83R2299 YDB-D

By: Howard H.B. No. 3811

A BILL TO BE ENTITLED

AN ACT

relating to the planning and contracting process for certain state agencies and state property; authorizing fees.

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

SECTION 1. Section 443.007, Government Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) If the board updates or modifies its long-range master plan for the preservation, maintenance, restoration, and modification of the Capitol and the Capitol grounds, the board must conform its plan to the Capitol Complex master plan prepared by the Texas Facilities Commission under Section 2166.105.

SECTION 2. Section 443.023, Government Code, is amended to read as follows:

Sec. 443.023. PURCHASE AND LEASE REQUIREMENTS FOR CERTAIN EXPENDITURES. Subtitle D, Title 10, does not apply to a purchase or lease under this chapter except that the board must comply with Section 443.007(a-1) and to the extent applicable any provision in Chapter 2165 or 2166 specifically related to the Capitol Complex. The executive director, as appropriate, may approve in writing the purchase or lease of goods and services needed to repair or improve an area within the Capitol, Capitol extension, Capitol grounds, or General Land Office building, if the cost of the purchase or lease will not exceed $50,000. The executive director shall notify the board in writing of any expenditures in excess of $50,000 made under this chapter.

SECTION 3. Subchapter B, Chapter 2165, Government Code, is amended by adding Sections 2165.059, 2165.060, 2165.061, 2165.062, 2165.063, and 2165.064 to read as follows:

Sec. 2165.059. ADOPTION OF COMMISSION CONTRACTING POLICIES. (a) The commission shall adopt in a public meeting a detailed policy on selecting project delivery methods and on issuing job order contracts authorized under Subchapter I, Chapter 2267, as added by Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session, 2011. The policy must:

(1) specify by contract type the circumstances in which one delivery method is more appropriate than an alternative delivery method;

(2) require commission staff to include in reports to the commission justifications for the recommended delivery method;

(3) require commission approval of job order contracts in amounts that exceed $25,000; and

(4) require commission staff to report to the commission specific reasons why a contract needed on an expedited basis requires the use of a job order contract.

(b) The commission shall adopt a policy to restrict the use of interagency contracts for procurements in amounts less than $100,000 except in an emergency. Commission staff shall provide justification to the commission on the specific reasons a contract constitutes an emergency. The commission must approve any interagency contract in an amount of $100,000 or more.

(c) The commission shall develop general guidelines on consolidating two or more contracts for goods or services into one contract, including criteria on the appropriate scope of the contract and minimum and maximum amounts for the contract.

Sec. 2165.060. INSURANCE REVIEW PROCESS. (a) The commission shall develop a centralized insurance review process to be performed by commission staff qualified to review insurance policies and coverage.

(b) Contract administrators in each commission program area shall assist the commission in determining insurance requirements for the program area and in continually monitoring whether the requirements are met.

Sec. 2165.061. PROCEDURES FOR SOLICITING AND AWARDING CERTAIN CONTRACTS; NEGOTIATION PLAN. (a) The commission shall perform a risk and needs assessment for each contract, record the assessment results, and retain a copy of the assessment in its central contract file maintained under Section 2165.064. The commission shall develop a template to record the assessment information in the central contract files.

(b) The commission staff for each contract submitted for review to the Contract Advisory Team established under Subchapter C, Chapter 2262, shall:

(1) record any contract recommendations made by the team;

(2) indicate which recommendations were implemented;

(3) explain in writing the reasons any recommendation was not implemented; and

(4) retain a copy of the information required under Subdivisions (1)-(3) in the commission's central contract file maintained under Section 2165.064.

(c) Commission staff must develop a written negotiation plan before each contract negotiation and document the outcome of the negotiation. The staff shall use the negotiation information to:

(1) evaluate the outcome of the negotiation compared to the original negotiation plan;

(2) determine whether negotiation goals were met; and

(3) analyze possible reasons any negotiation goal was not met.

(d) The evaluation required under Subsection (c) may not reveal specific details about the commission's negotiation strategy.

Sec. 2165.062. TRAINING. The commission shall develop a written policy requiring all commission contract administrators, procurement staff, and legal staff who deal with contracts to receive contract training, including:

(1) general training on procurement and the legal requirements for a contract; and

(2) contract administration training specifically tailored to each commission program area with responsibility for contracts.

