By: Callegari (Senate Sponsor - Jackson) H.B. No. 628
(In the Senate - Received from the House May 13, 2011;
May 16, 2011, read first time and referred to Committee on State
Affairs; May 21, 2011, reported favorably by the following vote:
Yeas 8, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to contracts by governmental entities and related
professional services and to public works performance and payment
bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PUBLIC WORKS PERFORMANCE AND PAYMENT BONDS
SECTION 1.01. Section 2253.021, Government Code, is amended
by adding Subsection (h) to read as follows:
(h) A reverse auction procedure may not be used to obtain
services related to a public work contract for which a bond is
required under this section. In this subsection, "reverse auction
procedure" has the meaning assigned by Section 2155.062 or a
procedure similar to that described by Section 2155.062.
ARTICLE 2. CONTRACTS BY GOVERNMENTAL ENTITIES
SECTION 2.01. Section 11.168, Education Code, is amended to
read as follows:
Sec. 11.168. USE OF DISTRICT RESOURCES PROHIBITED FOR
CERTAIN PURPOSES; EXCEPTION. (a) Except as provided by Subsection
(b) or Section 45.109(a-1) or [and] (a-2), the board of trustees of
a school district may not enter into an agreement authorizing the
use of school district employees, property, or resources for the
provision of materials or labor for the design, construction, or
renovation of improvements to real property not owned or leased by
the district.
(b) This section does not prohibit the board of trustees of
a school district from entering into an agreement for the design,
construction, or renovation of improvements to real property not
owned or leased by the district if the improvements benefit real
property owned or leased by the district. Benefits to real property
owned or leased by the district include the design, construction,
or renovation of highways, roads, streets, sidewalks, crosswalks,
utilities, and drainage improvements that serve or benefit the real
property owned or leased by the district.
SECTION 2.02. Sections 44.031(a), (b), and (f), Education
Code, are amended to read as follows:
(a) Except as provided by this subchapter, all school
district contracts for the purchase of goods and services, except
contracts for the purchase of produce or vehicle fuel, valued at
$50,000 or more in the aggregate for each 12-month period shall be
made by the method, of the following methods, that provides the best
value for the district:
(1) competitive bidding for services other than
construction services;
(2) competitive sealed proposals for services other
than construction services;
(3) a request for proposals, for services other than
construction services;
(4) an interlocal contract for services other than
construction services;
(5) a method provided by Chapter 2267, Government
Code, for construction services [a design/build contract;
[(6) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager;
[(7) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility];
(6) [(8)] the reverse auction procedure as defined by
Section 2155.062(d), Government Code; or
(7) [(9)] the formation of a political subdivision
corporation under Section 304.001, Local Government Code.
(b) Except as provided by this subchapter, in determining to
whom to award a contract, the district shall consider:
(1) the purchase price;
(2) the reputation of the vendor and of the vendor's
goods or services;
(3) the quality of the vendor's goods or services;
(4) the extent to which the goods or services meet the
district's needs;
(5) the vendor's past relationship with the district;
(6) the impact on the ability of the district to comply
with laws and rules relating to historically underutilized
businesses;
(7) the total long-term cost to the district to
acquire the vendor's goods or services; [and]
(8) for a contract for goods and services, other than
goods and services related to telecommunications and information
services, building construction and maintenance, or instructional
materials, whether the vendor or the vendor's ultimate parent
company or majority owner:
(A) has its principal place of business in this
state; or
(B) employs at least 500 persons in this state;
and
(9) any other relevant factor specifically listed in
the request for bids or proposals.
(f) This section does not apply to a contract for
professional services rendered, including services of an
architect, attorney, certified public accountant, engineer, or
fiscal agent. A school district may, at its option, contract for
professional services rendered by a financial consultant or a
technology consultant in the manner provided by Section 2254.003,
Government Code, in lieu of the methods provided by this section.
SECTION 2.03. Subchapter B, Chapter 44, Education Code, is
amended by adding Sections 44.0351 and 44.0352 to read as follows:
Sec. 44.0351. COMPETITIVE BIDDING. (a) Except to the
extent prohibited by other law and to the extent consistent with
this subchapter, a school district may use competitive bidding to
select a vendor as authorized by Section 44.031(a)(1).
(b) Except as provided by this subsection, Subchapter B,
Chapter 271, Local Government Code, does not apply to a competitive
bidding process under this subchapter. Sections 271.026,
271.027(a), and 271.0275, Local Government Code, apply to a
competitive bidding process under this subchapter.
(c) A school district shall award a competitively bid
contract at the bid amount to the bidder offering the best value for
the district. In determining the best value for the district, the
district is not restricted to considering price alone but may
consider any other factors stated in the selection criteria. The
selection criteria may include the factors listed in Section
44.031(b).
Sec. 44.0352. COMPETITIVE SEALED PROPOSALS. (a) In
selecting a vendor through competitive sealed proposals as
authorized by Section 44.031(a)(2), a school district shall follow
the procedures prescribed by this section.
(b) The district shall prepare a request for competitive
sealed proposals that includes information that vendors may require
to respond to the request. The district shall state in the request
for proposals the selection criteria that will be used in selecting
the successful offeror.
(c) The district shall receive, publicly open, and read
aloud the names of the offerors and, if any are required to be
stated, all prices stated in each proposal. Not later than the 45th
day after the date on which the proposals are opened, the district
shall evaluate and rank each proposal submitted in relation to the
published selection criteria.
(d) The district shall select the offeror that offers the
best value for the district based on the published selection
criteria and on its ranking evaluation. The district shall first
attempt to negotiate a contract with the selected offeror. The
district may discuss with the selected offeror options for a scope
or time modification and any price change associated with the
modification. If the district is unable to negotiate a
satisfactory contract with the selected offeror, the district
shall, formally and in writing, end negotiations with that offeror
and proceed to the next offeror in the order of the selection
ranking until a contract is reached or all proposals are rejected.
(e) In determining the best value for the district, the
district is not restricted to considering price alone but may
consider any other factors stated in the selection criteria.
SECTION 2.04. Subchapter B, Chapter 44, Education Code, is
amended by adding Section 44.0411 to read as follows:
Sec. 44.0411. CHANGE ORDERS. (a) If a change in plans or
specifications is necessary after the performance of a contract is
begun or if it is necessary to decrease or increase the quantity of
work to be performed or of materials, equipment, or supplies to be
furnished, the district may approve change orders making the
changes.
(b) The total contract price may not be increased because of
the changes unless additional money for increased costs is approved
for that purpose from available money or is provided for by the
authorization of the issuance of time warrants.
(c) The district may grant general authority to an
administrative official to approve the change orders.
(d) A contract with an original contract price of $1 million
or more may not be increased under this section by more than 25
percent. If a change order for a contract with an original contract
price of less than $1 million increases the contract amount to $1
million or more, the total of the subsequent change orders may not
increase the revised contract amount by more than 25 percent of the
original contract price.
SECTION 2.05. Subchapter A, Chapter 46, Education Code, is
amended by adding Section 46.0111 to read as follows:
Sec. 46.0111. ACTIONS BROUGHT FOR DEFECTIVE DESIGN,
CONSTRUCTION, RENOVATION, OR IMPROVEMENT OF INSTRUCTIONAL
FACILITY. (a) In this section:
(1) "Net proceeds" means the difference between the
amount recovered by or on behalf of a school district in an action,
by settlement or otherwise, and the legal fees and litigation costs
incurred by the district in prosecuting the action.
(2) "State's share" means an amount equal to the
district's net proceeds from the recovery multiplied by a
percentage determined by dividing the amount of state assistance
under this subchapter used to pay the principal of and interest on
bonds issued in connection with the instructional facility that is
the subject of the action by the total amount of principal and
interest paid on the bonds as of the date of the judgment or
settlement.
(b) A school district that brings an action for recovery of
damages for the defective design, construction, renovation, or
improvement of an instructional facility financed by bonds
for which the district receives state assistance under this
subchapter shall provide the commissioner with written notice of
the action.
(c) The commissioner may join in the action on behalf of the
state to protect the state's share in the action.
(d) A school district shall use the net proceeds from an
action brought by the district for the defective design,
construction, renovation, or improvement of an instructional
facility financed by bonds for which the district receives state
assistance under this subchapter to repair the defective design,
construction, renovation, or improvement of the instructional
facility on which the action is brought or to replace the facility.
Section 46.008 applies to the repair.
(e) The state's share is state property. The school
district shall send to the comptroller any portion of the state's
share not used by the school district to repair the defective
design, construction, renovation, or improvement of the
instructional facility on which the action is brought or to replace
the facility. Section 42.258 applies to the state's share under
this subsection.
