By: Moreno of Harris H.B. No. 3028
A BILL TO BE ENTITLED
AN ACT
relating to certain purchasing contracts of certain navigation
districts and port authorities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 60, Water Code, is amended by adding
Subchapter O to read as follows:
SUBCHAPTER O. LARGE PURCHASE CONTRACTS
Sec. 60.451. DEFINITIONS. In this subchapter:
(1) "Architect" has the meaning assigned by Section
1051.001, Occupations Code.
(2) "Contractor" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means a sole proprietorship, partnership, corporation, or other
legal entity that assumes the risk for constructing,
rehabilitating, altering, or repairing all or part of the facility
at the contracted price.
(3) "Construction manager-agent" means a sole
proprietorship, partnership, corporation, or other legal entity
that provides consultation to the district regarding construction,
rehabilitation, alteration, or repair of a facility.
(4) "Construction manager-at-risk" means a sole
proprietorship, partnership, corporation, or other legal entity
that assumes the risk for construction, rehabilitation,
alteration, or repair of a facility at the contracted price as a
general contractor and provides consultation to the district
regarding construction during and after the design of the facility.
(5) "Design-build contract" means a single contract
with a design-build firm for the design and construction of a
facility.
(6) "Design-build firm" means a partnership,
corporation, or other legal entity or team that includes an
engineer or architect and builder qualified to engage in building
construction in Texas.
(7) "Design criteria package" means a set of documents
prepared by a district that provides sufficient information to
permit a design-build firm to prepare a response to a district's
request for qualifications and any additional information
requested, including criteria for selection. The design criteria
package must specify criteria the district considers necessary to
describe the project and may include, as appropriate:
(A) the legal description of the site;
(B) survey information concerning the site;
(C) interior space requirements;
(D) special material requirements;
(E) material quality standards;
(F) conceptual criteria for the project;
(G) special equipment requirements;
(H) cost or budget estimates;
(I) time schedules;
(J) quality assurance and quality control
requirements;
(K) site development requirements;
(L) applicable codes and ordinances;
(M) provisions for utilities;
(N) parking requirements; or
(O) any other requirements, as applicable.
(8) "District" means a navigation district or port
authority created or operating under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution.
(9) "Engineer" has the meaning assigned by Section
1001.002, Occupations Code.
(10) "Facility" means real property, including
buildings and associated structures, docks, wharves, and improved
or unimproved land.
(11) "Fee" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means the payment a construction manager-agent or construction
manager-at-risk receives for the manager's overhead and profit in
performing the manager's services.
(12) "General conditions" in the context of a contract
for the construction, rehabilitation, alteration, or repair of a
facility means on-site management, administrative personnel,
insurance, bonds, equipment, utilities, and incidental work,
including minor field labor and materials.
Sec. 60.452. APPLICABILITY OF SUBCHAPTER; OTHER LAW. (a)
This subchapter does not apply to a contract for professional
services rendered, including services of an architect, attorney, or
fiscal agent.
(b) This subchapter prevails over any other law relating to
a purchase contract for goods and services by a district that is in
conflict with or inconsistent with this subchapter except a law
relating to contracting with a historically underutilized
business.
Sec. 60.453. AUTHORITY TO ADOPT RULES. The commission of a
district may adopt rules and procedures for the acquisition of
goods or services.
Sec. 60.454. PURCHASING CONTRACT METHODS. Notwithstanding
any other provision of this chapter or other law, a district
contract valued at $25,000 or more in the aggregate for each
12-month period may be made by the method below that, in the opinion
of the district's commission, provides the best value for the
district:
(1) a design-build contract;
(2) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager-agent
or construction manager-at-risk;
(3) competitive sealed proposals;
(4) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility;
(5) a request for proposals, if the contract is for
services other than construction services;
(6) a catalog purchase as provided by Subchapter B,
Chapter 2157, Government Code;
(7) an interlocal contract as provided by Chapter 791,
Government Code; or
(8) the reverse auction procedure as defined by
Section 2155.062(d), Government Code.
