By: Watson S.B. No. 1138
(Phillips)
A BILL TO BE ENTITLED
AN ACT
relating to design-build contracts and comprehensive development
agreements of regional mobility authorities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 370.305, Transportation Code, is amended
to read as follows:
Sec. 370.305. COMPREHENSIVE DEVELOPMENT AGREEMENTS.
(a) [An authority may use a comprehensive development agreement
with a private entity to construct, maintain, repair, operate,
extend, or expand a transportation project.
[(b)] A comprehensive development agreement is an agreement
with a private entity that, at a minimum, provides for the design
and construction of a transportation project, that [and] may [also]
provide for the financing, acquisition, maintenance, or operation
of a transportation project, and that entitles the private entity
to:
(1) a leasehold interest in the transportation
project; or
(2) the right to operate or retain revenue from the
operation of the transportation project.
(b) [(c)] An authority may negotiate provisions relating to
professional and consulting services provided in connection with a
comprehensive development agreement.
(c) [(d)] Except as provided by this chapter, the
[Subsections (e) and (f), the authority to enter into comprehensive
development agreements under this section expires on August 31,
2009.
[(e) Subsection (d) does not apply to a comprehensive
development agreement that does not grant a private entity a right
to finance a toll project or a comprehensive development agreement
in connection with a project:
[(1) that includes one or more managed lane facilities
to be added to an existing controlled-access highway;
[(2) the major portion of which is located in a
nonattainment or near-nonattainment air quality area as designated
by the United States Environmental Protection Agency; and
[(3) for which the department has issued a request for
qualifications before the effective date of this subsection.
[(f) The] authority to enter into a comprehensive
development agreement [for a project exempted from Subsection (d)
or Section 223.210(b)] expires August 31, 2011.
SECTION 2. Chapter 370, Transportation Code, is amended by
adding Subchapter G-1 to read as follows:
SUBCHAPTER G-1. DESIGN-BUILD CONTRACTS
Sec. 370.318. DEFINITIONS. In this subchapter:
(1) "Design-build contractor" means a partnership,
corporation, or other legal entity or team that includes an
engineering firm and a construction contractor qualified to engage
in the construction of transportation projects in this state.
(2) "Design-build method" means a project delivery
method by which an entity contracts with a single entity to provide
both design and construction services for the construction,
rehabilitation, alteration, or repair of a facility.
Sec. 370.319. SCOPE OF AND LIMITATIONS ON CONTRACTS.
(a) Notwithstanding the requirements of Chapter 2254, Government
Code, an authority may use the design-build method for the design,
construction, financing, expansion, extension, related capital,
maintenance, rehabilitation, alteration, or repair of a
transportation project.
(b) A design-build contract under this subchapter may not
grant to a private entity:
(1) a leasehold interest in the transportation
project; or
(2) the right to operate or retain revenue from the
operation of the transportation project.
(c) In using the design-build method and in entering into a
contract for the services of a design-build contractor, the
authority and the design-build contractor shall follow the
procedures and requirements of this subchapter.
(d) An authority may enter into not more than two
design-build contracts for transportation projects in any fiscal
year.
Sec. 370.320. USE OF ENGINEER OR ENGINEERING FIRM. (a) To
act as an authority's representative, independent of a design-build
contractor, for the procurement process and for the duration of the
work on a transportation project, an authority shall select or
designate:
(1) an engineer;
(2) a qualified firm, selected in accordance with
Section 2254.004, Government Code, that is independent of the
design-build contractor; or
(3) a general engineering consultant that was
previously selected by an authority and is selected or designated
in accordance with Section 2254.004, Government Code.
(b) The selected or designated engineer or firm has full
responsibility for complying with Chapter 1001, Occupations Code.
Sec. 370.321. OTHER PROFESSIONAL SERVICES. (a) An
authority shall provide or contract for, independently of the
design-build contractor, the following services as necessary for
the acceptance of the transportation project by the authority:
(1) inspection services;
(2) construction materials engineering and testing;
and
(3) verification testing services.
