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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.