SECTION 2.06. Section 2155.502(c), Government Code, is
amended to read as follows:
(c) The commission may not list a multiple award contract on
a schedule developed under Subsection (a) if the goods or services
provided by that contract:
(1) are available from only one vendor;
(2) are telecommunications services, facilities, or
equipment; [or]
(3) are commodity items as defined by Section
2157.068(a); or
(4) are engineering services as described by Section
1001.003, Occupations Code, or architectural services as described
by Section 1051.001, Occupations Code.
SECTION 2.07. Section 2166.2525, Government Code, is
amended to read as follows:
Sec. 2166.2525. DETERMINATION OF CONTRACTING METHOD. The
[commission shall adopt rules that determine the circumstances for
use of each] method of contracting allowed under this subchapter
for design and construction services is any method provided by
Chapter 2267. [In developing the rules, the commission shall
solicit advice and comment from design and construction
professionals regarding the criteria the commission will use in
determining which contracting method is best suited for a project.]
SECTION 2.08. Subtitle F, Title 10, Government Code, is
amended by adding Chapter 2267 to read as follows:
CHAPTER 2267. CONTRACTING AND DELIVERY PROCEDURES FOR
CONSTRUCTION PROJECTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2267.001. DEFINITIONS. In this chapter:
(1) "Architect" means an individual registered as an
architect under Chapter 1051, Occupations Code.
(2) "Engineer" means an individual licensed as an
engineer under Chapter 1001, Occupations Code.
(3) "Facility" means, unless otherwise specifically
provided, an improvement to real property.
(4) "General conditions" in the context of a contract
for the construction, rehabilitation, alteration, or repair of a
facility means on-site management, administrative personnel,
insurance, bonds, equipment, utilities, and incidental work,
including minor field labor and materials.
(5) "General contractor" means a sole proprietorship,
partnership, corporation, or other legal entity that assumes the
risk for constructing, rehabilitating, altering, or repairing all
or part of a facility at the contracted price.
(6) "Public work contract" means a contract for
constructing, altering, or repairing a public building or carrying
out or completing any public work.
Sec. 2267.002. APPLICABILITY OF CHAPTER TO GOVERNMENTAL
ENTITIES ENGAGED IN PUBLIC WORKS. This chapter applies to a public
work contract made by a governmental entity authorized by state law
to make a public work contract, including:
(1) a state agency as defined by Section 2151.002,
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, and a
conservation and reclamation district, including a river authority
or 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; and
(4) a board of trustees governed by Chapter 54,
Transportation Code.
Sec. 2267.003. CONFLICT OF LAWS; REQUIREMENT TO FOLLOW
PROCEDURES OF THIS CHAPTER. (a) Except as provided by this
section, this chapter prevails over any other law relating to a
public work contract.
(b) This chapter does not prevail over a conflicting
provision in a law relating to contracting with a historically
underutilized business.
(c) This chapter does not prevail over a conflicting
provision in an ordinance or resolution passed by the governing
body of a municipally owned electric utility in a procedure
described by Section 252.022(c), Local Government Code, that:
(1) requires the use of competitive bidding or
competitive sealed proposals; or
(2) prescribes a design-build procurement procedure
that conflicts with this chapter.
(d) This chapter does not prevail over any law, rule, or
regulation relating to competitive bidding or competitive sealed
proposals for construction services, or to procurement of
construction services pursuant to Section 49.273, Water Code, that
applies to a river authority or to a conservation and reclamation
district created under Section 59, Article XVI, Texas Constitution,
unless the governing body of the river authority or conservation
and reclamation district elects to permit this chapter to supersede
the law, rule, or regulation.
(e) This chapter does not prevail over a conflicting
provision in a regulation that prescribes procurement procedures
for construction services that is adopted by the governing board of
a river authority or of a conservation and reclamation district
created pursuant to Section 59, Article XVI, Texas Constitution,
that owns electric generation capacity in excess of 2,500
megawatts, except with respect to Subchapter H.
Sec. 2267.004. EXEMPTION: TEXAS DEPARTMENT OF
TRANSPORTATION; HIGHWAY PROJECTS. This chapter does not apply to:
(1) a contract entered into by the Texas Department of
Transportation; or
(2) a project that receives money from a state or
federal highway fund.
Sec. 2267.005. APPLICABILITY: INSTITUTIONS OF HIGHER
EDUCATION. (a) In this section, "institution of higher
education," "public junior college," and "university system" have
the meanings assigned by Section 61.003, Education Code.
(b) This chapter applies to a public junior college but does
not apply to:
(1) any other institution of higher education; or
(2) a university system.
Sec. 2267.006. EXEMPTION: REGIONAL TOLLWAY AUTHORITIES.
This chapter does not apply to a regional tollway authority under
Chapter 366, Transportation Code.
Sec. 2267.007. EXEMPTION: CERTAIN LOCAL GOVERNMENT
CORPORATION IMPROVEMENT PROJECTS. This chapter does not apply to
an improvement project undertaken by or through a local government
corporation exempt from competitive bidding requirements or
restrictions under Section 431.110, Transportation Code.
Sec. 2267.008. EXEMPTION: REGIONAL MOBILITY AUTHORITIES.
This chapter does not apply to a regional mobility authority under
Chapter 370, Transportation Code.
Sec. 2267.009. EXEMPTION: COUNTY TOLL AUTHORITIES. This
chapter does not apply to a project of a county under Chapter 284,
Transportation Code, unless the county adopts an order electing to
be governed by this chapter for a project to be developed by the
county under Chapter 284.
Sec. 2267.010. EXEMPTION: COORDINATED COUNTY
TRANSPORTATION AUTHORITY. This chapter does not apply to a
coordinated county transportation authority under Chapter 460,
Transportation Code.
[Sections 2267.011-2267.050 reserved for expansion]
SUBCHAPTER B. GENERAL POWERS AND DUTIES
Sec. 2267.051. RULES. A governmental entity may adopt
rules as necessary to implement this chapter.
Sec. 2267.052. NOTICE REQUIREMENTS. (a) A governmental
entity shall advertise or publish notice of requests for bids,
proposals, or qualifications in a manner prescribed by law.
(b) For a contract entered into by a governmental entity
under a method provided by this chapter, the governmental entity
shall publish notice of the time and place the bid or proposal or
request for qualifications will be received and opened in a manner
prescribed by law.
(c) For a contract entered into by a municipality, river
authority, conservation and reclamation district created pursuant
to Section 59, Article XVI, Texas Constitution, and located in a
county with a population of more than 250,000, or defense base
development authority under any of the methods provided by this
chapter, the municipality, river authority, conservation and
reclamation district created pursuant to Section 59, Article XVI,
Texas Constitution, and located in a county with a population of
more than 250,000, or defense base development authority shall
publish notice of the time and place the bids or proposals, or the
responses to a request for qualifications, will be received and
opened. The notice must be published in a newspaper of general
circulation in the county in which the defense base development
authority's or municipality's central administrative office is
located or the county in which the greatest amount of the river
authority's or such conservation and reclamation district's
territory is located once each week for at least two weeks before
the deadline for receiving bids, proposals, or responses. If there
is not a newspaper of general circulation in that county, the notice
shall be published in a newspaper of general circulation in the
county nearest the county seat of the county in which the defense
base development authority's or municipality's central
administrative office is located or the county in which the
greatest amount of the river authority's or such conservation and
reclamation district's territory is located. In a two-step
procurement process, the time and place the second step bids,
proposals, or responses will be received are not required to be
published separately.
(d) For a contract entered into by a county under any of the
methods provided by this chapter, the county shall publish notice
of the time and place the bids or proposals, or the responses to a
request for qualifications, will be received and opened. The
notice must be published in a newspaper of general circulation in
the county once each week for at least two weeks before the deadline
for receiving bids, proposals, or responses. If there is not a
newspaper of general circulation in the county, the notice shall
be:
(1) posted at the courthouse door of the county; and
(2) published in a newspaper of general circulation in
the nearest county.
Sec. 2267.053. DELEGATION OF AUTHORITY. (a) The governing
body of a governmental entity may delegate its authority under this
chapter regarding an action authorized or required by this chapter
to a designated representative, committee, or other person.
(b) The governmental entity shall provide notice of the
delegation, the limits of the delegation, and the name or title of
each person designated under Subsection (a) by rule or in the
request for bids, proposals, or qualifications or in an addendum to
the request.
Sec. 2267.054. RIGHT TO WORK. (a) This section applies to
a governmental entity when the governmental entity is engaged in:
(1) procuring goods or services under this chapter;
(2) awarding a contract under this chapter; or
(3) overseeing procurement or construction for a
public work or public improvement under this chapter.
(b) In engaging in an activity to which this section
applies, a governmental entity:
(1) may not consider whether a person is a member of or
has another relationship with any organization; and
(2) shall ensure that its bid specifications and any
subsequent contract or other agreement do not deny or diminish the
right of a person to work because of the person's membership or
other relationship status with respect to an organization.
