Texas 2009 - 81st Regular

Texas House Bill HB1606 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R8767 YDB-D
2	2	By: Branch H.B. No. 1606
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the regulation of the practice of construction and
8	8	program management for capital improvement projects of
9	9	governmental entities.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 8, Occupations Code, is amended by adding
12	12	Chapter 1306 to read as follows:
13	13	CHAPTER 1306. GOVERNMENTAL ENTITY CONSTRUCTION MANAGER-AGENTS
14	14	SUBCHAPTER A. GENERAL PROVISIONS
15	15	Sec. 1306.001. DEFINITIONS. In this chapter:
16	16	(1) "Commission" means the Texas Commission of
17	17	Licensing and Regulation.
18	18	(2) "Construction and program management" means the
19	19	management of the planning, design, and construction of a capital
20	20	improvement project or a program of capital improvement projects,
21	21	including project scope development, land acquisition, permitting,
22	22	cash-flow management, design acquisition and management,
23	23	recommendation of quality construction methods that are within the
24	24	client's budget, cost estimation, the writing of bid packages, cost
25	25	control, time and quality management, contract administration,
26	26	risk management, and dispute avoidance and resolution.
27	27	(3) "Department" means the Texas Department of
28	28	Licensing and Regulation.
29	29	(4) "Executive director" means the executive director
30	30	of the department.
31	31	(5) "Governmental entity construction manager-agent"
32	32	means a person registered to engage in the practice of construction
33	33	and program management for a governmental entity in this state on:
34	34	(A) a capital improvement project; or
35	35	(B) a program of capital improvement projects.
36	36	Sec. 1306.002. APPLICABILITY OF CHAPTER. This chapter
37	37	applies to a governmental entity or quasi-governmental entity
38	38	authorized by state law to enter into a public works contract,
39	39	including:
40	40	(1) a state agency as defined by Section 2151.002,
41	41	Government Code, including the Texas Facilities Commission;
42	42	(2) a local government, including:
43	43	(A) a county;
44	44	(B) a municipality;
45	45	(C) a school district;
46	46	(D) any other special district or authority,
47	47	including a hospital district, a defense base development authority
48	48	established under Chapter 379B, Local Government Code, an airport
49	49	board or authority, a conservation and reclamation district,
50	50	including a river authority, and any other type of water district;
51	51	and
52	52	(E) any other political subdivision of this
53	53	state;
54	54	(3) a public junior college as defined by Section
55	55	61.003, Education Code;
56	56	(4) any entity owned by a municipality; and
57	57	(5) any other entity that owns or operates a facility
58	58	for the benefit of a municipality or county.
59	59	Sec. 1306.003. EXEMPTION. (a) This chapter does not apply
60	60	to:
61	61	(1) a contract entered into by the Texas Department of
62	62	Transportation; or
63	63	(2) a professional architect or professional engineer
64	64	licensed in good standing in this state subject to Subsection (b).
65	65	(b) A professional architect or professional engineer who
66	66	is licensed in this state and is providing construction or program
67	67	management services as a construction manager-agent to a
68	68	governmental entity must comply with Section 1306.055.
69	69	[Sections 1306.004-1306.050 reserved for expansion]
70	70	SUBCHAPTER B. REGISTRATION REQUIREMENTS
71	71	Sec. 1306.051. REGISTRATION REQUIRED. A person may not
72	72	engage in the practice of construction and program management as a
73	73	construction manager-agent for a governmental entity in this state
74	74	unless the person holds a certificate of registration issued under
75	75	this chapter.
76	76	Sec. 1306.052. REGISTRATION APPLICATION; FEE. An applicant
77	77	for registration under this chapter must:
78	78	(1) submit an application on a form prescribed by the
79	79	executive director; and
80	80	(2) pay the application fee set by the commission.
