By: Creighton H.B. No. 3203

A BILL TO BE ENTITLED

AN ACT

relating to design-build procedures for certain civil works projects.

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

SECTION 1. Section 2267.353, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

Sec. 2267.353. CONTRACTS FOR CIVIL WORKS PROJECTS: DESIGN-BUILD. [(a)] A governmental entity may use the design-build method for the construction, rehabilitation, alteration, or repair of a civil works project. In using this method and in entering into a contract for the services of a design-build firm, the contracting governmental entity and the design-build firm shall follow the procedures provided by this subchapter.

[(b) A contract for a project under this subchapter may cover only a single integrated project. A governmental entity may not enter into a contract for aggregated projects at multiple locations. For purposes of this subsection:

[(1) if a metropolitan transit authority created under Chapter 451, Transportation Code, enters into a contract for a project involving a bus rapid transit system created under Chapter 451, Transportation Code, the bus rapid transit system is a single integrated project; and

[(2) a water treatment plant, including a desalination plant, that includes treatment facilities, well fields, and pipelines is a single integrated project.

[(c) A governmental entity shall use the following criteria as a minimum basis for determining the circumstances under which the design-build method is appropriate for a project:

[(1) the extent to which the entity can adequately define the project requirements;

[(2) the time constraints for the delivery of the project;

[(3) the ability to ensure that a competitive procurement can be held; and

[(4) the capability of the entity to manage and oversee the project, including the availability of experienced personnel or outside consultants who are familiar with the design-build method of project delivery.

[(d) A governmental entity shall make a formal finding on the criteria described by Subsection (c) before preparing a request for qualifications under Section 2267.357.]

SECTION 2. Section 2267.357, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

Sec. 2267.357. REQUEST FOR PROPOSALS OR QUALIFICATIONS. (a) The governmental entity shall select the design-build firm in a one-step or two-step process. The governmental entity shall prepare a single request for proposals, in the case of a one-step process, or an initial request for qualifications, in the case of a two-step process, that includes a statement of whether the selection process is a one-step or two-step process and:

(1) information on the civil works project site;

(2) project scope;

(3) project budget;

(4) project schedule;

(5) criteria for selection under Section 2267.359 and the weighting of the criteria; and

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

(b) The governmental entity shall also prepare a design criteria package as described by Section 2267.358.

(c) If a one-step process is used, the governmental entity shall include the design criteria package in the request for proposals. If a two-step process is used, the governmental entity may not request, as part of the offeror's response to the request for qualifications, the offeror's technical proposal or cost proposal.

SECTION 3. Section 2267.359, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended by amending Subsections (a) and (c) to read as follows:

(a) The governmental entity shall receive proposals, in the case of a one-step process, or responses to a request for qualifications, in the case of a two-step process, and shall evaluate each offeror's experience, technical competence, and capability to perform, the past performance of the offeror's team and members of the team, project approach, cost methodology, and other appropriate factors submitted by the team or firm in response to the request for proposals or qualifications, except that the governmental entity may not evaluate any cost-related or price-related [evaluation] factors, other than the offeror's cost methodology [are not permitted at this stage]. If a one-step process is used, the governmental entity shall also evaluate, for each offeror, the results of each offeror's interview, if the governmental entity included the results of an interview process in the selection criteria.

(c) If a two-step process is used, the [The] governmental entity shall, in accordance with the applicable evaluation criteria established in Subsection (a), qualify five or fewer offerors to:

(1) submit additional information, including the offeror's cost proposal and technical proposal as required by Section 2267.361; and

(2) submit to an interview, if the governmental entity included the results of an interview process in the selection criteria [entity chooses, to interview for final selection].

SECTION 4. Section 2267.360, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

Sec. 2267.360. SELECTION OF DESIGN-BUILD FIRM. If a one-step process is used, the governmental entity shall select the design-build firm after evaluating the offeror's responses to the request for proposals, in accordance with Section 2267.359(a) and the governmental entity's selection criteria, as stated in the request for proposals. If a two-step process is used, the [The] governmental entity shall select a design-build firm using a combination of technical and cost proposals as provided by Section 2267.361.

SECTION 5. The heading of Section 2267.361, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

Sec. 2267.361. PROCEDURES FOR SELECTION OF DESIGN-BUILD FIRM UNDER TWO-STEP PROCESS [COMBINATION OF TECHNICAL AND COST PROPOSALS].

SECTION 6. Section 2267.361, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended by amending Subsections (a) and (e) to read as follows:

(a) A governmental entity shall request proposals from design-build firms identified under Section 2267.359(c). A firm must submit a proposal not later than the 180th day after the date the governmental entity makes a public request for the proposals from the selected firms. The request for proposals must include:

(1) a design criteria package;

(2) if the project site is identified, a geotechnical baseline report or other information that provides the design-build firm minimum geotechnical design parameters to submit a proposal;

(3) detailed instructions for preparing both a cost proposal and a [the] technical proposal and the items to be included, including a description of the form and level of completeness of drawings expected; and

(4) the [relative weighting of the technical and price proposals and the] formula by which the proposals will be evaluated and ranked.

(e) The governmental entity shall first open, evaluate, and score each responsive technical proposal submitted on the basis of the criteria described in the request for proposals and assign points on the basis of the formula [weighting] specified in the request for proposals. The governmental entity may reject as nonresponsive any firm that makes a significant change to the composition of its firm as initially submitted. The governmental entity shall subsequently open, evaluate, and score the cost proposals from firms that submitted a responsive technical proposal and assign points on the basis of the formula [weighting] specified in the request for proposals. The governmental entity shall select the design-build firm in accordance with the formula provided in the request for proposals.

SECTION 7. Section 2267.362, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

Sec. 2267.362. NEGOTIATION. After selecting the highest-ranked design-build firm under Section 2267.360, for a one-step process, or Section 2267.361, for a two-step process, the governmental entity shall first attempt to negotiate a contract with the selected firm. If the governmental entity is unable to negotiate a satisfactory contract with the selected firm, the entity shall, formally and in writing, end all negotiations with that firm and proceed to negotiate with the next firm in the order of the selection ranking until a contract is reached or negotiations with all ranked firms end.

SECTION 8. Section 2267.364(c), Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, is amended to read as follows:

(c) The governmental entity may offer an unsuccessful design-build firm that submits a response to the entity's request for additional information under Section 2267.361 a stipend for preliminary engineering costs associated with the development of the proposal. The stipend must be [one-half of one percent of the contract amount and must be] specified in the initial request for proposals. If the offer is accepted and paid, the governmental entity may make use of any work product contained in the proposal, including the techniques, methods, processes, and information contained in the proposal. The use by the governmental entity of any design element contained in an unsuccessful proposal is at the sole risk and discretion of the entity and does not confer liability on the recipient of the stipend under this subsection.

SECTION 9. Sections 2267.352 and and 2267.354, Government Code, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011, are repealed.

SECTION 10. 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 September 1, 2013.