Texas 2023 - 88th Regular

Texas Senate Bill SB2504 Compare Versions

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1	1	88R3801 SRA-F
2	2	By: Alvarado S.B. No. 2504
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the method used to select engineers and general
8	8	contractors for certain state highway construction projects.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 223, Transportation Code, is amended by
11	11	adding Subchapter G to read as follows:
12	12	SUBCHAPTER G. CONSTRUCTION MANAGER-GENERAL CONTRACTOR METHOD
13	13	Sec. 223.301. DEFINITION. In this subchapter,
14	14	"construction manager-general contractor method" means a delivery
15	15	method by which the department contracts with an engineer for
16	16	design and construction phase services and contracts separately
17	17	with a construction manager to serve as the general contractor and
18	18	to provide consultation during the design and construction of a
19	19	state highway.
20	20	Sec. 223.302. USE OF CONSTRUCTION MANAGER-GENERAL
21	21	CONTRACTOR METHOD. Notwithstanding any other law requiring a
22	22	particular procurement procedure, including Subchapter A of this
23	23	chapter, the department may use the construction manager-general
24	24	contractor method to select a general contractor for a state
25	25	highway project as provided by this subchapter.
26	26	Sec. 223.303. CONSTRUCTION MANAGER. (a) For purposes of
27	27	this subchapter, a construction manager may be a sole
28	28	proprietorship, partnership, corporation, or other legal entity.
29	29	(b) A construction manager serves as the general contractor
30	30	for a state highway project and assumes the risk for the
31	31	construction of the state highway at the contracted price.
32	32	(c) A construction manager shall provide consultation to
33	33	the department regarding construction of a state highway project
34	34	during and after the design of the project, including consultation
35	35	regarding preconstruction services such as scheduling, pricing,
36	36	phasing, technical innovations, site investigation, and risk
37	37	mitigation.
38	38	(d) The contracted price may be a guaranteed maximum price
39	39	or converted to a lump sum.
40	40	Sec. 223.304. USE OF ENGINEER. (a) On or before the
41	41	selection of a construction manager, the department shall select an
42	42	engineer to prepare the construction documents for the state
43	43	highway project.
44	44	(b) The engineer selected for a state highway project under
45	45	Section 223.041 may not serve, alone or in combination with another
46	46	person, as the construction manager for that project.
47	47	(c) Subsection (b) does not prohibit the engineer from
48	48	providing customary construction phase services under the
49	49	engineer's contract with the department in accordance with
50	50	applicable licensing laws.
51	51	Sec. 223.305. ADOPTION OF CRITERIA AND RULES. (a) The
52	52	department shall adopt weighted selection criteria and rules for
53	53	the selection process and award of contracts under this subchapter,
54	54	which may include interviews with top-ranked offerors.
55	55	(b) The rules adopted under Subsection (a) must address the
56	56	selection process applicable to the award of a contract for
57	57	preconstruction services and for construction management and
58	58	construction services, including the process for contract
59	59	negotiations with the construction manager for construction of the
60	60	project or work packages associated with the project in accordance
61	61	with contract documents.
62	62	Sec. 223.306. EVALUATION TEAM. (a) Before preparing a
63	63	request under Section 223.307 for a state highway project, the
64	64	director shall appoint a team of at least three members to assist
65	65	the department in evaluating proposals and qualifications received
66	66	by the department. The members may be department employees or
67	67	outside consultants.
68	68	(b) At least one-half, or as near one-half as possible, of
69	69	the team members must be engineers registered in this state. An
70	70	engineer who serves on the team and is not a department employee may
71	71	not otherwise be involved in the project for which the request is
72	72	prepared under Section 223.307.
73	73	(c) The team must include at least one person who is a senior
74	74	management employee of a general contractor that:
75	75	(1) is registered as a prequalified general contractor
76	76	under department rules;
77	77	(2) is not involved in the project for which the
78	78	request is prepared under Section 223.307; and
79	79	(3) has no other conflict of interest as determined by
80	80	the department.
81	81	Sec. 223.307. SELECTION PROCESS. (a) The department may
82	82	select the construction manager in a one-step or two-step process.
