82R10612 JTS-D
By: Pickett H.B. No. 2801
A BILL TO BE ENTITLED
AN ACT
relating to comprehensive development agreements of the Texas
Department of Transportation that include the financing, design,
and construction of a project.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 223.201(b), Transportation Code, is
amended to read as follows:
(b) In this subchapter, "comprehensive development
agreement" means an agreement that, at a minimum, provides for the
financing, design, and construction[, rehabilitation, expansion,
or improvement] of a project described in Subsection (a) and may
also provide for the [financing,] acquisition, maintenance, or
operation of a project described in Subsection (a). For purposes of
this subsection, construction of a project includes
rehabilitation, expansion, or improvement of a project.
SECTION 2. Section 223.203, Transportation Code, is amended
by amending Subsections (a), (c), (d), (e), (f), (g), (l), and (o)
and adding Subsections (f-2) and (l-1) to read as follows:
(a) If the department enters into a comprehensive
development agreement, the department shall use a competitive
procurement process that provides the best value for the
department. [The department may accept unsolicited proposals for a
proposed project or solicit proposals in accordance with this
section.]
(c) If the department decides to issue a request for
qualifications for a proposed project, the [The] department shall
publish a notice advertising a request for competing proposals and
qualifications in the Texas Register that includes the criteria to
be used to evaluate the proposals, the relative weight given to the
criteria, and a deadline by which proposals must be received [if:
[(1) the department decides to issue a request for
qualifications for a proposed project; or
[(2) the department authorizes the further evaluation
of an unsolicited proposal].
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, information
regarding the private entity's qualifications, experience,
technical competence, and capability to develop the project [the
information required by Subsections (b)(2) and (3)].
(e) The department may interview a private entity
[submitting an unsolicited proposal or] responding to a request
under Subsection (c). The department shall evaluate each proposal
based on the criteria described in the request for competing
proposals and qualifications and may qualify or shortlist private
entities to submit detailed proposals under Subsection (f). The
department must qualify or shortlist at least two private entities
to submit detailed proposals for a project under Subsection (f)
unless the department does not receive more than one proposal or one
response to a request under Subsection (c).
(f) After obtaining environmental clearance for a project,
the [The] department shall issue a request for detailed proposals
from all private entities qualified or shortlisted under Subsection
(e) [or prequalified under Subsection (e-1) if the department
proceeds with the further evaluation of a proposed project]. A
request under this subsection may require additional information
relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) a financial plan, including costing methodology
and cost proposals; or
(6) any other information the department considers
relevant or necessary.
(f-2) A private entity responding to a request for detailed
proposals issued under Subsection (f) must identify:
(1) companies that will fill key project roles,
including project management, lead design firm, quality control
management, and quality assurance management; and
(2) entities that will serve as key task leaders for
geotechnical, hydraulics and hydrology, structural, environmental,
utility, and right-of-way issues.
(g) In issuing a request for detailed proposals under
Subsection (f), the department may solicit input from entities
qualified under Subsection (e) or any other person. The department
may also solicit input regarding alternative technical concepts
after issuing a request under Subsection (f). A technical solution
presented with a proposal for a project must be complete and
demonstrate full compliance with, and have demonstrated resources
to be able to fulfill, all technical requirements for the project,
including specified quality assurance and quality control program
requirements, safety program requirements, and environmental
program requirements. A proposal that includes a technical
solution that does not meet those requirements is ineligible for
further consideration.
(l) A private entity selected for a comprehensive
development agreement may not make changes to the companies or
entities identified under Subsection (f-2) unless the original
company or entity:
(1) is no longer in business, is unable to fulfill its
legal, financial, or business obligations, or can no longer meet
the terms of the teaming agreement with the private entity;
(2) voluntarily removes itself from the team;
(3) fails to provide a sufficient number of qualified
personnel to fulfill the duties identified during the proposal
stage; or
(4) fails to negotiate in good faith in a timely manner
in accordance with provisions established in the teaming agreement
proposed for the project.
(l-1) If the private entity makes team changes in violation
of Subsection (l), any cost savings resulting from the change
accrue to the state and not to the private entity. [The department
may require that an unsolicited proposal be accompanied by a
nonrefundable fee sufficient to cover all or part of its cost to
review the proposal.]
(o) All teaming agreements and subconsultant agreements
must be executed and provided to the department before the
execution of the comprehensive development agreement. [Subchapter
A of this chapter and Chapter 2254, Government Code, do not apply to
a comprehensive development agreement entered into under this
subchapter.]
SECTION 3. Section 223.204(a), Transportation Code, is
amended to read as follows:
(a) To encourage private entities to submit proposals under
this subchapter, the following information is confidential, is not
subject to disclosure, inspection, or copying under Chapter 552,
Government Code, and is not subject to disclosure, discovery,
subpoena, or other means of legal compulsion for its release until a
final contract for a proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information described by Section 223.203(d) [provided under
Sections 223.203(b)(1) and (2)], unless the private entity consents
to the disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement, unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by the department
or its agent during consideration of a proposal for a comprehensive
development agreement.
SECTION 4. Sections 223.201(f), (h), and (i) and
223.203(b), (e-1), and (e-2), Transportation Code, are repealed.
SECTION 5. The changes in law made by this Act to Section
223.203, Transportation Code, apply only to a comprehensive
development agreement entered into on or after the effective date
of this Act.
SECTION 6. This Act takes effect September 1, 2011.