|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
|
relating to design-build contracts and comprehensive development |
|
agreements of regional mobility authorities. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Subsections (a) and (b), Section 370.305, |
|
Transportation Code, are amended to read as follows: |
|
(a) [An authority may use a comprehensive development
|
|
agreement with a private entity to construct, maintain, repair,
|
|
operate, extend, or expand a transportation project.
|
|
[(b)] A comprehensive development agreement is an agreement |
|
with a private entity that, at a minimum, provides for the design |
|
and construction of a transportation project, that [and] may [also] |
|
provide for the financing, acquisition, maintenance, or operation |
|
of a transportation project, and that entitles the private entity |
|
to: |
|
(1) a leasehold interest in the transportation |
|
project; or |
|
(2) the right to operate or retain revenue from the |
|
operation of the transportation project. |
|
(b) An authority may not enter into a comprehensive |
|
development agreement unless specifically authorized by the |
|
legislature. |
|
SECTION 2. Chapter 370, Transportation Code, is amended by |
|
adding Subchapter G-1 to read as follows: |
|
SUBCHAPTER G-1. DESIGN-BUILD CONTRACTS |
|
Sec. 370.318. DEFINITIONS. In this subchapter: |
|
(1) "Design-build contractor" means a partnership, |
|
corporation, or other legal entity or team that includes an |
|
engineering firm and a construction contractor qualified to engage |
|
in the construction of transportation projects in this state. |
|
(2) "Design-build method" means a project delivery |
|
method by which an entity contracts with a single entity to provide |
|
both design and construction services for the construction, |
|
rehabilitation, alteration, or repair of a facility. |
|
Sec. 370.319. SCOPE OF AND LIMITATIONS ON CONTRACTS. |
|
(a) An authority may use the design-build method for the design, |
|
construction, financing, expansion, extension, maintenance, |
|
rehabilitation, alteration, or repair of a transportation project. |
|
(b) A design-build contract under this subchapter may not |
|
grant to a private entity: |
|
(1) a leasehold interest in the transportation |
|
project; or |
|
(2) the right to operate or retain revenue from the |
|
operation of the transportation project. |
|
(c) In using the design-build method and in entering into a |
|
contract for the services of a design-build contractor, the |
|
authority and the design-build contractor shall follow the |
|
procedures and requirements of this subchapter. |
|
(d) An authority may enter into not more than two |
|
design-build contracts for transportation projects in any fiscal |
|
year. |
|
Sec. 370.320. USE OF ENGINEER OR ENGINEERING FIRM. (a) To |
|
act as an authority's representative, independent of a design-build |
|
contractor, for the procurement process and for the duration of the |
|
work on a transportation project, an authority shall select or |
|
designate: |
|
(1) an engineer; |
|
(2) a qualified firm, selected in accordance with |
|
Section 2254.004, Government Code, who is independent of the |
|
design-build contractor; or |
|
(3) a general engineering consultant that was |
|
previously selected by an authority and is selected or designated |
|
in accordance with Section 2254.004, Government Code. |
|
(b) The selected or designated engineer or firm has full |
|
responsibility for complying with Chapter 1001, Occupations Code. |
|
Sec. 370.321. OTHER PROFESSIONAL SERVICES. (a) An |
|
authority shall provide or contract for, independently of the |
|
design-build firm, the following services as necessary for the |
|
acceptance of the transportation project by the authority: |
|
(1) inspection services; |
|
(2) construction materials engineering and testing; |
|
and |
|
(3) verification testing services. |
|
(b) An authority shall ensure that the engineering services |
|
contracted for under this section are selected based on |
|
demonstrated competence and qualifications. |
|
Sec. 370.322. REQUEST FOR QUALIFICATIONS. (a) For any |
|
transportation project to be delivered through the design-build |
|
method, an authority must prepare and issue a request for |
|
qualifications. A request for qualifications must include: |
|
(1) information regarding the proposed project's |
|
location, scope, and limits; |
|
(2) information regarding funding available for the |
|
project and a description of the financing to be requested from the |
|
design-build contractor, as applicable; |
|
(3) criteria that will be used to evaluate the |
|
proposals, which must include a proposer's qualifications, |
|
experience, technical competence, and ability to develop the |
|
project; |
|
(4) the relative weight to be given to the criteria; |
|
and |
|
