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A BILL TO BE ENTITLED
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AN ACT
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relating to the procurement methods of certain political |
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subdivisions and certain other entities for the construction, |
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rehabilitation, alteration, or repair of certain projects. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 271, Local Government Code, is amended |
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by adding Subchapter J, to read as follows: |
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SUBCHAPTER J. DESIGN-BUILD PROCEDURES FOR CERTAIN CIVIL WORKS |
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PROJECTS |
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Sec. 271.181. DEFINITIONS. In this subchapter: |
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(1) "Local governmental entity" means a municipality, |
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county, or special district or authority. |
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(2) "Civil works project" means a roadway project, |
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transit project, water supply treatment or transmission project, |
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wastewater treatment or transmission project, desalination project |
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or electric utility project. |
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(3) "Design-build firm" means a partnership, |
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corporation, or other legal entity or team that includes an |
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engineer and a construction contractor qualified to engage in |
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building construction in Texas. |
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(4) "Design criteria package" means a set of documents |
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that: |
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(A) provides sufficient information to convey |
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the intent, goals, criteria, and objectives of the civil works |
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project; and |
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(B) permits a design-build firm to: |
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(i) assess the scope of work and the risk |
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involved; and |
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(ii) submit a proposal on the project. |
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Sec. 271.182. APPLICABILITY. (a) Before September 1, |
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2009, this subchapter applies to a municipality or county with a |
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population of 500,000 or more or a special district or authority |
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with a population of 500,000 or more in its service area. |
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(b) On or after September 1, 2009, and before September 1, |
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2011, this subchapter applies to a municipality or county with a |
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population of more than 100,000 or a special district or authority |
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with a population of more than 100,000 in its service area. |
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(c) On or after September 1, 2011, and before September 1, |
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2013, this subchapter applies to a municipality or county with a |
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population of more than 25,000 or a special district or authority |
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with a population of more than 25,000 in its service area. |
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(d) On or after September 1, 2013, this subchapter applies |
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to any municipality, county, or special district or authority. |
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Sec. 271.183. APPLICABILITY OF OTHER LAW. (a) Any |
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provision in the charter of a home-rule municipality or regulation, |
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if any, of a county or special district or authority that requires |
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the use of competitive sealed proposals or prescribes procurement |
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procedures and that is in conflict with this subchapter controls |
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over this subchapter unless the governing body of the local |
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governmental entity elects to have this subchapter supersede the |
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charter or regulation. |
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(b) The purchasing requirements of Section 361.426, Health |
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and Safety Code, apply to purchases by a local governmental entity |
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made under this subchapter. |
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(c) Except as provided by this section, to the extent of any |
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conflict, this subchapter prevails over any other law relating to |
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the purchasing of goods and services except a law relating to |
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contracting with historically underutilized businesses. |
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Sec. 271.184. NOTICE REQUIREMENTS. (a) For a contract |
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entered into by a local governmental entity other than a county |
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under any of the methods provided by this subchapter, the entity |
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shall publish notice of the time and place the proposals, or the |
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responses to a request for qualifications, will be received and |
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opened. The notice must be published in a newspaper of general |
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circulation in the county in which the local governmental entity's |
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administrative office is located or the county in which the |
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greatest amount of the entity's territory is located once each week |
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for at least two weeks before the date of the deadline for receiving |
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proposals or responses. If there is not a newspaper of general |
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circulation in that county, the notice must be published in a |
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newspaper of general circulation in the county nearest the county |
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seat of the county in which the local governmental entity's central |
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administrative office is located or the county in which the |
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greatest amount of the entity's territory is located. |
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(b) For a contract entered into by a county under any of the |
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methods provided by this subchapter, the county shall publish |
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notice of the time and place the proposals, or the responses to a |
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request for qualifications, will be received and opened. The |
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notice must be published in a newspaper of general circulation in |
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the county once each week for at least two weeks before the date of |
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the deadline for receiving proposals or responses. If there is not |
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a newspaper of general circulation in the county, the notice shall |
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be: |
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(1) posted at the courthouse door of the county; and |
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(2) published in a newspaper of general circulation in |
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the nearest county. |
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Sec. 271.185. CONTRACTS FOR CIVIL WORKS PROJECTS: |
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DESIGN-BUILD. (a) A local governmental entity may use the |
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design-build method for the construction, rehabilitation, |
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alteration, or repair of a civil works project. In using this method |
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and in entering into a contract for the services of a design-build |
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firm, the contracting local governmental entity and the |
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design-build firm shall follow the procedures provided by this |
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subchapter. |
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(b) A contract for a project under this subchapter may cover |