Sec. 2267.055. CRITERIA TO CONSIDER. (a) In determining
the award of a contract under this chapter, the governmental entity
may consider:
(1) the price;
(2) the offeror's experience and reputation;
(3) the quality of the offeror's goods or services;
(4) the impact on the ability of the governmental
entity to comply with rules relating to historically underutilized
businesses;
(5) the offeror's safety record;
(6) the offeror's proposed personnel;
(7) whether the offeror's financial capability is
appropriate to the size and scope of the project; and
(8) any other relevant factor specifically listed in
the request for bids, proposals, or qualifications.
(b) In determining the award of a contract under this
chapter, the governmental entity shall:
(1) consider and apply any existing laws, including
any criteria, related to historically underutilized businesses;
and
(2) consider and apply any existing laws, rules, or
applicable municipal charters, including laws applicable to local
governments, related to the use of women, minority, small, or
disadvantaged businesses.
Sec. 2267.056. USING METHOD OTHER THAN COMPETITIVE BIDDING
FOR CONSTRUCTION SERVICES; EVALUATION OF PROPOSALS; CRITERIA.
(a) The governing body of a governmental entity that considers a
construction contract using a method authorized by this chapter
other than competitive bidding must, before advertising, determine
which method provides the best value for the governmental entity.
(b) The governmental entity shall base its selection among
offerors on applicable criteria listed for the particular method
used. The governmental entity shall publish in the request for
proposals or qualifications the criteria that will be used to
evaluate the offerors, and the applicable weighted value for each
criterion.
(c) The governmental entity shall document the basis of its
selection and shall make the evaluations public not later than the
seventh day after the date the contract is awarded.
Sec. 2267.057. ARCHITECT OR ENGINEER SERVICES. (a) An
architect or engineer required to be selected or designated under
this chapter has full responsibility for complying with Chapter
1051 or 1001, Occupations Code, as applicable.
(b) If the selected or designated architect or engineer is
not a full-time employee of the governmental entity, the
governmental entity shall select the architect or engineer on the
basis of demonstrated competence and qualifications as provided by
Section 2254.004.
Sec. 2267.058. USE OF OTHER PROFESSIONAL SERVICES.
(a) Independently of the contractor, construction
manager-at-risk, or design-build firm, the governmental entity
shall provide or contract for the construction materials
engineering, testing, and inspection services and the verification
testing services necessary for acceptance of the facility by the
governmental entity.
(b) The governmental entity shall select the services for
which it contracts under this section in accordance with Section
2254.004.
Sec. 2267.059. SEALED BIDS, PROPOSALS, OR QUALIFICATIONS
REQUIRED. A person who submits a bid, proposal, or qualification to
a governmental entity shall seal it before delivery.
[Sections 2267.060-2267.100 reserved for expansion]
SUBCHAPTER C. COMPETITIVE BIDDING METHOD
Sec. 2267.101. CONTRACTS FOR FACILITIES: COMPETITIVE
BIDDING. (a) In this chapter, "competitive bidding" is a
procurement method by which a governmental entity contracts with a
contractor for the construction, alteration, rehabilitation, or
repair of a facility by awarding the contract to the lowest
responsible bidder.
(b) Except as otherwise provided by this chapter or other
law, a governmental entity may contract for the construction,
alteration, rehabilitation, or repair of a facility only after the
entity advertises for bids for the contract in a manner prescribed
by law, receives competitive bids, and awards the contract to the
lowest responsible bidder.
Sec. 2267.102. USE OF ARCHITECT OR ENGINEER. The
governmental entity shall select or designate an architect or
engineer in accordance with Chapter 1051 or 1001, Occupations Code,
as applicable, to prepare the construction documents required for a
project to be awarded by competitive bidding.
Sec. 2267.103. PREPARATION OF REQUEST. The governmental
entity shall prepare a request for competitive bids that includes
construction documents, estimated budget, project scope, estimated
project completion date, and other information that a contractor
may require to submit a bid.
Sec. 2267.104. EVALUATION OF OFFERORS. The governmental
entity shall receive, publicly open, and read aloud the names of the
offerors and their bids.
Sec. 2267.105. SELECTION OF OFFEROR. Not later than the
10th business day after the date the contract is awarded, the
governmental entity shall document the basis of its selection and
shall make the evaluations public.
Sec. 2267.106. APPLICABILITY OF OTHER COMPETITIVE BIDDING
LAW TO CERTAIN LOCAL GOVERNMENTAL ENTITIES. Except as otherwise
specifically provided by this section, Subchapter B, Chapter 271,
Local Government Code, does not apply to a competitive bidding
process conducted under this chapter. Sections 271.026,
271.027(a), and 271.0275, Local Government Code, apply to a
competitive bidding process conducted under this chapter by a
governmental entity as defined by Section 271.021, Local Government
Code.
[Sections 2267.107-2267.150 reserved for expansion]
SUBCHAPTER D. COMPETITIVE SEALED PROPOSAL METHOD
Sec. 2267.151. CONTRACTS FOR FACILITIES: COMPETITIVE
SEALED PROPOSALS. (a) In this chapter, "competitive sealed
proposals" is a procurement method by which a governmental entity
requests proposals, ranks the offerors, negotiates as prescribed,
and then contracts with a general contractor for the construction,
rehabilitation, alteration, or repair of a facility.
(b) In selecting a contractor through competitive sealed
proposals, a governmental entity shall follow the procedures
provided by this subchapter.
Sec. 2267.152. USE OF ARCHITECT OR ENGINEER. The
governmental entity shall select or designate an architect or
engineer to prepare construction documents for the project.
Sec. 2267.153. PREPARATION OF REQUEST. The governmental
entity shall prepare a request for competitive sealed proposals
that includes construction documents, selection criteria and the
weighted value for each criterion, estimated budget, project scope,
estimated project completion date, and other information that a
contractor may require to respond to the request.
Sec. 2267.154. EVALUATION OF OFFERORS. (a) The
governmental entity shall receive, publicly open, and read aloud
the names of the offerors and any monetary proposals made by the
offerors.
(b) Not later than the 45th day after the date on which the
proposals are opened, the governmental entity shall evaluate and
rank each proposal submitted in relation to the published selection
criteria.
Sec. 2267.155. SELECTION OF OFFEROR. (a) The governmental
entity shall select the offeror that submits the proposal that
offers the best value for the governmental entity based on:
(1) the selection criteria in the request for proposal
and the weighted value for those criteria in the request for
proposal; and
(2) its ranking evaluation.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected offeror. The governmental
entity and its architect or engineer may discuss with the selected
offeror options for a scope or time modification and any price
change associated with the modification.
(c) If the governmental entity is unable to negotiate a
satisfactory contract with the selected offeror, the governmental
entity shall, formally and in writing, end negotiations with that
offeror and proceed to the next offeror in the order of the
selection ranking until a contract is reached or all proposals are
rejected.
[Sections 2267.156-2267.200 reserved for expansion]
SUBCHAPTER E. CONSTRUCTION MANAGER-AGENT METHOD
Sec. 2267.201. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT. (a) In this chapter, the "construction
manager-agent method" is a delivery method by which a governmental
entity contracts with a construction manager-agent to provide
consultation or administrative services during the design and
construction phase and to manage multiple contracts with various
construction prime contractors.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that serves as the
agent for the governmental entity by providing construction
administration and management services described by Subsection (a)
for the construction, rehabilitation, alteration, or repair of a
facility.
(c) A governmental entity may retain a construction
manager-agent for assistance in the construction, rehabilitation,
alteration, or repair of a facility only as provided by this
subchapter.
Sec. 2267.202. CONTRACT PROVISIONS OF CONSTRUCTION
MANAGER-AGENT. The contract between the governmental entity and
the construction manager-agent may require the construction
manager-agent to provide:
(1) administrative personnel;
(2) equipment necessary to perform duties under this
subchapter;
(3) on-site management; and
(4) other services specified in the contract.
Sec. 2267.203. LIMITS ON CONSTRUCTION MANAGER-AGENT. A
construction manager-agent may not:
(1) self-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 or be required to provide performance and
payment bonds for the construction, rehabilitation, alteration, or
repair of the facility.
Sec. 2267.204. FIDUCIARY CAPACITY OF CONSTRUCTION
MANAGER-AGENT. A construction manager-agent represents the
governmental entity in a fiduciary capacity.
Sec. 2267.205. USE OF ARCHITECT OR ENGINEER. (a) On or
before the selection of a construction manager-agent, the
governmental entity shall select or designate an architect or
engineer in accordance with Chapter 1051 or 1001, Occupations Code,
as applicable, to prepare the construction documents for the
project.
(b) The governmental entity's architect or engineer may not
serve, alone or in combination with another person, as the
construction manager-agent unless the architect or engineer is
hired to serve as the construction manager-agent under a separate
or concurrent selection process conducted in accordance with this
subchapter. This subsection does not prohibit the governmental
entity's architect or engineer from providing customary
construction phase services under the architect's or engineer's
original professional service agreement in accordance with
applicable licensing laws.
