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79R1090 MXM-F
By: Callegari H.B. No. 2525
A BILL TO BE ENTITLED
AN ACT
relating to contracts by governmental entities for construction
projects and related professional services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2166.2525, Government Code, is amended
to read as follows:
Sec. 2166.2525. DETERMINATION OF CONTRACTING METHOD. The
[commission shall adopt rules that determine the circumstances for
use of each] method of contracting allowed under this subchapter
for design and construction services is any method provided by
Chapter 2264. [In developing the rules, the commission shall
solicit advice and comment from design and construction
professionals regarding the criteria the commission will use in
determining which contracting method is best suited for a project.]
SECTION 2. Subtitle F, Title 10, Government Code, is
amended by adding Chapter 2264 to read as follows:
CHAPTER 2264. CONTRACTING AND DELIVERY PROCEDURES FOR CONSTRUCTION
PROJECTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2264.001. DEFINITIONS. In this chapter:
(1) "Architect" means an individual registered as an
architect under Chapter 1051, Occupations Code.
(2) "Engineer" means an individual licensed as an
engineer under Chapter 1001, Occupations Code.
(3) "Facility" means an improvement to real property.
(4) "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. 2264.002. APPLICABILITY OF CHAPTER TO GOVERNMENTAL
ENTITIES AND QUASI-GOVERNMENTAL ENTITIES ENGAGED IN PUBLIC WORKS.
This chapter applies to a governmental entity or quasi-governmental
entity authorized by state law to make a public work contract,
including:
(1) a state agency as defined by Section 2151.002,
including the Texas Building and Procurement Commission;
(2) a local government, including:
(A) a county;
(B) a municipality;
(C) a special district or authority, including a
school district, a hospital district, a river authority or any
other type of water district, and a defense base development
authority established under Chapter 379B, Local Government Code;
and
(D) any other political subdivision of this
state; and
(3) a public junior college as defined by Section
61.003, Education Code.
Sec. 2264.003. CONFLICT OF LAWS; REQUIREMENT TO FOLLOW
PROCEDURES OF THIS CHAPTER. (a) Except as provided by this
section, this chapter prevails over any other law relating to
public works contracts.
(b) This chapter does not prevail over a conflicting
provision in a law relating to contracting with a historically
underutilized business.
(c) This chapter does not prevail over a conflicting
provision in:
(1) a charter of a home-rule municipality; or
(2) a rule of a county, river authority, or defense
base development authority that requires the use of competitive
bidding.
(d) The governing body of a municipality, county, river
authority, or defense base development authority to which
Subsection (c) applies may elect to have this chapter overrule the
conflicting provision in the charter or rule.
[Sections 2264.004-2264.050 reserved for expansion]
SUBCHAPTER B. GENERAL POWERS AND DUTIES
Sec. 2264.051. RULES. A governmental entity may adopt
rules as necessary to implement this chapter.
Sec. 2264.052. DELEGATION OF AUTHORITY. (a) The governing
body of a governmental entity may delegate its authority under this
chapter regarding an action authorized or required by this chapter
to a designated representative, committee, or other person.
(b) The entity 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.
(c) If the entity fails to provide notice under Subsection
(b), a ranking, selection, or evaluation of bids, proposals, or
qualifications for construction services other than by the entity's
governing body in an open public meeting is advisory only.
Sec. 2264.053. GOVERNMENTAL ENTITY PREFERENCE FOR RECYCLED
PRODUCTS. The purchasing requirements of Section 361.426, Health
and Safety Code, apply to a purchase made by a governmental entity
under this chapter.
Sec. 2264.054. RIGHT TO WORK. (a) This section applies to
a governmental entity when the governmental entity is engaged in:
(1) procuring goods or services under this chapter;
(2) awarding a contract under this chapter; or
(3) overseeing procurement or construction for a
public work or public improvement under this chapter.
(b) In engaging in an activity to which this section
applies, a governmental entity:
(1) may not consider whether a person is a member of or
has another relationship with any organization; and
(2) shall ensure that its bid specifications and any
subsequent contract or other agreement do not deny or diminish the
right of a person to work because of the person's membership or
other relationship status with respect to an organization.