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only a single integrated project. A local governmental entity may |
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not enter into a contract for aggregated projects at multiple |
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locations. |
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(c) A local governmental entity shall use the following |
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criteria as a minimum basis for determining the circumstances under |
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which the design-build method is appropriate for a project: |
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(1) the extent to which the entity can adequately |
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define the project requirements; |
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(2) the time constraints for the delivery of the |
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project; |
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(3) the ability to ensure that a competitive |
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procurement can be held; and |
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(4) the capability of the entity to manage and oversee |
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the project, including the availability of experienced personnel or |
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outside consultants who are familiar with the design-build method |
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of project delivery. |
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(d) A local governmental entity shall make a formal finding |
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on the criteria described by Subsection (c) before preparing a |
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request for qualifications under Section 271.189. |
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Sec. 271.186. LIMITATION ON NUMBER OF PROJECTS. (a) During |
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the first four years that this subchapter applies to a local |
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governmental entity under Section 271.182, the entity may, under |
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this subchapter, enter into contracts for not more than two |
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projects in any fiscal year. |
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(b) After the period described by Subsection (a): |
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(1) a local governmental entity with a population of |
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500,000 or more may, under this subchapter, enter into contracts |
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for not more than four projects in any fiscal year; |
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(2) a local governmental entity with a population of |
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100,000 or more but less than 500,000 may, under this subchapter, |
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enter into contracts for not more than three projects in any fiscal |
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year; and |
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(3) a local governmental entity with a population of |
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less than 100,000 may, under this subchapter, enter into contracts |
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for not more than two projects in any fiscal year. |
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Sec. 271.187. USE OF ENGINEER. (a) The local governmental |
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entity shall select or designate an engineer who is independent of |
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the design-build firm to act as its representative for the |
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procurement process and for the duration of the work on the civil |
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works project. |
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(b) The local governmental entity shall select the engineer |
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on the basis of demonstrated competence and qualifications as |
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provided by Section 2254.004, Government Code. |
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Sec. 271.188. USE OF OTHER PROFESSIONAL SERVICES. (a) The |
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local governmental entity shall contract for, independently of the |
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design-build firm, the following services necessary for the |
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acceptance of the civil works project by the entity: |
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(1) inspection services; |
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(2) testing of construction materials engineering; |
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and |
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(3) verification testing services. |
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(b) The local governmental entity shall select the services |
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for which it contracts under this section in accordance with |
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Section 2254.004, Government Code. |
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Sec. 271.189. REQUEST FOR QUALIFICATIONS. (a) The local |
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governmental entity shall prepare a request for qualifications that |
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includes: |
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(1) information on the civil works project site; |
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(2) project scope; |
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(3) project budget; |
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(4) project schedule; |
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(5) criteria for selection under Section 271.191 and |
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the weighting of the criteria; and |
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(6) other information that may assist potential |
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design-build firms in submitting proposals for the project. |
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(b) The local governmental entity shall also prepare a |
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design criteria package as described by Section 271.190. |
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Sec. 271.190. CONTENTS OF DESIGN CRITERIA PACKAGE. A |
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design criteria package must include, as appropriate: |
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(1) budget or cost estimates; |
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(2) information on the site; |
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(3) performance criteria; |
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(4) special material requirements; |
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(5) initial design calculations; |
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(6) known utilities; |
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(7) capacity requirements; |
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(8) quality assurance and quality control |
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requirements; and |
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(9) the type, size, and location of structures. |
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Sec. 271.191. EVALUATION OF DESIGN-BUILD FIRMS. (a) The |
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local governmental entity shall receive proposals and shall |
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evaluate each offeror's experience, technical competence, |
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capability to perform, the past performance of the offeror's team |
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and members of the team, and other appropriate factors submitted by |
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the team or firm in response to the request for qualifications, |
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except that cost-related or price-related evaluation factors are |
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not permitted at this stage. |
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(b) Each offeror must certify to the local governmental |
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entity that each engineer that is a member of its team was selected |
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based on demonstrated competence and qualifications, in the manner |
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provided by Section 2254.004, Government Code. |
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(c) The local governmental entity shall qualify a maximum of |
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three offerors to submit additional information and, if the entity |
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chooses, to interview for final selection. |
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Sec. 271.192. SELECTION OF DESIGN-BUILD FIRM. The local |
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governmental entity shall select a design-build firm using one of |
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the following selection options: |
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(1) qualifications-based selection as provided by |
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Section 271.193; or |
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(2) a combination of technical and price proposals as |
