmental entity in a fiduciary capacity.
5-16 (c) Before or concurrently with selecting a construction
5-17 manager-agent, the governmental entity shall select or designate an
5-18 engineer or architect who shall prepare the construction documents
5-19 for the project and who has full responsibility for complying with
5-20 The Texas Engineering Practice Act (Article 3271a, Vernon's Texas
5-21 Civil Statutes) or Chapter 478, Acts of the 45th Legislature,
5-22 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
5-23 Statutes), as applicable. If the engineer or architect is not a
5-24 full-time employee of the governmental entity, the governmental
5-25 entity shall select the engineer or architect on the basis of
5-26 demonstrated competence and qualifications as provided by Section
5-27 2254.004, Government Code. The governmental entity's engineer or
5-28 architect may not serve, alone or in combination with another
5-29 person, as the construction manager-agent unless the engineer or
5-30 architect is hired to serve as the construction manager-agent under
5-31 a separate or concurrent procurement conducted in accordance with
5-32 this subchapter. This subsection does not prohibit the
5-33 governmental entity's engineer or architect from providing
5-34 customary construction phase services under the engineer's or
5-35 architect's original professional service agreement in accordance
5-36 with applicable licensing laws.
5-37 (d) A governmental entity shall select a construction
5-38 manager-agent on the basis of demonstrated competence and
5-39 qualifications in the same manner as provided for the selection of
5-40 engineers or architects under Section 2254.004, Government Code,
5-41 except that notice must be published as provided by Section
5-42 271.112(d).
5-43 (e) A governmental entity using the construction
5-44 manager-agent method shall procure, in accordance with applicable
5-45 law, a general contractor, trade contractors, or subcontractors who
5-46 will serve as the prime contractor for their specific portion of
5-47 the work.
5-48 (f) The governmental entity or the construction
5-49 manager-agent shall procure in accordance with Section 2254.004,
5-50 Government Code, all of the testing of construction materials
5-51 engineering, the inspection services, and the verification testing
5-52 services necessary for acceptance of the facility by the
5-53 governmental entity.
5-54 Sec. 271.118. CONTRACTS FOR FACILITIES: CONSTRUCTION
5-55 MANAGER-AT-RISK. (a) A governmental entity may use the
5-56 construction manager-at-risk method for the construction,
5-57 rehabilitation, alteration, or repair of a facility. In using that
5-58 method and in entering into a contract for the services of a
5-59 construction manager-at-risk, a governmental entity shall follow
5-60 the procedures prescribed by this section.
5-61 (b) A construction manager-at-risk is a sole proprietorship,
5-62 partnership, corporation, or other legal entity that assumes the
5-63 risk for construction, rehabilitation, alteration, or repair of a
5-64 facility at the contracted price as a general contractor and
5-65 provides consultation to the governmental entity regarding
5-66 construction during and after the design of the facility.
5-67 (c) Before or concurrently with selecting a construction
5-68 manager-at-risk, the governmental entity shall select or designate
5-69 an engineer or architect who shall prepare the construction
6-1 documents for the project and who has full responsibility for
6-2 complying with The Texas Engineering Practice Act (Article 3271a,
6-3 Vernon's Texas Civil Statutes) or Chapter 478, Acts of the 45th
6-4 Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
6-5 Civil Statutes), as applicable. If the engineer or architect is
6-6 not a full-time employee of the governmental entity, the
6-7 governmental entity shall select the engineer or architect on the
6-8 basis of demonstrated competence and qualifications as provided by
6-9 Section 2254.004, Government Code. The governmental entity's
6-10 engineer, architect, or construction manager-agent for a project
6-11 may not serve, alone or in combination with another, as the
6-12 construction manager-at-risk unless the engineer or architect is
6-13 hired to serve as the construction manager-at-risk under a separate
6-14 or concurrent procurement conducted in accordance with this
6-15 subchapter.
6-16 (d) The governmental entity shall provide or contract for,
6-17 independently of the construction manager-at-risk, the inspection
6-18 services, the testing of construction materials engineering, and
6-19 the verification testing services necessary for acceptance of the
6-20 facility by the governmental entity. The governmental entity shall
6-21 select those services for which it contracts in accordance with
6-22 Section 2254.004, Government Code.
