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A BILL TO BE ENTITLED
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AN ACT
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relating to the construction manager-at-risk and design-build |
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methods of project delivery for a public work contract. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2269.253, Government Code, is amended by |
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amending Subsections (d) and (e) and adding Subsection (e-1) to |
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read as follows: |
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(d) If a one-step process is used, the governmental entity |
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shall [may] request, as part of the offeror's proposal: |
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(1)[,] proposed fees and prices for fulfilling the |
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general conditions; and |
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(2) proposed prices and methods for preventing and |
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managing the risk of default by a trade contractor or |
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subcontractor. |
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(e) If a two-step process is used, the governmental entity |
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may not request fees or prices in step one. In step two, the |
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governmental entity shall [may] request that five or fewer |
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offerors, selected solely on the basis of qualifications, provide |
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additional information, including the construction |
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manager-at-risk's: |
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(1) proposed fee and prices for fulfilling the general |
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conditions; and |
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(2) proposed prices and methods for preventing and |
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managing the risk of default by a trade contractor or |
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subcontractor. |
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(e-1) A governmental entity's request for proposals in a |
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one-step process or request for qualifications in a two-step |
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process must clearly provide that the proposed prices for |
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fulfilling the general conditions and the proposed prices for |
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preventing and managing risk of default by a trade contractor or |
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subcontractor are allowable costs for all purposes of the |
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construction contract, including for the purpose of calculating the |
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construction manager-at-risk's fee. A provision of a request for |
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proposals, a request for qualifications, or a construction contract |
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entered into under this subchapter that conflicts with the |
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requirements of this subsection has no effect. |
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SECTION 2. Section 2269.255, Government Code, is amended by |
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adding Subsections (c), (d), (e), (f), and (g) to read as follows: |
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(c) Except as provided by Subsection (d), if the |
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governmental entity determines that the construction |
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manager-at-risk's bid or proposal provides the best value under |
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Subsection (b)(2) and that bid or proposal is selected, the |
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governmental entity shall compensate the construction |
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manager-at-risk for the performance of that work in the same manner |
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that the governmental entity would have compensated one of the |
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other competing trade contractors or subcontractors that submitted |
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a bid or proposal for the work, as determined by the governmental |
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entity. |
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(d) If one or more bids or proposals received under this |
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section offer to provide services under a stipulated sum contract |
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and the construction manager-at-risk's bid or proposal is selected |
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as described by Subsection (c): |
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(1) the construction manager-at-risk shall be |
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compensated for the work in the manner that a stipulated sum |
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contract would provide; and |
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(2) the price proposed by the construction |
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manager-at-risk may not be audited. |
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(e) A construction manager-at-risk's compensation for the |
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performance of work under Subsection (b) is considered an allowable |
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trade contractor or subcontractor cost for all purposes of the |
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construction contract, including for purposes of calculating the |
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construction manager-at-risk's fee. |
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(f) For purposes of Subsection (d), a "stipulated sum |
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contract" is a contract in which the contractor agrees to provide |
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services for a fixed price resulting in the contractor bearing |
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substantial risk for any underestimated costs to provide the |
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services and is also known as a lump sum contract. |
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(g) A provision of a request for proposals, an advertisement |
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for bids or proposals, or a construction contract entered into |
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under this subchapter that conflicts with the requirements of |
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Subsection (c), (d), or (e) has no effect. |
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SECTION 3. Section 2269.307, Government Code, is amended by |
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amending Subsection (e) and adding Subsection (e-1) to read as |
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follows: |
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(e) Except as provided by Subsection (e-1), the [The] |
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governmental entity may request additional information regarding |
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demonstrated competence and qualifications, considerations of the |
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safety and long-term durability of the project, the feasibility of |
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implementing the project as proposed, the ability of the offeror to |
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meet schedules, or costing methodology. As used in this |
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subsection, "costing methodology" means an offeror's policies on |
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subcontractor markup, definition of general conditions, range of |
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cost for general conditions, policies on retainage, policies on |
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contingencies, discount for prompt payment, policies and pricing |
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for preventing and managing the risk of default by a trade |
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contractor or subcontractor, and expected staffing for |
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administrative duties. The term does not include a guaranteed |
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maximum price or bid for overall design or construction. |
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(e-1) The governmental entity may not request a guaranteed |
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maximum price or bid for overall design or construction. |
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SECTION 4. Subchapter G, Chapter 2269, Government Code, is |
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amended by adding Section 2269.3065 to read as follows: |
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Sec. 2269.3065. PRICES AND METHODS FOR PREVENTING AND |
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MANAGING RISK OF DEFAULT BY TRADE CONTRACTOR OR SUBCONTRACTOR. (a) |
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Any request for proposals, request for qualifications, or |
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construction contract entered into under this subchapter must |
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clearly provide that: |
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(1) the selected design-build firm may implement the |
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firm's proposed methods of preventing and managing the risk of |
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default by a trade contractor or subcontractor; and |
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(2) the proposed prices for the methods described by |
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Subdivision (1) are allowable costs for all purposes of the |
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construction contract, including for purposes of calculating the |
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selected design-build firm's fee. |
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(b) A provision of a request for proposals, a request for |
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qualifications, or a construction contract entered into under this |
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subchapter that conflicts with the requirements of Subsection (a) |
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has no effect. |
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SECTION 5. Subchapter G, Chapter 2269, Government Code, is |
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amended by adding Section 2269.312 to read as follows: |
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Sec. 2269.312. PERFORMANCE OF WORK. (a) A contract entered |
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into under this subchapter must allow the design-build firm to |
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perform portions of the construction work required by the contract |
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instead of contracting with another person to perform that work. |
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(b) The governmental entity may select the design-build |
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firm to perform portions of the construction work required by the |
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contract if: |
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(1) the design-build firm publicly advertises for bids |
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or proposals for the performance of the construction work required |
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by the contract; |
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(2) the design-build firm receives bids or proposals |
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from trade contractors or subcontractors for that work; |
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(3) the design-build firm submits a bid or proposal |
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for that work; and |
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(4) the governmental entity determines that the |
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design-build firm provides the best value for the governmental |
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entity. |
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(c) Sections 2269.255(c), (d), (e), (f), and (g) apply to |
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the compensation of the design-build firm and the construction |
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contract entered into under this subchapter in the same manner as |
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those laws apply to a construction manager-at-risk's compensation |
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and a construction contract entered into under Subchapter F. |
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(d) A provision of a request for proposals, an advertisement |
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for bids or proposals, or a construction contract entered into |
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under this subchapter that conflicts with this section has no |
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effect. |
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SECTION 6. Subchapters F and G, Chapter 2269, Government |
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Code, as amended by this Act, apply only to a request for |
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qualifications or proposals first advertised on or after the |
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effective date of this Act. A request for qualifications or |
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proposals first advertised before the effective date of this Act is |
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governed by the law in effect on the date the request for |
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qualifications or proposals was first advertised, and the former |
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law is continued in effect for that purpose. |
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SECTION 7. This Act takes effect September 1, 2025. |