By: Madla, et al. S.B. No. 1499
A BILL TO BE ENTITLED
AN ACT
relating to contracts for the design and construction of
transportation projects by the Texas Department of Transportation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 223, Transportation Code, is amended by
adding Subchapter E to read as follows:
SUBCHAPTER E. DESIGN-BUILD CONTRACTS FOR TRANSPORTATION PROJECTS
Sec. 223.161. DEFINITIONS. In this subchapter:
(1) "Design-build contract" means a single contract
for any combination of the following:
(A) preconstruction services, including
planning, environmental review, right-of-way services, design
services, and engineering services;
(B) construction services, including design
during construction; and
(C) postconstruction services, including
operations and maintenance.
(2) "Design-build firm" means a legal entity or team
that includes:
(A) an engineering firm registered under Chapter
1001, Occupations Code; and
(B) a builder qualified to engage in highway
construction in this state.
(3) "Transportation project" means an improvement,
addition, or extension to the state highway system, or a turnpike
project, that is undertaken by the department.
(4) "Design criteria package" means a set of documents
that provides sufficient information to permit a design-build firm
to prepare a response to the department's request for
qualifications and request for proposals and includes the criteria
for selection. A design criteria package shall include a
description of the project site, survey information, cost or budget
requirements, time schedules, conceptual design, a geotechnical
baseline report, quality assurance and quality control
requirements, special material requirements, applicable
ordinances, provisions for utilities, and any other applicable
information, as appropriate.
Sec. 223.162. POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.
(a) Notwithstanding any other law of this state, for a
transportation project that has an estimated total cost of more
than $50 million, the department may:
(1) use the design-build method under this subchapter
for the design and construction of a transportation project; and
(2) enter into one or more design-build contracts
under this subchapter for the services of one or more design-build
firms.
(b) In entering into a design-build contract, the
department shall use the procedures provided in this subchapter.
Sec. 223.163. DEPARTMENT'S REPRESENTATIVE. The department
shall designate or retain an engineer independent of the
design-build firm to act as its representative, prepare the design
criteria package, and advise the department on project delivery
systems, project definition, technical specifications, risk
allocation and related matters.
Sec. 223.164. REQUEST FOR QUALIFICATIONS. (a) The
department shall prepare:
(1) 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
(2) a request for proposals that includes a design
criteria package and more detailed information about the
transportation project.
(b) If the preparation of the request for qualifications or
the request for proposals requires engineering or architectural
services that constitute the practice of engineering under Chapter
1001, Occupations Code, or the practice of architecture under
Chapter 1051, Occupations Code, those services must be provided in
accordance with the applicable law.
Sec. 223.165. EVALUATION AND SELECTION OF DESIGN-BUILD
FIRM. (a) The department shall evaluate and select a design-build
firm in two phases.
(b) In phase one, the department shall 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 may not be
used.
(c) The department may interview the design-build firms
that respond to the request for qualifications. The department
shall qualify at least two and a maximum of five firms to
participate in phase two of the evaluation and selection process.
(d) In phase two, the department shall 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 the department
considers relevant or necessary that is listed in the design
criteria package.
(e) The department may require the design-build firms to
submit detailed engineering or architectural designs as part of
their proposals and may interview the design-build firms responding
to the request for proposals.
(f) The department shall 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) The department shall first attempt to negotiate a
contract with the selected design-build firm.
(b) If the department cannot negotiate a satisfactory
contract with the selected design-build firm, it shall:
(1) formally and in writing end negotiations with that
firm; and
(2) attempt to negotiate with the next design-build
firm in the order of the selection ranking until:
(A) a contract is entered into;
(B) negotiations with all ranked firms end; or
(C) the department determines that it is no
longer in the best interest of this state to enter into a
design-build contract for the proposed transportation project.
Sec. 223.167. ENVIRONMENTAL CLEARANCE. The department may
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. The department shall
assume all risks associated with:
(1) scope changes and modifications;
(2) regulatory compliance and permitting; and
(3) differing site conditions.
Sec. 223.169. COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD
FIRM. (a) The engineers of the design-build firm with which the
department contracts shall submit all specified design elements for
review and determination of scope compliance to the department
before or concurrently with construction of the transportation
project.
(b) An engineer shall have responsibility for compliance
with the engineering design requirements and all other applicable
requirements of Chapter 1001, Occupations Code.
Sec. 223.170. INSPECTION AND TESTING SERVICES. (a) For
quality assurance purposes, the department shall 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) Section 2254.004, Government Code, applies to the
procurement of services contracted for under Subsection (a).
Sec. 223.171. PERFORMANCE AND PAYMENT BONDS. (a) 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) The design-build firm shall 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 the department 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) The department shall pay an unsuccessful design-build firm
that submits a complete response to a request for proposals the
stipulated amount computed using the stated methodology for costs
incurred in preparing that proposal.
(b) After payment of the stipulated amount, the department
may make use of any design contained in the proposal, including the
technologies, techniques, methods, processes, and information
contained in the design. The use by the department of any design
element contained in an unsuccessful proposal is at the sole risk
and discretion of the department and does not confer liability on
the recipient of the stipulated amount under this section.
(c) The methodology for computing the stipulated amount of
the stipend must be stated in the request for proposals.
Sec. 223.173. SMALL BUSINESSES AND DISADVANTAGED OR
HISTORICALLY UNDERUTILIZED BUSINESSES. (a) If a service
performed as part of a contract under this subchapter is funded by a
federal revenue source, the department shall:
(1) ensure that disadvantaged and small businesses
have an opportunity to participate in the performance of the
contract; and
(2) use the same procedures that exist for removing
barriers to participation by disadvantaged and small businesses in
other department construction and design contracts.
(b) If a service performed as part of a contract under this
subchapter is funded by a state revenue source, the department
shall comply with the historically underutilized business
requirements under Chapter 2161, Government Code.
Sec. 223.174. PROJECTS FUNDED BY FEDERAL FUNDS. If a
transportation project procured under this subchapter is funded
wholly or partly by federal funds and subject to federal
procurement laws, rules, regulations, and procedures, the
requirements of this subchapter shall be applied in a manner
consistent with the applicable federal procurement laws, rules,
regulations, and procedures.
Sec. 223.175. RULES. The department shall adopt rules to
implement and administer this subchapter.
Sec. 223.176. REPORT. Not later than December 1, 2008, the
department shall submit a report to the legislature relating to the
use of design-build contracts under this subchapter as part of the
review of the department in 2009 by the Sunset Advisory Commission
under Chapter 325, Government Code (Texas Sunset Act).
Sec. 223.177. LIMITATIONS. Money spent by the department
for a project under this chapter is not included in computing the
amount required to be spent for engineering and design contracts
under Section 223.041 in any fiscal year.
Sec. 223.178. FURTHER LIMITATION. (a) Before December 1,
2009, the department may not use design-build contracts under this
subchapter for more than 24 projects.
(b) The amount of money disbursed by the department from all
sources during a federal fiscal year to pay the costs of contracts
under this section may not exceed 15 percent of the obligation
authority under the federal aid highway program that is distributed
to the state for the fiscal year.
SECTION 2. This Act takes effect September 1, 2003.