Sec. 2165.063. CONTRACTING POLICY AND REQUIREMENTS. (a) The commission shall develop for each contract an administration plan that tailors the details of the plan to commission needs and accounts for the complexity and risk of the contract. The plan must identify risk areas and include monitoring plans, communication plans, and other elements necessary to administer the contract. The commission may develop a template for an administrative plan for each commission program area.

(b) Each commission program area shall timely update and document its contract monitoring processes. The documentation must include the contract monitoring plans and any correspondence related to contract sanctions. The commission shall retain the documentation in its central contract file.

(c) The commission shall develop criteria for determining whether to use building commissioning for each commission or client state agency project. The criteria must include risk-based analysis that considers the size and complexity of the project. In developing the criteria, the commission may consult with and use resources from organizations with expertise in verifying that building construction requirements have been met.

(d) The commission shall establish procedures for commission staff in each commission program area to assess contractor and commission performance at contract closeout, including an evaluation of what could be learned from the contract experience, and for each major contract the staff shall provide the assessment information to the commission. The commission shall use the assessment information to improve its contract management and to improve the use of contractor performance information in future procurements.

(e) The commission's facilities design and construction division shall:

(1) perform a comprehensive evaluation of change orders and amendments to its completed and active construction project contracts, including an evaluation of any time extensions and unforeseen circumstances;

(2) explain significant contract changes, including changes outside the commission's control; and

(3) report a summary of any significant contract changes to the commission.

Sec. 2165.064. CENTRAL CONTRACT FILE. The commission shall develop a central master file for contracts, including the commission's facilities design and construction division contracts, that contains documentation of the contracting process from initial planning to final closeout and assessment of the contract. Commission staff may consult with the comptroller on the assessment information to be included in the file.

SECTION 4. Subchapter C, Chapter 2165, Government Code, is amended by adding Section 2165.1031 to read as follows:

Sec. 2165.1031. CHILD CARE FACILITY CONTRACTS. The commission shall include in each contract to provide a child care facility in a state building:

(1) a contract monitoring plan that:

(A) specifies the frequency of any commission inspections and reporting requirements; and

(B) includes review of state inspection reports and accreditation requirements; and

(2) a range of sanctions that includes a corrective action plan.

SECTION 5. Chapter 2165, Government Code, is amended by adding Subchapter H to read as follows:

SUBCHAPTER H. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE:

QUALIFYING PROJECTS

Sec. 2165.351. DEFINITIONS. In this subchapter:

(1) "Partnership Advisory Commission" means the Partnership Advisory Commission created by Chapter 2268.

(2) "Qualifying project" has the meaning assigned by Section 2267.001, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular Session, 2011.

Sec. 2165.352. COMMISSION REVIEW GUIDELINES AND POLICIES. (a) In adopting the qualifying project review guidelines required by Section 2267.052, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular Session, 2011, the commission must include review criteria and documentation to guide the initial review of each substantially complete qualifying project proposal received by the commission.

(b) The review criteria required under Subsection (a) at a minimum must include:

(1) the extent to which the qualifying project meets a public need;

(2) the extent to which the project meets the objectives and priorities of the commission, including compliance with any applicable commission plans, including the Capitol Complex master plan developed under Section 2166.105;

(3) the technical and legal feasibility of the project;

(4) the adequacy of the qualifications, experience, and financial capacity of the person submitting the proposal;

(5) any potentially unacceptable risks to this state; and

(6) whether an alternative delivery method is available or practical.

(c) The commission's qualifying project review guidelines must specify:

(1) the types of professional expertise, including financial, real estate, and legal, needed to effectively protect this state's interest when considering and implementing a qualifying project; and

(2) the range of professional expertise needed at each stage of the project to evaluate the qualifying project proposal, assess and allocate risk, negotiate a contract, and oversee the contract performance over the term of the contract.

(d) The expertise described by Subsection (c) may be provided by commission staff or outside experts.

(e) The commission shall develop a policy to ensure that commission staff apply all applicable contracting best practices to qualifying project contracts, including procedures and documentation related to planning, risk assessment, performance measures, and ongoing contract oversight.