81	81	Sec. 1306.053. ELIGIBILITY FOR REGISTRATION. To be
82	82	eligible for registration as a governmental entity construction
83	83	manager-agent, an applicant must:
84	84	(1) be certified by a national construction and
85	85	program management organization recognized by the executive
86	86	director;
87	87	(2) submit to the department the names and addresses
88	88	of five governmental entity clients for which the applicant served
89	89	as a construction manager to verify that the applicant has at least
90	90	10 years' experience in the field of construction and program
91	91	management; or
92	92	(3) hold:
93	93	(A) a bachelor's or graduate degree in
94	94	construction management, architecture, engineering, or
95	95	construction science and have at least five years of verified
96	96	experience in construction and program management for governmental
97	97	entities; or
98	98	(B) an associate's degree or certificate in
99	99	construction management, architecture, engineering, or
100	100	construction science and have at least seven years of verified
101	101	experience in construction and program management for governmental
102	102	entities.
103	103	Sec. 1306.054. ISSUANCE OF CERTIFICATE OF REGISTRATION.
104	104	The executive director shall issue a certificate of registration to
105	105	an applicant who qualifies for registration.
106	106	Sec. 1306.055. REQUIRED INSURANCE. A holder of a
107	107	certificate of registration under this chapter or the firm
108	108	employing the person must maintain professional liability
109	109	insurance in the amount of at least $1 million for each occurrence.
110	110	Sec. 1306.056. TERM OF CERTIFICATE OF REGISTRATION. A
111	111	certificate of registration is valid for a term established by the
112	112	executive director.
113	113	[Sections 1306.057-1306.100 reserved for expansion]
114	114	SUBCHAPTER C. RENEWAL OF CERTIFICATE OF REGISTRATION
115	115	Sec. 1306.101. PROCEDURE FOR RENEWAL. (a) A person who is
116	116	otherwise eligible to renew a certificate of registration may renew
117	117	an unexpired certificate by paying the required renewal fee to the
118	118	department before the expiration date of the certificate. A person
119	119	whose certificate has expired may not engage in activities that
120	120	require a certificate until the certificate has been renewed.
121	121	(b) A person whose certificate has been expired for 90 days
122	122	or less may renew the certificate by paying to the department a
123	123	renewal fee that is equal to 1-1/2 times the normally required
124	124	renewal fee.
125	125	(c) A person whose certificate has been expired for more
126	126	than 90 days but less than one year may renew the certificate by
127	127	paying to the department a renewal fee that is equal to two times
128	128	the normally required renewal fee.
129	129	(d) A person whose certificate has been expired for one year
130	130	or more may not renew the certificate. The person may obtain a new
131	131	certificate by complying with the requirements and procedures for
132	132	an original certificate.
133	133	SECTION 2. Section 44.031, Education Code, is amended by
134	134	adding Subsection (f-1) to read as follows:
135	135	(f-1) A school district may contract for professional
136	136	services rendered by a construction manager-agent in the manner
137	137	provided by Section 2254.004, Government Code, in lieu of complying
138	138	with the methods provided by this section.
139	139	SECTION 3. Section 44.037, Education Code, is amended by
140	140	amending Subsections (a), (b), (c), and (e) and adding Subsections
141	141	(b-1) and (b-2) to read as follows:
142	142	(a) A school district may use the construction
143	143	manager-agent method for the construction, rehabilitation,
144	144	alteration, or repair of a facility in a construction project or a
145	145	program of multiple construction projects. In using that method
146	146	and in entering into a contract for the services of a construction
147	147	manager-agent, a district shall follow the procedures prescribed by
148	148	this section.
149	149	(b) A construction manager-agent is a sole proprietorship,
150	150	partnership, corporation, or other legal entity that complies with
151	151	Chapter 1306, Occupations Code, and that provides consultation to
152	152	the school district regarding construction, rehabilitation,
153	153	alteration, or repair of the facility. A district using the
154	154	construction manager-agent method may, under the contract between
155	155	the district and the construction manager-agent, require the
156	156	construction manager-agent to provide:
157	157	(1) any service defined as construction and program
158	158	management under Section 1306.001, Occupations Code;
159	159	(2) administrative personnel;
160	160	(3) [,] equipment necessary to perform duties under
161	161	this section;[,] and
162	162	(4) on-site management and other services specified in
163	163	the contract.
