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79R5535 JTS-D
By: Krusee H.B. No. 2703
A BILL TO BE ENTITLED
AN ACT
relating to contracts for the design and construction of
transportation projects by certain governmental entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Title 6, Transportation Code, is
amended to read as follows:
TITLE 6. ROADWAYS AND OTHER TRANSPORTATION PROJECTS
SECTION 2. Subtitle Z, Title 6, Transportation Code, is
amended by adding Chapter 473 to read as follows:
CHAPTER 473. ALTERNATIVE PROJECT DELIVERY METHODS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 473.001. DEFINITIONS. In this chapter:
(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 firm qualified to engage in transportation
project construction in this state.
(3) "Governmental entity" means a political
subdivision of this state, including a municipality or a county, a
political subdivision of a county, a group of adjoining counties, a
district organized or operating under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution, the department, a
regional tollway authority under Chapter 366, a regional mobility
authority under Chapter 370, a transit authority, a nonprofit
corporation, including a transportation corporation that is
created under Chapter 431, or any other public entity or
instrumentality.
(4) "Transportation project" has the meaning assigned
by Section 370.003.
Sec. 473.002. DISADVANTAGED AND SMALL BUSINESSES. A
governmental entity shall:
(1) ensure that disadvantaged and small businesses
have an opportunity to participate in the performance of contracts
under this chapter; and
(2) use the same procedures that exist for removing
barriers to participation by disadvantaged and small businesses in
other governmental entity construction and design contracts.
Sec. 473.003. PROJECTS FUNDED BY FEDERAL FUNDS. If a
transportation project procured under this chapter is funded wholly
or partly by federal funds and subject to federal procurement laws,
rules, regulations, and procedures, the requirements of this
chapter shall be applied in a manner consistent with the applicable
federal procurement laws, rules, regulations, and procedures.
Sec. 473.004. RULES. A governmental entity that enters
into contracts under this chapter shall adopt rules, ordinances, or
orders, as appropriate, necessary to implement and administer this
chapter.
Sec. 473.005. CONFLICTS WITH OTHER LAWS. To the extent of a
conflict between this chapter and another law applicable to a
governmental entity, this chapter prevails.
[Sections 473.006–473.050 reserved for expansion]
SUBCHAPTER B. DESIGN-BUILD CONTRACTS
Sec. 473.051. POWER TO ENTER INTO DESIGN-BUILD CONTRACTS.
A governmental entity, for a transportation project with an
estimated total cost of more than $25 million, 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. 473.052. REQUEST FOR QUALIFICATIONS. (a) A
governmental entity 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 Chapter
1001, Occupations Code, or the practice of architecture under
Chapter 1051 of that code, those services must be provided in
accordance with the applicable law.
Sec. 473.053. EVALUATION AND SELECTION OF DESIGN-BUILD
FIRM. (a) A governmental entity shall evaluate and select a
design-build firm in two phases.
(b) In the first phase, the governmental entity 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 governmental entity 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) A governmental entity may interview the design-build
firms that respond to the request for qualifications, and if the
governmental entity interviews firms, the governmental entity must
qualify at least two firms for the second phase of the evaluation
and selection process.
(e) In the second phase, the governmental entity 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 governmental entity considers
relevant or necessary.
(f) A governmental entity 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 governmental entity 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. 473.054. NEGOTIATIONS WITH SELECTED DESIGN-BUILD
FIRM. (a) A governmental entity shall first attempt to negotiate a
contract with the selected design-build firm.
(b) If the governmental entity 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 entity determines that it is no longer in
the best interest of the entity to enter into a design-build
contract for the proposed transportation project.
Sec. 473.055. COMPLETION OF DESIGN BY SELECTED DESIGN-BUILD
FIRM. (a) The engineers or architects of the design-build firm
with which a governmental entity contracts shall submit all
specified design elements for review and determination of scope
compliance to the entity 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.
(c) An architect shall have responsibility for compliance
with all applicable requirements of Chapter 1051, Occupations Code.
Sec. 473.056. INSPECTION AND TESTING SERVICES. (a) For
quality assurance purposes, a governmental entity 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. 473.057. 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 governmental entity to ensure
that the design-build firm will furnish the required performance
and payment bonds when a guaranteed maximum price is established.
Sec. 473.058. PAYMENT TO UNSUCCESSFUL DESIGN-BUILD FIRMS.
(a) A governmental entity 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
governmental entity 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.
