|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the authority of th |
|
e Texas Department of Transportation |
|
to use the construction manager-at-risk project delivery method for |
|
state highway improvement projects. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Chapter 223, Transportation Code, is amended by |
|
adding Subchapter G to read as follows: |
|
SUBCHAPTER G. CONSTRUCTION MANAGER-AT-RISK METHOD |
|
Sec. 223.301. DEFINITION; FORM OF CONSTRUCTION |
|
MANAGER-AT-RISK. (a) In this subchapter, "construction |
|
manager-at-risk method" means a delivery method by which the |
|
department selects or designates an engineer for design and |
|
construction phase services and separately contracts with a |
|
construction manager to serve as the general contractor and provide |
|
consultation during the design and construction of a state highway. |
|
(b) A construction manager may be a sole proprietorship, |
|
partnership, corporation, or other legal entity. |
|
Sec. 223.302. USE OF CONSTRUCTION MANAGER-AT-RISK METHOD. |
|
The department may use the construction manager-at-risk method in |
|
selecting a general contractor for the construction of a state |
|
highway project as provided by this subchapter. |
|
Sec. 223.303. FUNCTIONS OF CONSTRUCTION MANAGER-AT-RISK. |
|
(a) A construction manager serves as the general contractor for a |
|
state highway project and assumes the risk for the construction or |
|
improvement of the state highway at the contracted price. |
|
(b) A construction manager provides consultation to the |
|
department regarding the construction of a state highway project |
|
during and after the design of the project, including providing |
|
input regarding scheduling, pricing, phasing, and other issues that |
|
will enable the department to design a more constructible project. |
|
(c) The contracted price may be a guaranteed maximum price. |
|
Sec. 223.304. USE OF ENGINEER. (a) On or before the |
|
selection of a construction manager, the department shall select or |
|
designate an engineer to prepare the construction documents for the |
|
project. |
|
(b) The engineer selected or designated for a project may |
|
not serve, alone or in combination with another person, as the |
|
construction manager for that project. |
|
(c) Subsection (b) does not prohibit the engineer from |
|
providing customary construction phase services under the |
|
engineer's agreement with the department in accordance with |
|
applicable licensing laws. |
|
Sec. 223.305. PROCUREMENT PROCESS FOR CONSTRUCTION |
|
MANAGER-AT-RISK. (a) The department may select the construction |
|
manager in a one-step or two-step process. |
|
(b) The department shall prepare a single request for |
|
proposals, in the case of a one-step process, or an initial request |
|
for qualifications, to be followed by a request for proposals, in |
|
the case of a two-step process, that includes: |
|
(1) a statement as to whether the selection process is |
|
a one-step or two-step process; |
|
(2) information regarding the project's location, |
|
scope, and limits; |
|
(3) publicly available cost estimates for the project |
|
and information regarding funding that may be available for the |
|
project; |
|
(4) selection criteria and the relative weight to be |
|
given to the criteria; |
|
(5) the time and place for receipt of qualifications |
|
statements or proposals; and |
|
(6) any other information that may assist the |
|
department in its selection of a construction manager. |
|
(c) A request for proposals shall include any materials |
|
specifications, special material requirements, quality assurance |
|
and quality control requirements, and available geotechnical or |
|
other information related to the project, and the status of any |
|
environmental review of the project. |
|
(d) If a one-step process is used, the department may |
|
request, as part of the offeror's proposal, the offeror's proposed |
|
fees and prices for performing the work. |
|
(e) If a two-step process is used, the department may not |
|
request proposed fees or prices in step one. In step two, the |
|
department may request that five or fewer offerors, selected on the |
|
basis of qualifications, experience, technical competence, and |
|
ability to develop the project, provide additional information, |
|
including the offeror's proposed fees and prices for performing the |
|
work. |
|
Sec. 223.306. SELECTION OF CONSTRUCTION MANAGER-AT-RISK. |
|
(a) The department shall rank the offerors in accordance with the |
|
selection criteria and formula provided in the request for |
|
proposals, and shall select the offeror that submits the proposal |
|
that offers the best value for the department. |
|
(b) The department shall attempt to negotiate a contract |
|
with the selected offeror. |
|
(c) If the department is unable to negotiate a satisfactory |
|
contract with the selected offeror, the department, formally and in |
|
writing, shall end negotiations with that offeror and proceed to |
|
negotiate with the next offeror in the order of the selection |
|
ranking until a contract is reached or negotiations with all ranked |
|
offerors end. |
|
(d) Not later than the seventh day after the date the |
|
contract is awarded, the department shall make public the selection |
|
rankings. |
|
Sec. 223.307. PERFORMANCE OF WORK. (a) A construction |
|
manager shall publicly advertise for bids or proposals and receive |
|
bids or proposals from contractors for the performance of the |
|
construction work. |
|
(b) A construction manager may perform portions of the work |
|
itself if: |
|
(1) the construction manager submits its bid or |
|
proposal for those portions of the work in the same manner as all |
|
other contractors; and |
|
(2) the department determines that the construction |
|
manager's bid or proposal provides the best value for the |
|
department. |
|
Sec. 223.308. REVIEW AND EVALUATION OF BIDS OR PROPOSALS; |
|
SELECTION. (a) The construction manager shall review all |
|
contractor bids or proposals in a manner that does not disclose to a |
|
person that is not employed by the construction manager, the |
|
engineer that prepared the construction documents for the project, |
|
or the department the contents of the bid or proposal during the |
|
selection process. The construction manager shall make all bids or |
|
proposals available to the department on request, and shall make |
|
bids or proposals available to the public after the final contract |
|
is entered into. |
|
(b) The construction manager shall evaluate the bids or |
|
proposals received from contractors, and shall select a bid or |
|
proposal for award. If the construction manager recommends to the |
|
department a bid or proposal but the department requires another |
|
bid or proposal to be selected, the department, through a change in |
|
the contracted price, time, or guaranteed maximum price under the |
|
contract with the construction manager, shall compensate the |
|
construction manager for any additional cost and risk that the |
|
construction manager incurs because of the department's |
|
requirement. |
|
Sec. 223.309. DEFAULT; PERFORMANCE OF WORK. If a |
|
contractor selected under Section 223.308 defaults in the |
|
performance of its work or fails to execute a subcontract, the |
|
construction manager may itself fulfill, without advertising, the |
|
contract requirements or select a replacement contractor to fulfill |
|
the contract requirements. |
|
Sec. 223.310. PERFORMANCE OR PAYMENT BOND. (a) If a fixed |
|
contract amount or guaranteed maximum price has not been determined |
|
at the time the contract is awarded to a contractor selected under |
|
Section 223.308, the penal sum of the performance bond and the |
|
payment bond that are delivered to the department must each be in an |
|
amount equal to the construction cost estimate, as specified in the |
|
request for proposals. |
|
(b) The construction manager shall deliver the bonds not |
|
later than the 10th day after the date the construction manager |
|
executes the contract unless the construction manager furnishes a |
|
bid bond or other financial security acceptable to the department |
|
to ensure that the construction manager will furnish the required |
|
performance and payment bonds when a guaranteed maximum price is |
|
established. |
|
Sec. 223.311. RULES GOVERNING SELECTION PROCESS. (a) The |
|
commission shall adopt rules governing the selection of a |
|
construction manager, including criteria relating to the |
|
qualifications of the offerors and the award of contracts. |
|
SECTION 2. 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, 2019. |