164	164	(b-1) A construction manager-agent represents the district
165	165	in a fiduciary capacity. A construction manager-agent is not a
166	166	contractor. A school district may not require a construction
167	167	manager-agent to provide performance and payment bonds.
168	168	(b-2) A construction manager-agent may not:
169	169	(1) perform any aspect of the construction,
170	170	rehabilitation, alteration, or repair of the facility;
171	171	(2) be a party to a construction subcontract for the
172	172	construction, rehabilitation, alteration, or repair of the
173	173	facility; or
174	174	(3) provide project bonding for the construction,
175	175	rehabilitation, alteration, or repair of the facility.
176	176	(c) The [Before or concurrently with selecting a
177	177	construction manager-agent, the] district shall select or
178	178	designate an engineer or architect who shall prepare the
179	179	construction documents for the project and who has full
180	180	responsibility for complying with Chapter 1001 or 1051, Occupations
181	181	Code, as applicable. If the engineer or architect is not a
182	182	full-time employee of the district, the district shall select the
183	183	engineer or architect on the basis of demonstrated competence and
184	184	qualifications as provided by Section 2254.004, Government Code.
185	185	The district's engineer or architect may not serve, alone or in
186	186	combination with another person, as the construction manager-agent
187	187	unless the engineer or architect is hired to serve as the
188	188	construction manager-agent under a separate or concurrent
189	189	procurement conducted in accordance with this subchapter. This
190	190	subsection does not prohibit the district's engineer or architect
191	191	from providing customary construction phase services under the
192	192	engineer's or architect's original professional service agreement
193	193	in accordance with applicable licensing laws.
194	194	(e) A district using the construction manager-agent method
195	195	shall procure, in accordance with applicable law and in any manner
196	196	authorized by this chapter, a general contractor, trade
197	197	contractors, or subcontractors who:
198	198	(1) will serve as the prime contractor for their
199	199	specific portion of the work; and
200	200	(2) will provide performance and payment bonds to the
201	201	district in accordance with applicable law.
202	202	SECTION 4. Section 51.781, Education Code, is amended by
203	203	amending Subsections (a), (b), (c), and (e) and adding Subsections
204	204	(b-1) and (b-2) to read as follows:
205	205	(a) An institution may use the construction manager-agent
206	206	method for the construction, rehabilitation, alteration, or repair
207	207	of a facility in a construction project or a program of multiple
208	208	construction projects. In using that method and in entering into a
209	209	contract for the services of a construction manager-agent, a board
210	210	shall follow the procedures prescribed by this section.
211	211	(b) A construction manager-agent is a sole proprietorship,
212	212	partnership, corporation, or other legal entity that complies with
213	213	Chapter 1306, Occupations Code, and that provides consultation to
214	214	the institution regarding construction, rehabilitation,
215	215	alteration, or repair of the facility. An institution using the
216	216	construction manager-agent method may, under the contract between
217	217	the institution and the construction manager-agent, require the
218	218	construction manager-agent to provide:
219	219	(1) any service defined as construction and program
220	220	management under Section 1306.001, Occupations Code;
221	221	(2) administrative personnel;
222	222	(3) [,] equipment necessary to perform duties under
223	223	this section;[,] and
224	224	(4) on-site management and other services specified in
225	225	the contract.
226	226	(b-1) A construction manager-agent represents the
227	227	institution in a fiduciary capacity. A construction manager-agent
228	228	is not a contractor. A board may not require a construction
229	229	manager-agent to provide performance and payment bonds.
230	230	(b-2) A construction manager-agent may not:
231	231	(1) perform any aspect of the construction,
232	232	rehabilitation, alteration, or repair of the facility;
233	233	(2) be a party to a construction subcontract for the
234	234	construction, rehabilitation, alteration, or repair of the
235	235	facility; or
236	236	(3) provide project bonding for the construction,
237	237	rehabilitation, alteration, or repair of the facility.