Sec. 2165.353. QUALIFYING PROJECT FEES. (a) The commission shall develop and adopt a qualifying project proposal fee schedule sufficient to cover the costs of processing, reviewing, and evaluating the proposals.

(b) The commission shall use the professional expertise information required under Section 2165.352(c) to determine the amount of the fee charged by the commission to review a qualifying project proposal. The amount must be reasonable in comparison to the level of professional expertise required for the project and may include the cost of staff time required to process the proposal and other direct costs.

(c) The commission may charge additional fees to cover the commission's costs of negotiating, implementing, and overseeing an executed qualifying project contract throughout the duration of the contract, including fees generated from the project's revenue.

Sec. 2165.354. INITIAL REVIEW OF QUALIFYING PROJECT PROPOSAL. (a) The commission staff shall conduct an initial review of each qualifying project proposal submitted to the commission and provide to commission members a summary of the review, including an analysis and recommendations.

(b) The commission shall use a value for money analysis in evaluating each qualifying project proposal to:

(1) ensure the commission determines the best approach for developing state property;

(2) conduct a thorough risk analysis of the proposal that:

(A) evaluates the financial and qualitative benefits of the proposal; and

(B) identifies specific risks shared between this state and the private partner and subjects the risks to negotiation in the contract;

(3) determine if the proposal is in the best long-term financial interest of this state;

(4) determine if the project will provide a tangible public benefit; and

(5) address the opportunity costs of alternative uses of the state property.

(c) The commission shall coordinate with the commission's office of internal audit for review and receipt of comments on the reasonableness of the assumptions used in the value for money analysis required under Subsection (b).

Sec. 2165.355. INITIAL PUBLIC HEARING ON QUALIFYING PROJECT PROPOSAL. (a) Before submitting a detailed qualifying project proposal to the Partnership Advisory Commission as required under Section 2268.058, the commission must hold an initial public hearing on the proposal.

(b) The commission must post a copy of the detailed qualifying project proposal on the commission's Internet website before the required public hearing and, before posting the proposal, redact all confidential information included in the proposal.

(c) After the hearing, the commission shall:

(1) modify the proposal as the commission determines appropriate based on the public comments; and

(2) include the public comments in the documents submitted to the Partnership Advisory Commission and provide any additional information necessary for the evaluation required under Chapter 2268.

Sec. 2165.356. SUBMISSION OF QUALIFYING PROJECT CONTRACT TO CONTRACT ADVISORY TEAM. (a) Not later than the 60th day before the date the commission is scheduled to vote on approval of a qualifying project contract, the commission must submit to the Contract Advisory Team established under Subchapter C, Chapter 2262, a copy of:

(1) the final draft of the contract;

(2) the detailed qualifying project proposal; and

(3) any executed interim or other agreement.

(b) The Contract Advisory Team shall review the documentation submitted under Subsection (a) and provide written comments and recommendations to the commission. The review must focus on best practices for contract management and administration.

(c) The commission shall provide to the Partnership Advisory Commission:

(1) a copy of the Contract Advisory Team's written comments and recommendations; and

(2) the commission's response to the comments and recommendations.

Sec. 2165.357. SUBMISSION OF FINANCIAL INFORMATION AND ANALYSIS TO LEGISLATIVE BUDGET BOARD. (a) The commission on a regular basis shall provide to the Legislative Budget Board:

(1) information on potential and actual revenue generated from qualifying projects; and

(2) a financial analysis, forecast, and other related information obtained from the evaluation and implementation of qualifying projects.

(b) The Legislative Budget Board shall monitor this state's financial interest in qualifying projects of the commission and make recommendations to the commission on the use and management of revenue generated from qualifying projects.

Sec. 2165.358. PROHIBITED EMPLOYMENT OF COMMISSION EMPLOYEE. (a) A commission employee may not be employed by any other person to perform duties that relate to the employee's duties on a qualifying project.

(b) The commission shall obtain from each commission employee who is also employed by another person sufficient information to determine whether a potential conflict of interest exists between the employee's commission duties and the employee's duties with the other employer.

(c) Each commission employee whose commission duties relate to a qualifying project shall attest that the employee is aware of and agrees to the commission's ethics and conflict-of-interest policies.

(d) To the extent the employment is authorized by commission policy, this section does not prohibit additional employment for a commission employee whose commission duties are not related to a qualifying project.