(c) To the extent that the construction manager-agent's
services are defined as part of the practice of architecture or
engineering under Chapter 1051 or 1001, Occupations Code, those
services must be conducted by a person licensed under the
applicable chapter.
Sec. 2267.206. SELECTION OF CONTRACTORS. A governmental
entity using the construction manager-agent method shall procure,
in accordance with applicable law and in any manner authorized by
this chapter, a general contractor or trade contractors who will
serve as the prime contractor for their specific portion of the work
and provide performance and payment bonds to the governmental
entity in accordance with applicable laws.
Sec. 2267.207. SELECTION OF CONSTRUCTION MANAGER-AGENT. A
governmental entity shall select a construction manager-agent on
the basis of demonstrated competence and qualifications in the same
manner that an architect or engineer is selected under Section
2254.004.
Sec. 2267.208. INSURANCE. A construction manager-agent
selected under this subchapter shall maintain professional
liability or errors and omissions insurance in the amount of at
least $1 million for each occurrence.
[Sections 2267.209-2267.250 reserved for expansion]
SUBCHAPTER F. CONSTRUCTION MANAGER-AT-RISK METHOD
Sec. 2267.251. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) In this chapter, the "construction
manager-at-risk method" is a delivery method by which a
governmental entity contracts with an architect or engineer for
design and construction phase services and contracts separately
with a construction manager-at-risk to serve as the general
contractor and to provide consultation during the design and
construction, rehabilitation, alteration, or repair of a facility.
(b) A construction manager-at-risk is a sole
proprietorship, partnership, corporation, or other legal entity
that assumes the risk for construction, rehabilitation,
alteration, or repair of a facility at the contracted price as a
general contractor and provides consultation to the governmental
entity regarding construction during and after the design of the
facility. The contracted price may be a guaranteed maximum price.
(c) A governmental entity may use the construction
manager-at-risk method in selecting a general contractor for the
construction, rehabilitation, alteration, or repair of a facility
only as provided by this subchapter.
Sec. 2267.252. USE OF ARCHITECT OR ENGINEER. (a) On or
before the selection of a construction manager-at-risk, the
governmental entity shall select or designate an architect or
engineer to prepare the construction documents for the project.
(b) The governmental entity's architect or engineer for a
project may not serve, alone or in combination with another person,
as the construction manager-at-risk unless the architect or
engineer is hired to serve as the construction manager-at-risk
under a separate or concurrent selection process conducted in
accordance with this subchapter. This subsection does not prohibit
the governmental entity's architect or engineer from providing
customary construction phase services under the architect's or
engineer's original professional service agreement in accordance
with applicable licensing laws.
Sec. 2267.253. SELECTION PROCESS. (a) The governmental
entity shall select the construction manager-at-risk in a one-step
or two-step process.
(b) The governmental entity shall prepare a single request
for proposals, in the case of a one-step process, and an initial
request for qualifications, in the case of a two-step process, that
includes:
(1) a statement as to whether the selection process is
a one-step or two-step process;
(2) general information on the project site, project
scope, schedule, selection criteria and the weighted value for each
criterion, and estimated budget and the time and place for receipt
of the proposals or qualifications; and
(3) other information that may assist the governmental
entity in its selection of a construction manager-at-risk.
(c) The governmental entity shall state the selection
criteria in the request for proposals or qualifications.
(d) If a one-step process is used, the governmental entity
may request, as part of the offeror's proposal, proposed fees and
prices for fulfilling the general conditions.
(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 may request that five or fewer offerors,
selected solely on the basis of qualifications, provide additional
information, including the construction manager-at-risk's proposed
fee and prices for fulfilling the general conditions.
(f) At each step, the governmental entity shall receive,
publicly open, and read aloud the names of the offerors. At the
appropriate step, the governmental entity shall also read aloud the
fees and prices, if any, stated in each proposal as the proposal is
opened.
(g) Not later than the 45th day after the date on which the
final proposals are opened, the governmental entity shall evaluate
and rank each proposal submitted in relation to the criteria set
forth in the request for proposals.
Sec. 2267.254. SELECTION OF OFFEROR. (a) The governmental
entity shall select the offeror that submits the proposal that
offers the best value for the governmental entity based on the
published selection criteria and on its ranking evaluation.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected offeror.
(c) If the governmental entity is unable to negotiate a
satisfactory contract with the selected offeror, the governmental
entity shall, formally and in writing, end negotiations with that
offeror and proceed to negotiate with the next offeror in the order
of the selection ranking until a contract is reached or
negotiations with all ranked offerors end.
(d) Not later than the seventh day after the date the
contract is awarded, the governmental entity shall make the
rankings determined under Section 2267.253(g) public.
Sec. 2267.255. PERFORMANCE OF WORK. (a) A construction
manager-at-risk shall publicly advertise for bids or proposals and
receive bids or proposals from trade contractors or subcontractors
for the performance of all major elements of the work other than the
minor work that may be included in the general conditions.
(b) A construction manager-at-risk may seek to perform
portions of the work itself if:
(1) the construction manager-at-risk submits its bid
or proposal for those portions of the work in the same manner as all
other trade contractors or subcontractors; and
(2) the governmental entity determines that the
construction manager-at-risk's bid or proposal provides the best
value for the governmental entity.
Sec. 2267.256. REVIEW OF BIDS OR PROPOSALS. (a) The
construction manager-at-risk shall review all trade contractor or
subcontractor bids or proposals in a manner that does not disclose
the contents of the bid or proposal during the selection process to
a person not employed by the construction manager-at-risk,
architect, engineer, or governmental entity. All bids or proposals
shall be made available to the governmental entity on request and to
the public after the later of the award of the contract or the
seventh day after the date of final selection of bids or proposals.
(b) If the construction manager-at-risk reviews, evaluates,
and recommends to the governmental entity a bid or proposal from a
trade contractor or subcontractor but the governmental entity
requires another bid or proposal to be accepted, the governmental
entity shall compensate the construction manager-at-risk by a
change in price, time, or guaranteed maximum cost for any
additional cost and risk that the construction manager-at-risk
incurs because of the governmental entity's requirement that
another bid or proposal be accepted.
Sec. 2267.257. DEFAULT; PERFORMANCE OF WORK. If a selected
trade contractor or subcontractor defaults in the performance of
its work or fails to execute a subcontract after being selected in
accordance with this subchapter, the construction manager-at-risk
may itself fulfill, without advertising, the contract requirements
or select a replacement trade contractor or subcontractor to
fulfill the contract requirements.
Sec. 2267.258. PERFORMANCE OR PAYMENT BOND. (a) If a
fixed contract amount or guaranteed maximum price has not been
determined at the time the contract is awarded, the penal sums of
the performance and payment bonds delivered to the governmental
entity must each be in an amount equal to the construction budget,
as specified in the request for proposals or qualifications.
(b) The construction manager-at-risk shall deliver the
bonds not later than the 10th day after the date the construction
manager-at-risk executes the contract unless the construction
manager-at-risk furnishes a bid bond or other financial security
acceptable to the governmental entity to ensure that the
construction manager will furnish the required performance and
payment bonds when a guaranteed maximum price is established.
[Sections 2267.259-2267.300 reserved for expansion]
SUBCHAPTER G. BUILDING USING DESIGN-BUILD METHOD
Sec. 2267.301. CONTRACTS FOR FACILITIES: DESIGN-BUILD. In
this chapter, "design-build" is a project delivery method by which
a governmental entity contracts with a single entity to provide
both design and construction services for the construction,
rehabilitation, alteration, or repair of a facility.
Sec. 2267.302. APPLICABILITY OF SUBCHAPTER TO BUILDINGS;
EXCEPTIONS. This subchapter applies only to a facility that is a
building or an associated structure, including an electric utility
structure. This subchapter does not apply to:
(1) a highway, road, street, bridge, underground
utility, water supply project, water plant, wastewater plant, water
and wastewater distribution or conveyance facility, wharf, dock,
airport runway or taxiway, drainage project, or related type of
project associated with civil engineering construction; or
(2) a building or structure that is incidental to a
project that is primarily a civil engineering construction project.
Sec. 2267.303. CONTRACTS FOR BUILDINGS: DESIGN-BUILD. A
governmental entity may use the design-build method for the
construction, rehabilitation, alteration, or repair of a building
or associated structure only as provided by this subchapter. In
using that method, the governmental entity shall enter into a
single contract with a design-build firm for the design and
construction of the building or associated structure.
Sec. 2267.304. DESIGN-BUILD FIRMS. A design-build firm
under this subchapter must be a sole proprietorship, partnership,
corporation, or other legal entity or team that includes an
architect or engineer and a construction contractor.
Sec. 2267.305. USE OF ARCHITECT OR ENGINEER AS INDEPENDENT
REPRESENTATIVE. The governmental entity shall select or designate
an architect or engineer independent of the design-build firm to
act as the governmental entity's representative for the duration of
the project.
