Texas 2011 - 82nd Regular

Texas Senate Bill SB1138 Compare Versions

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1	1	By: Watson S.B. No. 1138
2	2	(Phillips)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to design-build contracts and comprehensive development
8	8	agreements of regional mobility authorities.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 370.305, Transportation Code, is amended
11	11	to read as follows:
12	12	Sec. 370.305. COMPREHENSIVE DEVELOPMENT AGREEMENTS.
13	13	(a) [An authority may use a comprehensive development agreement
14	14	with a private entity to construct, maintain, repair, operate,
15	15	extend, or expand a transportation project.
16	16	[(b)] A comprehensive development agreement is an agreement
17	17	with a private entity that, at a minimum, provides for the design
18	18	and construction of a transportation project, that [and] may [also]
19	19	provide for the financing, acquisition, maintenance, or operation
20	20	of a transportation project, and that entitles the private entity
21	21	to:
22	22	(1) a leasehold interest in the transportation
23	23	project; or
24	24	(2) the right to operate or retain revenue from the
25	25	operation of the transportation project.
26	26	(b) [(c)] An authority may negotiate provisions relating to
27	27	professional and consulting services provided in connection with a
28	28	comprehensive development agreement.
29	29	(c) [(d)] Except as provided by this chapter, the
30	30	[Subsections (e) and (f), the authority to enter into comprehensive
31	31	development agreements under this section expires on August 31,
32	32	2009.
33	33	[(e) Subsection (d) does not apply to a comprehensive
34	34	development agreement that does not grant a private entity a right
35	35	to finance a toll project or a comprehensive development agreement
36	36	in connection with a project:
37	37	[(1) that includes one or more managed lane facilities
38	38	to be added to an existing controlled-access highway;
39	39	[(2) the major portion of which is located in a
40	40	nonattainment or near-nonattainment air quality area as designated
41	41	by the United States Environmental Protection Agency; and
42	42	[(3) for which the department has issued a request for
43	43	qualifications before the effective date of this subsection.
44	44	[(f) The] authority to enter into a comprehensive
45	45	development agreement [for a project exempted from Subsection (d)
46	46	or Section 223.210(b)] expires August 31, 2011.
47	47	SECTION 2. Chapter 370, Transportation Code, is amended by
48	48	adding Subchapter G-1 to read as follows:
49	49	SUBCHAPTER G-1. DESIGN-BUILD CONTRACTS
50	50	Sec. 370.318. DEFINITIONS. In this subchapter:
51	51	(1) "Design-build contractor" means a partnership,
52	52	corporation, or other legal entity or team that includes an
53	53	engineering firm and a construction contractor qualified to engage
54	54	in the construction of transportation projects in this state.
55	55	(2) "Design-build method" means a project delivery
56	56	method by which an entity contracts with a single entity to provide
57	57	both design and construction services for the construction,
58	58	rehabilitation, alteration, or repair of a facility.
59	59	Sec. 370.319. SCOPE OF AND LIMITATIONS ON CONTRACTS.
60	60	(a) Notwithstanding the requirements of Chapter 2254, Government
61	61	Code, an authority may use the design-build method for the design,
62	62	construction, financing, expansion, extension, related capital,
63	63	maintenance, rehabilitation, alteration, or repair of a
64	64	transportation project.
65	65	(b) A design-build contract under this subchapter may not
66	66	grant to a private entity:
67	67	(1) a leasehold interest in the transportation
68	68	project; or
69	69	(2) the right to operate or retain revenue from the
70	70	operation of the transportation project.
71	71	(c) In using the design-build method and in entering into a
72	72	contract for the services of a design-build contractor, the
73	73	authority and the design-build contractor shall follow the
74	74	procedures and requirements of this subchapter.
75	75	(d) An authority may enter into not more than two
76	76	design-build contracts for transportation projects in any fiscal
77	77	year.
