SRC-LBB S.B. 1331 78(R)BILL ANALYSIS


Senate Research CenterS.B. 1331
By: Ratliff
State Affairs
7/14/2003
Enrolled


DIGEST AND PURPOSE 

Currently, provisions in the Government Code relating to construction
manager-at-risk and construction manager-agency do not conform with the
language in the Education Code.  S.B. 1331 aligns the Education Code and
Government Code provisions and adds language to the Government Code which
authorizes public entities to use a construction manager-agent to
represent the owner in a fiduciary capacity.  This bill also modifies the
Education Code and Government Code sections on construction
manager-at-risk if the engineer or architect is selected through a
separate procurement process. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter F, Chapter 2166, Government Code, by adding
Section 2166.2535, as follows: 

Sec. 2166.2535.  CONSTRUCTION MANAGER-AGENT.  (a)  Authorizes the Texas
Building and Procurement Commission (TBPC) to use the construction
manager-agent method for a project.  Requires TBPC to follow the
procedures prescribed by this section, in using that method and in
entering into a contract for the services of a construction manager-agent.

(b)  Provides that a construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that provides consultation
to TBPC regarding construction, rehabilitation, alteration, or repair of a
facility.  Authorizes TBPC, when using the construction manager-agent
method, to, under the contract between TBPC and the construction
manager-agent, 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 TBPC in a
fiduciary capacity.  

(c)  Requires TBPC, before or concurrently with selecting a construction
manageragent, to select or designate an engineer or architect to prepare
the construction documents for the project and to have full responsibility
for complying with Chapter 1001(Engineers) or 1051 (Architects),
Occupations Code, as applicable. Requires TBPC to select the engineer or
architect on the basis of demonstrated competence and qualifications as
provided by Section 2254.004 (Contract for Professional Services of
Architect, Engineer, or Surveyor), if the engineer or architect is not a
full-time employee of TBPC.  Prohibits a TBPC 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. Provides that this
subsection does not prohibit a TBPC engineer or architect from providing
customary construction  phase services under the engineer's or architect's
original professional service agreement in accordance with applicable
licensing laws. 

(d)  Requires TBPC 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. 

(e)  Requires TBPC, when using the construction manager-agent method, 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 TBPC or the construction manager-agent to procure, in
accordance with Section 2254.004, all of the testing of construction
materials engineering, the inspection services, and the verification
testing services necessary for acceptance of the facility by TBPC. 

SECTION 2.  Amends Section 2166.2532(c), Government Code, to prohibit
TBPC's engineer or architect for a project from serving, alone or in
combination with another, as the construction manager-at-risk unless the
engineer or architect is hired to serve as the construction manager-atrisk
under a separate or concurrent procurement conducted in accordance with
this subchapter.  Provides that this subsection does not prohibit a TBPC
engineer or architect from providing customary construction phase services
under the engineer's or architect's original professional service
agreement in accordance with applicable licensing laws.  Makes a
conforming change. 

SECTION 3.  Amends Section 44.038(c), Education Code,  to prohibit a
school 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 unless the engineer or architect is hired to
serve as the construction manager-at-risk under a separate or concurrent
procurement conducted in accordance with this subchapter.  Provides 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 licensing laws.  Makes a conforming change. 

SECTION 4.  Amends Section 44.040, Education Code, as follows:

Sec. 44.040.  SELECTING CONTRACTOR FOR CONSTRUCTION SERVICES THROUGH
COMPETITIVE BIDDING.  (a)  Authorizes a school district to use competitive
bidding to select a contractor to perform construction, rehabilitation,
alteration, or repair services for a facility, except to the extent
prohibited by other law and to the extent consistent with this subchapter. 

(b)  Provides that except as otherwise specifically provided by this
subsection, Subchapter B, Chapter 271, Local Government Code, does not
apply to a competitive bidding process under this subchapter.  Provides
that Sections 271.026, 271.027(a), and 271.0275, Local Government Code,
apply to a competitive bidding process under this subchapter. 

(c)  Requires the district to select or designate an engineer or architect
to prepare construction documents for the project.  Provides that the
selected or designated engineer or architect has full responsibility for
complying with Chapter 1001 and Chapter 1051, Occupations Code, as
applicable. 

(d)  Creates this subsection from existing text.

SECTION 5.  Amends Section 51.782(c), Education Code, to prohibit an
institution of higher education's engineer, architect, or construction
manager-agent for a project from serviving, alone or in combination with
another, as the construction manager-at-risk unless the engineer or
architect is hired to serve as the construction manager-at-risk under a
separate or concurrent  procurement conducted in accordance with this
subchapter.  Provides that this subsection does not prohibit the
institution'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 licensing laws. 

SECTION 6.  (a) and (b)  Make application of this Act prospective. 

SECTION 7.  Effective date:  September 1, 2003.