(5) the deadline by which proposals must be received |
|
by the authority. |
|
(b) An authority shall publish notice advertising the |
|
issuance of a request for qualifications in the Texas Register and |
|
on an Internet website maintained by the authority. |
|
(c) An authority shall evaluate each qualifications |
|
statement received in response to a request for qualifications |
|
based on the criteria identified in the request. An authority may |
|
interview responding proposers. Based on the authority's |
|
evaluation of qualifications statements and interviews, if any, an |
|
authority shall qualify or short-list proposers to submit detailed |
|
proposals. |
|
(d) An authority shall qualify or short-list at least two |
|
firms to submit detailed proposals under Section 370.323. If an |
|
authority receives only one responsive proposal to a request for |
|
qualifications, the authority shall terminate the procurement. |
|
(e) An authority may withdraw a request for qualifications |
|
or request for detailed proposals at any time. |
|
Sec. 370.323. REQUEST FOR DETAILED PROPOSALS. (a) An |
|
authority shall issue a request for detailed proposals to proposers |
|
short-listed under Section 370.322. A request for detailed |
|
proposals must include: |
|
(1) information on the overall project goals; |
|
(2) budget or cost estimates; |
|
(3) materials specifications; |
|
(4) special material requirements; |
|
(5) a schematic design approximately 30 percent |
|
complete; |
|
(6) known utilities, provided that an authority is not |
|
required to undertake an effort to locate utilities; |
|
(7) quality assurance and quality control |
|
requirements; |
|
(8) the location of relevant structures; |
|
(9) notice of any rules or goals adopted by the |
|
authority relating to awarding contracts to historically |
|
underutilized businesses; |
|
(10) available geotechnical or other information |
|
related to the project; |
|
(11) the status of any environmental review of the |
|
project; |
|
(12) detailed instructions for preparing the |
|
technical proposal required under Subsection (c), including a |
|
description of the form and level of completeness of drawings |
|
expected; and |
|
(13) the relative weighting of the technical and cost |
|
proposals required under Subsection (c) and the formula by which |
|
the proposals will be evaluated and ranked. |
|
(b) A request for detailed proposals may also include a |
|
general form of the design-build contract that the authority |
|
proposes if the terms of the contract may be modified by the |
|
authority or the design-build contractor prior to contract |
|
execution. |
|
(c) Each response to a request for detailed proposals must |
|
include a sealed technical proposal and a separate sealed cost |
|
proposal. |
|
(d) The technical proposal must address: |
|
(1) the proposer's qualifications and demonstrated |
|
technical competence; |
|
(2) the feasibility of developing the project as |
|
proposed, including identification of anticipated problems; |
|
(3) the proposed solutions to anticipated problems; |
|
(4) the ability of the proposer to meet schedules; |
|
(5) the conceptual engineering design proposed; and |
|
(6) any other information requested by the authority. |
|
(e) An authority may provide for the submission of |
|
alternative technical concepts by a proposer. If an authority |
|
provides for the submission of alternative technical concepts, the |
|
authority must prescribe a process for notifying a proposer whether |
|
the proposer's alternative technical concepts are approved for |
|
inclusion in a technical proposal. |
|
(f) The cost proposal must include: |
|
(1) the cost of delivering the project; |
|
(2) the estimated number of days required to complete |
|
the project; and |
|
(3) any terms for financing for the project that the |
|
proposer plans to provide. |
|
(g) Each proposer must: |
|
(1) select or designate each engineering firm that is |
|
a member of its team based on demonstrated competence and |
|
qualifications; and |
|
(2) certify to the authority that each selection or |
|
designation was based on demonstrated competence and |
|
qualifications. |
|
(h) A response to a request for detailed proposals shall be |
|
due not later than the 180th day after the final request for |
|
detailed proposals is issued by the authority. This subsection |
|
does not preclude the release by the authority of a draft request |
|
for detailed proposals for purposes of receiving input from |
|
short-listed proposers. |
|
(i) An authority shall first open, evaluate, and score each |
|
responsive technical proposal submitted on the basis of the |
|
criteria described in the request for detailed proposals and assign |
|
points on the basis of the weighting specified in the request for |
|
detailed proposals. The authority may reject as nonresponsive any |
|
