By: Geren (Senate Sponsor - Eltife) H.B. No. 2475
(In the Senate - Received from the House May 18, 2015;
May 18, 2015, read first time and referred to Committee on Business
and Commerce; May 22, 2015, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 0;
May 22, 2015, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 2475 By: Eltife
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of the center for alternative finance
and procurement within the Texas Facilities Commission and to
public and private partnerships; authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 2152, Government Code, is
amended by adding Section 2152.110 to read as follows:
Sec. 2152.110. CENTER FOR ALTERNATIVE FINANCE AND
PROCUREMENT. The commission shall establish the center for
alternative finance and procurement to consult with governmental
entities regarding best practices for procurement and the financing
of qualifying projects and to assist governmental entities in the
receipt of proposals, negotiation of interim and comprehensive
agreements, and management of qualifying projects under Chapters
2267 and 2268.
SECTION 2. Section 2267.001, Government Code, is amended by
amending Subdivision (1-a) and adding Subdivision (1-b) to read as
follows:
(1-a) "Center" means the center for alternative
finance and procurement established under Section 2152.110 by the
Texas Facilities Commission.
(1-b) "Commission" means the Partnership Advisory
Commission established under Chapter 2268.
SECTION 3. Section 2267.051, Government Code, is amended to
read as follows:
Sec. 2267.051. APPROVAL REQUIRED[; SUBMISSION OF PROPOSAL
FOR QUALIFYING PROJECT]. [(a)] A person may not develop or operate
a qualifying project unless the person obtains the approval of and
contracts with the responsible governmental entity under this
chapter. [The person may initiate the approval process by
submitting a proposal requesting approval under Section
2267.053(a), or the responsible governmental entity may request
proposals or invite bids under Section 2267.053(b).
[(b) A person submitting a proposal requesting approval of a
qualifying project shall specifically and conceptually identify
any facility, building, infrastructure, or improvement included in
the proposal as a part of the qualifying project.
[(c) On receipt of a proposal submitted by a person
initiating the approval process under Section 2267.053(a), the
responsible governmental entity shall determine whether to accept
the proposal for consideration in accordance with Sections 2267.052
and 2267.065 and the guidelines adopted under those sections. A
responsible governmental entity that determines not to accept the
proposal for consideration shall return the proposal, all fees, and
the accompanying documentation to the person submitting the
proposal.
[(d) The responsible governmental entity may at any time
reject a proposal initiated by a person under Section 2267.053(a).]
SECTION 4. Sections 2267.052(b), (c), and (c-1), Government
Code, are amended to read as follows:
(b) The guidelines for a responsible governmental entity
described by Section 2267.001(5)(A) must:
(1) require the responsible governmental entity to:
(A) make a representative of the entity available
to meet with persons who are considering submitting a proposal; and
(B) provide notice of the representative's
availability;
(2) provide reasonable criteria for choosing among
competing proposals;
(3) contain suggested timelines for selecting
proposals and negotiating an interim or comprehensive agreement;
(4) allow the responsible governmental entity to
accelerate the selection, review, and documentation timelines for
proposals involving a qualifying project considered a priority by
the entity;
(5) include financial review and analysis procedures
that at a minimum consist of:
(A) a cost-benefit analysis;
(B) an assessment of opportunity cost;
(C) consideration of the degree to which
functionality and services similar to the functionality and
services to be provided by the proposed project are already
available in the private market; and
(D) consideration of the results of all studies
and analyses related to the proposed qualifying project;
(6) allow the responsible governmental entity to
consider the nonfinancial benefits of a proposed qualifying
project;
(7) ensure that the governmental entity, for a
proposed project to improve real property, evaluates design
quality, life-cycle costs, and the proposed project's relationship
to any relevant comprehensive planning or zoning requirements;
(8) include criteria for:
(A) the qualifying project, including the scope,
costs, and duration of the project and the involvement or impact of
the project on multiple public entities;
(B) the creation of and the responsibilities of
an oversight committee, with members representing the responsible
governmental entity, that acts as an advisory committee to review
the terms of any proposed interim or comprehensive agreement; and
(C) the center's role in the review, analysis, or
evaluation of the qualifying project [compliance with the
requirements of Chapter 2268];
(9) require the responsible governmental entity to
analyze the adequacy of the information to be released by the entity
when seeking competing proposals and require that the entity
provide more detailed information, if the entity determines
necessary, to encourage competition, subject to Section
2267.053(g); and
(10) establish criteria, key decision points, and
approvals required to ensure that the responsible governmental
entity considers the extent of competition before selecting
proposals and negotiating an interim or comprehensive agreement[;
and
[(11) require the posting and publishing of public
notice of a proposal requesting approval of a qualifying project,
including:
[(A) specific information and documentation
regarding the nature, timing, and scope of the qualifying project,
as required under Section 2267.053(a);
[(B) a reasonable period, as determined by the
responsible governmental entity, of not less than 45 days or more
than 180 days, or a longer period specified by the governing body of
the responsible governmental entity to accommodate a large-scale
project, to encourage competition and partnerships with private
entities and other persons in accordance with the goals of this
chapter, during which the responsible governmental entity must
accept submission of competing proposals for the qualifying
project; and
[(C) a requirement for advertising the notice on
the governmental entity's Internet website and on TexasOnline or
the state's official Internet website].