Sec. 2267.306. PREPARATION OF REQUEST. (a) The
governmental entity shall prepare a request for qualifications that
includes general information on the project site, project scope,
budget, special systems, selection criteria and the weighted value
for each criterion, and other information that may assist potential
design-build firms in submitting proposals for the project.
(b) The governmental entity shall also prepare the design
criteria package that includes more detailed information on the
project. If the preparation of the design criteria package
requires architectural or engineering services that constitute the
practice of architecture within the meaning of Chapter 1051,
Occupations Code, or the practice of engineering within the meaning
of Chapter 1001, Occupations Code, those services shall be provided
in accordance with the applicable law.
(c) The design criteria package must include a set of
documents that provides sufficient information, including criteria
for selection, to permit a design-build firm to prepare a response
to the governmental entity's request for qualifications and to
provide any additional information requested. The design criteria
package must specify criteria the governmental entity considers
necessary to describe the project and may include, as appropriate,
the legal description of the site, survey information concerning
the site, interior space requirements, special material
requirements, material quality standards, conceptual criteria for
the project, special equipment requirements, cost or budget
estimates, time schedules, quality assurance and quality control
requirements, site development requirements, applicable codes and
ordinances, provisions for utilities, parking requirements, and
any other requirement.
(d) The governmental entity may not require offerors to
submit architectural or engineering designs as part of a proposal
or a response to a request for qualifications.
Sec. 2267.307. EVALUATION OF DESIGN-BUILD FIRMS. (a) For
each design-build firm that responded to the request for
qualifications, the governmental entity shall evaluate the firm's
experience, technical competence, and capability to perform, the
past performance of the firm and members of the firm, and other
appropriate factors submitted by the firm in response to the
request for qualifications, except that cost-related or
price-related evaluation factors are not permitted.
(b) Each firm must certify to the governmental entity that
each architect or engineer that is a member of the firm was selected
based on demonstrated competence and qualifications, in the manner
provided by Section 2254.004.
(c) The governmental entity shall qualify a maximum of five
responders to submit proposals that contain additional information
and, if the governmental entity chooses, to interview for final
selection.
(d) The governmental entity shall evaluate the additional
information submitted by the offerors on the basis of the selection
criteria stated in the request for qualifications and the results
of any interview.
(e) 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, and expected staffing for administrative duties. The term
does not include a guaranteed maximum price or bid for overall
design or construction.
(f) The governmental entity shall rank each proposal
submitted on the basis of the criteria set forth in the request for
qualifications.
Sec. 2267.308. SELECTION OF DESIGN-BUILD FIRM. (a) The
governmental entity shall select the design-build firm that submits
the proposal offering the best value for the governmental entity on
the basis of the published selection criteria and on its ranking
evaluations.
(b) The governmental entity shall first attempt to
negotiate a contract with the selected firm.
(c) If the governmental entity is unable to negotiate a
satisfactory contract with the selected firm, the governmental
entity shall, formally and in writing, end all negotiations with
that firm and proceed to negotiate with the next firm in the order
of the selection ranking until a contract is reached or
negotiations with all ranked firms end.
(d) Not later than the seventh day after the date the
contract is awarded, the governmental entity shall make the
rankings determined under Section 2267.307(f) public.
Sec. 2267.309. SUBMISSION OF DESIGN AFTER SELECTION. After
selection of the design-build firm, that firm's architects or
engineers shall submit all design elements for review and
determination of scope compliance to the governmental entity or the
governmental entity's architect or engineer before or concurrently
with construction.
Sec. 2267.310. FINAL CONSTRUCTION DOCUMENTS. The
design-build firm shall supply a set of construction documents for
the completed project to the governmental entity at the conclusion
of construction. The documents must note any changes made during
construction.
Sec. 2267.311. PERFORMANCE OR PAYMENT BOND. (a) A payment
or performance bond is not required and may not provide coverage for
the design portion of the design-build contract with the
design-build firm under this subchapter.
(b) If a fixed contract amount or guaranteed maximum price
has not been determined at the time the design-build contract is
awarded, the penal sums of the performance and payment bonds
delivered to the governmental entity must each be in an amount equal
to the construction budget, as specified in the design criteria
package.
(c) The design-build firm shall deliver the bonds not later
than the 10th day after the date the design-build firm executes the
contract unless the design-build firm furnishes a bid bond or other
financial security acceptable to the governmental entity to ensure
that the design-build firm will furnish the required performance
and payment bonds before construction begins.
[Sections 2267.312-2267.350 reserved for expansion]
SUBCHAPTER H. DESIGN-BUILD PROCEDURES FOR CERTAIN CIVIL WORKS
PROJECTS
Sec. 2267.351. DEFINITIONS. In this subchapter:
(1) "Civil works project" means:
(A) roads, streets, bridges, utilities, water
supply projects, water plants, wastewater plants, water
distribution and wastewater conveyance facilities, desalination
projects, wharves, docks, airport runways and taxiways, storm
drainage and flood control projects, or transit projects;
(B) types of projects or facilities related to
those described by Paragraph (A) and associated with civil
engineering construction; and
(C) buildings or structures that are incidental
to projects or facilities that are described by Paragraphs (A) and
(B) and that are primarily civil engineering construction projects.
(2) "Design-build firm" means a partnership,
corporation, or other legal entity or team that includes an
engineer and a construction contractor qualified to engage in civil
works construction in Texas.
(3) "Design criteria package" means a set of documents
that:
(A) provides sufficient information to convey
the intent, goals, criteria, and objectives of the civil works
project; and
(B) permits a design-build firm to:
(i) assess the scope of work and the risk
involved; and
(ii) submit a proposal on the project.
Sec. 2267.352. APPLICABILITY. This subchapter applies to a
governmental entity that:
(1) has a population of more than 100,000 within the
entity's geographic boundary or service area; or
(2) is a board of trustees governed by Chapter 54,
Transportation Code.
Sec. 2267.353. CONTRACTS FOR CIVIL WORKS PROJECTS:
DESIGN-BUILD. (a) A governmental entity may use the design-build
method for the construction, rehabilitation, alteration, or repair
of a civil works project. In using this method and in entering into
a contract for the services of a design-build firm, the contracting
governmental entity and the design-build firm shall follow the
procedures provided by this subchapter.
(b) A contract for a project under this subchapter may cover
only a single integrated project. A governmental entity may not
enter into a contract for aggregated projects at multiple
locations. For purposes of this subsection:
(1) if a metropolitan transit authority created under
Chapter 451, Transportation Code, enters into a contract for a
project involving a bus rapid transit system created under Chapter
451, Transportation Code, the bus rapid transit system is a single
integrated project; and
(2) a water treatment plant, including a desalination
plant, that includes treatment facilities, well fields, and
pipelines is a single integrated project.
(c) A governmental entity shall use the following criteria
as a minimum basis for determining the circumstances under which
the design-build method is appropriate for a project:
(1) the extent to which the entity can adequately
define the project requirements;
(2) the time constraints for the delivery of the
project;
(3) the ability to ensure that a competitive
procurement can be held; and
(4) the capability of the entity to manage and oversee
the project, including the availability of experienced personnel or
outside consultants who are familiar with the design-build method
of project delivery.
(d) A governmental entity shall make a formal finding on the
criteria described by Subsection (c) before preparing a request for
qualifications under Section 2267.357.
Sec. 2267.354. LIMITATION ON NUMBER OF PROJECTS. (a)
Before September 1, 2013:
(1) a governmental entity with a population of 500,000
or more within the entity's geographic boundary or service area
may, under this subchapter, enter into contracts for not more than
three projects in any fiscal year; and
(2) a municipally owned water utility with a separate
governing board appointed by the governing body of a municipality
with a population of 500,000 or more may:
(A) independently enter into a contract for not
more than one civil works project in any fiscal year; and
(B) enter into contracts for additional civil
works projects in any fiscal year, but not more than the number of
civil works projects prescribed by the limit in Subdivision (1) for
the municipality, provided that:
(i) the additional contracts for the civil
works projects entered into by the utility under this paragraph are
allocated to the number of contracts the municipality that appoints
the utility's governing board may enter under Subdivision (1); and
(ii) the governing body of the municipality
must approve the contracts.
(b) Before September 1, 2015, a governmental entity that has
a population of 100,000 or more but less than 500,000 or is a board
of trustees governed by Chapter 54, Transportation Code, may enter
into contracts under this subchapter for not more than two projects
in any fiscal year.
