78R3539 JD-F
By: Madla 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) post-construction services, including
operations and maintenance.
(2) "Design-build firm" means a legal entity or team
that includes:
(A) an engineer, an architect, or both; and
(B) a builder qualified to engage in highway
construction in this state.
(3) "Transportation project" means any project,
including an improvement, addition, or extension to the state
highway system, that is undertaken by the department.
Sec. 223.162. POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.
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.
Sec. 223.163. 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 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 The
Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
Statutes) or the practice of architecture under Chapter 478, Acts
of the 45th Legislature, Regular Session, 1937 (Article 249a,
Vernon's Texas Civil Statutes), those services must be provided in
accordance with the applicable law.
Sec. 223.164. 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) Each design-build firm that responds to the request for
qualifications:
(1) must certify to the department that each engineer
or architect who is a member of the design-build firm is authorized
to practice engineering or architecture under the applicable law of
this state; and
(2) shall have responsibility for compliance with the
requirements of that law.
(d) The department may interview the design-build firms
that respond to the request for qualifications, and if the
department interviews firms, the department must qualify at least
two firms for phase two of the evaluation and selection process.
(e) In phase two, the department shall prepare a request for
proposals 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, costing methodology, and any other
factor the department considers relevant or necessary.
(f) The department may require the design-build firms to
submit detailed engineering or architectural designs as part of
their proposals and may interview one or more of the design-build
firms responding to the request for proposals.
(g) 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. 223.165. 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. 223.166. COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD
FIRM. (a) The engineers or architects 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 The Texas Engineering Practice Act (Article 3271a,
Vernon's Texas Civil Statutes).
(c) An architect shall have responsibility for compliance
with all applicable requirements of Chapter 478, Acts of the 45th
Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas
Civil Statutes).
Sec. 223.167. 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. 223.168. 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. 223.169. PAYMENT TO UNSUCCESSFUL DESIGN-BUILD FIRMS.
(a) The department shall 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) After payment of the stipulated amount, the department
owns the rights to, and at its own risk may reproduce, transfer,
publish, or make use of, any design contained in the proposal,
including the technologies, techniques, methods, processes, and
information contained in the design.
(c) The methodology for computing the stipulated amount
must be stated in the request for proposals.
Sec. 223.170. DISADVANTAGED AND SMALL BUSINESSES. The
department shall:
(1) ensure that disadvantaged and small businesses
have an opportunity to participate in the performance of contracts
under this subchapter; 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.
Sec. 223.171. 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. 223.172. RULES. The department shall adopt rules to
implement and administer this subchapter.
SECTION 2. This Act takes effect September 1, 2003.