SECTION 6. Section 2166.001, Government Code, is amended by amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to read as follows:

(1) "Capitol Complex" has the meaning prescribed by Section 411.061(a)(1).

(1-a) "Commission" means the Texas Facilities Commission.

(1-b) [(1-a)] "Construction" includes acquisition and reconstruction.

SECTION 7. Subchapter C, Chapter 2166, Government Code, is amended by adding Sections 2166.105, 2166.106, and 2166.107 to read as follows:

Sec. 2166.105. CAPITOL COMPLEX MASTER PLAN. (a) The commission shall prepare a Capitol Complex master plan to:

(1) provide a clear long-range vision for the Capitol Complex by outlining the strategy and goals for developing the Capitol Complex;

(2) recommend actions for meeting the strategies and goals;

(3) guide decision making on future development and improvements in the Capitol Complex; and

(4) provide the commission a basis for evaluating proposals affecting the Capitol Complex.

(b) The Capitol Complex master plan must include:

(1) an overview and summary of the commission's previous plans for the Capitol Complex;

(2) a stated strategic vision and long-term goals for the Capitol Complex;

(3) an analysis of state property, including buildings, in the Capitol Complex and of the extent to which this state satisfies its space needs through use of the property;

(4) in consultation with the General Land Office, an analysis of real estate market conditions in the Austin area;

(5) detailed, site-specific proposals for developing state property in the Capitol Complex, including proposals on the use of property and space for public or private sector purposes;

(6) an analysis of and recommendations for building design guidelines to ensure appropriate quality in new or remodeled buildings in the Capitol Complex;

(7) an analysis of and recommendations for Capitol Complex infrastructure needs, including transportation, utilities, and parking;

(8) for projects identified in the plan, an analysis of and recommendations for financing options, including private sector participation;

(9) schedules for implementing the plan components and any projects identified in the plan;

(10) consideration of alternative options for meeting state space needs outside the Capitol Complex; and

(11) other information relevant to the Capitol Complex as the commission determines appropriate.

(c) The commission shall discuss a proposed Capitol Complex master plan and any proposed updates to the plan at a public meeting before the plan or update is officially adopted by the commission.

(d) Not later than July 1 of each even-numbered year, the commission shall submit updates to the Capitol Complex master plan to the governor, lieutenant governor, speaker of the house of representatives, comptroller, and Legislative Budget Board.

(e) The commission may perform additional studies necessary to implement components of or projects identified in the Capitol Complex master plan.

(f) The commission shall ensure that the Capitol Complex master plan and the master facilities plan developed under Section 2166.102 do not conflict and together comprehensively address the space needs of state agencies in Travis County.

Sec. 2166.106. REVIEW OF PROPOSED CAPITOL COMPLEX MASTER PLAN BY STATE PRESERVATION BOARD AND GENERAL LAND OFFICE. (a) Not later than the 90th day before the date the commission holds a public meeting to discuss a proposed Capitol Complex master plan, the commission must submit the proposed plan to the State Preservation Board and the General Land Office for review and comment.

(a-1) Not later than the 90th day after the date the State Preservation Board receives a proposed Capitol Complex master plan from the commission, the board:

(1) by a public vote may disapprove the plan if the board determines that the goals or recommendations in the plan are not in the best interest of the state or of the Capitol Complex; and

(2) if the board disapproves the plan, shall submit to the commission written comments and recommended modifications to the plan.

(a-2) The proposed Capitol Complex master plan is considered to be approved by the State Preservation Board if the board does not hold the public vote required under Subsection (a-1) on or before the 90th day after the date the proposed plan is received by the board.

(a-3) This subsection and Subsections (a-1) and (a-2) expire September 1, 2015.

(b) The commission shall:

(1) consider any written comments or recommendations on the proposed Capitol Complex master plan submitted by the State Preservation Board or the General Land Office; and

(2) modify the plan as the commission determines necessary to address the comments and recommendations.

(c) Not later than the 60th day before the date the commission holds a public meeting to discuss a proposed update to the Capitol Complex master plan, the commission must submit the proposed update to the State Preservation Board and the General Land Office for review and comment.

(d) In preparing the final draft of a proposed update to the Capitol Complex master plan, the commission shall consider any written comments or recommendations submitted to the commission by the State Preservation Board or the General Land Office.

