84R10958 AAF-F
 
  By: Geren H.B. No. 2475
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the establishment of the center for alternative finance
  and procurement within the Texas Facilities Commission and to
  public and private partnerships; authorizing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter C, Chapter 2152, Government Code, is
  amended by adding Section 2152.110 to read as follows:
         Sec. 2152.110.  CENTER FOR ALTERNATIVE FINANCE AND
  PROCUREMENT.  The commission shall establish the center for
  alternative finance and procurement to consult with governmental
  entities regarding best practices for procurement and the financing
  of qualifying projects and to assist governmental entities in the
  receipt of proposals, negotiation of interim and comprehensive
  agreements, and management of qualifying projects under Chapters
  2267 and 2268.
         SECTION 2.  Section 2267.001, Government Code, is amended by
  amending Subdivision (1-a) and adding Subdivision (1-b) to read as
  follows:
               (1-a)  "Center" means the center for alternative
  finance and procurement established under Section 2152.110 by the
  Texas Facilities Commission.
               (1-b)  "Commission" means the Partnership Advisory
  Commission established under Chapter 2268.
         SECTION 3.  Sections 2267.052(a), (b), (c), and (c-1),
  Government Code, are amended to read as follows:
         (a)  Before requesting or considering a proposal for a
  qualifying project, a responsible governmental entity must, with
  the assistance of the center, adopt and make publicly available
  guidelines that enable the governmental entity to comply with this
  chapter.  The guidelines must be reasonable, encourage
  competition, and guide the selection of projects under the purview
  of the responsible governmental entity.
         (b)  The guidelines for a responsible governmental entity
  described by Section 2267.001(5)(A) must:
               (1)  require the responsible governmental entity to:
                     (A)  make a representative of the entity available
  to meet with persons who are considering submitting a proposal; and
                     (B)  provide notice of the representative's
  availability;
               (2)  provide reasonable criteria for choosing among
  competing proposals;
               (3)  contain suggested timelines for selecting
  proposals and negotiating an interim or comprehensive agreement;
               (4)  allow the responsible governmental entity to
  accelerate the selection, review, and documentation timelines for
  proposals involving a qualifying project considered a priority by
  the entity;
               (5)  include financial review and analysis procedures
  that at a minimum consist of:
                     (A)  a cost-benefit analysis;
                     (B)  an assessment of opportunity cost;
                     (C)  consideration of the degree to which
  functionality and services similar to the functionality and
  services to be provided by the proposed project are already
  available in the private market; and
                     (D)  consideration of the results of all studies
  and analyses related to the proposed qualifying project;
               (6)  allow the responsible governmental entity to
  consider the nonfinancial benefits of a proposed qualifying
  project;
               (7)  ensure that the governmental entity, for a
  proposed project to improve real property, evaluates design
  quality, life-cycle costs, and the proposed project's relationship
  to any relevant comprehensive planning or zoning requirements;
               (8)  include criteria for:
                     (A)  the qualifying project, including the scope,
  costs, and duration of the project and the involvement or impact of
  the project on multiple public entities;
                     (B)  the creation of and the responsibilities of
  an oversight committee, with members representing the responsible
  governmental entity, that acts as an advisory committee to review
  the terms of any proposed interim or comprehensive agreement; and
                     (C)  the center's involvement in the procurement
  and delivery of the qualifying project [compliance with the
  requirements of Chapter 2268];
               (9)  require the responsible governmental entity to
  analyze the adequacy of the information to be released by the entity
  when seeking competing proposals and require that the entity
  provide more detailed information, if the entity determines
  necessary, to encourage competition, subject to Section
  2267.053(g);
               (10)  establish criteria, key decision points, and
  approvals required to ensure that the responsible governmental
  entity considers the extent of competition before selecting
  proposals and negotiating an interim or comprehensive agreement;
  and
               (11)  require the posting and publishing of public
  notice of a proposal requesting approval of a qualifying project,
  including:
                     (A)  specific information and documentation
  regarding the nature, timing, and scope of the qualifying project,
  as required under Section 2267.053(a);
                     (B)  a reasonable period, as determined by the
  responsible governmental entity, of not less than 45 days or more
  than 180 days, or a longer period specified by the governing body of
  the responsible governmental entity to accommodate a large-scale
  project, to encourage competition and partnerships with private
  entities and other persons in accordance with the goals of this
  chapter, during which the responsible governmental entity must
  accept submission of competing proposals for the qualifying
  project; and
                     (C)  a requirement for advertising the notice on
  the governmental entity's Internet website and on TexasOnline or
  the state's official Internet website.
