SRC-LBB C.S.S.B. 1499 78(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 1499
By: Madla
Infrastructure Development and Security
4/29/2003
Committee Report (Substituted)


DIGEST AND PURPOSE 

Currently, schools, universities and local political subdivisions are the
only entities with the ability to use the design-build method of
construction.  The design-build method of construction allows an
architect, engineer, and builder to form a team and bid on a construction
project together with the contractor heading up the team.  C.S.S.B. 1499
authorizes the Texas Department of Transportation to use the design-build
method for certain transportation projects. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Department of
Transportation in SECTION 1 (Section 223.175, Transportation Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 223, Transportation Code, by adding Subchapter
E, as follows: 

SUBCHAPTER E.  DESIGN-BUILD CONTRACTS FOR TRANSPORTATION
PROJECTS

 Sec. 223.161.  DEFINITIONS.  Defines "design-build contract,"
"design-build firm,"  
 "transportation project," and  "design criteria package."

Sec. 223.162.  POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.  
(a)  Authorizes TxDOT, for a transportation project that has an estimated
total cost of more than $50 million, to use the design-build method under
this subchapter for the design and construction of a transportation
project and enter into one or more design- 
build contracts under this subchapter for the services of one or more
design-build firms, notwithstanding any other law of this state. 

(b)  Requires TxDOT to use the procedures provided in this subchapter in
entering into a design-build contract. 

Sec.  223.163.  DEPARTMENT'S REPRESENTATIVE.  Requires TxDOT to designate
or retain an engineer independent of the design-build firm to act as its
representative, prepare the design criteria package, and advise TxDOT on
project delivery systems, project definition, technical specifications,
risk allocation and related matters. 

Sec. 223.164.  REQUEST FOR QUALIFICATIONS.  (a)  Requires TxDOT to prepare
a request for qualifications that includes general information about the
transportation project, proposed location, project scope, budget, time
schedules, selection criteria, and other information that may assist
design-build firms in submitting qualifications for the transportation
project and a request for proposals that includes more detailed
information 
 about the transportation project.

(b)  Requires the preparation of the request for qualifications or the
request for proposals requiring engineering or architectural services that
constitute the practice of engineering under The Texas Engineering
Practice Act (Chapter 1001, Occupations Code) or the practice of
architecture under Chapter 478, Acts of the  45th Legislature, Regular
Session, 1937 (Article 249a, V.T.C.S.), to be provided in accordance with
the applicable law. 

Sec. 223.165.  EVALUATION AND SELECTION OF DESIGN-BUILD FIRM.  (a)
Requires TxDOT to evaluate and select a design-build firm in two phases. 

(b)  Requires TxDOT, in phase one, to prepare a request for qualifications
and evaluate each responding design-build firm's experience, technical
competence, and capability to perform, the past performance of the
design-build firm and the members of that firm, and other appropriate
factors submitted by that firm, except that cost-related or price-related
evaluation factors are prohibited from being used. 

(c)  Authorizes TxDOT to interview the design-build firms that respond to
the request for qualifications, and if TxDOT interviews firms, requires
TxDOT to qualify at least two firms for phase two of the evaluation and
selection process. 

(d)  Requires TxDOT, in phase two, to prepare a request for proposals,
including the design criteria package, seeking additional information
regarding demonstrated technical competence and qualifications,
considerations of the safety and long-term durability of the
transportation project, the feasibility of developing the project as
proposed, the ability of the offeror to meet schedules, alternate
technical concepts to the conceptual design included in the design
criteria package, costing methodology, construction cost and any other
factor TxDOT considers relevant or necessary that is listed in the design
criteria package. 

(e)  Authorizes TxDOT to require the design-build firms to submit detailed
engineering or architectural designs as part of their proposals and
authorizes interviewing one or more of the design-build firms responding
to the request for proposals. 

(f)  Requires TxDOT to rank each responding design-build firm on the basis
of the criteria in the request for proposals and select the design-build
firm submitting the proposal that offers the best value considering price,
time for project completion, technical evaluation factors, and any other
factor described in the request for proposals. 