[Sections 2264.055-2264.100 reserved for expansion]
SUBCHAPTER C. GENERAL CONTRACTING PROCEDURES
Sec. 2264.101. CRITERIA TO CONSIDER. In determining the
award of a contract under this chapter, the governmental entity
shall consider:
(1) the purchase price;
(2) the reputation of the offeror and the offeror's
goods or services;
(3) the quality of the offeror's goods or services;
(4) the extent to which the goods or services meet the
governmental entity's needs;
(5) the offeror's past relationship with the
governmental entity;
(6) the impact on the ability of the governmental
entity to comply with rules relating to historically underutilized
businesses;
(7) the total long-term cost to the governmental
entity to acquire the offeror's goods or services; and
(8) any other relevant factor specifically listed in
the request for bids, proposals, or qualifications.
Sec. 2264.102. USING METHOD OTHER THAN COMPETITIVE BIDDING
FOR CONSTRUCTION SERVICES; EVALUATION OF PROPOSALS. (a) The
governing body of a governmental entity that considers a
construction contract using a method authorized by this chapter
other than competitive bidding must, before advertising, determine
which method provides the best value for the governmental entity.
(b) The governmental entity shall base its selection among
offerors on applicable criteria listed in Section 2264.101. The
governmental entity shall publish in the request for proposals or
qualifications the criteria that will be used to evaluate the
offerors and the relative weights given to the criteria.
(c) The governmental entity shall document the basis of its
selection and shall make the evaluations public not later than the
seventh day after the date the contract is awarded.
Sec. 2264.103. ARCHITECT OR ENGINEER SERVICES. (a) An
architect or engineer required to be selected or designated under
this chapter has full responsibility for complying with Chapter
1001 or 1051, Occupations Code, as applicable.
(b) If the selected or designated architect or engineer is
not a full-time employee of the governmental entity, the
governmental entity shall select the architect or engineer on the
basis of demonstrated competence and qualifications as provided by
Section 2254.004.
Sec. 2264.104. RESPONSIBILITIES OF CONTRACTORS. In the
context of a contract for the construction, rehabilitation,
alteration, or repair of a facility under this chapter, a
contractor is 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.
Sec. 2264.105. COMPETITIVE BIDDING: PRESUMED METHOD FOR
CONSTRUCTION SERVICES; BEST VALUE. (a) Except as otherwise
provided by this chapter or other law, a governmental entity may
contract for the construction, alteration, rehabilitation, or
repair of a facility only after the entity advertises for bids for
the contract in a manner prescribed by law, receives sealed
competitive bids, and awards the contract to:
(1) the lowest responsible bidder; or
(2) the bidder offering the best value to the
governmental entity according to the selection criteria
established by the governmental entity in the request for bids.
(b) The governmental entity shall document the basis of its
selection and shall make the evaluations public not later than the
seventh day after the date the contract is awarded.
Sec. 2264.106. COMPETITIVE SEALED BIDDING: RIGHTS OF OTHER
BIDDERS. If a contract awarded under sealed competitive bidding is
to be recommended for award to a bidder other than the lowest
bidder, any bidder making a lower bid than the recommended bid shall
be notified of the recommendation for award and shall be allowed an
opportunity before the award to present evidence to the governing
body of the governmental entity or its designated representative as
to the responsibility of that bidder.
Sec. 2264.107. APPLICABILITY OF OTHER COMPETITIVE BIDDING
LAW TO CERTAIN LOCAL GOVERNMENTAL ENTITIES. Except as otherwise
specifically provided by this section, Subchapter B, Chapter 271,
Local Government Code, does not apply to a competitive bidding
process made under this chapter. Sections 271.026, 271.027(a), and
271.0275, Local Government Code, apply to a competitive bidding
process made under this chapter by a governmental entity as defined
by Section 271.021, Local Government Code.
[Sections 2264.108-2264.150 reserved for expansion]
SUBCHAPTER D. COMPETITIVE SEALED PROPOSAL METHOD
Sec. 2264.151. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. A governmental
entity may use the competitive sealed proposal method to select a
contractor for the construction, rehabilitation, alteration, or
repair of a facility. In selecting a contractor through
competitive sealed proposals, a governmental entity shall follow
the procedures provided by this subchapter.
Sec. 2264.152. USE OF ARCHITECT OR ENGINEER. The
governmental entity shall select or designate an architect or
engineer to prepare construction documents for the project.
Sec. 2264.153. USE OF OTHER PROFESSIONAL SERVICES. (a) The
governmental entity shall provide or contract for, independently of
the contractor, the inspection services, the testing of
construction materials engineering, and the verification testing
services necessary for acceptance of the facility by the
governmental entity.
