SRC-TJG C.S.H.B. 3028 78(R)BILL ANALYSIS


Senate Research CenterC.S.H.B. 3028
By: Moreno, Joe E. (Hinojosa)
Natural Resources
5/18/2003
Committee Report (Substituted)

DIGEST AND PURPOSE 

Currently, Texas ports are authorized to use the same procurement
procedures as school districts; however, this provision fails to permit
Texas' ports to use design-build construction for docks, wharfs and other
important infrastructure.  Design-build is a method of contracting in
which an owner hires a competent contractor who in turn hires an
architect, structural engineer, mechanical or electrical engineer, civil
engineer, and any specialty consultants.  All design and construction is
handled under one contract.  C.S.H.B. 3028 amends the Water Code to allow
ports to use the design-build method of contracting. 

RULEMAKING AUTHORITY     

Rulemaking authority is expressly granted to the district commission of
certain port authority and navigation districts in SECTION 1 (Section
60.453, Water Code) of this bill.   

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 60, Water Code, by adding Subchapter O, as
follows: 

SUBCHAPTER O.  LARGE PURCHASE CONTRACTS

Sec.  60.451.  DEFINITIONS.  Defines "architect," "contractor,"
"construction manageragent," "construction manager-at-risk," "design-build
contract," "design-build firm," "design criteria package," "district,"
"engineer," "facility," "fee," and  "general conditions." 

Sec.  60.452.   APPLICABILITY OF SUBCHAPTER; OTHER LAW.  (a)  Provides
that this subchapter does not apply to a contract solely for professional
services rendered, including services of an architect, attorney, or fiscal
agent. 

(b)  Provides that if a district elects to make a procurement under this
subchapter, this subchapter prevails over any other law relating to a
purchase contract for goods and services by the navigation district
(district) that is in conflict with or inconsistent with this subchapter. 

Sec. 60.453.  AUTHORITY TO ADOPT RULES.  Authorizes the commission of a
district (commission) to adopt rules and procedures for the acquisition of
goods or services. 

Sec. 60.454.  PURCHASING CONTRACT METHODS.  Authorizes a district contract
valued at $25,000 or more in the aggregate for each 12-month period to be
made by one of several methods that, in the opinion of the district's
commission, provides the best value for the district, notwithstanding any
other provision of this chapter or other law. 

Sec. 60.455.  RIGHT TO REJECT ALL BIDS.  Authorizes a district that
requests bids or proposals under any of the methods provided by this
subchapter to reject any and all bids or proposals submitted. 

Sec. 60.456.  NOTICE REQUIREMENTS.  Requires the district, for a contract
entered by a district under any of the methods provided by subchapter, to
publish notice of  the  time  and place the bids or proposals, or the
responses to a request for qualifications, will be received and opened.
Requires the notice to be published in a newspaper of general circulation
in each county in which the district is located once each week for two
consecutive weeks before the deadline for receiving bids, proposals, or
responses. Requires the notice, if there is not a newspaper of general
circulation in any county in which the district is located, to be
published in a newspaper of general circulation in the county nearest the
county seat of the county in which the district is located or the county
in which the greatest amount of the district's territory is located.
Provides that in a two- 
step procurement process, the time and place the second-step bids,
proposals, or responses will be received are not required to be published
separately. 

Sec.  60.457.  DELEGATION.  (a)  Authorizes the commission, as it
considers appropriate, to delegate its authority under this subchapter
regarding an action authorized or required by this subchapter to be taken
by a district to a designated person, representative, or committee.
Requires the district, in procuring construction services, to provide
notice of the delegation and the limits of the delegation in the request
for bids, proposals, or qualifications, or in an addendum to the request.
Provides that, if the district fails to provide that notice, a ranking,
selection, or evaluation of bids, proposals, or qualifications for
construction services other than by the commission in an open meeting is
advisory only. 

(b)  Prohibits a commission from delegating the authority to act regarding
an action authorized or required by this subchapter to be taken by the
commission of a district. 

Sec. 60.458.  PURCHASE CONTRACT AWARD CRITERIA.  Authorizes a district to
consider certain factors, in determining to whom to award a contract,
except as provided by this subchapter. 

Sec. 60.459.  EVALUATION OF BIDS AND PROPOSALS FOR CONSTRUCTION SERVICES.
(a)  Requires the commission of a district that is considering a
construction contract using a method specified by Section 60.454, to
determine which method provides the best value for the district, before
advertising. 

(b)  Requires the district to base its selection among offerors on
criteria authorized to be used under Section 60.458.  Requires the
district to publish in the request for bids, proposals, or qualifications
the specific criteria that will be used to evaluate the offerors and the
relative weights given to the criteria. 