(c) After the period described by Subsection (a) or (b):
(1) a governmental entity with a population of 500,000
or more within the entity's geographic boundary or service area
may, under this subchapter, enter into contracts for not more than
six projects in any fiscal year;
(2) a municipally owned water utility with a separate
governing board appointed by the governing body of a municipality
with a population of 500,000 or more may:
(A) independently enter into contracts for not
more than two civil works projects in any fiscal year; and
(B) enter into contracts for additional civil
works projects in any fiscal year, but not more than the number of
civil works projects prescribed by the limit in Subdivision (1) for
the municipality, provided that:
(i) the additional contracts for the civil
works projects entered into by the utility under this paragraph are
allocated to the number of contracts the municipality that appoints
the utility's governing board may enter under Subdivision (1); and
(ii) the governing body of the municipality
must approve the contracts; and
(3) a governmental entity that has a population of
100,000 or more but less than 500,000 or is a board of trustees
governed by Chapter 54, Transportation Code, may enter into
contracts under this subchapter for not more than four projects in
any fiscal year.
(d) For purposes of determining the number of eligible
projects under this section, a municipally owned water utility with
a separate governing board appointed by the governing body of the
municipality is considered part of the municipality.
Sec. 2267.355. USE OF ENGINEER. (a) The governmental
entity shall select or designate an engineer who is independent of
the design-build firm to act as its representative for the
procurement process and for the duration of the work on the civil
works project. The selected or designated engineer has full
responsibility for complying with Chapter 1001, Occupations Code.
(b) If the engineer is not a full-time employee of the
governmental entity, the governmental entity shall select the
engineer on the basis of demonstrated competence and qualifications
as provided by Section 2254.004.
Sec. 2267.356. USE OF OTHER PROFESSIONAL SERVICES.
(a) The governmental entity shall provide or contract for,
independently of the design-build firm, the following services as
necessary for the acceptance of the civil works project by the
entity:
(1) inspection services;
(2) construction materials engineering and testing;
and
(3) verification testing services.
(b) The governmental entity shall select the services for
which it contracts under this section in accordance with Section
2254.004.
Sec. 2267.357. REQUEST FOR QUALIFICATIONS. (a) The
governmental entity shall prepare a request for qualifications that
includes:
(1) information on the civil works project site;
(2) project scope;
(3) project budget;
(4) project schedule;
(5) criteria for selection under Section 2267.359 and
the weighting of the criteria; and
(6) other information that may assist potential
design-build firms in submitting proposals for the project.
(b) The governmental entity shall also prepare a design
criteria package as described by Section 2267.358.
Sec. 2267.358. CONTENTS OF DESIGN CRITERIA PACKAGE. A
design criteria package may include, as appropriate:
(1) budget or cost estimates;
(2) information on the site;
(3) performance criteria;
(4) special material requirements;
(5) initial design calculations;
(6) known utilities;
(7) capacity requirements;
(8) quality assurance and quality control
requirements;
(9) the type, size, and location of structures; and
(10) notice of any ordinances, rules, or goals adopted
by the governmental entity relating to awarding contracts to
historically underutilized businesses.
Sec. 2267.359. EVALUATION OF DESIGN-BUILD FIRMS. (a) The
governmental entity shall receive proposals and shall evaluate each
offeror's experience, technical competence, and capability to
perform, the past performance of the offeror's team and members of
the team, and other appropriate factors submitted by the team or
firm in response to the request for qualifications, except that
cost-related or price-related evaluation factors are not permitted
at this stage.
(b) Each offeror must:
(1) select or designate each engineer that is a member
of its team based on demonstrated competence and qualifications, in
the manner provided by Section 2254.004; and
(2) certify to the governmental entity that each
selection or designation was based on demonstrated competence and
qualifications, in the manner provided by Section 2254.004.
(c) The governmental entity shall qualify offerors to
submit additional information and, if the entity chooses, to
interview for final selection.
Sec. 2267.360. SELECTION OF DESIGN-BUILD FIRM. The
governmental entity shall select a design-build firm using a
combination of technical and cost proposals as provided by Section
2267.361.
Sec. 2267.361. PROCEDURES FOR COMBINATION OF TECHNICAL AND
COST PROPOSALS. (a) A governmental entity shall request proposals
from design-build firms identified under Section 2267.359(c). A
firm must submit a proposal not later than the 180th day after the
date the governmental entity makes a public request for the
proposals from the selected firms. The request for proposals must
include:
(1) a design criteria package;
(2) if the project site is identified, a geotechnical
baseline report or other information that provides the design-build
firm minimum geotechnical design parameters to submit a proposal;
(3) detailed instructions for preparing the technical
proposal and the items to be included, including a description of
the form and level of completeness of drawings expected; and
(4) the relative weighting of the technical and price
proposals and the formula by which the proposals will be evaluated
and ranked.
(b) The technical proposal is a component of the proposal
under this section.
(c) Each proposal must include a sealed technical proposal
and a separate sealed cost proposal.
(d) The technical proposal must address:
(1) project approach;
(2) anticipated problems;
(3) proposed solutions to anticipated problems;
(4) ability to meet schedules;
(5) conceptual engineering design; and
(6) other information requested by the governmental
entity.
(e) The governmental entity shall first open, evaluate, and
score each responsive technical proposal submitted on the basis of
the criteria described in the request for proposals and assign
points on the basis of the weighting specified in the request for
proposals. The governmental entity may reject as nonresponsive any
firm that makes a significant change to the composition of its firm
as initially submitted. The governmental entity shall subsequently
open, evaluate, and score the cost proposals from firms that
submitted a responsive technical proposal and assign points on the
basis of the weighting specified in the request for proposals. The
governmental entity shall select the design-build firm in
accordance with the formula provided in the request for proposals.
Sec. 2267.362. NEGOTIATION. After selecting the
highest-ranked design-build firm under Section 2267.361, the
governmental entity shall first attempt to negotiate a contract
with the selected firm. If the governmental entity is unable to
negotiate a satisfactory contract with the selected firm, the
entity shall, formally and in writing, end all negotiations with
that firm and proceed to negotiate with the next firm in the order
of the selection ranking until a contract is reached or
negotiations with all ranked firms end.
Sec. 2267.363. ASSUMPTION OF RISKS. The governmental
entity shall assume:
(1) all risks and costs associated with:
(A) scope changes and modifications, as
requested by the governmental entity;
(B) unknown or differing site conditions unless
otherwise provided by the governmental entity in the request for
proposals and final contract;
(C) regulatory permitting, if the governmental
entity is responsible for those risks and costs by law or contract;
and
(D) natural disasters and other force majeure
events unless otherwise provided by the governmental entity in the
request for proposals and final contract; and
(2) all costs associated with property acquisition,
excluding costs associated with acquiring a temporary easement or
work area associated with staging or construction for the project.
Sec. 2267.364. STIPEND AMOUNT FOR UNSUCCESSFUL OFFERORS.
(a) Unless a stipend is paid under Subsection (c), the
design-build firm retains all rights to the work product submitted
in a proposal. The governmental entity may not release or disclose
to any person, including the successful offeror, the work product
contained in an unsuccessful proposal. The governmental entity
shall return all copies of the proposal and other information
submitted to an unsuccessful offeror. The governmental entity or
its agents may not make use of any unique or nonordinary design
element, technique, method, or process contained in the
unsuccessful proposal that was not also contained in the successful
proposal at the time of the original submittal, unless the entity
acquires a license from the unsuccessful offeror.
(b) A violation of this section voids the contract for the
project entered into by the governmental entity. The governmental
entity is liable to any unsuccessful offeror, or any member of the
design-build team or its assignee, for one-half of the cost savings
associated with the unauthorized use of the work product of the
unsuccessful offeror. Any interested party may bring an action for
an injunction, declaratory relief, or damages for a violation of
this section. A party who prevails in an action under this
subsection is entitled to reasonable attorney's fees as approved by
the court.
(c) The governmental entity may offer an unsuccessful
design-build firm that submits a response to the entity's request
for additional information under Section 2267.361 a stipend for
preliminary engineering costs associated with the development of
the proposal. The stipend must be one-half of one percent of the
contract amount and must be specified in the initial request for
proposals. If the offer is accepted and paid, the governmental
entity may make use of any work product contained in the proposal,
including the techniques, methods, processes, and information
contained in the proposal. The use by the governmental entity of
any design element contained in an unsuccessful proposal is at the
sole risk and discretion of the entity and does not confer liability
on the recipient of the stipend under this subsection.
(d) Notwithstanding other law, including Chapter 552, work
product contained in an unsuccessful proposal submitted and
rejected under this subchapter is confidential and may not be
released unless a stipend offer has been accepted and paid as
provided by Subsection (c).
Sec. 2267.365. COMPLETION OF DESIGN. (a) Following
selection of a design-build firm under this subchapter, the firm's
engineers shall submit all design elements for review and
determination of scope compliance to the governmental entity before
or concurrently with construction.
(b) An appropriately licensed design professional shall
sign and seal construction documents before the documents are
released for construction.
Sec. 2267.366. FINAL CONSTRUCTION DOCUMENTS. At the
conclusion of construction, the design-build firm shall supply to
the governmental entity a record set of construction documents for
the project prepared as provided by Chapter 1001, Occupations Code.