(b) An authority shall ensure that the engineering services
contracted for under this section are selected based on
demonstrated competence and qualifications.
(c) This section does not preclude the design-build
contractor from providing construction quality assurance and
quality control services under a design-build contract.
Sec. 370.322. REQUEST FOR QUALIFICATIONS. (a) For any
transportation project to be delivered through the design-build
method, an authority must prepare and issue a request for
qualifications. A request for qualifications must include:
(1) information regarding the proposed project's
location, scope, and limits;
(2) information regarding funding that may be
available for the project and a description of the financing to be
requested from the design-build contractor, as applicable;
(3) criteria that will be used to evaluate the
proposals, which must include a proposer's qualifications,
experience, technical competence, and ability to develop the
project;
(4) the relative weight to be given to the criteria;
and
(5) the deadline by which proposals must be received
by the authority.
(b) An authority shall publish notice advertising the
issuance of a request for qualifications in the Texas Register and
on an Internet website maintained by the authority.
(c) An authority shall evaluate each qualifications
statement received in response to a request for qualifications
based on the criteria identified in the request. An authority may
interview responding proposers. Based on the authority's
evaluation of qualifications statements and interviews, if any, an
authority shall qualify or short-list proposers to submit detailed
proposals.
(d) An authority shall qualify or short-list at least two
but not more than five firms to submit detailed proposals under
Section 370.323. If an authority receives only one responsive
proposal to a request for qualifications, the authority shall
terminate the procurement.
(e) An authority may withdraw a request for qualifications
or request for detailed proposals at any time.
Sec. 370.323. REQUEST FOR DETAILED PROPOSALS. (a) An
authority shall issue a request for detailed proposals to proposers
short-listed under Section 370.322. A request for detailed
proposals must include:
(1) information on the overall project goals;
(2) the authority's cost estimates for the
design-build portion of the project work;
(3) materials specifications;
(4) special material requirements;
(5) a schematic design approximately 30 percent
complete;
(6) known utilities, provided that an authority is not
required to undertake an effort to locate utilities;
(7) quality assurance and quality control
requirements;
(8) the location of relevant structures;
(9) notice of any rules or goals adopted by the
authority in accordance with Section 370.183 relating to awarding
contracts to disadvantaged businesses;
(10) available geotechnical or other information
related to the project;
(11) the status of any environmental review of the
project;
(12) detailed instructions for preparing the
technical proposal required under Subsection (c), including a
description of the form and level of completeness of drawings
expected;
(13) the relative weighting of the technical and cost
proposals required under Subsection (c) and a formula by which the
proposals will be evaluated and ranked that allocates at least 70
percent weight to the cost proposal; and
(14) the criteria and weighting for each aspect of the
technical proposal.
(b) A request for detailed proposals shall also include a
general form of the design-build contract that the authority
proposes if the terms of the contract may be modified as a result of
negotiations prior to contract execution.
(c) Each response to a request for detailed proposals must
include a sealed technical proposal and a separate sealed cost
proposal.
(d) The technical proposal must address:
(1) the proposer's qualifications and demonstrated
technical competence, not including any information submitted and
evaluated under Section 370.322(a)(3);
(2) the feasibility of developing the project as
proposed, including identification of anticipated problems;
(3) the proposed solutions to anticipated problems;
(4) the ability of the proposer to meet schedules;
(5) the conceptual engineering design proposed; and
(6) any other information requested by the authority.
(e) An authority may provide for the submission of
alternative technical concepts by a proposer. If an authority
provides for the submission of alternative technical concepts, the
authority must prescribe a process for notifying a proposer whether
the proposer's alternative technical concepts are approved for
inclusion in a technical proposal.
(f) The cost proposal must include:
(1) the cost of delivering the project;
(2) the estimated number of days required to complete
the project; and
(3) any terms for financing for the project that the
proposer plans to provide.
