80R8386 PAM-F

By: Corte H.B. No. 3753

A BILL TO BE ENTITLED

AN ACT

relating to procurement methods of certain water utility systems for the design, construction, and operation of certain facilities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 271, Local Government Code, is amended by adding Subchapter J to read as follows: SUBCHAPTER J. ALTERNATIVE PROJECT DELIVERY METHODS FOR FACILITIES

Sec. 271.181. DEFINITIONS. In this subchapter:

(1) "Architect" means an individual registered as an architect under Section 1051.001, Occupations Code.

(2) "Desalination facility" means a water desalination project and all related wells and water supply, treatment, drainage, discharge, distribution, or conveyance facilities, and buildings or structures that are incidental to the construction, operation, and maintenance of the water desalination project.

(3) "Design-build contract" means a single contract with a design-build firm for the design and construction or the design, construction, and operation of a desalination facility.

(4) "Design-build firm" means a partnership, corporation, or other legal entity or team that includes an engineer or architect and builder qualified to engage in building construction in Texas.

(5) "Engineer" means an individual licensed as an engineer under Chapter 1001, Occupations Code.

(6) "Water system" means a municipally owned water or wastewater system with a governing board appointed by the governing body of the municipality.

Sec. 271.182. APPLICABILITY OF OTHER LAW. (a) Any provision in the charter of a home-rule municipality or regulation, if any, of a water system that requires the use of competitive sealed proposals or prescribes procurement procedures and that is in conflict with this subchapter controls over this subchapter unless the governing body of the municipality or water system, as appropriate, elects to have this subchapter supersede the charter or regulation.

(b) The purchasing requirements of Section 361.426, Health and Safety Code, apply to purchases by a water system made under this subchapter.

(c) Except as provided by this section, to the extent of any conflict, this subchapter prevails over any other law relating to the design, construction, or operation of a desalination facility except a law relating to contracting with historically underutilized businesses.

Sec. 271.183. NOTICE REQUIREMENTS. For a contract entered into by a water system under the methods provided by this subchapter, the water system shall publish notice of the time and place the proposals, or the responses to a request for qualifications, will be received and opened. The notice must be published in a newspaper of general circulation in the county in which the water system's central administrative office is located or the county in which the greatest amount of the water system's territory is located once each week for at least two weeks before the date of the deadline for receiving proposals or responses. If there is not a newspaper of general circulation in that county, the notice must be published in a newspaper of general circulation in the county nearest the county seat of the county in which the water system's central administrative office is located or the county in which the greatest amount of the water system's territory is located.

Sec. 271.184. DELEGATION. The governing board of a water system may, as it considers appropriate, delegate its authority under this subchapter regarding an action authorized or required by this subchapter to be taken by a water system to a designated person, representative, or committee.

Sec. 271.185. CONTRACTS FOR DESALINATION FACILITY: DESIGN-BUILD. (a) A water system may use the design-build method for the design, construction, rehabilitation, alteration, operation, or repair of a desalination facility if the governing board of the water system determines that the design-build method provides the best value for the water system. In using this method and in entering into a contract for the services of a design-build firm, the contracting water system and the design-build firm shall follow the procedures provided by this subchapter and Sections 271.113(b) and 271.114.

(b)(1) The water system shall evaluate and select a design-build firm in two phases.

(2) In phase one, the water system shall prepare a request for qualifications as provided by Section 271.186 and evaluate each offeror's experience, technical competence, and capability to perform, the past performance of the offeror's team and members of the team, and other appropriate factors submitted by the team or firm in response to the request for qualifications, except that cost-related or price-related evaluation factors are not permitted. The water system may interview any of the offerors that submit a response to the request for qualifications. The water system may qualify a maximum of five offerors on the basis of demonstrated competence and qualifications to participate in the second phase of the evaluation and selection process.

(3) In phase two, the water system shall request proposals from the offerors qualified to participate in this phase under Subsection (b)(2). The request for proposals must include the selection criteria stated in the request for qualifications. The water system may request additional information regarding demonstrated competence and qualifications, considerations of the safety and long-term durability of the desalination facility, the feasibility of implementing the desalination facility as proposed, the ability of the offeror to meet schedules, the overall cost of the desalination facility, the anticipated operations and maintenance budget at various levels, and any other information that may assist the water system in evaluating and selecting a design-build firm. Each proposal submitted by an offeror under this phase must include a technical proposal that includes preliminary design drawings, a project schedule, and a lump-sum contract price for all services provided under the contract. The water system may interview and negotiate with any respondent to the request for proposals before and after the submission of a response to the request and before the award to provide clarification and assure full understanding of and responsiveness to the requirements for the request for proposals. Offerors must be accorded fair and equal treatment with respect to any opportunity for discussion with or clarification by the water system. In conducting any discussions under this subdivision regarding price, information regarding price may not be disclosed to competing offerors. Revision of a request for proposal is permitted under this subdivision after the initial submission and before the award to allow an offeror to submit a best and final proposal. The water system shall select the design-build firm that submits the final proposal offering the best value for the water system.

(c) The water system may:

(1) cancel a request for qualifications or a request for proposals; or

(2) reject any proposal in whole or in part.

Sec. 271.186. REQUEST FOR QUALIFICATIONS. The water system shall prepare a request for qualifications that may include:

(1) general information on the desalination facility project;

(2) project scope;

(3) proposed budget;

(4) project schedule;

(5) any known special systems;

(6) the maximum number of design-build firms to be qualified to participate in the second phase of the evaluation and selection process; and

(7) other information that may assist potential design-build firms in submitting proposals for the project.

Sec. 271.187. DISPOSITION OF PROPOSALS AFTER AWARD. (a) All proposals submitted under this subchapter are property of the water system.

(b) Before the execution of a contract under this subchapter, only the name of a design-build firm qualified to participate in phase two is available for public disclosure and all other information received by the water system in response to a request for qualifications or the request for proposals is confidential.

(c) Except as provided by Subsection (d), information contained in a proposal is open to public inspection not later than the seventh day after the date the water system executes a contract with a design-build firm under this subchapter.

(d) If a design-build firm requests, the water system will consider trade secrets or any other proprietary information contained in a proposal confidential to the extent permitted by law.

Sec. 271.188. PERFORMANCE OR PAYMENT BOND. A payment or performance bond is not required for, and may not provide coverage for, the portion of a design-build contract under this subchapter that includes design services only. If a fixed contract amount or guaranteed maximum price has not been determined at the time a design-build contract is awarded, the penal sums of the performance and payment bonds delivered to the water system must each be in an amount equal to the project budget, as specified in the request for qualifications or request for proposals. 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 water system to ensure that the design-build firm will furnish the required performance and payment bonds when a guaranteed maximum price is established.

SECTION 2. The changes in law made by this Act apply only to a contract for which a request for proposals or a request for qualifications is first published or distributed on or after the effective date of this Act. A contract for which a request for proposals or a request for qualifications is first published or distributed before the effective date of this Act is governed by the law in effect at the time the request is published or distributed, and the former law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2007.