Sec. 2267.367. PERFORMANCE OR PAYMENT BOND. (a) A
performance or payment bond is not required for the portion of a
design-build contract under this section that includes design
services only.
(b) If a fixed contract amount or guaranteed maximum price
has not been determined at the time a design-build contract is
awarded, the penal sums of the performance and payment bonds
delivered to the governmental entity must each be in an amount equal
to the construction budget, if commercially available and
practical, as specified in the design criteria package.
(c) If the governmental entity awards a design-build
contract under Section 2267.362, the design-build firm shall
deliver the bonds not later than the 10th day after the date the
design-build firm executes the contract unless the design-build
firm furnishes a bid bond or other financial security acceptable to
the governmental entity to ensure that the design-build firm will
furnish the required performance and payment bonds before the
commencement of construction.
[Sections 2267.368-2267.400 reserved for expansion]
SUBCHAPTER I. JOB ORDER CONTRACTS METHOD
Sec. 2267.401. JOB ORDER CONTRACTING. In this chapter,
"job order contracting" is a procurement method used for
maintenance, repair, alteration, renovation, remediation, or minor
construction of a facility when the work is of a recurring nature
but the delivery times, type, and quantities of work required are
indefinite.
Sec. 2267.402. APPLICABILITY OF SUBCHAPTER TO BUILDINGS;
EXCEPTIONS. This subchapter applies only to a facility that is a
building, the design and construction of which is governed by
accepted building codes, or a structure or land, whether improved
or unimproved, that is associated with a building. This subchapter
does not apply to:
(1) a highway, road, street, bridge, utility, water
supply project, water plant, wastewater plant, water and wastewater
distribution or conveyance facility, wharf, dock, airport runway or
taxiway, drainage project, or related type of project associated
with civil engineering construction; or
(2) a building or structure that is incidental to a
project that is primarily a civil engineering construction project.
Sec. 2267.403. REQUIREMENTS FOR JOB ORDER CONTRACTS FOR
FACILITIES. (a) A governmental entity may award job order
contracts for the maintenance, repair, alteration, renovation,
remediation, or minor construction of a facility if:
(1) the work is of a recurring nature but the delivery
times are indefinite; and
(2) indefinite quantities and orders are awarded
substantially on the basis of predescribed and prepriced tasks.
(b) The governmental entity shall establish the maximum
aggregate contract price when it advertises the proposal.
(c) The governing body of a governmental entity shall
approve each job, task, or purchase order that exceeds $500,000.
Sec. 2267.404. CONTRACTUAL UNIT PRICES. The governmental
entity may establish contractual unit prices for a job order
contract by:
(1) specifying one or more published construction unit
price books and the applicable divisions or line items; or
(2) providing a list of work items and requiring the
offerors to propose one or more coefficients or multipliers to be
applied to the price book or prepriced work items as the price
proposal.
Sec. 2267.405. COMPETITIVE SEALED PROPOSAL METHOD. (a) A
governmental entity may use the competitive sealed proposal method
under Subchapter D for job order contracts.
(b) The governmental entity shall advertise for, receive,
and publicly open sealed proposals for job order contracts.
(c) The governmental entity may require offerors to submit
information in addition to rates, including experience, past
performance, and proposed personnel and methodology.
Sec. 2267.406. AWARDING OF JOB ORDER CONTRACTS. The
governmental entity may award job order contracts to one or more job
order contractors in connection with each solicitation of
proposals.
Sec. 2267.407. USE OF JOB ORDER CONTRACT. A job order
contract may be used to accomplish work only for the governmental
entity that awards the contract unless:
(1) the solicitation for the job order contract and
the contract specifically provide for use by other persons; or
(2) the governmental entity enters into an interlocal
agreement that provides otherwise.
Sec. 2267.408. USE OF ARCHITECT OR ENGINEER. If a job order
contract or an order issued under the contract requires
architectural or engineering services that constitute the practice
of architecture within the meaning of Chapter 1051, Occupations
Code, or the practice of engineering within the meaning of Chapter
1001, Occupations Code, the governmental entity shall select or
designate an architect or engineer to prepare the construction
documents for the project.
Sec. 2267.409. JOB ORDER CONTRACT TERM. The base term for a
job order contract may not exceed two years. The governmental
entity may renew the contract annually for not more than three
additional years.
Sec. 2267.410. JOB ORDERS. (a) An order for a job or
project under a job order contract must be signed by the
governmental entity's representative and the contractor.
(b) The order may be:
(1) a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities; or
(2) a unit price order based on the quantities and line
items delivered.
Sec. 2267.411. PAYMENT AND PERFORMANCE BONDS. The
contractor shall provide payment and performance bonds, if required
by law, based on the amount or estimated amount of any order.
[Sections 2267.412-2267.450 reserved for expansion]
SUBCHAPTER J. ENFORCEMENT
Sec. 2267.451. VOID CONTRACT. A contract, including a job
order, entered into in violation of this chapter is voidable as
against public policy.
Sec. 2267.452. DECLARATORY OR INJUNCTIVE RELIEF. (a) This
chapter may be enforced through an action for declaratory or
injunctive relief filed not later than the 10th day after the date
on which the contract is awarded.
(b) This section does not apply to enforcement of a contract
entered into by a state agency. In this subsection, "state agency"
has the meaning assigned by Section 2151.002. The term includes the
Texas Facilities Commission.
SECTION 2.09. Section 252.048, Local Government Code, is
amended by adding Subsection (c-1) to read as follows:
(c-1) If a change order for a public works contract in a
municipality with a population of 500,000 or more involves a
decrease or an increase of $100,000 or less, or a lesser amount as
provided by ordinance, the governing body of the municipality may
grant general authority to an administrative official of the
municipality to approve the change order.
SECTION 2.10. Section 271.054, Local Government Code, is
amended to read as follows:
Sec. 271.054. COMPETITIVE PROCUREMENT REQUIREMENT. Before
the governing body of an issuer may enter into a contract requiring
an expenditure by or imposing an obligation or liability on the
issuer, or on a subdivision of the issuer if the issuer is a county,
of more than $50,000, the governing body must:
(1) submit the proposed contract to competitive
procurement; or
(2) use an alternate method of project delivery
authorized by Chapter 2267, Government Code.
SECTION 2.11. Section 271.060, Local Government Code, is
amended by amending Subsection (b) and adding Subsection (c) to
read as follows:
(b) The total price of a contract may not be increased by a
change order unless provision has been made for the payment of the
added cost by the appropriation of current funds or bond funds for
that purpose, by the authorization of the issuance of certificates,
or by a combination of those procedures.
(c) A contract with an [The] original contract price of $1
million or more may not be increased by more than 25 percent. If a
change order for a contract with an original contract price of less
than $1 million increases the contract amount to $1 million or more,
subsequent change orders may not increase the revised contract
amount by more than 25 percent. [The original price may not be
decreased by more than 25 percent without the consent of the
contractor.]
SECTION 2.12. Subchapter B, Chapter 223, Transportation
Code, is amended by adding Section 223.049 to read as follows:
Sec. 223.049. CONTRACT WITH LAND OWNER FOR IMPROVING ACCESS
TO LAND. (a) The department may, without complying with the
competitive bidding procedures of Subchapter A, contract with an
owner of land, including a subdivision, adjacent to a highway that
is part of the state highway system to construct an improvement on
the highway right-of-way that is directly related to improving
access to or from the owner's land.
(b) An owner that enters into a contract with the department
under this section must:
(1) comply with applicable department design and
construction standards;
(2) comply with all laws, rules, regulations, and
ordinances, including environmental requirements, that would be
applicable if the department were performing the work;
(3) execute a performance and payment bond in
accordance with Chapter 2253, Government Code; and
(4) make available for inspection by the department
all books and other records in the possession of the owner that are
related to the project.
(c) State and federal funds may not be used for the design,
development, financing, or construction of a highway improvement
under a contract described by this section.
ARTICLE 3. ADDITIONAL EXEMPTIONS
SECTION 3.01. Section 44.901, Education Code, is amended by
adding Subsection (j) to read as follows:
(j) Chapter 2267, Government Code, does not apply to this
section.
SECTION 3.02. Section 51.927, Education Code, is amended by
adding Subsection (k) to read as follows:
(k) Chapter 2267, Government Code, does not apply to this
section.
SECTION 3.03. Section 2166.406, Government Code, is amended
by adding Subsection (k) to read as follows:
(k) Chapter 2267 does not apply to this section.
SECTION 3.04. Chapter 302, Local Government Code, is
amended by adding Section 302.007 to read as follows:
Sec. 302.007. EXEMPTION FROM OTHER CONTRACTING LAW.
Chapter 2267, Government Code, does not apply to this chapter.