(c)  Requires the district to  document the basis of its selection and to
make the evaluations public by the seventh day after the date of the award
of the contract. 

Sec. 60.460.  DESIGN-BUILD CONTRACTS FOR FACILITIES.  (a)  Authorizes a
district to  award a design-build contract for the construction,
rehabilitation, alteration, or repair of a facility provided that the
contracting district and the design-build firm follow the procedures
provided by this section. 

(b)  Requires a district to designate an engineer or architect independent
of the design-build firm to act as its representative for the duration of
the work on the facility.  Requires the district, if its' engineer or
architect is not a full-time employee of the district, to select the
engineer or architect as provided by Section 2254.004 (Contract for
Professional Services of Architect, Engineer, or Surveyors), Government
Code. 

(c)  Requires the district to prepare a request for qualifications that
includes general information on the project site, project scope, budget,
special systems, selection criteria, and other information that may assist
potential design-build firms in submitting proposals for the project.
Requires the district to also prepare a design criteria package that
includes more detailed information on the project.  Provides that, if the
preparation of the design criteria packages requires engineering or
architectural services that constitute the practice of engineering within
the meaning of Chapter 1001 (Engineers), Occupations Code, or the practice
of architecture within the meaning of Chapter 1051 (Architects),
Occupations Code, those services shall be provided in accordance with the
applicable law.  Requires an engineer to have responsibility for
compliance with the engineering design requirements and all other
applicable requirements of Chapter 1001, Occupations Code.  Requires an
architect to have responsibility for compliance with the requirements of
Chapter 1051, Occupations Code. 

(d)  Requires the district to evaluate statements of qualifications and
select a design-build in two certain phases. 

(e)  Requires the firm's engineers or architects, following selection of a
design- 
build firm under Subsection (d), to complete the design, submitting all
design elements for review and determination of scope compliance to the
district or the district's engineer or architect before or concurrently
with construction. 

(f)  Requires the district to provide or contract for, independently of
the design- 
build firm, the inspection services, the testing of construction
materials, and the verification testing services necessary for acceptance
of the facility by the district. Requires the district to select those
services for which it contracts in accordance with Section 2254.004,
Government Code. 

(g)  Requires the design-build firm to supply a signed and sealed set of
construction documents for the project to the district at the conclusion
of construction. 

(h)  Provides that a payment or performance bond is not required for, and
may not provide coverage for, the portion of a design-build contract under
this subchapter that includes design services only.  Requires, if a fixed
contract amount or guaranteed maximum price has not been determined at the
time a design-build contract is awarded, the penal sums of the performance
and payment bonds delivered to the district to each be in an amount equal
to the project budget, as specified in the design criteria package.
Requires the design firm to deliver the bond by the 10th day after the
date  the design-build firm executes the contract unless the design-build
firm furnishes a bid bond or other financial security acceptable to the
district to ensure that the design-build firm will furnish the required
performance and payment bonds when a guaranteed maximum price is
established. 

(i) Requires the district to pay an unsuccessful design-build firm that
submits a response to the district's request for additional information on
engineering or architectural design under Subsection (d)(2) the stipulated
amount of up to onehalf of one percent of the final contract price for any
reasonable costs incurred in preparing the proposal.  Authorizes the
district, after payment of the stipulated amount, to make use of any
design contained in the proposal, including the technologies, techniques,
methods, processes, and information contained in the design.  Provides
that the use by the district of any design element contained in an
unsuccessful proposal is at the sole risk and discretion of the district
and does not confer liability on the recipient of the stipulated amount
under this section. Requires the methodology for computing the stipulated
amount to be stated in the request for additional information under
Subsection (d)(2). 

(j) Authorizes the district to use a design-build firm to assist the
district in obtaining a permit necessary for a facility, but provides that
the district is responsible for obtaining the permit. 

(k) Prohibits a successful design-build firm from being eligible for
another  design-build contract with the district for a period of 12 months
after the date the successful design-build firm's contract has been
completed if certain conditions apply. 

Sec. 60.461.  CONTRACTS FOR FACILITIES: CONSTRUCTION MANAGER-
AGENT.  (a)  Authorizes a district to award a contract to a construction
manager-agent for the construction, rehabilitation, alteration, or repair
of a facility provided that the construction manager-agent and the
district follow the procedures prescribed by this section. 

(b)  Authorizes a district, under the contract between the district and
the construction manager-agent, to require the construction manager-agent
to provide administrative personnel, equipment necessary to perform duties
under this section, and on-site management and other services specified in
the contract. Provides that a construction manager-agent represents the
district in a fiduciary capacity. 