6-23 (e) The governmental entity shall select the construction
6-24 manager-at-risk in either a one-step or two-step process. The
6-25 governmental entity shall prepare a request for proposals, in the
6-26 case of a one-step process, or a request for qualifications, in the
6-27 case of a two-step process, that includes general information on
6-28 the project site, project scope, schedule, selection criteria,
6-29 estimated budget, and the time and place for receipt of proposals
6-30 or qualifications, as applicable, and other information that may
6-31 assist the governmental entity in its selection of a construction
6-32 manager-at-risk. The governmental entity shall state the selection
6-33 criteria in the request for proposals or qualifications, as
6-34 applicable. The selection criteria may include the offeror's
6-35 experience, past performance, safety record, proposed personnel and
6-36 methodology, and other appropriate factors that demonstrate the
6-37 capability of the construction manager-at-risk. If a one-step
6-38 process is used, the governmental entity may request, as part of
6-39 the offeror's proposal, proposed fees and prices for fulfilling the
6-40 general conditions. If a two-step process is used, the
6-41 governmental entity may not request fees or prices in step one. In
6-42 step two, the governmental entity may request that five or fewer
6-43 offerors, selected solely on the basis of qualifications, provide
6-44 additional information, including the construction
6-45 manager-at-risk's proposed fee and its price for fulfilling the
6-46 general conditions.
6-47 (f) At each step, the governmental entity shall receive,
6-48 publicly open, and read aloud the names of the offerors. At the
6-49 appropriate step, the governmental entity shall also read aloud the
6-50 fees and prices, if any, stated in each proposal as the proposal is
6-51 opened. Not later than the 45th day after the date of opening the
6-52 proposals, the governmental entity shall evaluate and rank each
6-53 proposal submitted in relation to the criteria set forth in the
6-54 request for proposals.
6-55 (g) The governmental entity shall select the offeror that
6-56 submits the proposal that offers the best value for the
6-57 governmental entity based on the published selection criteria and
6-58 on its ranking evaluation. The governmental entity shall first
6-59 attempt to negotiate a contract with the selected offeror. If the
6-60 governmental entity is unable to negotiate a satisfactory contract
6-61 with the selected offeror, the governmental entity shall, formally
6-62 and in writing, end negotiations with that offeror and proceed to
6-63 negotiate with the next offeror in the order of the selection
6-64 ranking until a contract is reached or negotiations with all ranked
6-65 offerors end.
6-66 (h) A construction manager-at-risk shall publicly advertise,
6-67 as prescribed for a governmental entity by Section 271.025, and
6-68 receive bids or proposals from trade contractors or subcontractors
6-69 for the performance of all major elements of the work other than
7-1 the minor work that may be included in the general conditions. A
7-2 construction manager-at-risk may seek to perform portions of the
7-3 work itself if the construction manager-at-risk submits its bid or
7-4 proposal for those portions of the work in the same manner as all
7-5 other trade contractors or subcontractors and if the governmental
7-6 entity determines that the construction manager-at-risk's bid or
7-7 proposal provides the best value for the governmental entity.
7-8 (i) The construction manager-at-risk and the governmental
7-9 entity or its representative shall review all trade contractor or
7-10 subcontractor bids or proposals in a manner that does not disclose
7-11 the contents of the bid or proposal during the selection process to
7-12 a person not employed by the construction manager-at-risk,
7-13 engineer, architect, or governmental entity. All bids or proposals
7-14 shall be made public after the award of the contract or not later
7-15 than the seventh day after the date of final selection of bids or
7-16 proposals, whichever is later.
7-17 (j) If the construction manager-at-risk reviews, evaluates,
7-18 and recommends to the governmental entity a bid or proposal from a
7-19 trade contractor or subcontractor but the governmental entity
7-20 requires another bid or proposal to be accepted, the governmental
7-21 entity shall compensate the construction manager-at-risk by a
7-22 change in price, time, or guaranteed maximum cost for any
7-23 additional cost and risk that the construction manager-at-risk may
7-24 incur because of the governmental entity's requirement that another
7-25 bid or proposal be accepted.
7-26 (k) If a selected trade contractor or subcontractor defaults
7-27 in the performance of its work or fails to execute a subcontract
7-28 after being selected in accordance with this section, the
7-29 construction manager-at-risk may, without advertising, fulfill the
7-30 contract requirements itself or select a replacement trade
7-31 contractor or subcontractor to fulfill the contract requirements.
7-32 (l) If a fixed contract amount or guaranteed maximum price
7-33 has not been determined at the time the contract is awarded, the
7-34 penal sums of the performance and payment bonds delivered to the
7-35 governmental entity must each be in an amount equal to the project
7-36 budget, as specified in the request for qualifications. The
7-37 construction manager shall deliver the bonds not later than the
7-38 10th day after the date the construction manager executes the
7-39 contract unless the construction manager furnishes a bid bond or
7-40 other financial security acceptable to the governmental entity to
7-41 ensure that the construction manager will furnish the required
7-42 performance and payment bonds when a guaranteed maximum price is
7-43 established.
7-44 Sec. 271.119. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A
7-45 governmental entity may use the design-build method for the
7-46 construction, rehabilitation, alteration, or repair of a facility.