Sec. 60.455. NOTICE REQUIREMENTS. For a contract entered
into by a district under any of the methods provided by this
subchapter, the district shall publish notice of the time and place
the bids or proposals, or the responses to a request for
qualifications, will be received and opened. The notice must 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. If there is not a newspaper of general circulation in
any county in which the district is located, the notice shall 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. 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. 60.456. DELEGATION. (a) The commission of a district
may, as appropriate, 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. In procuring construction services, the district shall
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. 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) A commission may not delegate the authority to act
regarding an action authorized or required by this subchapter to be
taken by the commission of a district.
Sec. 60.457. PURCHASE CONTRACT AWARD CRITERIA. Except as
provided by this subchapter, in determining to whom to award a
contract, the district may consider:
(1) the purchase price;
(2) the reputation of the vendor and of the vendor's
goods or services;
(3) the quality of the vendor's goods or services;
(4) the extent to which the goods or services meet the
district's needs;
(5) the vendor's past relationship with the district;
(6) the impact on the ability of the district to comply
with laws and rules relating to historically underutilized
businesses;
(7) the total long-term cost to the district to
acquire the vendor's goods or services; and
(8) any other relevant factor specifically listed in
the request for bids or proposals.
Sec. 60.458. EVALUATION OF BIDS AND PROPOSALS FOR
CONSTRUCTION SERVICES. (a) The commission of a district that is
considering a construction contract using a method specified by
Section 60.454 must, before advertising, determine which method
provides the best value for the district.
(b) The district shall base its selection among offerors on
criteria authorized to be used under Section 60.457. The district
shall 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) The district shall document the basis of its selection
and shall make the evaluations public not later than the seventh day
after the date of the award of the contract.
Sec. 60.459. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) A
district may 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) The district shall 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. If the district's
engineer or architect is not a full-time employee of the district,
the district shall select the engineer or architect as provided by
Section 2254.004, Government Code.
(c) The district shall 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. The district shall also
prepare a design criteria package that includes more detailed
information on the project. If the preparation of the design
criteria package 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 the applicable law.
(d) The district shall evaluate statements of
qualifications and select a design-build firm in two phases:
(1) In phase one, the district shall prepare a request
for qualifications and evaluate each offeror's experience,
technical competence, and capability to perform, the past
performance of the offeror's team and members of the team, and other
appropriate factors submitted by the team or firm in response to the
request for qualifications, except that cost-related or
price-related evaluation factors are not permitted. The district
shall qualify a maximum of five offerors to submit additional
information and, if the district chooses, to interview for final
selection.
(2) In phase two, the district shall evaluate the
information submitted by the offerors on the basis of the selection
criteria stated in the request for qualifications and the results
of any interview. The district may request additional information
regarding demonstrated competence and qualifications,
considerations of the safety and long-term durability of the
project, the feasibility of implementing the project as proposed,
the ability of the offeror to meet schedules, costing methodology,
construction cost, engineering and architectural design, or other
factors as appropriate. The district shall rank each proposal
submitted on the basis of the criteria set forth in the request for
qualifications. The district shall select the design-build firm
that submits the proposal offering the best value for the district
on the basis of the published selection criteria and on its ranking
evaluations. The district shall first attempt to negotiate a
contract with the selected offeror. If the district is unable to
negotiate a satisfactory contract with the selected offeror, the
district shall, 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.
(e) Following selection of a design-build firm under
Subsection (d), that firm's engineers or architects shall 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) The district shall 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.
The district shall select those services for which it contracts in
accordance with Section 2254.004, Government Code.
(g) The design-build firm shall supply a signed and sealed
set of construction documents for the project to the district at the
conclusion of construction.
(h) 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.
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 must each be in an amount equal to the project budget, as
specified in the design criteria package. The design-build firm
shall deliver the bonds not later than 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.
Sec. 60.460. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT. (a) A district may 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) A district may, under the contract between the district
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. A
construction manager-agent represents the district in a fiduciary
capacity.