Sec. 2166.107. COMPREHENSIVE PLANNING AND DEVELOPMENT PROCESS. (a) The commission by rule shall adopt a comprehensive process for planning and developing state property in the commission's inventory, including property in the Capitol Complex, and for assisting state agencies in space development planning for state property.

(b) The process under this section must promote constructive participation by the public, interested parties, and other state agencies to provide the critical perspectives necessary to balance competing needs.

(c) The process under this section at a minimum must include:

(1) a clear approach and specific schedules for obtaining input throughout the planning and development process from the public, interested parties, and state agencies, including the General Land Office and, for Capitol Complex property, the State Preservation Board and the Texas Historical Commission;

(2) specific schedules for providing to the commission regular updates on planning and development efforts;

(3) a public involvement policy to ensure that before the commission makes a decision on the use or development of state property the public and interested parties have the opportunity to review and comment on the commission's plans; and

(4) confidentiality policies consistent with Chapter 552.

SECTION 8. Subchapter D, Chapter 2166, Government Code, is amended by adding Section 2166.158 to read as follows:

Sec. 2166.158. AUSTIN PROJECT. Not later than the 30th day before the date the commission is scheduled to meet and vote on a project to develop or improve state property in the city of Austin, the commission staff must:

(1) place the project on the commission's meeting agenda to provide the public with notice of the meeting and an opportunity to comment; and

(2) present sufficient information to commission members to enable the members to adequately prepare for the meeting and to address the members' questions and concerns.

SECTION 9. Subchapter B, Chapter 2268, Government Code, is amended by adding Section 2268.0581 to read as follows:

Sec. 2268.0581. SUBMISSION OF REPORT TO TEXAS FACILITIES COMMISSION. (a) The commission shall submit to the Texas Facilities Commission a written report of the commission's evaluation of any detailed proposal of a Texas Facilities Commission qualifying project that the commission accepts for review under Section 2268.058.

(b) The report required under Subsection (a) must include the commission's findings and recommendations and specify the schedules, procedures, and documentation recommended by the commission for the proposed qualifying project.

(c) The Texas Facilities Commission shall:

(1) post on the Texas Facilities Commission's Internet website the commission's review report for the detailed proposal; and

(2) before posting the documents required under Subdivision (1), redact all confidential information contained in the documents.

SECTION 10. Section 31.1571(a), Natural Resources Code, is amended to read as follows:

(a) At any time, the commissioner may make a report to the governor recommending real estate transactions or other actions involving any real property included in the most recent evaluation report and identified as not used or substantially underused. The report must conform to the real property provisions in the Capitol Complex master plan developed by the Texas Facilities Commission under Section 2166.105, Government Code.

SECTION 11. (a) The Texas Facilities Commission shall:

(1) not later than January 1, 2014:

(A) adopt the contract policies required by Section 2165.059, Government Code, as added by this Act;

(B) develop the insurance review process required by Section 2165.060, Government Code, as added by this Act;

(C) develop the risk assessment template and negotiation plan required by Section 2165.061, Government Code, as added by this Act;

(D) develop the training required by Section 2165.062, Government Code, as added by this Act;

(E) develop the contracting policy and requirements required by Section 2165.063, Government Code, as added by this Act;

(F) develop the central contract file required by Section 2165.064, Government Code, as added by this Act;

(G) develop the qualifying project review guidelines required by Section 2165.352, Government Code, as added by this Act;

(H) develop the qualifying project proposal fee schedule required by Section 2165.353, Government Code, as added by this Act; and

(I) adopt the comprehensive planning and development process required by Section 2166.107, Government Code, as added by this Act; and

(2) not later than July 1, 2014:

(A) prepare the Capitol Complex master plan required by Section 2166.105, Government Code, as added by this Act; and

(B) submit the plan as required by that section.

(b) Notwithstanding Chapter 2267, Government Code, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular Session, 2011, the Texas Facilities Commission may not take any formal action on a qualifying project under that chapter before:

(1) September 1, 2013; or

(2) if the project is within the Capitol Complex, as that term is defined by Section 2166.001, Government Code, as amended by this Act, the commission develops the Capitol Complex master plan required by Section 2166.105, Government Code, as added by this Act.

SECTION 12. 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.