(c) The guidelines of a responsible governmental entity
described by Section 2267.001(5)(B) must include:
(1) the provisions required under Subsection (b); and
(2) a requirement that the governmental entity engage
the services of qualified professionals, including an architect,
professional engineer, or registered municipal advisor [certified
public accountant], not otherwise employed by the governmental
entity, or the center to provide independent analyses regarding the
specifics, advantages, disadvantages, and long-term and short-term
costs of [any proposal requesting approval of] a qualifying project
unless the governing body of the governmental entity determines
that the analysis [of the proposal] is to be performed by similarly
qualified employees of the governmental entity.
(c-1) For a proposal with an estimated cost of $5 million or
more for [the] construction or renovation of a qualifying
[structure or] project, the analysis conducted under Subsection
(c)(2) must include review [of the proposal] by an architect, a
professional engineer, and a registered municipal advisor
[certified public accountant] not otherwise employed by the
governmental entity.
SECTION 5. Section 2267.053(d), Government Code, is amended
to read as follows:
(d) The responsible governmental entity may charge a
reasonable fee to cover the costs of processing, reviewing, and
evaluating the proposal, including reasonable legal fees, [and]
fees for financial and[,] technical[, and other necessary] advisors
or consultants, and fees for the center's review or consultation.
SECTION 6. Section 2267.058(g), Government Code, is amended
to read as follows:
(g) The comprehensive agreement must provide that a
security document or other instrument purporting to mortgage,
pledge, encumber, or create a lien, charge, or security interest on
or against the contracting party's interest may not extend to or
affect the fee simple interest of the state in the qualifying
project or the state's rights or interests under the comprehensive
agreement. Any holder of debt shall acknowledge that the mortgage,
pledge, or encumbrance or a lien, charge, or security interest on or
against the contracting party's interest is subordinate to the fee
simple interest of the state in the qualifying project [and the
state's rights or interests under the comprehensive agreement].
SECTION 7. Section 2267.065(b), Government Code, is amended
to read as follows:
(b) A responsible governmental entity may enter into a
comprehensive agreement only in accordance with guidelines that
require the contracting person to design and construct the
qualifying project in accordance with procedures that do not
materially conflict with those specified in:
(1) Subchapter G, Chapter 2269, for facilities
projects described by Section 2269.302 [2166.2531]; or
(2) Subchapter H, Chapter 2269 [Section 44.036,
Education Code;
[(3) Section 51.780, Education Code;
[(4) Section 271.119, Local Government Code; or
[(5) Subchapter J, Chapter 271, Local Government
Code], for civil works projects as defined by Section 2269.351
[271.181(2), Local Government Code].
SECTION 8. Section 2267.066(a), Government Code, is amended
to read as follows:
(a) Not later than the 10th day after the date a responsible
governmental entity accepts a proposal submitted in accordance with
Section 2267.053(b) [2267.053(a) or (b)], the responsible
governmental entity shall provide notice of the proposal as
follows:
(1) for a responsible governmental entity described by
Section 2267.001(5)(A), by posting the proposal on the entity's
Internet website; and
(2) for a responsible governmental entity described by
Section 2267.001(5)(B), by:
(A) posting a copy of the proposal on the
entity's Internet website; or
(B) publishing in a newspaper of general
circulation in the area in which the qualifying project is to be
performed a summary of the proposal and the location where copies of
the proposal are available for public inspection.
SECTION 9. Section 2268.001, Government Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Center" means the center for alternative finance
and procurement established under Section 2152.110 by the Texas
Facilities Commission.
(1-a) "Commission" means the Partnership Advisory
Commission.
SECTION 10. Section 2268.056(d), Government Code, is
amended to read as follows:
(d) The center [Texas Facilities Commission], using the
qualifying project fees authorized under Section 2165.353, shall
provide, on a cost recovery basis, professional services [of its
architectural, engineering, and real estate staff and the
expertise] of financial, technical, and other necessary advisors
and consultants, authorized under Section 2267.053(d), as
necessary to support the Partnership Advisory Commission in its
review and evaluation of proposals, including financial and risk
allocation analysis and ongoing contract performance monitoring of
qualifying projects. The center [Texas Facilities Commission]
shall assign staff and contracted advisors and consultants
necessary to perform the duties required by this subsection.
SECTION 11. Section 2268.059, Government Code, is amended
to read as follows:
Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS
SUBMITTED TO COMMISSION. Records and information afforded
protection under Section 552.153 that are provided by a responsible
governmental entity to the commission and the presiding officer of
the House Appropriations Committee and of the Senate Finance
Committee, or their designees, shall continue to be protected from
disclosure when in the possession of the commission and the
presiding officers or their designees.
SECTION 12. The following provisions of the Government Code
are repealed:
(1) Section 2267.002(e); and
(2) Sections 2267.053(a) and (a-1).
SECTION 13. As soon as practicable after the effective date
of this Act, the Texas Facilities Commission shall adopt the rules
necessary to establish the center for alternative finance and
procurement in accordance with Section 2152.110, Government Code,
as added by this Act.
SECTION 14. This Act takes effect September 1, 2015.
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