238	238	(c) The [Before or concurrently with selecting a
239	239	construction manager-agent, the] board shall select or designate an
240	240	engineer or architect who shall prepare the construction documents
241	241	for the project and who has full responsibility for complying with
242	242	Chapter 1001 or 1051, Occupations Code, as applicable. If the
243	243	engineer or architect is not a full-time employee of the
244	244	institution, the board shall select the engineer or architect on
245	245	the basis of demonstrated competence and qualifications as provided
246	246	by Section 2254.004, Government Code. The institution's engineer
247	247	or architect may not serve, alone or in combination with another
248	248	person, as the construction manager-agent unless the engineer or
249	249	architect is hired to serve as the construction manager-agent under
250	250	a separate or concurrent procurement conducted in accordance with
251	251	this subchapter. This subsection does not prohibit the
252	252	institution's engineer or architect from providing customary
253	253	construction phase services under the engineer's or architect's
254	254	original professional service agreement in accordance with
255	255	applicable licensing laws.
256	256	(e) A board using the construction manager-agent method
257	257	shall procure, in accordance with applicable law and in any manner
258	258	authorized by this chapter, a general contractor, trade
259	259	contractors, or subcontractors who:
260	260	(1) will serve as the prime contractor for their
261	261	specific portion of the work; and
262	262	(2) will provide performance and payment bonds to the
263	263	institution in accordance with applicable law.
264	264	SECTION 5. Section 2166.2535, Government Code, is amended
265	265	by amending Subsections (a), (b), (c), and (e) and adding
266	266	Subsections (b-1) and (b-2) to read as follows:
267	267	(a) The commission may use the construction manager-agent
268	268	method for a project or a program of multiple projects. In using
269	269	that method and in entering into a contract for the services of a
270	270	construction manager-agent, the commission shall follow the
271	271	procedures prescribed by this section.
272	272	(b) A construction manager-agent is a sole proprietorship,
273	273	partnership, corporation, or other legal entity that complies with
274	274	Chapter 1306, Occupations Code, and that provides consultation to
275	275	the commission regarding construction, rehabilitation, alteration,
276	276	or repair of a facility. The commission, when using the
277	277	construction manager-agent method, may, under the contract between
278	278	the commission and the construction manager-agent, require the
279	279	construction manager-agent to provide:
280	280	(1) any service defined as construction and program
281	281	management under Section 1306.001, Occupations Code;
282	282	(2) administrative personnel;
283	283	(3) [,] equipment necessary to perform duties under
284	284	this section;[,] and
285	285	(4) on-site management and other services specified in
286	286	the contract.
287	287	(b-1) A construction manager-agent represents the
288	288	commission in a fiduciary capacity. A construction manager-agent
289	289	is not a contractor. The commission may not require a construction
290	290	manager-agent to provide performance and payment bonds.
291	291	(b-2) A construction manager-agent may not:
292	292	(1) perform any aspect of the construction,
293	293	rehabilitation, alteration, or repair of the facility;
294	294	(2) be a party to a construction subcontract for the
295	295	construction, rehabilitation, alteration, or repair of the
296	296	facility; or
297	297	(3) provide project bonding for the construction,
298	298	rehabilitation, alteration, or repair of the facility.
299	299	(c) The [Before or concurrently with selecting a
300	300	construction manager-agent, the] commission shall select or
301	301	designate an engineer or architect who shall prepare the
302	302	construction documents for the project and who has full
303	303	responsibility for complying with Chapter 1001 or 1051, Occupations
304	304	Code, as applicable. If the engineer or architect is not a
305	305	full-time employee of the commission, the commission shall select
306	306	the engineer or architect on the basis of demonstrated competence
307	307	and qualifications as provided by Section 2254.004. A commission
308	308	engineer or architect may not serve, alone or in combination with
309	309	another person, as the construction manager-agent unless the
310	310	engineer or architect is hired to serve as the construction
311	311	manager-agent under a separate or concurrent procurement conducted
312	312	in accordance with this subchapter. This subsection does not
313	313	prohibit a commission engineer or architect from providing
314	314	customary construction phase services under the engineer's or
315	315	architect's original professional service agreement in accordance
316	316	with applicable licensing laws.
