81R8767 YDB-D
By: Branch H.B. No. 1606
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of the practice of construction and
program management for capital improvement projects of
governmental entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 8, Occupations Code, is amended by adding
Chapter 1306 to read as follows:
CHAPTER 1306. GOVERNMENTAL ENTITY CONSTRUCTION MANAGER-AGENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1306.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Commission of
Licensing and Regulation.
(2) "Construction and program management" means the
management of the planning, design, and construction of a capital
improvement project or a program of capital improvement projects,
including project scope development, land acquisition, permitting,
cash-flow management, design acquisition and management,
recommendation of quality construction methods that are within the
client's budget, cost estimation, the writing of bid packages, cost
control, time and quality management, contract administration,
risk management, and dispute avoidance and resolution.
(3) "Department" means the Texas Department of
Licensing and Regulation.
(4) "Executive director" means the executive director
of the department.
(5) "Governmental entity construction manager-agent"
means a person registered to engage in the practice of construction
and program management for a governmental entity in this state on:
(A) a capital improvement project; or
(B) a program of capital improvement projects.
Sec. 1306.002. APPLICABILITY OF CHAPTER. This chapter
applies to a governmental entity or quasi-governmental entity
authorized by state law to enter into a public works contract,
including:
(1) a state agency as defined by Section 2151.002,
Government Code, including the Texas Facilities Commission;
(2) a local government, including:
(A) a county;
(B) a municipality;
(C) a school district;
(D) any other special district or authority,
including a hospital district, a defense base development authority
established under Chapter 379B, Local Government Code, an airport
board or authority, a conservation and reclamation district,
including a river authority, and any other type of water district;
and
(E) any other political subdivision of this
state;
(3) a public junior college as defined by Section
61.003, Education Code;
(4) any entity owned by a municipality; and
(5) any other entity that owns or operates a facility
for the benefit of a municipality or county.
Sec. 1306.003. EXEMPTION. (a) This chapter does not apply
to:
(1) a contract entered into by the Texas Department of
Transportation; or
(2) a professional architect or professional engineer
licensed in good standing in this state subject to Subsection (b).
(b) A professional architect or professional engineer who
is licensed in this state and is providing construction or program
management services as a construction manager-agent to a
governmental entity must comply with Section 1306.055.
[Sections 1306.004-1306.050 reserved for expansion]
SUBCHAPTER B. REGISTRATION REQUIREMENTS
Sec. 1306.051. REGISTRATION REQUIRED. A person may not
engage in the practice of construction and program management as a
construction manager-agent for a governmental entity in this state
unless the person holds a certificate of registration issued under
this chapter.
Sec. 1306.052. REGISTRATION APPLICATION; FEE. An applicant
for registration under this chapter must:
(1) submit an application on a form prescribed by the
executive director; and
(2) pay the application fee set by the commission.
Sec. 1306.053. ELIGIBILITY FOR REGISTRATION. To be
eligible for registration as a governmental entity construction
manager-agent, an applicant must:
(1) be certified by a national construction and
program management organization recognized by the executive
director;
(2) submit to the department the names and addresses
of five governmental entity clients for which the applicant served
as a construction manager to verify that the applicant has at least
10 years' experience in the field of construction and program
management; or
(3) hold:
(A) a bachelor's or graduate degree in
construction management, architecture, engineering, or
construction science and have at least five years of verified
experience in construction and program management for governmental
entities; or
(B) an associate's degree or certificate in
construction management, architecture, engineering, or
construction science and have at least seven years of verified
experience in construction and program management for governmental
entities.
Sec. 1306.054. ISSUANCE OF CERTIFICATE OF REGISTRATION.
The executive director shall issue a certificate of registration to
an applicant who qualifies for registration.
Sec. 1306.055. REQUIRED INSURANCE. A holder of a
certificate of registration under this chapter or the firm
employing the person must maintain professional liability
insurance in the amount of at least $1 million for each occurrence.
Sec. 1306.056. TERM OF CERTIFICATE OF REGISTRATION. A
certificate of registration is valid for a term established by the
executive director.
[Sections 1306.057-1306.100 reserved for expansion]
SUBCHAPTER C. RENEWAL OF CERTIFICATE OF REGISTRATION
Sec. 1306.101. PROCEDURE FOR RENEWAL. (a) A person who is
otherwise eligible to renew a certificate of registration may renew
an unexpired certificate by paying the required renewal fee to the
department before the expiration date of the certificate. A person
whose certificate has expired may not engage in activities that
require a certificate until the certificate has been renewed.
