S.B. No. 1331
AN ACT
relating to procurement procedures for construction-related
services for public school districts, institutions of higher
education, and the Texas Building and Procurement Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter F, Chapter 2166, Government Code, is
amended by adding Section 2166.2535 to read as follows:
Sec. 2166.2535. CONSTRUCTION MANAGER-AGENT. (a) The
commission may use the construction manager-agent method for a
project. In using that method and in entering into a contract for
the services of a construction manager-agent, the commission shall
follow the procedures prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that provides
consultation to the commission regarding construction,
rehabilitation, alteration, or repair of a facility. The
commission, when using the construction manager-agent method, may,
under the contract between the commission 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 commission in a fiduciary capacity.
(c) Before or concurrently with selecting a construction
manager-agent, the commission 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 commission, the
commission shall select the engineer or architect on the basis of
demonstrated competence and qualifications as provided by Section
2254.004. A commission 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 a commission 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) The commission 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.
(e) When using the construction manager-agent method, the
commission 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 commission or the construction manager-agent shall
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 the commission.
SECTION 2. Subsection (c), Section 2166.2532, Government
Code, is amended to read as follows:
(c) Before or concurrently with selecting a construction
manager-at-risk, the commission 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 [The Texas Engineering
Practice Act (Article 3271a, Vernon's Texas Civil Statutes) or
Chapter 478, Acts of the 45th Legislature, Regular Session, 1937
(Article 249a, Vernon's Texas Civil Statutes)], as applicable. If
the engineer or architect is not a full-time employee of the
commission, the commission shall select the engineer or architect
on the basis of demonstrated competence and qualifications as
provided by Section 2254.004. The commission's engineer or
architect for a project may not serve, 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. This subsection does not prohibit a
commission 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 3. Subsection (c), Section 44.038, Education Code,
is amended to read as follows:
(c) 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 [The Texas Engineering Practice Act
(Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478, Acts
of the 45th Legislature, Regular Session, 1937 (Article 249a,
Vernon's Texas Civil Statutes)], as applicable. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by 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
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. 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.
SECTION 4. Section 44.040, Education Code, is amended to
read as follows:
Sec. 44.040. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE BIDDING. (a) Except to the extent
prohibited by other law and to the extent consistent with this
subchapter, a school district may use competitive bidding to select
a contractor to perform construction, rehabilitation, alteration,
or repair services for a facility.
(b) 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.
Sections 271.026, 271.027(a), and 271.0275, Local Government Code,
apply to a competitive bidding process under this subchapter.
(c) 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 and Chapter 1051,
Occupations Code, as applicable.
(d) A school district shall award a competitively bid
contract at the bid amount to the bidder offering the best value to
the district according to the selection criteria that were
established by the district. The selection criteria may include
the factors listed in Section 44.031(b).
SECTION 5. Subsection (c), Section 51.782, Education Code,
is amended to read as follows:
(c) Before or concurrently with selecting a construction
manager-at-risk, the board 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 [The Texas Engineering Practice Act
(Article 3271a, Vernon's Texas Civil Statutes) or Chapter 478, Acts
of the 45th Legislature, Regular Session, 1937 (Article 249a,
Vernon's Texas Civil Statutes)], as applicable. If the engineer or
architect is not a full-time employee of the institution, the board
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code. The institution'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
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. 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) The changes in law made by this Act apply
only to a construction project for which a bid, proposal, offer, or
qualification, as applicable, is first advertised or otherwise
solicited on or after September 1, 2003.
(b) A construction project for which a bid, proposal, offer,
or qualification, as applicable, is first advertised or otherwise
solicited before September 1, 2003, is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1331 passed the Senate on
April 16, 2003, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 21, 2003, by a
viva-voce vote.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1331 passed the House, with
amendment, on May 20, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor