83R3713 TJB-F
By: Callegari H.B. No. 1050
A BILL TO BE ENTITLED
AN ACT
relating to construction-related contracts by governmental
entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 791.011, Government Code, is amended by
adding Subsection (j) to read as follows:
(j) A local government may not enter into a contract to
purchase construction-related goods or services through a
purchasing cooperative under this chapter in an amount greater than
$50,000 unless a design professional, as the term is defined by
Section 2166.001(6), certifies in writing that:
(1) the project for which the construction-related
goods or services are being procured does not require the
preparation of plans and specifications under Chapter 1001 or 1051,
Occupations Code; or
(2) the plans and specifications required under
Chapters 1001 and 1051, Occupations Code, have been prepared.
SECTION 2. Section 2267.354, Government Code, as added by
Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular
Session, 2011, is amended to read as follows:
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 August 31, 2013 [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.
(b) [(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.
SECTION 3. (a) This section takes effect only if the Act of
the 83rd Legislature, Regular Session, 2013, relating to
nonsubstantive additions to and corrections in enacted codes
becomes law.
(b) Subchapter H, Chapter 2269, Government Code, is amended
by adding Section 2269.3615 to read as follows:
Sec. 2269.3615. IDENTIFICATION OF PROJECT TEAM. (a) A
design-build firm responding to a request for detailed proposals
issued under Section 2269.361 must identify:
(1) companies that will fill key project roles,
including project management, lead design firm, quality control
management, and quality assurance management; and
(2) entities that will serve as key task leaders for
geotechnical, hydraulics and hydrology, structural, environmental,
utility, and right-of-way issues.
(b) A design-build firm selected for a design-build
agreement may not make changes to the companies or entities
identified under Subsection (a) unless the original company or
entity:
(1) is no longer in business, is unable to fulfill its
legal, financial, or business obligations, or can no longer meet
the terms of the teaming agreement with the design-build firm;
(2) voluntarily removes itself from the team;
(3) fails to provide a sufficient number of qualified
personnel to fulfill the duties identified during the proposal
stage; or
(4) fails to negotiate in good faith in a timely manner
in accordance with provisions established in the teaming agreement
proposed for the project.
(c) If the design-build firm makes team changes in violation
of Subsection (b), any cost savings resulting from the change
accrue to the governmental entity and not to the design-build firm.
(c) Section 2267.364, Government Code, as added by Chapter
1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session,
2011, is redesignated as Section 2269.364, Government Code, and
amended to read as follows:
Sec. 2269.364 [2267.364]. STIPEND AMOUNT FOR UNSUCCESSFUL
OFFERORS. (a) 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 shall pay [may offer] an
unsuccessful design-build firm that submits a response to the
governmental entity's request for additional information under
Section 2269.361 [2267.361] a stipend for preliminary engineering
costs associated with the development of the proposal. The stipend
must be an amount equal to at least one-quarter [one-half] of one
percent of the contract amount and [must] be specified in the
initial request for proposals. Following payment of the stipend
[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.
(b) A violation of this section voids the contract for the
project entered into by the governmental entity. [(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).]
SECTION 4. (a) This section takes effect only if the Act of
the 83rd Legislature, Regular Session, 2013, relating to
nonsubstantive additions to and corrections in enacted codes does
not become law.
(b) Subchapter H, Chapter 2267, Government Code, as added by
Chapter 1129 (H.B. 628), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by adding Section 2267.3615 to read as
follows:
Sec. 2267.3615. IDENTIFICATION OF PROJECT TEAM. (a) A
design-build firm responding to a request for detailed proposals
issued under Section 2267.361 must identify:
(1) companies that will fill key project roles,
including project management, lead design firm, quality control
management, and quality assurance management; and
(2) entities that will serve as key task leaders for
geotechnical, hydraulics and hydrology, structural, environmental,
utility, and right-of-way issues.
(b) A design-build firm selected for a design-build
agreement may not make changes to the companies or entities
identified under Subsection (a) unless the original company or
entity:
(1) is no longer in business, is unable to fulfill its
legal, financial, or business obligations, or can no longer meet
the terms of the teaming agreement with the design-build firm;
(2) voluntarily removes itself from the team;
(3) fails to provide a sufficient number of qualified
personnel to fulfill the duties identified during the proposal
stage; or
(4) fails to negotiate in good faith in a timely manner
in accordance with provisions established in the teaming agreement
proposed for the project.
(c) If the design-build firm makes team changes in violation
of Subsection (b), any cost savings resulting from the change
accrue to the governmental entity and not to the design-build firm.
(c) Section 2267.364, Government Code, as added by Chapter
1129 (H.B. 628), Acts of the 82nd Legislature, Regular Session,
2011, is amended to read as follows:
Sec. 2267.364. STIPEND AMOUNT FOR UNSUCCESSFUL OFFERORS.
(a) 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 shall pay [may offer] an
unsuccessful design-build firm that submits a response to the
governmental 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 an amount equal to at least one-quarter [one-half] of one percent
of the contract amount and [must] be specified in the initial
request for proposals. Following payment of the stipend [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.
(b) A violation of this section voids the contract for the
project entered into by the governmental entity. [(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).]
SECTION 5. The change in law made by this Act to Section
791.011, Government Code, applies only to a contract made on or
after the effective date of this Act.
SECTION 6. The changes in law made by this Act to Section
2267.364, Government Code, as amended by this Act, and Sections
2267.3615 and 2269.3615, Government Code, as added 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.
SECTION 7. Section 2267.353(d), Government Code, is
repealed.
SECTION 8. This Act takes effect September 1, 2013.