(b) A person whose certificate has been expired for 90 days
or less may renew the certificate by paying to the department a
renewal fee that is equal to 1-1/2 times the normally required
renewal fee.
(c) A person whose certificate has been expired for more
than 90 days but less than one year may renew the certificate by
paying to the department a renewal fee that is equal to two times
the normally required renewal fee.
(d) A person whose certificate has been expired for one year
or more may not renew the certificate. The person may obtain a new
certificate by complying with the requirements and procedures for
an original certificate.
SECTION 2. Section 44.031, Education Code, is amended by
adding Subsection (f-1) to read as follows:
(f-1) A school district may contract for professional
services rendered by a construction manager-agent in the manner
provided by Section 2254.004, Government Code, in lieu of complying
with the methods provided by this section.
SECTION 3. Section 44.037, Education Code, is amended by
amending Subsections (a), (b), (c), and (e) and adding Subsections
(b-1) and (b-2) to read as follows:
(a) A school district may use the construction
manager-agent method for the construction, rehabilitation,
alteration, or repair of a facility in a construction project or a
program of multiple construction projects. In using that method
and in entering into a contract for the services of a construction
manager-agent, a district shall follow the procedures prescribed by
this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that complies with
Chapter 1306, Occupations Code, and that provides consultation to
the school district regarding construction, rehabilitation,
alteration, or repair of the facility. A district using the
construction manager-agent method may, under the contract between
the district and the construction manager-agent, require the
construction manager-agent to provide:
(1) any service defined as construction and program
management under Section 1306.001, Occupations Code;
(2) administrative personnel;
(3) [,] equipment necessary to perform duties under
this section;[,] and
(4) on-site management and other services specified in
the contract.
(b-1) A construction manager-agent represents the district
in a fiduciary capacity. A construction manager-agent is not a
contractor. A school district may not require a construction
manager-agent to provide performance and payment bonds.
(b-2) A construction manager-agent may not:
(1) perform any aspect of the construction,
rehabilitation, alteration, or repair of the facility;
(2) be a party to a construction subcontract for the
construction, rehabilitation, alteration, or repair of the
facility; or
(3) provide project bonding for the construction,
rehabilitation, alteration, or repair of the facility.
(c) The [Before or concurrently with selecting a
construction manager-agent, the] district shall select or
designate an engineer or architect who shall prepare the
construction documents for the project and who has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the district, the district shall select the
engineer or architect on the basis of demonstrated competence and
qualifications as provided by Section 2254.004, Government Code.
The district's engineer or architect may not serve, alone or in
combination with another person, as the construction manager-agent
unless the engineer or architect is hired to serve as the
construction manager-agent under a separate or concurrent
procurement conducted in accordance with this subchapter. This
subsection does not prohibit the district's engineer or architect
from providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable licensing laws.
(e) A district using the construction manager-agent method
shall procure, in accordance with applicable law and in any manner
authorized by this chapter, a general contractor, trade
contractors, or subcontractors who:
(1) will serve as the prime contractor for their
specific portion of the work; and
(2) will provide performance and payment bonds to the
district in accordance with applicable law.
SECTION 4. Section 51.781, Education Code, is amended by
amending Subsections (a), (b), (c), and (e) and adding Subsections
(b-1) and (b-2) to read as follows:
(a) An institution may use the construction manager-agent
method for the construction, rehabilitation, alteration, or repair
of a facility in a construction project or a program of multiple
construction projects. In using that method and in entering into a
contract for the services of a construction manager-agent, a board
shall follow the procedures prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that complies with
Chapter 1306, Occupations Code, and that provides consultation to
the institution regarding construction, rehabilitation,
alteration, or repair of the facility. An institution using the
construction manager-agent method may, under the contract between
the institution and the construction manager-agent, require the
construction manager-agent to provide:
(1) any service defined as construction and program
management under Section 1306.001, Occupations Code;
(2) administrative personnel;
(3) [,] equipment necessary to perform duties under
this section;[,] and
(4) on-site management and other services specified in
the contract.
(b-1) A construction manager-agent represents the
institution in a fiduciary capacity. A construction manager-agent
is not a contractor. A board may not require a construction
manager-agent to provide performance and payment bonds.
(b-2) A construction manager-agent may not:
(1) perform any aspect of the construction,
rehabilitation, alteration, or repair of the facility;
(2) be a party to a construction subcontract for the
construction, rehabilitation, alteration, or repair of the
facility; or
(3) provide project bonding for the construction,
rehabilitation, alteration, or repair of the facility.