[Sections 473.059-473.100 reserved for expansion]
SUBCHAPTER C. CONSTRUCTION MANAGER-AT-RISK CONTRACTS
Sec. 473.101. DEFINITION. In this subchapter,
"construction manager-at-risk" means a sole proprietorship,
partnership, corporation, or other legal entity that:
(1) assumes the risk for construction,
rehabilitation, alteration, or repair of a transportation project
at the contracted price as a general contractor; and
(2) provides consultation services to the
governmental entity regarding construction during and after the
design of the transportation project.
Sec. 473.102. AUTHORITY TO ENTER INTO CONSTRUCTION
MANAGER-AT-RISK CONTRACTS. A governmental entity may use the
construction manager-at-risk method for the construction,
maintenance, alteration, or repair of a transportation project. In
using that method and in entering into a contract for the services
of a construction manager-at-risk, a governmental entity shall
follow the procedures prescribed by this subchapter.
Sec. 473.103. SELECTION OR DESIGNATION OF ENGINEER OR
ARCHITECT. (a) Before or concurrently with selecting a construction
manager-at-risk, the governmental entity 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.
(b) If the engineer or architect is not a full-time employee
of the governmental entity, the governmental entity shall select
the engineer or architect on the basis of demonstrated competence
and qualifications as provided by Section 2254.004, Government
Code.
(c) The governmental entity'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.
Sec. 473.104. INSPECTION AND TESTING 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
transportation project by the governmental entity.
(b) The governmental entity shall select those services for
which it contracts in accordance with Section 2254.004, Government
Code.
Sec. 473.105. EVALUATION AND SELECTION OF CONSTRUCTION
MANAGER-AT-RISK. (a) The governmental entity shall select the
construction manager-at-risk in a one-step or a two-step process.
The governmental entity 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 time and place for receipt of proposals or
qualifications, as applicable, and other information that may
assist the governmental entity in its selection of a construction
manager-at-risk.
(b) The governmental entity 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.
(c) If a one-step process is used, the governmental entity
may request, as part of the offeror's proposal, proposed fees and
prices for meeting the general conditions. If a two-step process is
used, the governmental entity may not request fees or prices in the
first step. In the second step, 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 its price for
fulfilling the general conditions.
(d) In 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. Not later than the 45th day after the date of opening the
proposals, the governmental entity shall evaluate and rank each
proposal using the criteria stated in the request for proposals.
(e) The governmental entity shall select the offeror that
submits the proposal that offers the best value for the
governmental entity based on the selection criteria and ranking
evaluation. The governmental entity shall first attempt to
negotiate a contract with the selected offeror. 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 begin 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. 473.106. BIDS OR PROPOSALS FROM CONTRACTORS OR
SUBCONTRACTORS. (a) A construction manager-at-risk shall
publicly advertise and receive bids or proposals from trade
contractors or subcontractors for the performance of all major
elements of the transportation project other than the minor work
that may be included in the general conditions.
(b) A construction manager-at-risk may seek to perform one
or more portions of the transportation project if:
(1) the construction manager-at-risk submits its bid
or proposal for each portion of the project in the same manner as
any other trade contractor or subcontractor; and
(2) the governmental entity determines that the
construction manager-at-risk's bid or proposal provides the best
value for the governmental entity.
(c) The construction manager-at-risk and the governmental
entity or its representative shall review each trade contractor or
subcontractor bid or proposal in a manner that does not disclose the
contents of the bid or proposal during the selection process to a
person who is not employed by the construction manager-at-risk, the
project engineer, the project architect, or the governmental
entity. All bids or proposals shall be made public not later than
the date the contract is awarded or the seventh day after the date
that final selection of the bid or proposal is made.
(d) 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 or risk the construction manager-at-risk may incur
because the governmental entity required the other bid or proposal
be accepted.
(e) If a selected trade contractor or subcontractor fails to
execute a subcontract after being selected or defaults in the
performance of its work, the construction manager-at-risk may,
without advertising:
(1) meet the contract requirements; or
(2) select another trade contractor or subcontractor
to meet with the contract requirements.
Sec. 473.107. PERFORMANCE AND PAYMENT BONDS. (a) If a
fixed contract amount or guaranteed maximum price has not been
determined when 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 qualifications.
(b) The construction manager shall deliver the bonds not
later than the 10th day after the date the construction manager
executes the contract unless the construction manager furnishes a
bid bond or other financial security acceptable to the governmental
entity to ensure that the construction manager will deliver the
required performance and payment bonds when a guaranteed maximum
price is established.
SECTION 3. This Act takes effect September 1, 2005.