78	78	Sec. 370.320. USE OF ENGINEER OR ENGINEERING FIRM. (a) To
79	79	act as an authority's representative, independent of a design-build
80	80	contractor, for the procurement process and for the duration of the
81	81	work on a transportation project, an authority shall select or
82	82	designate:
83	83	(1) an engineer;
84	84	(2) a qualified firm, selected in accordance with
85	85	Section 2254.004, Government Code, that is independent of the
86	86	design-build contractor; or
87	87	(3) a general engineering consultant that was
88	88	previously selected by an authority and is selected or designated
89	89	in accordance with Section 2254.004, Government Code.
90	90	(b) The selected or designated engineer or firm has full
91	91	responsibility for complying with Chapter 1001, Occupations Code.
92	92	Sec. 370.321. OTHER PROFESSIONAL SERVICES. (a) An
93	93	authority shall provide or contract for, independently of the
94	94	design-build contractor, the following services as necessary for
95	95	the acceptance of the transportation project by the authority:
96	96	(1) inspection services;
97	97	(2) construction materials engineering and testing;
98	98	and
99	99	(3) verification testing services.
100	100	(b) An authority shall ensure that the engineering services
101	101	contracted for under this section are selected based on
102	102	demonstrated competence and qualifications.
103	103	(c) This section does not preclude the design-build
104	104	contractor from providing construction quality assurance and
105	105	quality control services under a design-build contract.
106	106	Sec. 370.322. REQUEST FOR QUALIFICATIONS. (a) For any
107	107	transportation project to be delivered through the design-build
108	108	method, an authority must prepare and issue a request for
109	109	qualifications. A request for qualifications must include:
110	110	(1) information regarding the proposed project's
111	111	location, scope, and limits;
112	112	(2) information regarding funding that may be
113	113	available for the project and a description of the financing to be
114	114	requested from the design-build contractor, as applicable;
115	115	(3) criteria that will be used to evaluate the
116	116	proposals, which must include a proposer's qualifications,
117	117	experience, technical competence, and ability to develop the
118	118	project;
119	119	(4) the relative weight to be given to the criteria;
120	120	and
121	121	(5) the deadline by which proposals must be received
122	122	by the authority.
123	123	(b) An authority shall publish notice advertising the
124	124	issuance of a request for qualifications in the Texas Register and
125	125	on an Internet website maintained by the authority.
126	126	(c) An authority shall evaluate each qualifications
127	127	statement received in response to a request for qualifications
128	128	based on the criteria identified in the request. An authority may
129	129	interview responding proposers. Based on the authority's
130	130	evaluation of qualifications statements and interviews, if any, an
131	131	authority shall qualify or short-list proposers to submit detailed
132	132	proposals.
133	133	(d) An authority shall qualify or short-list at least two
134	134	but not more than five firms to submit detailed proposals under
135	135	Section 370.323. If an authority receives only one responsive
136	136	proposal to a request for qualifications, the authority shall
137	137	terminate the procurement.
138	138	(e) An authority may withdraw a request for qualifications
139	139	or request for detailed proposals at any time.
140	140	Sec. 370.323. REQUEST FOR DETAILED PROPOSALS. (a) An
141	141	authority shall issue a request for detailed proposals to proposers
142	142	short-listed under Section 370.322. A request for detailed
143	143	proposals must include:
144	144	(1) information on the overall project goals;
145	145	(2) the authority's cost estimates for the
146	146	design-build portion of the project work;
147	147	(3) materials specifications;
148	148	(4) special material requirements;
149	149	(5) a schematic design approximately 30 percent
150	150	complete;
151	151	(6) known utilities, provided that an authority is not
152	152	required to undertake an effort to locate utilities;
153	153	(7) quality assurance and quality control
154	154	requirements;
155	155	(8) the location of relevant structures;
156	156	(9) notice of any rules or goals adopted by the
157	157	authority in accordance with Section 370.183 relating to awarding
158	158	contracts to disadvantaged businesses;
159	159	(10) available geotechnical or other information
160	160	related to the project;
161	161	(11) the status of any environmental review of the
162	162	project;
163	163	(12) detailed instructions for preparing the
164	164	technical proposal required under Subsection (c), including a
165	165	description of the form and level of completeness of drawings
166	166	expected;
167	167	(13) the relative weighting of the technical and cost
168	168	proposals required under Subsection (c) and a formula by which the
169	169	proposals will be evaluated and ranked that allocates at least 70
170	170	percent weight to the cost proposal; and
171	171	(14) the criteria and weighting for each aspect of the
172	172	technical proposal.