(b) The governmental entity shall select the services for
which it contracts under this section in accordance with Section
2254.004.
Sec. 2264.154. PREPARATION OF REQUEST. (a) The
governmental entity shall prepare a request for competitive sealed
proposals that includes construction documents, selection
criteria, estimated budget, project scope, schedule, and other
information that a contractor may require to respond to the
request.
(b) The governmental entity shall state in the request for
proposals the selection criteria that will be used in selecting the
successful offeror.
Sec. 2264.155. EVALUATION OF OFFERORS. (a) The
governmental entity 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.
(b) Not later than the 45th day after the date of opening the
proposals, the governmental entity shall evaluate and rank each
proposal submitted in relation to the published selection criteria.
Sec. 2264.156. SELECTION OF OFFEROR. (a) The governmental
entity shall select the offeror that offers the best value for the
governmental entity based on the published selection criteria and
on its ranking evaluation. In determining best value for the
governmental entity, the governmental entity is not restricted to
considering price alone but may consider any other factor stated in
the selection criteria.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected offeror. The governmental
entity 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.
(c) If the governmental entity is unable to negotiate a
contract with the selected offeror, the governmental entity 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.
[Sections 2264.157-2264.200 reserved for expansion]
SUBCHAPTER E. CONSTRUCTION MANAGER-AGENT METHOD
Sec. 2264.201. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT SERVICES. (a) A construction manager-agent is a
sole proprietorship, partnership, corporation, or other legal
entity that provides consultation services to the governmental
entity regarding construction, rehabilitation, alteration, or
repair of a facility. Services provided by a construction
manager-agent include administrative services such as budgeting
and expenditure tracking, management of construction procurement,
schedule management, management of dispute resolution, and change
order management.
(b) A governmental entity may retain a construction
manager-agent for assistance in the construction, rehabilitation,
alteration, or repair of a facility only as provided by this
subchapter.
Sec. 2264.202. CONTRACT PROVISIONS OF CONSTRUCTION
MANAGER-AGENT. (a) The contract between the governmental entity
and the construction manager-agent may require the construction
manager-agent to provide:
(1) administrative personnel;
(2) equipment necessary to perform duties under this
subchapter;
(3) on-site management; and
(4) other services specified in the contract.
(b) A construction manager-agent may not be a contractor who
performs the construction, rehabilitation, alteration, or repair
of the facility.
Sec. 2264.203. FIDUCIARY CAPACITY OF CONSTRUCTION
MANAGER-AGENT. A construction manager-agent represents the
governmental entity in a fiduciary capacity.
Sec. 2264.204. USE OF ARCHITECT OR ENGINEER. (a) The
governmental entity shall select or designate an architect or
engineer to prepare the construction documents for the project.
(b) The governmental entity's architect or engineer may not
serve, alone or in combination with another person, as the
construction manager-agent unless the architect or engineer is
hired to serve as the construction manager-agent under a separate
or concurrent selection process conducted in accordance with this
subchapter. This subsection does not prohibit the governmental
entity's architect or engineer from providing customary
construction phase services under the architect's or engineer's
original professional service agreement in accordance with
applicable licensing laws.
(c) To the extent that the construction manager-agent's
services are defined as part of the practice of engineering or
architecture under Chapter 1001 or 1051, Occupations Code, those
services must be conducted by a person licensed under the
applicable chapter.
Sec. 2264.205. USE OF OTHER PROFESSIONAL SERVICES. (a) The
governmental entity or the construction manager-agent shall
procure, independently of the contractor, the inspection services,
the testing of construction materials engineering, and the
verification testing services necessary for acceptance of the
facility by the governmental entity.
(b) The governmental entity or the construction
manager-agent shall select the services for which it contracts
under this section in accordance with Section 2254.004.
Sec. 2264.206. SELECTION OF CONSTRUCTION MANAGER-AGENT. A
governmental entity 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.
Sec. 2264.207. SELECTION OF CONTRACTORS. A governmental
entity using the construction manager-agent method 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.
[Sections 2264.208-2264.250 reserved for expansion]
SUBCHAPTER F. CONSTRUCTION MANAGER-AT-RISK METHOD
Sec. 2264.251. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) A construction manager-at-risk is 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 governmental
entity regarding construction during and after the design of the
facility.