(c) The [Before or concurrently with selecting a
construction manager-agent, the] board shall select or designate an
engineer or architect who shall prepare the construction documents
for the project and who has full responsibility for complying with
Chapter 1001 or 1051, Occupations Code, as applicable. If the
engineer or architect is not a full-time employee of the
institution, the board shall select the engineer or architect on
the basis of demonstrated competence and qualifications as provided
by Section 2254.004, Government Code. The institution's engineer
or architect may not serve, alone or in combination with another
person, as the construction manager-agent unless the engineer or
architect is hired to serve as the construction manager-agent under
a separate or concurrent procurement conducted in accordance with
this subchapter. This subsection does not prohibit the
institution's engineer or architect from providing customary
construction phase services under the engineer's or architect's
original professional service agreement in accordance with
applicable licensing laws.
(e) A board using the construction manager-agent method
shall procure, in accordance with applicable law and in any manner
authorized by this chapter, a general contractor, trade
contractors, or subcontractors who:
(1) will serve as the prime contractor for their
specific portion of the work; and
(2) will provide performance and payment bonds to the
institution in accordance with applicable law.
SECTION 5. Section 2166.2535, Government Code, is amended
by amending Subsections (a), (b), (c), and (e) and adding
Subsections (b-1) and (b-2) to read as follows:
(a) The commission may use the construction manager-agent
method for a project or a program of multiple projects. In using
that method and in entering into a contract for the services of a
construction manager-agent, the commission shall follow the
procedures prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that complies with
Chapter 1306, Occupations Code, and that provides consultation to
the commission regarding construction, rehabilitation, alteration,
or repair of a facility. The commission, when using the
construction manager-agent method, may, under the contract between
the commission and the construction manager-agent, require the
construction manager-agent to provide:
(1) any service defined as construction and program
management under Section 1306.001, Occupations Code;
(2) administrative personnel;
(3) [,] equipment necessary to perform duties under
this section;[,] and
(4) on-site management and other services specified in
the contract.
(b-1) A construction manager-agent represents the
commission in a fiduciary capacity. A construction manager-agent
is not a contractor. The commission may not require a construction
manager-agent to provide performance and payment bonds.
(b-2) A construction manager-agent may not:
(1) perform any aspect of the construction,
rehabilitation, alteration, or repair of the facility;
(2) be a party to a construction subcontract for the
construction, rehabilitation, alteration, or repair of the
facility; or
(3) provide project bonding for the construction,
rehabilitation, alteration, or repair of the facility.
(c) The [Before or concurrently with selecting a
construction manager-agent, the] commission shall select or
designate an engineer or architect who shall prepare the
construction documents for the project and who has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the commission, the commission shall select
the engineer or architect on the basis of demonstrated competence
and qualifications as provided by Section 2254.004. A commission
engineer or architect may not serve, alone or in combination with
another person, as the construction manager-agent unless the
engineer or architect is hired to serve as the construction
manager-agent under a separate or concurrent procurement conducted
in accordance with this subchapter. This subsection does not
prohibit a commission engineer or architect from providing
customary construction phase services under the engineer's or
architect's original professional service agreement in accordance
with applicable licensing laws.
(e) When using the construction manager-agent method, the
commission shall procure, in accordance with applicable law and in
any manner authorized by this chapter, a general contractor, trade
contractors, or subcontractors who:
(1) will serve as the prime contractor for their
specific portion of the work; and
(2) will provide performance and payment bonds to the
commission in accordance with applicable law.
SECTION 6. Section 271.117, Local Government Code, is
amended by amending Subsections (a), (b), (c), (d), and (e) and
adding Subsections (b-1) and (b-2) to read as follows:
(a) A governmental entity may use the construction
manager-agent method for the construction, rehabilitation,
alteration, or repair of a facility in a construction project or a
program of multiple construction projects. In using that method
and in entering into a contract for the services of a construction
manager-agent, a governmental entity shall follow the procedures
prescribed by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that complies with
Chapter 1306, Occupations Code, and that provides consultation to
the governmental entity regarding construction, rehabilitation,
alteration, or repair of the facility. A governmental entity using
the construction manager-agent method may, under the contract
between the governmental entity and the construction
manager-agent, require the construction manager-agent to provide:
(1) any service defined as construction and program
management under Section 1306.001, Occupations Code;
(2) administrative personnel;
(3) [,] equipment necessary to perform duties under
this section;[,] and
(4) on-site management and other services specified in
the contract.