(c)  Requires the district, before or concurrently with selecting a
construction manager-agent, to select or designate an engineer or
architect who shall prepare the construction documents for the project and
who has full responsibility for complying with Chapter 1001 or 1051,
Occupations Code, as applicable.  Requires the district, if the engineer
or architect is not a full-time employee of the district, to select the
engineer or architect as provided by Section 2254.04, Government Code.
Prohibits the district's engineer or architect from serving, alone or in
combination with another person, as the construction manager-agent unless
the engineer or architect is hired to serve as the construction
manager-agent under a separate or concurrent procurement conducted in
accordance with this subchapter.   Establishes that this subsection does
not prohibit the district's engineer or architect from providing customary
construction phase services under the engineer's or architect's original
professional service agreement in accordance with applicable laws. 

(d)  Requires a district to select a construction manager-agent on the
basis of demonstrated competence and qualifications in the same manner as
provided for the selection of engineers or architects under Section
2254.004, Government Code. 

(e)  Requires a district contracting with a construction manager-agent to
procure, in accordance with applicable law, and in any manner authorized
by this chapter, a general contractor, trade contractors, or
subcontractors who will serve as the prime contractor for their specific
portion of the work. 

(f)  Requires the district or the construction manager-agent to procure in
accordance with Section 2254.004, Government Code, and in any manner
authorized by this chapter, all of the testing of construction materials,
the inspection services, and the verification testing services necessary
for acceptance of the facility by the district. 

Sec. 60.462.  CONTRACTS FOR FACILITIES:  CONSTRUCTION MANAGER-AT-
RISK.  (a)  Authorizes a district to  award a contract to a construction
manager-at-risk for the construction, rehabilitation, alteration, or
repair of a facility provided that the construction manager-at-risk and
the district follow the procedures prescribed by this section. 

(b)  Requires the district, before or concurrently with selecting a
construction manager-at-risk, to select or designate an engineer or
architect who shall prepare the construction documents for the project and
who has full responsibility for complying with Chapter 1001 or 1051,
Occupations Code, as applicable. Requires the district, if the engineer or
architect is not a full-time employee of the  district, to select the
engineer or architect in accordance with Section 2254.004, Government
Code.  Prohibits the district's engineer, architect, or construction
manager-agent for a project from serving, alone or in combination with
another, as the construction manager-at-risk. 

(c)  Requires the district to provide or contract for, independently of
the construction manager-at-risk, the inspection services, the testing of
construction materials, and the verification testing services necessary
for acceptance of the facility by the district.  Requires the district to
select those services for which it contracts in accordance with Section
2254.004, Government Code. 

(d)  Requires the district to select the construction manager-at-risk in
either a one- 
step or two-step process.  Requires the district to prepare a request for
proposals, in the case of a one-step process, or a request for
qualifications, in the case of a two-step process, that includes general
information on the project site, project scope, schedule, selection
criteria, estimated budget, and the time and place for receipt of
proposals or qualifications, as applicable, a statement as to whether the
selection process is a one-step or two-step process, and other information
that may assist the district in its selection of a construction
manager-at-risk.  Requires the district to state the selection criteria in
the request for proposals or qualifications, as applicable.  Authorizes
the selection criteria to include the offeror's experience, past
performance, safety record, proposed personnel and methodology, and other
appropriate factors that demonstrate the capability of the construction
manager-atrisk.  Authorizes the district, if a one-step process is used,
to request, as part of the offeror's proposal, proposed fees and prices
for fulfilling the general conditions. 

(e)  Prohibits the district, if a two-step process is used, from
requesting fees or prices in step one.  Authorizes the district, in step
two, to request that five or fewer offerors, selected solely on the basis
of qualifications, provide additional information, including the
construction manager-at-risk's proposed fee and its price for fulfilling
the general conditions. 

(f)  Requires the district to receive, publicly open, and read aloud the
names of the offerors, at each step.  Requires the district, at the
appropriate step, to also read aloud the fees and prices, if any, stated
in each proposal as the proposal is opened. Requires the district, by the
45th day after the date of opening the proposals,  to evaluate and rank
each proposal submitted in relation to the criteria set forth in the
request for proposals. 

(g)  Requires the district to select the offeror who submits the proposal
that offers the best value for the district based on the published
selection criteria and on its ranking evaluation.  Requires  the district
to first attempt to negotiate a contract with the selected offereror.
Requires the district, if it is unable to negotiate a satisfactory
contract with the selected offeror to, formally and in writing, end
negotiations with that offeror and proceed to negotiate with the next
offeror in the order of the selection ranking until a contract is reached
or negotiations with all ranked offerors end. 