317	317	(e) When using the construction manager-agent method, the
318	318	commission shall procure, in accordance with applicable law and in
319	319	any manner authorized by this chapter, a general contractor, trade
320	320	contractors, or subcontractors who:
321	321	(1) will serve as the prime contractor for their
322	322	specific portion of the work; and
323	323	(2) will provide performance and payment bonds to the
324	324	commission in accordance with applicable law.
325	325	SECTION 6. Section 271.117, Local Government Code, is
326	326	amended by amending Subsections (a), (b), (c), (d), and (e) and
327	327	adding Subsections (b-1) and (b-2) to read as follows:
328	328	(a) A governmental entity may use the construction
329	329	manager-agent method for the construction, rehabilitation,
330	330	alteration, or repair of a facility in a construction project or a
331	331	program of multiple construction projects. In using that method
332	332	and in entering into a contract for the services of a construction
333	333	manager-agent, a governmental entity shall follow the procedures
334	334	prescribed by this section.
335	335	(b) A construction manager-agent is a sole proprietorship,
336	336	partnership, corporation, or other legal entity that complies with
337	337	Chapter 1306, Occupations Code, and that provides consultation to
338	338	the governmental entity regarding construction, rehabilitation,
339	339	alteration, or repair of the facility. A governmental entity using
340	340	the construction manager-agent method may, under the contract
341	341	between the governmental entity and the construction
342	342	manager-agent, require the construction manager-agent to provide:
343	343	(1) any service defined as construction and program
344	344	management under Section 1306.001, Occupations Code;
345	345	(2) administrative personnel;
346	346	(3) [,] equipment necessary to perform duties under
347	347	this section;[,] and
348	348	(4) on-site management and other services specified in
349	349	the contract.
350	350	(b-1) A construction manager-agent represents the
351	351	governmental entity in a fiduciary capacity. A construction
352	352	manager-agent is not a contractor. A governmental entity may not
353	353	require a construction manager-agent to provide performance and
354	354	payment bonds.
355	355	(b-2) A construction manager-agent may not:
356	356	(1) perform any aspect of the construction,
357	357	rehabilitation, alteration, or repair of the facility;
358	358	(2) be a party to a construction subcontract for the
359	359	construction, rehabilitation, alteration, or repair of the
360	360	facility; or
361	361	(3) provide project bonding for the construction,
362	362	rehabilitation, alteration, or repair of the facility.
363	363	(c) The [Before or concurrently with selecting a
364	364	construction manager-agent, the] governmental entity shall select
365	365	or designate an engineer or architect who shall prepare the
366	366	construction documents for the project and who has full
367	367	responsibility for complying with Chapter 1001 or 1051, Occupations
368	368	Code, as applicable. If the engineer or architect is not a
369	369	full-time employee of the governmental entity, the governmental
370	370	entity shall select the engineer or architect on the basis of
371	371	demonstrated competence and qualifications as provided by Section
372	372	2254.004, Government Code. The governmental entity's engineer or
373	373	architect may not serve, alone or in combination with another
374	374	person, as the construction manager-agent unless the engineer or
375	375	architect is hired to serve as the construction manager-agent under
376	376	a separate or concurrent procurement conducted in accordance with
377	377	this subchapter. This subsection does not prohibit the
378	378	governmental entity's engineer or architect from providing
379	379	customary construction phase services under the engineer's or
380	380	architect's original professional service agreement in accordance
381	381	with applicable licensing laws.
382	382	(d) A governmental entity shall select a construction
383	383	manager-agent on the basis of demonstrated competence and
384	384	qualifications in the same manner as provided for the selection of
385	385	engineers or architects under Section 2254.004, Government Code[,
386	386	except that notice must be published as provided by Section
387	387	271.112(d)].