         (c)  The guidelines of a responsible governmental entity
  described by Section 2267.001(5)(B) must include:
               (1)  the provisions required under Subsection (b); and
               (2)  a requirement that the governmental entity engage
  the services of the center [qualified professionals, including an
  architect, professional engineer, or certified public accountant,
  not otherwise employed by the governmental entity,] to provide
  independent analyses regarding the specifics, advantages,
  disadvantages, and long-term and short-term costs of [any proposal
  requesting approval of] a qualifying project unless the governing
  body of the governmental entity determines that the analysis [of
  the proposal] is to be performed by similarly qualified employees
  of the governmental entity.
         (c-1)  For a proposal with an estimated cost of $5 million or
  more for [the] construction or renovation under [of] a qualifying
  [structure or] project, the analysis conducted under Subsection
  (c)(2) must include review [of the proposal] by an architect, a
  professional engineer, and a certified public accountant not
  otherwise employed by the governmental entity.
         SECTION 4.  Section 2267.053(d), Government Code, is amended
  to read as follows:
         (d)  The responsible governmental entity may charge a
  reasonable fee to cover the costs of processing, reviewing, and
  evaluating the proposal, including reasonable legal fees and fees
  for the center's review and consultation and for other financial
  and[,] technical[, and other necessary] advisors or consultants.
         SECTION 5.  Section 2267.058(g), Government Code, is amended
  to read as follows:
         (g)  The comprehensive agreement must provide that a
  security document or other instrument purporting to mortgage,
  pledge, encumber, or create a lien, charge, or security interest on
  or against the contracting party's interest may not extend to or
  affect the fee simple interest of the state in the qualifying
  project or the state's rights or interests under the comprehensive
  agreement.  Any holder of debt shall acknowledge that the mortgage,
  pledge, or encumbrance or a lien, charge, or security interest on or
  against the contracting party's interest is subordinate to the fee
  simple interest of the state in the qualifying project [and the
  state's rights or interests under the comprehensive agreement].
         SECTION 6.  Section 2267.065(b), Government Code, is amended
  to read as follows:
         (b)  A responsible governmental entity may enter into a
  comprehensive agreement only in accordance with guidelines that
  require the contracting person to design and construct the
  qualifying project in accordance with procedures that do not
  materially conflict with those specified in:
               (1)  Subchapter G, Chapter 2269, for facilities
  projects [Section 2166.2531]; or
               (2)  Subchapter H, Chapter 2269 [Section 44.036,
  Education Code;
               [(3)  Section 51.780, Education Code;
               [(4)  Section 271.119, Local Government Code; or
               [(5)     Subchapter J, Chapter 271, Local Government
  Code], for civil works projects [as defined by Section 271.181(2),
  Local Government Code].
         SECTION 7.  Section 2268.001, Government Code, is amended by
  amending Subdivision (1) and adding Subdivision (1-a) to read as
  follows:
               (1)  "Center" means the center for alternative finance
  and procurement established under Section 2152.110 by the Texas
  Facilities Commission.
               (1-a)  "Commission" means the Partnership Advisory
  Commission.
         SECTION 8.  Section 2268.056(d), Government Code, is amended
  to read as follows:
         (d)  The center [Texas Facilities Commission], using the
  qualifying project fees authorized under Section 2165.353, shall
  provide, on a cost recovery basis, professional services [of its
  architectural, engineering, and real estate staff and the
  expertise] of financial, technical, and other necessary advisors
  and consultants, authorized under Section 2267.053(d), as
  necessary to support the Partnership Advisory Commission in its
  review and evaluation of proposals, including financial and risk
  allocation analysis and ongoing contract performance monitoring of
  qualifying projects.  The center [Texas Facilities Commission]
  shall assign staff and contracted advisors and consultants
  necessary to perform the duties required by this subsection.
         SECTION 9.  Section 2268.059, Government Code, is amended to
  read as follows:
         Sec. 2268.059.  CONFIDENTIALITY OF CERTAIN RECORDS
  SUBMITTED TO COMMISSION.  Records and information afforded
  protection under Section 552.153 that are provided by a responsible
  governmental entity to the commission and the presiding officer of
  the House Appropriations Committee and of the Senate Finance
  Committee, or their designees, shall continue to be protected from
  disclosure when in the possession of the commission and the
  presiding officers or their designees.
         SECTION 10.  Section 2267.002(e), Government Code, is
  repealed.
         SECTION 11.  As soon as practicable after the effective date
  of this Act, the Texas Facilities Commission shall adopt the rules
  necessary to establish the center for alternative finance and
  procurement in accordance with Section 2152.110, Government Code,
  as added by this Act.
         SECTION 12.  This Act takes effect September 1, 2015.