(c) Before or concurrently with selecting a construction
manager-agent, the district shall 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. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect as provided by Section
2254.004, Government Code. The district's engineer or architect
may not serve, 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. 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) A district shall 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) A district contracting with a construction
manager-agent shall 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) The district or the construction manager-agent shall
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. 60.461. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) A district may 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) Before or concurrently with selecting a construction
manager-at-risk, the district shall 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. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect in accordance with Section
2254.004, Government Code. The district's engineer, architect, or
construction manager-agent for a project may not serve, alone or in
combination with another, as the construction manager-at-risk.
(c) The district shall 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. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code.
(d) The district shall select the construction
manager-at-risk in either a one-step or two-step process. The
district shall 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. The district shall state the
selection criteria in the request for proposals or qualifications,
as applicable. The selection criteria may 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-at-risk. If a one-step
process is used, the district may request, as part of the offeror's
proposal, proposed fees and prices for fulfilling the general
conditions.
(e) If a two-step process is used, the district may not
request fees or prices in step one. In step two, the district may
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) At each step, the district shall receive, publicly open,
and read aloud the names of the offerors. At the appropriate step,
the district shall also read aloud the fees and prices, if any,
stated in each proposal as the proposal is opened. Not later than
the 45th day after the date of opening the proposals, the district
shall evaluate and rank each proposal submitted in relation to the
criteria set forth in the request for proposals.
(g) The district shall select the offeror that submits the
proposal that offers the best value for the district based on the
published selection criteria and on its ranking evaluation. The
district shall first attempt to negotiate a contract with the
selected offeror. If the district is unable to negotiate a
satisfactory contract with the selected offeror, the district
shall, 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) If a fixed contract amount or guaranteed maximum price
has not been determined at the time the contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget, as
specified in the request for proposals or qualifications. The
construction manager-at-risk shall deliver the bonds not later than
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. 60.462. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting a
contractor for construction, rehabilitation, alteration, or repair
services for a facility through competitive sealed proposals, a
district shall follow the procedures prescribed by this section.
(b) The district shall select or designate an engineer or
architect to prepare construction documents for the project. The
selected or designated engineer or architect has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the district, the district shall select the
engineer or architect as provided by Section 2254.004, Government
Code.
(c) The district shall 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.
The district shall select those services for which it contracts in
accordance with Section 2254.004, Government Code, and shall
identify them in the request for proposals.
(d) The district shall 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.
The district shall state in the request for proposals the selection
criteria that will be used in selecting the successful offeror.
(e) The district shall 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. Not later than the 45th
day after the date of opening the proposals, the district shall
evaluate and rank each proposal submitted in relation to the
published selection criteria.
(f) The district shall select the offeror that offers the
best value for the district based on the published selection
criteria and on its ranking evaluation. The district shall first
attempt to negotiate a contract with the selected offeror. The
district and its engineer or architect may discuss with the
selected offeror options for a scope or time modification and any
price change associated with the modification. If the district is
unable to negotiate a contract with the selected offeror, the
district shall, 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) In determining best value for the district, the district
is not restricted to considering price alone, but may consider any
other factor stated in the selection criteria.
Sec. 60.463. JOB ORDER CONTRACTS FOR FACILITIES
CONSTRUCTION OR REPAIR. (a) A district may 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) The district may establish contractual unit prices for a
job order contract by:
(1) specifying one or more published construction unit
price books and the applicable divisions or line items; or
(2) providing a list of work items and requiring the
offerors to bid or propose one or more coefficients or multipliers
to be applied to the price book or work items as the price proposal.
(c) The district shall advertise for, receive, and publicly
open sealed proposals for job order contracts.
(d) The district may require offerors to submit, in addition
to information on rates, other information, including experience,
past performance, and proposed personnel and methodology.
(e) The district may award job order contracts to one or
more job order contractors in connection with each solicitation of
bids or proposals.
(f) An order for a job or project under the job order
contract must be signed by the district's representative and the
contractor. The order may be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities or may be a unit price order based on the quantities and
line items delivered.
(g) The contractor shall provide payment and performance
bonds, if required by law, based on the amount or estimated amount
of any order.
(h) 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. If the district fails to advertise that
term, the base term may not exceed two years and is not renewable
without further advertisement and solicitation of proposals.
(i) 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.
SECTION 2. Section 60.4125, Water Code, is repealed.
SECTION 3. 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. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.