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provided by Section 271.194. |
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Sec. 271.193. PROCEDURES FOR QUALIFICATIONS-BASED |
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SELECTION. A local governmental entity that selects a design-build |
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firm using the qualifications-based selection option: |
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(1) may request that the firms identified under |
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Section 271.191(c) provide additional information regarding |
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demonstrated competence and qualifications, project approaches, |
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the ability of the firm to meet schedules or other factors as |
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appropriate, except that price or cost-related criteria may not be |
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utilized; |
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(2) may not require firms to submit and may not accept |
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or consider conceptual or detailed engineering or architectural |
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designs as part of the proposal; and |
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(3) shall: |
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(A) rank each proposal submitted on the basis of |
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the criteria set forth in the request for qualifications and the |
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results of any interview; and |
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(B) select the design-build firm that is most |
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highly qualified on the basis of the published selection criteria |
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and on its ranking evaluations. |
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Sec. 271.194. PROCEDURES FOR COMBINATION OF TECHNICAL AND |
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COST PROPOSALS. (a) A local governmental entity that selects a |
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design-build firm using a combination of technical and cost |
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proposals shall request proposals from firms identified under |
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Section 271.191(c). A firm must submit a proposal not later than |
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the 90th day after the date the local governmental entity makes a |
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public request for the proposals from the selected firms. The |
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request for proposals must include: |
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(1) a design criteria package; |
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(2) a geotechnical baseline report; |
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(3) detailed instructions for preparing the technical |
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proposal and the items to be included, including a description of |
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the form and level of completeness of drawings expected; and |
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(4) the relative weighting of the technical and price |
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proposals and the formula by which the proposals will be evaluated |
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and ranked. |
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(b) The technical proposal component under this section |
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must be weighted a minimum of 50 percent. |
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(c) Each proposal must include a sealed technical proposal |
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and a separate sealed price proposal. |
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(d) The technical proposal must address: |
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(1) project approach; |
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(2) anticipated problems; |
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(3) proposed solutions to anticipated problems; |
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(4) ability to meet schedules; |
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(5) conceptual engineering design; and |
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(6) other information requested by the local |
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governmental entity. |
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(e) The local governmental entity shall first open, |
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evaluate, and score each responsive technical proposal submitted on |
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the basis of the criteria described in the request for proposals and |
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assign points on the basis of the weighting specified in the request |
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for proposals. The local governmental entity may reject as |
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nonresponsive any firm that makes a significant change to the |
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composition of its firm as initially submitted. The local |
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governmental entity shall subsequently open, evaluate, and score |
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the price proposals from firms that submitted a responsive |
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technical proposal and assign points on the basis of the weighting |
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specified in the request for proposals. The local governmental |
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entity shall select the design-build firm in accordance with the |
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formula provided in the request for proposals. |
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Sec. 271.195. NEGOTIATION. After selecting the highest |
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ranked design-build firm under Section 271.193 or 271.194, the |
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local governmental entity shall first attempt to negotiate a |
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contract with the selected firm. If the local governmental entity |
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is unable to negotiate a satisfactory contract with the selected |
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firm, the entity shall, formally and in writing, end all |
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negotiations with that firm and proceed to negotiate with the next |
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firm in the order of the selection ranking until a contract is |
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reached or negotiations with all ranked firms end. |
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Sec. 271.196. ASSUMPTION OF RISKS. The local governmental |
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entity shall assume: |
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(1) all risks and costs associated with: |
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(A) scope changes and modifications; |
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(B) unknown or differing site conditions; |
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(C) regulatory permitting; and |
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(D) natural disasters and other force majeure |
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events; and |
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(2) all costs associated with property acquisition. |
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Sec. 271.197. STIPEND AMOUNT FOR UNSUCCESSFUL OFFERORS. |
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(a) Not later than the 30th day after the date a contract is |
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executed under this subchapter, the local governmental entity shall |
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offer unsuccessful design-build firms that submit a response to the |
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entity's request for additional information under Section |
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271.191(c) a stipend that is equal to a minimum of one-half of one |
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percent of the final contract price for preliminary engineering |
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costs associated with development of the proposal. A greater |
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amount may be negotiated with a firm as compensation for the use of |
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intellectual property. If the offer is accepted and paid, the local |
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governmental entity may make use of any work product contained in |
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the proposal, including the techniques, methods, processes, and |
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information contained in the proposal. The use by the local |
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governmental entity of any design element contained in an |
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unsuccessful proposal is at the sole risk and discretion of the |
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entity and does not confer liability on the recipient of the stipend |
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under this subsection. |