7-47 In using that method and in entering into a contract for the
7-48 services of a design-build firm, the contracting governmental
7-49 entity and the design-build firm shall follow the procedures
7-50 provided by this section.
7-51 (b) The governmental entity shall designate an engineer or
7-52 architect independent of the design-build firm to act as the
7-53 governmental entity's representative for the duration of the
7-54 project. If the governmental entity's engineer or architect is not
7-55 a full-time employee of the governmental entity, any engineer or
7-56 architect designated shall be selected on the basis of demonstrated
7-57 competence and qualifications in accordance with Section 2254.004,
7-58 Government Code.
7-59 (c) The governmental entity shall prepare a request for
7-60 qualifications that includes general information on the project
7-61 site, project scope, budget, special systems, selection criteria,
7-62 and other information that may assist potential design-build firms
7-63 in submitting proposals for the project. The governmental entity
7-64 shall also prepare a design criteria package that includes more
7-65 detailed information on the project. If the preparation of the
7-66 design criteria package requires engineering or architectural
7-67 services that constitute the practice of engineering within the
7-68 meaning of The Texas Engineering Practice Act (Article 3271a,
7-69 Vernon's Texas Civil Statutes) or the practice of architecture
8-1 within the meaning of Chapter 478, Acts of the 45th Legislature,
8-2 Regular Session, 1937 (Article 249a, Vernon's Texas Civil
8-3 Statutes), those services shall be provided in accordance with the
8-4 applicable law.
8-5 (d) The governmental entity shall evaluate statements of
8-6 qualifications and select a design-build firm in two phases:
8-7 (1) In phase one, the governmental entity shall
8-8 prepare a request for qualifications and evaluate each offeror's
8-9 experience, technical competence, and capability to perform, the
8-10 past performance of the offeror's team and members of the team, and
8-11 other appropriate factors submitted by the team or firm in response
8-12 to the request for qualifications, except that cost-related or
8-13 price-related evaluation factors are not permitted. Each offeror
8-14 must certify to the governmental entity that each engineer or
8-15 architect that is a member of its team was selected based on
8-16 demonstrated competence and qualifications in the manner provided
8-17 by Section 2254.004, Government Code. The governmental entity
8-18 shall qualify a maximum of five offerors to submit additional
8-19 information and, if the governmental entity chooses, to interview
8-20 for final selection.
8-21 (2) In phase two, the governmental entity shall
8-22 evaluate the information submitted by the offerors on the basis of
8-23 the selection criteria stated in the request for qualifications and
8-24 the results of an interview. The governmental entity may request
8-25 additional information regarding demonstrated competence and
8-26 qualifications, considerations of the safety and long-term
8-27 durability of the project, the feasibility of implementing the
8-28 project as proposed, the ability of the offeror to meet schedules,
8-29 costing methodology, or other factors as appropriate. The
8-30 governmental entity may not require offerors to submit detailed
8-31 engineering or architectural designs as part of the proposal. The
8-32 governmental entity shall rank each proposal submitted on the basis
8-33 of the criteria set forth in the request for qualifications. The
8-34 governmental entity shall select the design-build firm that submits
8-35 the proposal offering the best value for the governmental entity on
8-36 the basis of the published selection criteria and on its ranking
8-37 evaluations. The governmental entity shall first attempt to
8-38 negotiate a contract with the selected offeror. If the
8-39 governmental entity is unable to negotiate a satisfactory contract
8-40 with the selected offeror, the governmental entity shall, formally
8-41 and in writing, end negotiations with that offeror and proceed to
8-42 negotiate with the next offeror in the order of the selection
8-43 ranking until a contract is reached or negotiations with all ranked
8-44 offerors end.
8-45 (e) Following selection of a design-build firm under
8-46 Subsection (d), that firm's engineers or architects shall complete
8-47 the design, submitting all design elements for review and
8-48 determination of scope compliance to the governmental entity or the
8-49 governmental entity's engineer or architect before or concurrently
8-50 with construction.
8-51 (f) An engineer shall have responsibility for compliance
8-52 with the engineering design requirements and all other applicable
8-53 requirements of The Texas Engineering Practice Act (Article 3271a,
8-54 Vernon's Texas Civil Statutes). An architect shall have
8-55 responsibility for compliance with the requirements of Chapter 478,
8-56 Acts of the 45th Legislature, Regular Session, 1937 (Article 249a,
8-57 Vernon's Texas Civil Statutes).
8-58 (g) The governmental entity shall provide or contract for,
8-59 independently of the design-build firm, the inspection services,
8-60 the testing of construction materials engineering, and the
8-61 verification testing services necessary for acceptance of the
8-62 facility by the governmental entity. The governmental entity shall
8-63 select those services for which it contracts in accordance with
8-64 Section 2254.004, Government Code.