173	173	(b) A request for detailed proposals shall also include a
174	174	general form of the design-build contract that the authority
175	175	proposes if the terms of the contract may be modified as a result of
176	176	negotiations prior to contract execution.
177	177	(c) Each response to a request for detailed proposals must
178	178	include a sealed technical proposal and a separate sealed cost
179	179	proposal.
180	180	(d) The technical proposal must address:
181	181	(1) the proposer's qualifications and demonstrated
182	182	technical competence, not including any information submitted and
183	183	evaluated under Section 370.322(a)(3);
184	184	(2) the feasibility of developing the project as
185	185	proposed, including identification of anticipated problems;
186	186	(3) the proposed solutions to anticipated problems;
187	187	(4) the ability of the proposer to meet schedules;
188	188	(5) the conceptual engineering design proposed; and
189	189	(6) any other information requested by the authority.
190	190	(e) An authority may provide for the submission of
191	191	alternative technical concepts by a proposer. If an authority
192	192	provides for the submission of alternative technical concepts, the
193	193	authority must prescribe a process for notifying a proposer whether
194	194	the proposer's alternative technical concepts are approved for
195	195	inclusion in a technical proposal.
196	196	(f) The cost proposal must include:
197	197	(1) the cost of delivering the project;
198	198	(2) the estimated number of days required to complete
199	199	the project; and
200	200	(3) any terms for financing for the project that the
201	201	proposer plans to provide.
202	202	(g) A response to a request for detailed proposals shall be
203	203	due not later than the 180th day after the final request for
204	204	detailed proposals is issued by the authority. This subsection
205	205	does not preclude the release by the authority of a draft request
206	206	for detailed proposals for purposes of receiving input from
207	207	short-listed proposers.
208	208	(h) An authority shall first open, evaluate, and score each
209	209	responsive technical proposal submitted on the basis of the
210	210	criteria described in the request for detailed proposals and assign
211	211	points on the basis of the weighting specified in the request for
212	212	detailed proposals. The authority may reject as nonresponsive any
213	213	proposer that makes a significant change to the composition of its
214	214	design-build team as initially submitted that was not approved by
215	215	the authority for the purpose of the request for detailed
216	216	proposals. The authority shall subsequently open, evaluate, and
217	217	score the cost proposals from proposers that submitted a responsive
218	218	technical proposal and assign points on the basis of the weighting
219	219	specified in the request for detailed proposals. The authority
220	220	shall rank the proposers in accordance with the formula provided in
221	221	the request for detailed proposals.
222	222	Sec. 370.324. NEGOTIATION. (a) After ranking the
223	223	proposers under Section 370.323(h), an authority shall first
224	224	attempt to negotiate a contract with the highest ranked proposer.
225	225	If an authority has committed to paying a stipend to unsuccessful
226	226	proposers in accordance with Section 370.326, an authority may
227	227	include in the negotiations alternative technical concepts
228	228	proposed by other proposers.
229	229	(b) If an authority is unable to negotiate a satisfactory
230	230	contract with the highest ranked proposer, the authority shall,
231	231	formally and in writing, end all negotiations with that proposer
232	232	and proceed to negotiate with the next proposer in the order of the
233	233	selection ranking until a contract is reached or negotiations with
234	234	all ranked proposers end.