(b-1) A construction manager-agent represents the
governmental entity in a fiduciary capacity. A construction
manager-agent is not a contractor. A governmental entity may not
require a construction manager-agent to provide performance and
payment bonds.
(b-2) A construction manager-agent may not:
(1) perform any aspect of the construction,
rehabilitation, alteration, or repair of the facility;
(2) be a party to a construction subcontract for the
construction, rehabilitation, alteration, or repair of the
facility; or
(3) provide project bonding for the construction,
rehabilitation, alteration, or repair of the facility.
(c) The [Before or concurrently with selecting a
construction manager-agent, the] governmental entity shall select
or designate an engineer or architect who shall prepare the
construction documents for the project and who has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the governmental entity, the governmental
entity shall select the engineer or architect on the basis of
demonstrated competence and qualifications as provided by Section
2254.004, Government Code. The governmental entity's engineer or
architect may not serve, alone or in combination with another
person, as the construction manager-agent unless the engineer or
architect is hired to serve as the construction manager-agent under
a separate or concurrent procurement conducted in accordance with
this subchapter. This subsection does not prohibit the
governmental entity's engineer or architect from providing
customary construction phase services under the engineer's or
architect's original professional service agreement in accordance
with applicable licensing laws.
(d) A governmental entity shall select a construction
manager-agent on the basis of demonstrated competence and
qualifications in the same manner as provided for the selection of
engineers or architects under Section 2254.004, Government Code[,
except that notice must be published as provided by Section
271.112(d)].
(e) A governmental entity using the construction
manager-agent method shall procure, in accordance with applicable
law, a general contractor, trade contractors, or subcontractors
who:
(1) will serve as the prime contractor for their
specific portion of the work; and
(2) will provide performance and payment bonds to the
governmental entity in accordance with applicable law.
SECTION 7. Section 60.461, Water Code, is amended by
amending Subsections (a), (b), (c), and (e) and adding Subsections
(b-1) and (b-2) to read as follows:
(a) A district may award a contract to a construction
manager-agent for the construction, rehabilitation, alteration, or
repair of a facility in a construction project or a program of
multiple construction projects if [provided that] the construction
manager-agent and the district comply with Chapter 1306,
Occupations Code, and follow the procedures prescribed by this
section.
(b) A district may, under the contract between the district
and the construction manager-agent, require the construction
manager-agent to provide:
(1) any service defined as construction and program
management under Section 1306.001, Occupations Code;
(2) administrative personnel;
(3) [,] equipment necessary to perform duties under
this section;[,] and
(4) on-site management and other services specified in
the contract.
(b-1) A construction manager-agent represents the district
in a fiduciary capacity. A construction manager-agent is not a
contractor. A district may not require a construction
manager-agent to provide performance and payment bonds.
(b-2) A construction manager-agent may not:
(1) perform any aspect of the construction,
rehabilitation, alteration, or repair of the facility;
(2) be a party to a construction subcontract for the
construction, rehabilitation, alteration, or repair of the
facility; or
(3) provide project bonding for the construction,
rehabilitation, alteration, or repair of the facility.
(c) The [Before or concurrently with selecting a
construction manager-agent, the] district shall select or
designate an engineer or architect who shall prepare the
construction documents for the project and who has full
responsibility for complying with Chapter 1001 or 1051, Occupations
Code, as applicable. If the engineer or architect is not a
full-time employee of the district, the district shall select the
engineer or architect as provided by Section 2254.004, Government
Code. The district's engineer or architect may not serve, alone or
in combination with another person, as the construction
manager-agent unless the engineer or architect is hired to serve as
the construction manager-agent under a separate or concurrent
procurement conducted in accordance with this subchapter. This
subsection does not prohibit the district's engineer or architect
from providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable laws.
(e) A district contracting with a construction
manager-agent shall procure, in accordance with applicable law, and
in any manner authorized by this chapter, a general contractor,
trade contractors, or subcontractors who:
(1) will serve as the prime contractor for their
specific portion of the work; and
(2) will provide performance and payment bonds to the
district in accordance with applicable law.
SECTION 8. (a) A person is not required to obtain a
certificate of registration under Chapter 1306, Occupations Code,
as added by this Act, until January 1, 2010.
(b) Notwithstanding Subsection (a) of this section, a
person who is engaged in the practice of construction and program
management before January 1, 2010, and who applies for a
certificate of registration under Chapter 1306, Occupations Code,
as added by this Act, before that date may continue to engage in
that practice until the executive director of the Texas Department
of Licensing and Regulation acts on the person's application.
SECTION 9. 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, 2009.