Sec. 223.166.  NEGOTIATIONS WITH SELECTED DESIGN-BUILD FIRM.  (a) Requires
TxDOT to first attempt to negotiate a contract with the selected
design-build firm. 

(b)  Requires TxDOT to follow certain procedures if TxDOT cannot negotiate
a satisfactory contract with the selected design-build firm. 

Sec.  223.167.  ENVIRONMENTAL CLEARANCE.  Authorizes TxDOT to terminate
the contract if the project does not receive environmental clearance, such
as a Record of Decision or a Finding of No Significant Impact. 

 Sec.  223.168.  ALLOCATION OF RISK.  Requires TxDOT to assume certain
risks. 

Sec. 223.169.  COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD FIRM. (a)
Requires the engineers of the design-build firm with which TxDOT contracts
to submit all specified design elements for review and determination of
scope compliance to TxDOT before or concurrently with construction of the
transportation project. 

(b)  Requires an engineer to have responsibility for compliance with the
engineering design requirements and all other applicable requirements of
The Texas Engineering Practice Act (Chapter 1001, Occupations Code). 

 Sec. 223.170.  INSPECTION AND TESTING SERVICES.  (a)  Requires TxDOT, for
quality assurance purposes, to provide or contract for, independently of
the design-build firm, any inspection services or verification testing
services necessary for acceptance of the transportation project. 

(b)  Provides that Section 2254.004 (Professional and Consulting
Services), Government Code, applies to the procurement of services
contracted for under Subsection (a). 

 Sec. 223.171.  PERFORMANCE AND PAYMENT BONDS.  (a)  Provides that if a
fixed  contract amount or guaranteed maximum price has not been determined
when a design- 
build contract is awarded, the penal sums of the performance and payment
bonds or equivalent security or collateral delivered by the design-build
firm must be in an amount equal to the transportation project budget, as
specified in the request for proposals. 

(b)  Requires the design-build firm to deliver the bonds not later than
the 10th day after the date the design-build firm executes a contract
unless the design-build firm furnishes a bid bond or other financial
security acceptable to TxDOT to ensure that the design-build firm will
furnish the required performance and payment bonds when a guaranteed
maximum price is established. 

Sec. 223.172.  PAYMENT TO UNSUCCESSFUL DESIGN-BUILD FIRMS.  (a) Requires
TxDOT to pay an unsuccessful design-build firm that submits a response to
a request for proposals the stipulated amount computed using the stated
methodology for costs incurred in preparing that proposal. 

(b)  Authorizes TxDOT, 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 TxDOT of any design element contained in an
unsuccessful proposal is at the sole risk and discretion of TxDOT and does
not confer liability on the recipient of the stipulated amount under this
section. 

(c)  Requires the methodology for computing the stipulated amount to be
stated in the request for proposals. 

Sec. 223.173.  DISADVANTAGED AND SMALL BUSINESSES.  Requires TxDOT to
ensure that disadvantaged and small businesses have an opportunity to
participate in the performance of contracts under this subchapter and use
the same procedures that exist for removing barriers to participation by
disadvantaged and small businesses in other department construction and
design contracts. 

Sec. 223.174.  PROJECTS FUNDED BY FEDERAL FUNDS. Requires a transportation
project procured under this subchapter that is funded wholly or partly by
federal funds and subject to federal procurement laws, rules, regulations,
and procedures, to have the requirements of this subchapter  applied in a
manner consistent with the applicable federal procurement laws, rules,
regulations, and procedures. 

Sec. 223.175.  RULES. Requires TxDOT to adopt rules to implement and
administer this subchapter. 

Sec.  223.176.  REPORT.  Requires TxDOT, not later than December 1, 2008,
to submit a  report to the legislature relating to the use of design-build
contracts under this subchapter as part of the review of TxDOT in 2009 by
the Sunset Advisory Commission under Chapter 325, Government Code (Texas
Sunset Act). 

SECTION 2. Effective date:  September 1, 2003.