(g) A response to a request for detailed proposals shall be
due not later than the 180th day after the final request for
detailed proposals is issued by the authority. This subsection
does not preclude the release by the authority of a draft request
for detailed proposals for purposes of receiving input from
short-listed proposers.
(h) An authority shall first open, evaluate, and score each
responsive technical proposal submitted on the basis of the
criteria described in the request for detailed proposals and assign
points on the basis of the weighting specified in the request for
detailed proposals. The authority may reject as nonresponsive any
proposer that makes a significant change to the composition of its
design-build team as initially submitted that was not approved by
the authority for the purpose of the request for detailed
proposals. The authority shall subsequently open, evaluate, and
score the cost proposals from proposers that submitted a responsive
technical proposal and assign points on the basis of the weighting
specified in the request for detailed proposals. The authority
shall rank the proposers in accordance with the formula provided in
the request for detailed proposals.
Sec. 370.324. NEGOTIATION. (a) After ranking the
proposers under Section 370.323(h), an authority shall first
attempt to negotiate a contract with the highest ranked proposer.
If an authority has committed to paying a stipend to unsuccessful
proposers in accordance with Section 370.326, an authority may
include in the negotiations alternative technical concepts
proposed by other proposers.
(b) If an authority is unable to negotiate a satisfactory
contract with the highest ranked proposer, the authority shall,
formally and in writing, end all negotiations with that proposer
and proceed to negotiate with the next proposer in the order of the
selection ranking until a contract is reached or negotiations with
all ranked proposers end.
Sec. 370.325. ASSUMPTION OF RISKS. (a) Unless otherwise
provided in a final request for detailed proposals or an addendum or
supplement included in the final request, the authority shall
assume:
(1) all risks and costs associated with:
(A) scope changes and modifications, as
requested by the authority;
(B) unknown or differing site conditions;
(C) environmental clearance and other regulatory
permitting for the project; and
(D) natural disasters and other force majeure
events; 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.
(b) Notwithstanding Subsection (a), an authority and
contracting parties may agree that a design-build contractor should
assume some or all of the risks or costs of a project described in
Subsection (a) if the agreement is reflected in the final request
for detailed proposals or an addendum or supplement to the final
request.
Sec. 370.326. STIPEND AMOUNT FOR UNSUCCESSFUL PROPOSERS.
(a) In accordance with the request for detailed proposals, an
authority shall pay an unsuccessful proposer that submits a
responsive proposal to the request for detailed proposals a stipend
for work product contained in the proposal. The stipend must be
specified in the initial request for detailed proposals in an
amount of at least two-tenths of one percent of the contract amount,
but may not exceed the value of the work product contained in the
proposal to the authority. If the authority determines that the
value of the work product is less than the stipend amount, the
authority must provide the proposer with a detailed explanation of
the valuation, including the methodology and assumptions used in
the valuation. After payment of the stipend, the authority may make
use of any work product contained in the unsuccessful proposal,
including the techniques, methods, processes, and information
contained in the proposal. The use by the authority of any design
element contained in an unsuccessful proposal is at the sole risk
and discretion of the authority and does not confer liability on the
recipient of the stipend under this subsection.
(b) In a request for detailed proposals, an authority may
provide for the payment of a partial stipend in the event a
procurement is terminated prior to securing project financing and
execution of a design-build contract.
Sec. 370.327. PERFORMANCE OR PAYMENT BOND.
(a) Notwithstanding the requirements of Subchapter B, Chapter
2253, Government Code, an authority shall require a design-build
contractor to provide a performance or payment bond or an
alternative form of security or combination of forms of security.
(b) A performance or payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) A performance or payment bond is not required for the
portion of a design-build contract under this section that includes
design services only.
(d) In addition to performance and payment bonds, an
authority may require the following alternative forms of security:
(1) a cashier's check drawn on a financial entity
specified by the authority;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit drawn from
any Texas or federally chartered bank; or
(4) any other form of security determined suitable by
the authority.
SECTION 3. Section 370.314, Transportation Code, is
repealed.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect on the 91st day after the last day of the
legislative session.