(b) A governmental entity may use the construction
manager-at-risk method in selecting a general contractor for the
construction, rehabilitation, alteration, or repair of a facility
only as provided by this subchapter.
Sec. 2264.252. USE OF ARCHITECT OR ENGINEER. (a) The
governmental entity shall select or designate an architect or
engineer to prepare the construction documents for the project.
(b) The governmental entity's engineer or architect for a
project may not serve, alone or in combination with another person,
as the construction manager-at-risk unless the architect or
engineer is hired to serve as the construction manager-at-risk
under a separate or concurrent selection process conducted in
accordance with this subchapter. This subsection does not prohibit
the governmental entity's architect or engineer from providing
customary construction phase services under the architect's or
engineer's original professional service agreement in accordance
with applicable licensing laws.
Sec. 2264.253. USE OF OTHER PROFESSIONAL SERVICES. (a) The
governmental entity shall provide or contract for, independently of
the construction manager-at-risk, the inspection services, the
testing of construction materials engineering, and the
verification testing services necessary for acceptance of the
facility by the governmental entity.
(b) The governmental entity shall select the services for
which it contracts under this section in accordance with Section
2254.004.
Sec. 2264.254. SELECTION PROCESS. (a) The governmental
entity shall select the construction manager-at-risk in a one-step
or two-step process.
(b) The governmental entity shall prepare a single request
for proposals, in the case of a one-step process, and an initial
request for qualifications, in the case of a two-step process, that
includes:
(1) general information on the project site, project
scope, schedule, selection criteria, estimated budget, and the time
and place for receipt of the proposals or qualifications;
(2) a statement as to whether the selection process is
a one-step or two-step process; and
(3) other information that may assist the governmental
entity in its selection of a construction manager-at-risk.
(c) The governmental entity shall state the selection
criteria in the request for proposals or qualifications. 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.
(d) If a one-step process is used, the governmental entity
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 governmental entity
may not request fees or prices in step one. In step two, the
governmental entity 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 price for fulfilling the general conditions.
(f) At each step, the governmental entity shall receive,
publicly open, and read aloud the names of the offerors. At the
appropriate step, the governmental entity shall also read aloud the
fees and prices, if any, stated in each proposal as the proposal is
opened.
(g) Not later than the 45th day after the date of opening the
proposals, the governmental entity shall evaluate and rank each
proposal submitted in relation to the criteria set forth in the
request for proposals.
Sec. 2264.255. SELECTION OF OFFEROR. (a) The governmental
entity shall select the offeror that submits the proposal that
offers the best value for the governmental entity based on the
published selection criteria and on its ranking evaluation.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected offeror.
(c) If the governmental entity is unable to negotiate a
satisfactory contract with the selected offeror, the governmental
entity 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.
Sec. 2264.256. PERFORMANCE OF WORK. (a) A construction
manager-at-risk shall publicly advertise for bids or proposals and
receive bids or proposals from trade contractors or subcontractors
for the performance of all major elements of the work other than the
minor work that may be included in the general conditions.
(b) A construction manager-at-risk may seek to perform
portions of the work itself if:
(1) the construction manager-at-risk submits its bid
or proposal for those portions of the work in the same manner as all
other trade contractors or subcontractors; and
(2) the governmental entity determines that the
construction manager-at-risk's bid or proposal provides the best
value for the governmental entity.
Sec. 2264.257. REVIEW OF BIDS OR PROPOSALS. (a) The
construction manager-at-risk and the governmental entity shall
review all trade contractor or subcontractor bids or proposals in a
manner that does not disclose the contents of the bid or proposal
during the selection process to a person not employed by the
construction manager-at-risk, engineer, architect, or governmental
entity. All bids or proposals shall be made public after the later
of the award of the contract or the seventh day after the date of
final selection of bids or proposals.
(b) If the construction manager-at-risk reviews, evaluates,
and recommends to the governmental entity a bid or proposal from a
trade contractor or subcontractor but the governmental entity
requires another bid or proposal to be accepted, the governmental
entity shall compensate the construction manager-at-risk by a
change in price, time, or guaranteed maximum cost for any
additional cost and risk that the construction manager-at-risk
incurs because of the governmental entity's requirement that
another bid or proposal be accepted.
Sec. 2264.258. DEFAULT; PERFORMANCE OF WORK. If a selected
trade contractor or subcontractor defaults in the performance of
its work or fails to execute a subcontract after being selected in
accordance with this subchapter, the construction manager-at-risk
may, without advertising, itself fulfill the contract requirements
or select a replacement trade contractor or subcontractor to
fulfill the contract requirements.