8-65 (h) The design-build firm shall supply a signed and sealed
8-66 set of construction documents for the project to the governmental
8-67 entity at the conclusion of construction.
8-68 (i) A payment or performance bond is not required for, and
8-69 may not provide coverage for, the portion of a design-build
9-1 contract under this section that includes design services only. If
9-2 a fixed contract amount or guaranteed maximum price has not been
9-3 determined at the time a design-build contract is awarded, the
9-4 penal sums of the performance and payment bonds delivered to the
9-5 governmental entity must each be in an amount equal to the project
9-6 budget, as specified in the design criteria package. The
9-7 design-build firm shall deliver the bonds not later than the 10th
9-8 day after the date the design-build firm executes the contract
9-9 unless the design-build firm furnishes a bid bond or other
9-10 financial security acceptable to the governmental entity to ensure
9-11 that the design-build firm will furnish the required performance
9-12 and payment bonds when a guaranteed maximum price is established.
9-13 Sec. 271.120. JOB ORDER CONTRACTS FOR FACILITIES
9-14 CONSTRUCTION OR REPAIR. (a) A governmental entity may award job
9-15 order contracts for the minor construction, repair, rehabilitation,
9-16 or alteration of a facility if the work is of a recurring nature
9-17 but the delivery times are indefinite and indefinite quantities and
9-18 orders are awarded substantially on the basis of predescribed and
9-19 prepriced tasks.
9-20 (b) The governmental entity may establish contractual unit
9-21 prices for a job order contract by:
9-22 (1) specifying one or more published construction unit
9-23 price books and the applicable divisions or line items; or
9-24 (2) providing a list of work items and requiring the
9-25 offerors to bid or propose one or more coefficients or multipliers
9-26 to be applied to the price book or work items as the price
9-27 proposal.
9-28 (c) The governmental entity shall advertise for, receive,
9-29 and publicly open sealed proposals for job order contracts.
9-30 (d) The governmental entity may require offerors to submit
9-31 additional information besides rates, including experience, past
9-32 performance, and proposed personnel and methodology.
9-33 (e) The governmental entity may award job order contracts to
9-34 one or more job order contractors in connection with each
9-35 solicitation of bids or proposals.
9-36 (f) An order for a job or project under the job order
9-37 contract must be signed by the governmental entity's representative
9-38 and the contractor. The order may be a fixed price, lump-sum
9-39 contract based substantially on contractual unit pricing applied to
9-40 estimated quantities or may be a unit price order based on the
9-41 quantities and line times delivered.
9-42 (g) The contractor shall provide payment and performance
9-43 bonds, if required by law, based on the amount or estimated amount
9-44 of any order.
9-45 (h) The base term of a job order contract is for the period
9-46 and with any renewal options that the governmental entity sets
9-47 forth in the request for proposals. If the governmental entity
9-48 fails to advertise that term, the base term may not exceed two
9-49 years and is not renewable without further advertisement and
9-50 solicitation of proposals.
9-51 (i) If a job order contract or an order issued under the
9-52 contract requires engineering or architectural services that
9-53 constitute the practice of engineering within the meaning of The
9-54 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
9-55 Statutes) or the practice of architecture within the meaning of
9-56 Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
9-57 (Article 249a, Vernon's Texas Civil Statutes), those services shall
9-58 be provided in accordance with applicable law.
9-59 Sec. 271.121. RIGHT TO WORK. Notwithstanding any other
9-60 provisions of this chapter, a governmental entity, when engaged in
9-61 procuring products or services, awarding a contract, or overseeing
9-62 procurement or construction for a public work or public
9-63 improvement, may not consider a vendor's membership or
9-64 nonmembership or other relationship with any organization and the
9-65 governmental entity shall ensure that its bid specifications and
9-66 any subsequent contract or other agreement do not deny or abridge
9-67 the right of a person to work because of membership or
9-68 nonmembership in any organization.
9-69 SECTION 5. Subdivision (1), Section 2254.002, Government
10-1 Code, is amended to read as follows:
10-2 (1) "Governmental entity" means:
10-3 (A) a state agency or department;
10-4 (B) a district, authority, county, municipality,
10-5 or other political subdivision of the state; [or]
10-6 (C) a local government corporation or another
10-7 entity created by or acting on behalf of a political subdivision;
10-8 or
10-9 (D) a publicly owned utility.
10-10 SECTION 6. The changes in law made by this Act apply only to
10-11 a contract for which requests for bids, requests for proposals, or
10-12 requests for qualifications are published or distributed on or
10-13 after September 1, 2001.
10-14 SECTION 7. This Act takes effect September 1, 2001.
10-15 * * * * *