83	83	(b) The department shall prepare a single request for
84	84	proposals, in the case of a one-step process, and an initial request
85	85	for qualifications followed by a request for proposals and any
86	86	required interviews, in the case of a two-step process. A request
87	87	prepared under this subsection must include:
88	88	(1) a statement as to whether the selection process is
89	89	a one-step or two-step process;
90	90	(2) information regarding the project's location,
91	91	scope, and limits;
92	92	(3) publicly available cost estimates and a budget for
93	93	the project;
94	94	(4) information regarding funding that may be
95	95	available for the project;
96	96	(5) the selection criteria adopted under Section
97	97	223.305 and the relative weighted value for each criterion;
98	98	(6) the time and place for receipt of qualifications
99	99	or proposals, as applicable; and
100	100	(7) any other information that may assist the
101	101	department in the selection of a construction manager.
102	102	(c) If a one-step process is used, the department may
103	103	request, as part of the offeror's proposal, the offeror's:
104	104	(1) proposed billable rates for preconstruction
105	105	services personnel;
106	106	(2) proposed fee for home office overhead; and
107	107	(3) profit fee on the negotiated construction price
108	108	for performing construction services.
109	109	(d) If a two-step process is used, the department may not
110	110	request proposed billable rates, fees, or prices in step one. In
111	111	step two, the department may request that five or fewer offerors,
112	112	selected on the basis of qualifications, experience, technical
113	113	competence, and ability to develop the project, provide additional
114	114	information, including the offeror's:
115	115	(1) proposed billable rates for preconstruction
116	116	services and general conditions personnel;
117	117	(2) proposed fee for home office overhead; and
118	118	(3) profit fee on the negotiated construction price
119	119	for performing construction services.
120	120	(e) If a one-step process is used, proposed billable rates
121	121	for general conditions personnel must be negotiated on selection of
122	122	the construction manager.
123	123	Sec. 223.308. SELECTION OF CONSTRUCTION MANAGER. (a) The
124	124	department shall:
125	125	(1) rank the offerors in accordance with the selection
126	126	criteria provided in the request for proposals under Section
127	127	223.307(b)(5); and
128	128	(2) select the offeror that submits the proposal with
129	129	the highest ranking.
130	130	(b) The award of a preconstruction services contract under
131	131	Subsection (a) authorizes the construction manager to:
132	132	(1) provide consultation to the department and project
133	133	engineer; and
134	134	(2) enter into open and transparent negotiations with
135	135	the department during the design phase of the project to refine the
136	136	project's cost and schedule for the construction management and
137	137	construction services contract.
138	138	(c) The department shall use the services of an independent
139	139	cost estimator for each work package associated with the project to
140	140	validate the negotiated costs for the construction management and
141	141	construction services contract. The independent cost estimator
142	142	shall follow procedures outlined in the Federal Highway
143	143	Administration Major Project Program Cost Estimating Guidance, as
144	144	it existed on September 1, 2023, and as adapted by the department.
145	145	(d) On successful negotiations under Subsection (b)(2), the
146	146	department shall execute a construction management and
147	147	construction services contract with the construction manager for
148	148	either construction of the project or selected work packages
149	149	associated with the project.
150	150	(e) Negotiations under Subsection (b)(2) shall be
151	151	terminated if the department is unable to reach a price agreement
152	152	with the construction manager. If negotiations are terminated, the
153	153	department may competitively bid the construction of the project in
154	154	accordance with the department's procedures under Subchapter A.
155	155	(f) Not later than the seventh day after the date a
156	156	preconstruction services contract is awarded under this section,
157	157	the department shall make public the selection rankings determined
158	158	under Subsection (a).
159	159	Sec. 223.309. PERFORMANCE OF WORK. (a) A construction
160	160	manager shall perform a minimum percentage of construction work,
161	161	excluding general conditions work, as required by the department's
162	162	rules regarding standard specifications for highway and bridge
163	163	construction.
164	164	(b) A construction manager shall publicly advertise for
165	165	bids or proposals and receive bids or proposals from subcontractors
166	166	for the performance of the remaining construction work.
167	167	Sec. 223.310. PERFORMANCE OR PAYMENT BOND. The
168	168	construction manager shall deliver any performance and payment
169	169	bonds not later than the 10th day after the date the construction
170	170	manager is awarded a preconstruction services contract under
171	171	Section 223.308 unless the construction manager furnishes a bid
172	172	bond or other financial security acceptable to the department to
173	173	ensure that the construction manager will furnish the required
174	174	performance and payment bonds when a guaranteed maximum price is
175	175	established.
176	176	SECTION 2. This Act takes effect immediately if it receives
177	177	a vote of two-thirds of all the members elected to each house, as
178	178	provided by Section 39, Article III, Texas Constitution. If this
179	179	Act does not receive the vote necessary for immediate effect, this
180	180	Act takes effect September 1, 2023.