Sec. 2264.259. PERFORMANCE OR PAYMENT BOND. (a) 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 governmental entity
must each be in an amount equal to the project budget, as specified
in the request for proposals or qualifications.
(b) 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 governmental entity to ensure that the
construction manager will furnish the required performance and
payment bonds when a guaranteed maximum price is established.
[Sections 2264.260-2264.300 reserved for expansion]
SUBCHAPTER G. DESIGN-BUILD METHOD
Sec. 2264.301. APPLICABILITY OF SUBCHAPTER TO BUILDINGS;
EXCEPTIONS. This subchapter applies only to a facility that is a
building or an associated structure. This subchapter does not
apply to:
(1) a highway, road, street, bridge, utility, water
supply project, water plant, wastewater plant, water and wastewater
distribution or conveyance facility, wharf, dock, airport runway or
taxiway, drainage project, or related type of project associated
with civil engineering construction; or
(2) a building or structure that is incidental to a
project that is primarily a civil engineering construction project.
Sec. 2264.302. CONTRACTS FOR BUILDINGS: DESIGN-BUILD. A
governmental entity may use the design-build method for the
construction, rehabilitation, alteration, or repair of a building
or associated structure only as provided by this subchapter. In
using that method, the governmental entity shall enter into a
single contract with a design-build firm for the design and
construction of the building or associated structure.
Sec. 2264.303. DESIGN-BUILD FIRMS. A design-build firm
under this subchapter must be a partnership, corporation, or other
legal entity or team that includes an engineer or architect and a
builder qualified to engage in building construction in Texas.
Sec. 2264.304. USE OF ARCHITECT OR ENGINEER. The
governmental entity shall select or designate an architect or
engineer independent of the design-build firm to act as the
governmental entity's representative for the duration of the work
on the facility.
Sec. 2264.305. USE OF OTHER PROFESSIONAL SERVICES. (a) The
governmental entity shall provide or contract for, independently of
the design-build firm, the inspection services, the testing of
construction materials engineering, and the verification testing
services necessary for acceptance of the facility by the
governmental entity.
(b) The governmental entity shall select the services for
which it contracts under this section in accordance with Section
2254.004.
Sec. 2264.306. PREPARATION OF REQUEST. (a) The
governmental entity 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.
(b) The governmental entity shall also prepare the 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.
(c) The design criteria package must include a set of
documents that provides sufficient information, including criteria
for selection, to permit a design-build firm to prepare a response
to the governmental entity's request for qualifications and to
provide any additional information requested. The design criteria
package must specify criteria the governmental entity considers
necessary to describe the project and may include, as appropriate,
the legal description of the site, survey information concerning
the site, interior space requirements, special material
requirements, material quality standards, conceptual criteria for
the project, special equipment requirements, cost or budget
estimates, time schedules, quality assurance and quality control
requirements, site development requirements, applicable codes and
ordinances, provisions for utilities, parking requirements, and
any other requirement.
(d) The governmental entity may not require offerors to
submit detailed engineering or architectural designs as part of a
proposal or a response to a request for qualifications.
Sec. 2264.307. EVALUATION OF DESIGN-BUILD FIRMS. (a) For
each design-build firm that responded to the request for
qualifications, the governmental entity shall evaluate the firm's
experience, technical competence, and capability to perform, the
past performance of the firm and members of the firm, and other
appropriate factors submitted by the firm in response to the
request for qualifications, except that cost-related or
price-related evaluation factors are not permitted.
(b) Each firm must certify to the governmental entity that
each engineer or architect that is a member of the firm was selected
based on demonstrated competence and qualifications, in the manner
provided by Section 2254.004.
(c) The governmental entity shall qualify a maximum of five
responders to submit proposals that contain additional information
and, if the governmental entity chooses, to interview for final
selection.
(d) The governmental entity shall evaluate the additional
information submitted by the offerors on the basis of the selection
criteria stated in the request for qualifications and the results
of any interview.
(e) The governmental entity 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, or costing
methodology. As used in this subsection, "costing methodology"
means an offeror's policies on subcontractor markup, definition of
general conditions, range of cost for general conditions, policies
on retainage, policies on contingencies, discount for prompt
payment, and expected staffing for administrative duties. The term
does not include a guaranteed maximum price or bid for overall
design or construction.