235	235	Sec. 370.325. ASSUMPTION OF RISKS. (a) Unless otherwise
236	236	provided in a final request for detailed proposals or an addendum or
237	237	supplement included in the final request, the authority shall
238	238	assume:
239	239	(1) all risks and costs associated with:
240	240	(A) scope changes and modifications, as
241	241	requested by the authority;
242	242	(B) unknown or differing site conditions;
243	243	(C) environmental clearance and other regulatory
244	244	permitting for the project; and
245	245	(D) natural disasters and other force majeure
246	246	events; and
247	247	(2) all costs associated with property acquisition,
248	248	excluding costs associated with acquiring a temporary easement or
249	249	work area associated with staging or construction for the project.
250	250	(b) Notwithstanding Subsection (a), an authority and
251	251	contracting parties may agree that a design-build contractor should
252	252	assume some or all of the risks or costs of a project described in
253	253	Subsection (a) if the agreement is reflected in the final request
254	254	for detailed proposals or an addendum or supplement to the final
255	255	request.
256	256	Sec. 370.326. STIPEND AMOUNT FOR UNSUCCESSFUL PROPOSERS.
257	257	(a) In accordance with the request for detailed proposals, an
258	258	authority shall pay an unsuccessful proposer that submits a
259	259	responsive proposal to the request for detailed proposals a stipend
260	260	for work product contained in the proposal. The stipend must be
261	261	specified in the initial request for detailed proposals in an
262	262	amount of at least two-tenths of one percent of the contract amount,
263	263	but may not exceed the value of the work product contained in the
264	264	proposal to the authority. If the authority determines that the
265	265	value of the work product is less than the stipend amount, the
266	266	authority must provide the proposer with a detailed explanation of
267	267	the valuation, including the methodology and assumptions used in
268	268	the valuation. After payment of the stipend, the authority may make
269	269	use of any work product contained in the unsuccessful proposal,
270	270	including the techniques, methods, processes, and information
271	271	contained in the proposal. The use by the authority of any design
272	272	element contained in an unsuccessful proposal is at the sole risk
273	273	and discretion of the authority and does not confer liability on the
274	274	recipient of the stipend under this subsection.
275	275	(b) In a request for detailed proposals, an authority may
276	276	provide for the payment of a partial stipend in the event a
277	277	procurement is terminated prior to securing project financing and
278	278	execution of a design-build contract.
279	279	Sec. 370.327. PERFORMANCE OR PAYMENT BOND.
280	280	(a) Notwithstanding the requirements of Subchapter B, Chapter
281	281	2253, Government Code, an authority shall require a design-build
282	282	contractor to provide a performance or payment bond or an
283	283	alternative form of security or combination of forms of security.
284	284	(b) A performance or payment bond or alternative form of
285	285	security shall be in an amount equal to the cost of constructing or
286	286	maintaining the project.
287	287	(c) A performance or payment bond is not required for the
288	288	portion of a design-build contract under this section that includes
289	289	design services only.
290	290	(d) In addition to performance and payment bonds, an
291	291	authority may require the following alternative forms of security:
292	292	(1) a cashier's check drawn on a financial entity
293	293	specified by the authority;
294	294	(2) a United States bond or note;
295	295	(3) an irrevocable bank letter of credit drawn from
296	296	any Texas or federally chartered bank; or
297	297	(4) any other form of security determined suitable by
298	298	the authority.
299	299	SECTION 3. Section 370.314, Transportation Code, is
300	300	repealed.
301	301	SECTION 4. This Act takes effect immediately if it receives
302	302	a vote of two-thirds of all the members elected to each house, as
303	303	provided by Section 39, Article III, Texas Constitution. If this
304	304	Act does not receive the vote necessary for immediate effect, this
305	305	Act takes effect on the 91st day after the last day of the
306	306	legislative session.