388	388	(e) A governmental entity using the construction
389	389	manager-agent method shall procure, in accordance with applicable
390	390	law, a general contractor, trade contractors, or subcontractors
391	391	who:
392	392	(1) will serve as the prime contractor for their
393	393	specific portion of the work; and
394	394	(2) will provide performance and payment bonds to the
395	395	governmental entity in accordance with applicable law.
396	396	SECTION 7. Section 60.461, Water Code, is amended by
397	397	amending Subsections (a), (b), (c), and (e) and adding Subsections
398	398	(b-1) and (b-2) to read as follows:
399	399	(a) A district may award a contract to a construction
400	400	manager-agent for the construction, rehabilitation, alteration, or
401	401	repair of a facility in a construction project or a program of
402	402	multiple construction projects if [provided that] the construction
403	403	manager-agent and the district comply with Chapter 1306,
404	404	Occupations Code, and follow the procedures prescribed by this
405	405	section.
406	406	(b) A district may, under the contract between the district
407	407	and the construction manager-agent, require the construction
408	408	manager-agent to provide:
409	409	(1) any service defined as construction and program
410	410	management under Section 1306.001, Occupations Code;
411	411	(2) administrative personnel;
412	412	(3) [,] equipment necessary to perform duties under
413	413	this section;[,] and
414	414	(4) on-site management and other services specified in
415	415	the contract.
416	416	(b-1) A construction manager-agent represents the district
417	417	in a fiduciary capacity. A construction manager-agent is not a
418	418	contractor. A district may not require a construction
419	419	manager-agent to provide performance and payment bonds.
420	420	(b-2) A construction manager-agent may not:
421	421	(1) perform any aspect of the construction,
422	422	rehabilitation, alteration, or repair of the facility;
423	423	(2) be a party to a construction subcontract for the
424	424	construction, rehabilitation, alteration, or repair of the
425	425	facility; or
426	426	(3) provide project bonding for the construction,
427	427	rehabilitation, alteration, or repair of the facility.
428	428	(c) The [Before or concurrently with selecting a
429	429	construction manager-agent, the] district shall select or
430	430	designate an engineer or architect who shall prepare the
431	431	construction documents for the project and who has full
432	432	responsibility for complying with Chapter 1001 or 1051, Occupations
433	433	Code, as applicable. If the engineer or architect is not a
434	434	full-time employee of the district, the district shall select the
435	435	engineer or architect as provided by Section 2254.004, Government
436	436	Code. The district's engineer or architect may not serve, alone or
437	437	in combination with another person, as the construction
438	438	manager-agent unless the engineer or architect is hired to serve as
439	439	the construction manager-agent under a separate or concurrent
440	440	procurement conducted in accordance with this subchapter. This
441	441	subsection does not prohibit the district's engineer or architect
442	442	from providing customary construction phase services under the
443	443	engineer's or architect's original professional service agreement
444	444	in accordance with applicable laws.
445	445	(e) A district contracting with a construction
446	446	manager-agent shall procure, in accordance with applicable law, and
447	447	in any manner authorized by this chapter, a general contractor,
448	448	trade contractors, or subcontractors who:
449	449	(1) will serve as the prime contractor for their
450	450	specific portion of the work; and
451	451	(2) will provide performance and payment bonds to the
452	452	district in accordance with applicable law.
453	453	SECTION 8. (a) A person is not required to obtain a
454	454	certificate of registration under Chapter 1306, Occupations Code,
455	455	as added by this Act, until January 1, 2010.
456	456	(b) Notwithstanding Subsection (a) of this section, a
457	457	person who is engaged in the practice of construction and program
458	458	management before January 1, 2010, and who applies for a
459	459	certificate of registration under Chapter 1306, Occupations Code,
460	460	as added by this Act, before that date may continue to engage in
461	461	that practice until the executive director of the Texas Department
462	462	of Licensing and Regulation acts on the person's application.
463	463	SECTION 9. This Act takes effect immediately if it receives
464	464	a vote of two-thirds of all the members elected to each house, as
465	465	provided by Section 39, Article III, Texas Constitution. If this
466	466	Act does not receive the vote necessary for immediate effect, this
467	467	Act takes effect September 1, 2009.