(f) The governmental entity shall rank each proposal
submitted on the basis of the criteria set forth in the request for
qualifications.
Sec. 2264.308. SELECTION OF DESIGN-BUILD FIRM. (a) The
governmental entity shall select the design-build firm that submits
the proposal offering the best value for the governmental entity on
the basis of the published selection criteria and on its ranking
evaluations.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected firm.
(c) If the governmental entity is unable to negotiate a
satisfactory contract with the selected firm, the governmental
entity shall, formally and in writing, end all negotiations with
that firm and proceed to negotiate with the next firm in the order
of the selection ranking until a contract is reached or
negotiations with all ranked firms end.
Sec. 2264.309. COMPLETION OF DESIGN AFTER SELECTION. After
selection of the design-build firm, that firm's architects or
engineers shall complete the design and submit all design elements
for review and determination of scope compliance to the
governmental entity or governmental entity's architect or engineer
before or concurrently with construction.
Sec. 2264.310. FINAL CONSTRUCTION DOCUMENTS. The
design-build firm shall supply a signed and sealed set of
construction documents for the project to the governmental entity
at the conclusion of construction.
Sec. 2264.311. PERFORMANCE OR PAYMENT BOND. (a) A payment
or performance bond is not required and may not provide coverage for
the portion of the design-build contract with the design-build firm
under this subchapter that includes design services only.
(b) If a fixed contract amount or guaranteed maximum price
has not been determined at the time the design-build contract is
awarded, the penal sums of the performance and payment bonds
delivered to the governmental entity must each be in an amount equal
to the project budget, as specified in the design criteria package.
(c) 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 governmental entity to ensure
that the design-build firm will furnish the required performance
and payment bonds when a guaranteed maximum price is established.
[Sections 2264.312-2264.350 reserved for expansion]
SUBCHAPTER H. JOB ORDER CONTRACTS METHOD
Sec. 2264.351. JOB ORDER CONTRACTS FOR FACILITIES
CONSTRUCTION OR REPAIR. A governmental entity may award job order
contracts for the minor construction, repair, rehabilitation, or
alteration of a facility if:
(1) the work is of a recurring nature but the delivery
times are indefinite; and
(2) indefinite quantities and orders are awarded
substantially on the basis of predescribed and prepriced tasks.
Sec. 2264.352. CONTRACTUAL UNIT PRICES. The governmental
entity 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 propose one or more coefficients or multipliers to be
applied to the price book or work items as the price proposal.
Sec. 2264.353. SEALED PROPOSALS METHOD. (a) The
governmental entity shall advertise for, receive, and publicly open
sealed proposals for job order contracts.
(b) The governmental entity may require offerors to submit
information in addition to rates, including experience, past
performance, and proposed personnel and methodology.
Sec. 2264.354. AWARDING OF JOB CONTRACTS. The governmental
entity may award job order contracts to one or more job order
contractors in connection with each solicitation of proposals.
Sec. 2264.355. USE OF ARCHITECT OR ENGINEER. If a job order
contract or an order issued under the contract requires
architectural or engineering 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.
Sec. 2264.356. JOB ORDER CONTRACT TERM. (a) A job order
contract is for the base term and with any renewal options that the
governmental entity sets forth in the request for proposals.
(b) If the governmental entity fails to advertise the base
term, the base term may not exceed two years and is not renewable
without further advertisement and solicitation of proposals.
Sec. 2264.357. JOB ORDERS. (a) An order for a job or
project under a job order contract must be signed by the
governmental entity's representative and the contractor.
(b) The order may be:
(1) a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities; or
(2) a unit price order based on the quantities and line
items delivered.
Sec. 2264.358. PAYMENT AND PERFORMANCE BONDS. The
contractor shall provide payment and performance bonds, if required
by law, based on the amount or estimated amount of any order.
[Sections 2264.359-2264.400 reserved for expansion]
SUBCHAPTER I. NOTICE REQUIREMENTS FOR LOCAL GOVERNMENTS
Sec. 2264.401. NOTICE REQUIREMENTS FOR CERTAIN LOCAL
GOVERNMENTS. (a) For a contract entered into by a defense base
development authority, municipality, or river authority under a
method provided by this chapter, the municipality or authority
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.