proposer that makes a significant change to the composition of its |
|
design-build team as initially submitted. The authority shall |
|
subsequently open, evaluate, and score the cost proposals from |
|
proposers that submitted a responsive technical proposal and assign |
|
points on the basis of the weighting specified in the request for |
|
detailed proposals. The authority shall rank the proposers in |
|
accordance with the formula provided in the request for detailed |
|
proposals. |
|
Sec. 370.324. NEGOTIATION. (a) After ranking the |
|
proposers under Section 370.323(i), an authority shall first |
|
attempt to negotiate a contract with the highest-ranked proposer. |
|
If an authority has committed to paying a stipend to unsuccessful |
|
proposers in accordance with Section 370.325, an authority may |
|
include in the negotiations alternative technical concepts |
|
proposed by other proposers. |
|
(b) If an authority is unable to negotiate a satisfactory |
|
contract with the highest-ranked proposer, the authority shall, |
|
formally and in writing, end all negotiations with that proposer |
|
and proceed to negotiate with the next proposer in the order of the |
|
selection ranking until a contract is reached or negotiations with |
|
all ranked proposers end. |
|
Sec. 370.325. STIPEND AMOUNT FOR UNSUCCESSFUL PROPOSERS. |
|
(a) Unless a stipend is paid under Subsection (c), a proposer |
|
retains all rights to the work product submitted in a response to a |
|
request for detailed proposals. Except as required by order of a |
|
governmental body or under Section 552.301(e), Government Code, an |
|
authority may not release or disclose to any person, including the |
|
successful proposer, the work product contained in an unsuccessful |
|
proposal. An authority shall return all copies of the proposal and |
|
other information submitted by an unsuccessful proposer. An |
|
authority or its agents may not make use of any unique or |
|
nonordinary design element, technique, method, or process |
|
contained in an unsuccessful proposal that was not also contained |
|
in the highest-ranked proposal at the time of the original |
|
submittal, unless a stipend is paid to the unsuccessful proposer or |
|
the highest-ranked proposer otherwise acquires a license from the |
|
unsuccessful proposer. |
|
(b) In the event of a violation of this section, the |
|
highest-ranked proposer shall be liable to any unsuccessful |
|
proposer for one-half of the cost savings associated with the |
|
unauthorized use of the work product of the unsuccessful proposer. |
|
(c) An authority may offer an unsuccessful proposer that |
|
submits a responsive proposal to the request for detailed proposals |
|
a stipend for work associated with the development of the proposal. |
|
The stipend must be a minimum of two-tenths of one percent of the |
|
contract amount and must be specified in the initial request for |
|
detailed proposals. After payment of the stipend, the authority |
|
may make use of any work product contained in the unsuccessful |
|
proposal, including the techniques, methods, processes, and |
|
information contained in the proposal. The use by the authority of |
|
any design element contained in an unsuccessful proposal is at the |
|
sole risk and discretion of the authority and does not confer |
|
liability on the recipient of the stipend under this subsection. |
|
Sec. 370.326. PERFORMANCE OR PAYMENT BOND. |
|
(a) Notwithstanding the requirements of Subchapter B, Chapter |
|
2253, Government Code, an authority shall require a design-build |
|
contractor to provide a performance and payment bond or an |
|
alternative form of security. |
|
(b) A performance and payment bond or alternative form of |
|
security shall be in an amount equal to the cost of constructing or |
|
maintaining the project. |
|
(c) A payment or performance bond is not required for the |
|
portion of a design-build contract under this section that includes |
|
design services only. |
|
(d) In addition to performance and payment bonds, an |
|
authority may require the following alternative forms of security: |
|
(1) a cashier's check drawn on a financial entity |
|
specified by the authority; |
|
(2) a United States bond or note; |
|
(3) an irrevocable bank letter of credit; or |
|
(4) any other form of security determined suitable by |
|
the authority. |
|
SECTION 3. Subsections (d) and (e), Section 370.305, and |
|
Section 370.314, Transportation Code, are repealed. |
|
SECTION 4. This Act takes effect immediately if it receives |
|
a vote of two-thirds of all the members elected to each house, as |
|
provided by Section 39, Article III, Texas Constitution. If this |
|
Act does not receive the vote necessary for immediate effect, this |
|
Act takes effect on the 91st day after the last day of the |
|
legislative session. |
|
|
|
* * * * * |