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(b) If a design-build firm rejects the offer of the stipend, |
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the firm retains all rights to the work product and the local |
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governmental entity may not make use of any unique design element, |
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technique, method, or process contained in the unsuccessful |
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proposal that was not also contained in the successful proposal at |
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the time of the original submittal. If the local governmental |
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entity wants to acquire the rights to the work product of an |
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unsuccessful firm and the local governmental entity and that firm |
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are unable to reach an agreement on the value of the work product, |
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the matter may be submitted to binding arbitration. |
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(c) If a local governmental entity requests and receives |
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proposals and subsequently cancels the request or suspends the |
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selection process for more than 270 days after the date the local |
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governmental entity requests the design-build firms to provide |
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additional information, each offeror who submitted a proposal as |
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requested shall receive the minimum stipend required by this |
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section. |
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Sec. 271.198. COMPLETION OF DESIGN. (a) Following |
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selection of a design-build firm under this subchapter, the firm's |
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engineers shall submit all design elements for review and |
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determination of scope compliance to the local governmental entity |
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before or concurrently with construction. |
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(b) An appropriately licensed design professional shall |
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sign and seal construction documents before the documents are |
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released for construction. |
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Sec. 271.199. FINAL CONSTRUCTION DOCUMENTS. The |
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design-build firm shall supply to the local governmental entity a |
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signed and sealed set of construction documents for the project at |
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the conclusion of construction. |
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Sec. 271.200. PERFORMANCE OR PAYMENT BOND. A payment or |
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performance bond is not required for, and may not provide coverage |
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for, the portion of a design-build contract under this section that |
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includes design services only. If a fixed contract amount or |
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guaranteed maximum price has not been determined at the time a |
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design-build contract is awarded, the penal sums of the performance |
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and payment bonds delivered to the local governmental entity must |
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each be in an amount equal to the project budget, as specified in |
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the design criteria package. The design-build firm shall deliver |
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the bonds not later than the 10th day after the date the |
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design-build firm executes the contract unless the design-build |
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firm furnishes a bid bond or other financial security acceptable to |
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the local governmental entity to ensure that the design-build firm |
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will furnish the required performance and payment bonds when a |
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guaranteed maximum price is established. |
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SECTION 2. Sections 2252.902(a) and (b), Government Code, |
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are amended to read as follows: |
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(a) In this section, "construction contract" means a |
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contract or agreement made and entered into by a [state] |
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governmental entity, engineer, design-build firm, contractor, |
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construction manager, subcontractor, supplier, or equipment |
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lessor, concerning the planning, design, construction, alteration, |
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or repair, of [a state public building or carrying out or
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completing] any [state] public work. |
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(b) Except as provided by Subsection (c), a covenant, |
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promise, or agreement contained in a construction contract, or in |
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an agreement collateral to or affecting a construction contract, is |
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void and unenforceable to the extent that [it indemnifies] a person |
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is required to indemnify, hold harmless, or defend another person |
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against all or any portion of loss or liability for damage other |
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than a loss or liability for damage caused or resulting from the |
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negligence of the indemnitor [that:
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[(1) is caused by or results from the sole, joint, or
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concurrent negligence of the indemnitee, its agent, employee, or
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another independent contractor directly responsible to the
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indemnitee; and
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[(2)arises from:
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[(A)personal injury or death;
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[(B)property damage;
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[(C) a fine, penalty, administrative action, or
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other action assessed by a governmental entity directly against the
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indemnitee, its agent or employee, or an independent contractor
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directly responsible to the indemnitee; or
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[(D) any other loss, damage, or expense that
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arises from an occurrence described by Paragraph (A), (B), or (C)]. |
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SECTION 3. Section 431.101(e), Transportation Code, is |
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amended to read as follows: |
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(e) A local government corporation is subject to each |
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statute, code, and other law relating to the design and |
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construction of projects, including the procurement of design and |
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construction services, that apply to the local government that |
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created the corporation [Section 394.904(a), Local Government
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Code, applies to property and improvements owned by a local
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government corporation. Section 394.904(b) of that code applies to
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each contract awarded by the local government corporation]. |
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SECTION 4. The changes in law made by this Act apply only to |
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a contract for which a request for proposals or a request for |
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qualifications is first published or distributed on or after the |
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effective date of this Act. A contract for which a request for |
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proposals or a request for qualifications is first published or |
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distributed before the effective date of this Act is governed by the |
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law in effect at the time the request is published or distributed, |
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and the former law is continued in effect for that purpose. |
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SECTION 5. This Act takes effect September 1, 2007. |