(b) The notice must be published in a newspaper of general
circulation in the county in which the defense base development
authority's or municipality's central administrative office is
located or in the county in which the greatest amount of the river
authority's territory is located. If there is not a newspaper of
general circulation in that county, the notice shall be published
in a newspaper of general circulation in the county nearest the
county seat of the county in which the defense base development
authority's or municipality's central administrative office is
located or the county seat of the county in which the greatest
amount of the river authority's territory is located.
(c) The notice must be published once each week for at least
two weeks before the deadline for receiving bids, proposals, or
responses.
(d) 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. 2264.402. NOTICE REQUIREMENTS FOR COUNTIES. (a) For a
contract entered into by a county under a method provided by this
chapter, the county shall publish notice of the time and place the
bids or proposals or request for qualifications will be received
and opened.
(b) The notice must be published in a newspaper of general
circulation in the county once each week for at least two weeks
before the deadline for receiving bids, proposals, or responses.
If there is not a newspaper of general circulation in the county,
the notice shall be:
(1) posted at the courthouse door of the county; and
(2) published in a newspaper of general circulation in
the county nearest the county seat of the county publishing the
notice.
[Sections 2264.403-2264.425 reserved for expansion]
SUBCHAPTER J. ENFORCEMENT
Sec. 2264.426. VOID CONTRACT. A contract entered into in
violation of this chapter is void as against public policy.
Sec. 2264.427. INJUNCTIVE RELIEF. (a) As used in this
section, "interested party" includes a county or district attorney,
a criminal district attorney, a resident of a county that enters
into a contract under this chapter, or a resident of a county in
which a municipality or a river or defense base development
authority that enters into a contract under this chapter is
located.
(b) An interested party may file an action to enjoin
performance of a contract made in violation of this chapter.
(c) A party who prevails in an action brought under this
section is entitled to reasonable attorney's fees as approved by
the court.
SECTION 3. Sections 44.031(a) and (f), Education Code, are
amended to read as follows:
(a) Except as provided by this subchapter, all school
district contracts, except contracts for the purchase of produce or
vehicle fuel or a contract made under Chapter 2264, Government
Code, valued at $25,000 or more in the aggregate for each 12-month
period shall be made by the method, of the following methods, that
provides the best value for the district:
(1) competitive bidding;
(2) competitive sealed proposals;
(3) a request for proposals, for services other than
construction services;
(4) a catalogue purchase as provided by Subchapter B,
Chapter 2157, Government Code;
(5) an interlocal contract;
(6) [a design/build contract;
[(7) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager;
[(8) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility;
[(9)] the reverse auction procedure as defined by
Section 2155.062(d), Government Code; or
(7) [(10)] the formation of a political subdivision
corporation under Section 304.001, Local Government Code.
(f) This section does not apply to a contract for
professional services rendered, including services of an
architect, attorney, engineer, or fiscal agent. A school district
may, at its option, contract for professional services rendered by
a financial consultant or a technology consultant in the manner
provided by Section 2254.003, Government Code, in lieu of the
methods provided by this section.
SECTION 4. Subchapter A, Chapter 2254, Government Code, is
amended by adding Section 2254.007 to read as follows:
Sec. 2254.007. INJUNCTIVE RELIEF. (a) As used in this
section, "interested party" includes a county or district attorney,
a criminal district attorney, a resident of a county that enters
into a contract under this chapter, or a resident of a county in
which a municipality or a river authority that enters into a
contract under this chapter is located.
(b) An interested party may file an action to enjoin
performance of a contract made in violation of this chapter.
(c) A party who prevails in an action brought under this
section is entitled to reasonable attorney's fees as approved by
the court.
SECTION 5. The following are repealed:
(1) Section 44.0315 and Sections 44.035-44.041,
Education Code;
(2) Subchapter T, Chapter 51, Education Code;
(3) Sections 2166.2511, 2166.2526, 2166.2531,
2166.2532, 2166.2533, and 2166.2535, Government Code; and
(4) Subchapter H, Chapter 271, Local Government Code.
SECTION 6. (a) The changes in law made by this Act apply
only to a contract or construction project for which a governmental
entity first advertises or otherwise requests bids, proposals,
offers, or qualifications, or makes a similar solicitation, on or
after the effective date of this Act.
(b) A contract or construction project for which a
governmental entity first advertises or otherwise requests bids,
proposals, offers, or qualifications, or makes a similar
solicitation, before the effective date of this Act 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, 2005.