(h)  Requires the penal sums of the performance and payment bonds
delivered to the district to each be in an amount equal to the project
budget, if a fixed contract amount or guaranteed maximum price has not
been determined at the time the contract is awarded, as specified in the
request for proposals or qualifications.  Requires the construction
manager-at-risk to deliver the bonds by the 10th day after the date the
construction manager-at-risk executes the contract unless the construction
manager-at-risk furnishes a bid bond or other financial security
acceptable to the district to ensure that the construction manager-at-risk
will furnish the required performance and payment bonds when a guaranteed
maximum price is established. 

 Sec. 60.463.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH
COMPETITIVE SEALED PROPOSALS. (a)  Requires a district, in selecting a
contractor for construction, rehabilitation, alteration, or repair
services for a facility through competitive sealed proposals, to follow
the procedures prescribed by this section. 

(b)  Requires the district to select or designate an engineer or architect
to prepare construction documents for the project.  Establishes that the
selected or designated engineer or architect has full responsibility for
complying with Chapter 1001 or 1051, Occupations Code, as applicable.
Requires the district, if the engineer or architect is not a full-time
employee of the district, to select the engineer or architect  as provided
by Section 2254.004, Government Code. 

(c)  Requires the district to provide or contract for, independently of
the contractor, the inspection services, the testing of construction
materials, and the verification testing services necessary for acceptance
of the facility by the district. Requires the district to select those
services for which it contracts in accordance with Section 2254.004,
Government Code, and to identify them in the request for proposals. 

(d)  Requires the district to prepare a request for competitive sealed
proposals that includes construction documents, selection criteria,
estimated budget, project scope, schedule, and other information that
contractors may require to respond to the request.  Requires the district
to state in the request for proposals the selection criteria that will be
used in selecting the successful offeror. 

(e)  Requires the district to receive, publicly open, and read aloud the
names of the offerors and, if any are required to be stated, all prices
stated in each proposal. Requires the district, by the 45th day after the
date of opening the proposals, to evaluate and rank each proposal
submitted in relation to the published selection criteria. 

(f)  Requires the district to select the offeror that offers the best
value for the district based on the published selection criteria and on
its ranking evaluation. Requires the district to first attempt to
negotiate a contract with the selected offeror.  Authorizes the district
and its engineer or architect to discuss with the selected offeror options
for a scope or time modification and any price change associated with the
modification.  Requires the district, if it is unable to negotiate a
contract with the selected offeror to, formally and in writing, end
negotiations with that offeror and proceed to the next offeror in the
order of the selection ranking until a contract is reached or all
proposals are rejected. 

(g)  Provides that the district, in determining the best value, is not
restricted to considering price alone, but may consider any other factor
stated in the selection criteria. 

Sec. 60.464.  JOB ORDER CONTRACTS FOR FACILITIES CONSTRUCTION OR REPAIR.
(a)  Authorizes a district to award job order contracts for the minor
construction, repair, rehabilitation, or alteration of a facility if the
work is of a recurring nature but the delivery times are indefinite and
indefinite quantities and orders are awarded substantially on the  basis
of predescribed and prepriced tasks. 

(b)  Authorizes the district to establish contractual unit prices for a
job order contract, in various manners. 

  (c)  Requires the district to advertise for, receive, and publicly open
sealed   proposals for job order contracts. 

(d)  Authorizes the district to require offerors to submit, in addition to
information  on rates, other information, including experience, past
performance, and proposed personnel and methodology. 

(e)  Authorizes the district to award job order contract to one or more
job order contractors in connection with each solicitation of bids or
proposals. 

(f)  Requires an order for a job or project under the job order contract
to be signed by the district's representative and the contractor.
Authorizes the order to be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated quantities
or to be a unit price order based on the quantities and line items
delivered. 

(g)  Requires the contractor to provide payment and performance bonds, if
required by law, based on the amount or estimated amount of any order. 

(h)  Establishes that the base term of a job order contract is for the
period and with any renewal options that the district sets forth in the
request for proposals. Prohibits the base term from exceeding two years
and provides that it is not renewable without further advertisement and
solicitation of proposals, if the district fails to advertise that term. 

(i)  Provides that if  a job order contract or an order issued under the
contract requires engineering or architectural services that constitute
the practice of engineering within the meaning of Chapter 1001,
Occupations Code, or the practice of architecture within the meaning of
Chapter 1051, Occupations Code, those services shall be provided in
accordance with applicable law. 

Sec. 60.465.  EXPIRATION.  Provides that this subchapter expires September
1, 2013. 

SECTION 2.  Repealer: Section 60.4125(b), Water Code (Alternative Methods
for Certain Purchases or Contracts). 

SECTION 3.  Provides that the changes in law made by this Act apply only
to a contract for which requests for bids, requests for proposals, or
requests for qualifications are published or distributed after the
effective date of this Act. 

SECTION 4.  Effective date: upon passage or September 1, 2003.