89R6375 JCG-D
 
  By: Gervin-Hawkins H.B. No. 2148
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the construction manager-at-risk and design-build
  methods of project delivery for a public work contract.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2269.253, Government Code, is amended by
  amending Subsections (d) and (e) and adding Subsection (e-1) to
  read as follows:
         (d)  If a one-step process is used, the governmental entity
  shall [may] request, as part of the offeror's proposal:
               (1)[,] proposed fees and prices for fulfilling the
  general conditions; and
               (2)  proposed prices and methods for preventing and
  managing the risk of default by a trade contractor or
  subcontractor.
         (e)  If a two-step process is used, the governmental entity
  may not request fees or prices in step one. In step two, the
  governmental entity shall [may] request that five or fewer
  offerors, selected solely on the basis of qualifications, provide
  additional information, including the construction
  manager-at-risk's:
               (1)  proposed fee and prices for fulfilling the general
  conditions; and
               (2)  proposed prices and methods for preventing and
  managing the risk of default by a trade contractor or
  subcontractor.
         (e-1)  A governmental entity's request for proposals in a
  one-step process or request for qualifications in a two-step
  process must clearly provide that the proposed prices for
  fulfilling the general conditions and the proposed prices for
  preventing and managing risk of default by a trade contractor or
  subcontractor are allowable costs for all purposes of the
  construction contract, including for the purpose of calculating the
  construction manager-at-risk's fee.  A provision of a request for
  proposals, a request for qualifications, or a construction contract
  entered into under this subchapter that conflicts with the
  requirements of this subsection has no effect.
         SECTION 2.  Section 2269.255, Government Code, is amended by
  adding Subsections (c), (d), (e), (f), and (g) to read as follows:
         (c)  Except as provided by Subsection (d), if the
  governmental entity determines that the construction
  manager-at-risk's bid or proposal provides the best value under
  Subsection (b)(2) and that bid or proposal is selected, the
  governmental entity shall compensate the construction
  manager-at-risk for the performance of that work in the same manner
  that the governmental entity would have compensated one of the
  other competing trade contractors or subcontractors that submitted
  a bid or proposal for the work, as determined by the governmental
  entity.
         (d)  If one or more bids or proposals received under this
  section offer to provide services under a stipulated sum contract
  and the construction manager-at-risk's bid or proposal is selected
  as described by Subsection (c):
               (1)  the construction manager-at-risk shall be
  compensated for the work in the manner that a stipulated sum
  contract would provide; and
               (2)  the price proposed by the construction
  manager-at-risk may not be audited.
         (e)  A construction manager-at-risk's compensation for the
  performance of work under Subsection (b) is considered an allowable
  trade contractor or subcontractor cost for all purposes of the
  construction contract, including for purposes of calculating the
  construction manager-at-risk's fee.
         (f)  For purposes of Subsection (d), a "stipulated sum
  contract" is a contract in which the contractor agrees to provide
  services for a fixed price resulting in the contractor bearing
  substantial risk for any underestimated costs to provide the
  services and is also known as a lump sum contract.
         (g)  A provision of a request for proposals, an advertisement
  for bids or proposals, or a construction contract entered into
  under this subchapter that conflicts with the requirements of
  Subsection (c), (d), or (e) has no effect.
         SECTION 3.  Section 2269.307, Government Code, is amended by
  amending Subsection (e) and adding Subsection (e-1) to read as
  follows:
         (e)  Except as provided by Subsection (e-1), the [The]
  governmental entity may request additional information regarding
  demonstrated competence and qualifications, considerations of the
  safety and long-term durability of the project, the feasibility of
  implementing the project as proposed, the ability of the offeror to
  meet schedules, or costing methodology.  As used in this
  subsection, "costing methodology" means an offeror's policies on
  subcontractor markup, definition of general conditions, range of
  cost for general conditions, policies on retainage, policies on
  contingencies, discount for prompt payment, policies and pricing
  for preventing and managing the risk of default by a trade
  contractor or subcontractor, and expected staffing for
  administrative duties. The term does not include a guaranteed
  maximum price or bid for overall design or construction.
         (e-1)  The governmental entity may not request a guaranteed
  maximum price or bid for overall design or construction.
         SECTION 4.  Subchapter G, Chapter 2269, Government Code, is
  amended by adding Section 2269.3065 to read as follows:
         Sec. 2269.3065.  PRICES AND METHODS FOR PREVENTING AND
  MANAGING RISK OF DEFAULT BY TRADE CONTRACTOR OR SUBCONTRACTOR. (a)  
  Any request for proposals, request for qualifications, or
  construction contract entered into under this subchapter must
  clearly provide that:
               (1)  the selected design-build firm may implement the
  firm's proposed methods of preventing and managing the risk of
  default by a trade contractor or subcontractor; and
               (2)  the proposed prices for the methods described by
  Subdivision (1) are allowable costs for all purposes of the
  construction contract, including for purposes of calculating the
  selected design-build firm's fee.
         (b)  A provision of a request for proposals, a request for
  qualifications, or a construction contract entered into under this
  subchapter that conflicts with the requirements of Subsection (a)
  has no effect.
         SECTION 5.  Subchapter G, Chapter 2269, Government Code, is
  amended by adding Section 2269.312 to read as follows:
         Sec. 2269.312.  PERFORMANCE OF WORK. (a)  A contract entered
  into under this subchapter must allow the design-build firm to
  perform portions of the construction work required by the contract
  instead of contracting with another person to perform that work.
         (b)  The governmental entity may select the design-build
  firm to perform portions of the construction work required by the
  contract if:
               (1)  the design-build firm publicly advertises for bids
  or proposals for the performance of the construction work required
  by the contract;
               (2)  the design-build firm receives bids or proposals
  from trade contractors or subcontractors for that work;
               (3)  the design-build firm submits a bid or proposal
  for that work; and
               (4)  the governmental entity determines that the
  design-build firm provides the best value for the governmental
  entity.
         (c)  Sections 2269.255(c), (d), (e), (f), and (g) apply to
  the compensation of the design-build firm and the construction
  contract entered into under this subchapter in the same manner as
  those laws apply to a construction manager-at-risk's compensation
  and a construction contract entered into under Subchapter F.
         (d)  A provision of a request for proposals, an advertisement
  for bids or proposals, or a construction contract entered into
  under this subchapter that conflicts with this section has no
  effect.
         SECTION 6.  Subchapters F and G, Chapter 2269, Government
  Code, as amended by this Act, apply only to a request for
  qualifications or proposals first advertised on or after the
  effective date of this Act.  A request for qualifications or
  proposals first advertised before the effective date of this Act is
  governed by the law in effect on the date the request for
  qualifications or proposals was first advertised, and the former
  law is continued in effect for that purpose.
         SECTION 7.  This Act takes effect September 1, 2025.