SECTION 3.05. Subchapter E, Chapter 335, Local Government
Code, is amended by adding Section 335.077 to read as follows:
Sec. 335.077. EXEMPTION FROM CONSTRUCTION CONTRACTING LAW.
Chapter 2267, Government Code, does not apply to this chapter.
SECTION 3.06. Subchapter Q, Chapter 451, Transportation
Code, is amended by adding Section 451.8025 to read as follows:
Sec. 451.8025. EXEMPTION FROM OTHER CONTRACTING LAW.
Chapter 2267, Government Code, does not apply to this subchapter.
SECTION 3.07. Subchapter C, Chapter 452, Transportation
Code, is amended by adding Section 452.1095 to read as follows:
Sec. 452.1095. EXEMPTION FROM OTHER CONTRACTING LAW FOR
CERTAIN AUTHORITIES. (a) Chapter 2267, Government Code, does not
apply to an authority consisting of one subregion governed by a
subregional board created under Subchapter O.
(b) An authority to which this section applies may adopt
design-build procedures that do not materially conflict with
Subchapter H, Chapter 2267, Government Code.
SECTION 3.08. Section 60.401, Water Code, is amended by
adding Subsection (d) to read as follows:
(d) Chapter 2267, Government Code, does not apply to this
subchapter.
SECTION 3.09. Section 60.452(c), Water Code, is amended to
read as follows:
(c) Chapter 2267, [Subchapter J, Chapter 271, Local]
Government Code, does not apply to this subchapter.
ARTICLE 4. CONFORMING AMENDMENTS
SECTION 4.01. Section 252.021(a), Local Government Code, is
amended to read as follows:
(a) Before a municipality may enter into a contract that
requires an expenditure of more than $50,000 from one or more
municipal funds, the municipality must:
(1) comply with the procedure prescribed by this
subchapter and Subchapter C for competitive sealed bidding or
competitive sealed proposals;
(2) use the reverse auction procedure, as defined by
Section 2155.062(d), Government Code, for purchasing; or
(3) comply with a method described by Chapter 2267,
Government Code [Subchapter H or J, Chapter 271].
SECTION 4.02. Section 252.022(d), Local Government Code, is
amended to read as follows:
(d) This chapter does not apply to an expenditure described
by Section 252.021(a) if the governing body of a municipality
determines that a method described by Chapter 2267, Government Code
[Subchapter H, Chapter 271], provides a better value for the
municipality with respect to that expenditure than the procedures
described in this chapter and the municipality adopts and uses a
method described in that subchapter with respect to that
expenditure.
SECTION 4.03. Sections 252.043(d-1) and (e), Local
Government Code, are amended to read as follows:
(d-1) A contract for construction of a project described by
Subsection (d) that requires an expenditure of $1.5 million or less
may be awarded using the competitive sealed proposal procedure
prescribed by Subchapter D, Chapter 2267, Government Code [Section
271.116].
(e) If the competitive sealed bidding requirement applies
to the contract for construction of a facility, as that term is
defined by Section 2267.001, Government Code [Section 271.111], the
contract must be awarded to the lowest responsible bidder or
awarded under the method described by Chapter 2267, Government Code
[Subchapter H, Chapter 271].
SECTION 4.04. Sections 262.023(a) and (b-1), Local
Government Code, are amended to read as follows:
(a) Before a county may purchase one or more items under a
contract that will require an expenditure exceeding $50,000, the
commissioners court of the county must:
(1) comply with the competitive bidding or competitive
proposal procedures prescribed by this subchapter;
(2) use the reverse auction procedure, as defined by
Section 2155.062(d), Government Code, for purchasing; or
(3) comply with a method described by Chapter 2267,
Government Code [Subchapter H, Chapter 271].
(b-1) A county that complies with a method described by
Chapter 2267, Government Code [Subchapter H, Chapter 271], as
provided by Subsection (a)(3), to enter into a contract for which
payment will be made through anticipation notes authorized by
Chapter 1431, Government Code, may not issue anticipation notes for
the payment of that contract in an amount that exceeds the lesser
of:
(1) 20 percent of the county's budget for the fiscal
year in which the county enters into the contract; or
(2) $10 million.
SECTION 4.05. Section 1002.110, Special District Local Laws
Code, is amended to read as follows:
Sec. 1002.110. PUBLIC WORKS CONTRACTS. With respect to the
construction of public works, the district has all of the powers and
duties conferred on a municipality under Chapter 2267, [Subchapter
H, Chapter 271, Local] Government Code, with respect to the
construction of a facility. To the extent of any conflict, this
section prevails over any other law relating to the construction of
public works engaged in by the district.
SECTION 4.06. Section 1024.105(b), Special District Local
Laws Code, is amended to read as follows:
(b) The board may act as a governmental entity under Chapter
2267, [Subchapter H, Chapter 271, Local] Government Code, for
purposes of using the procurement procedures authorized by that
chapter. For purposes of this subsection, notice under Section
2267.052(c), [271.112(d), Local] Government Code, must be provided
by the district in the same manner as provided for a conservation
and reclamation district created under Section 59, Article XVI,
Texas Constitution.
SECTION 4.07. Section 366.185(d-1), Transportation Code,
is amended to read as follows:
(d-1) The rules adopted under Subsection (d) may not
materially conflict with the design-build procedures provided by
Subchapter H, Chapter 2267, [Subchapter J, Chapter 271, Local]
Government Code, and shall provide materially similar injunctive
and declaratory action enforcement rights regarding the improper
disclosure or use of unique or nonordinary information as provided
in that subchapter.
SECTION 4.08. Section 370.314(b), Transportation Code, is
amended to read as follows:
(b) Procedures adopted under Subsection (a) may not
materially conflict with the design-build procedures provided by
Subchapter H, Chapter 2267, [Subchapter J, Chapter 271, Local]
Government Code.
SECTION 4.09. Sections 460.406(c) and (d), Transportation
Code, are amended to read as follows:
(c) The board of directors may authorize the negotiation of
a contract without competitive sealed bids or proposals if:
(1) the aggregate amount involved in the contract is
$25,000 or less;
(2) the contract is for construction for which not
more than one bid or proposal is received;
(3) the contract is for services or property for which
there is only one source or for which it is otherwise impracticable
to obtain competition;
(4) the contract is to respond to an emergency for
which the public exigency does not permit the delay incident to the
competitive process;
(5) the contract is for personal or professional
services or services for which competitive bidding is precluded by
law;
(6) the contract, without regard to form and which may
include bonds, notes, loan agreements, or other obligations, is for
the purpose of borrowing money or is a part of a transaction
relating to the borrowing of money, including:
(A) a credit support agreement, such as a line or
letter of credit or other debt guaranty;
(B) a bond, note, debt sale or purchase, trustee,
paying agent, remarketing agent, indexing agent, or similar
agreement;
(C) an agreement with a securities dealer,
broker, or underwriter; and
(D) any other contract or agreement considered by
the board of directors to be appropriate or necessary in support of
the authority's financing activities;
(7) the contract is for work that is performed and paid
for by the day as the work progresses;
(8) the contract is for the purchase of land or a
right-of-way;
(9) the contract is for the purchase of personal
property sold:
(A) at an auction by a state licensed auctioneer;
(B) at a going out of business sale held in
compliance with Subchapter F, Chapter 17, Business & Commerce Code;
or
(C) by a political subdivision of this state, a
state agency, or an entity of the federal government;
(10) the contract is for services performed by blind
or severely disabled persons;
(11) the contract is for the purchase of electricity;
or
(12) the contract is one awarded for alternate project
delivery under Subchapters E, F, and G, Chapter 2267, [Sections
271.117-271.119, Local] Government Code.
(d) For the purposes of entering into a contract authorized
by Subsection (c)(12), an authority is considered a "governmental
entity" as described [defined] by Section 2267.002, [271.111,
Local] Government Code.
ARTICLE 5. REPEALER
SECTION 5.01. The following are repealed:
(1) Sections 44.0315, 44.035, 44.036, 44.037, 44.038,
44.039, 44.040, and 44.041, Education Code;
(2) Sections 2166.2511, 2166.2526, 2166.2531,
2166.2532, 2166.2533, and 2166.2535, Government Code;
(3) Subchapters H and J, Chapter 271, Local Government
Code; and
(4) Section 431.101(e), Transportation Code.
ARTICLE 6. TRANSITION; EFFECTIVE DATE
SECTION 6.01. (a) The changes in law made by this Act apply
only to a contract or construction project for which a governmental
entity first advertises or otherwise requests bids, proposals,
offers, or qualifications, or makes a similar solicitation, on or
after the effective date of this Act.
(b) A contract or construction project for which a
governmental entity first advertises or otherwise requests bids,
proposals, offers, or qualifications, or makes a similar
solicitation, before the effective date of this Act is governed by
the law as it existed immediately before the effective date of this
Act, and that law is continued in effect for that purpose.
SECTION 6.02. This Act takes effect September 1, 2011.
* * * * *