89R6375 JCG-D
By: Gervin-Hawkins H.B. No. 2148
A BILL TO BE ENTITLED
AN ACT
relating to the construction manager-at-risk and design-build
methods of project delivery for a public work contract.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2269.253, Government Code, is amended by
amending Subsections (d) and (e) and adding Subsection (e-1) to
read as follows:
(d) If a one-step process is used, the governmental entity
shall [may] request, as part of the offeror's proposal:
(1)[,] proposed fees and prices for fulfilling the
general conditions; and
(2) proposed prices and methods for preventing and
managing the risk of default by a trade contractor or
subcontractor.
(e) If a two-step process is used, the governmental entity
may not request fees or prices in step one. In step two, the
governmental entity shall [may] request that five or fewer
offerors, selected solely on the basis of qualifications, provide
additional information, including the construction
manager-at-risk's:
(1) proposed fee and prices for fulfilling the general
conditions; and
(2) proposed prices and methods for preventing and
managing the risk of default by a trade contractor or
subcontractor.
(e-1) A governmental entity's request for proposals in a
one-step process or request for qualifications in a two-step
process must clearly provide that the proposed prices for
fulfilling the general conditions and the proposed prices for
preventing and managing risk of default by a trade contractor or
subcontractor are allowable costs for all purposes of the
construction contract, including for the purpose of calculating the
construction manager-at-risk's fee. A provision of a request for
proposals, a request for qualifications, or a construction contract
entered into under this subchapter that conflicts with the
requirements of this subsection has no effect.
SECTION 2. Section 2269.255, Government Code, is amended by
adding Subsections (c), (d), (e), (f), and (g) to read as follows:
(c) Except as provided by Subsection (d), if the
governmental entity determines that the construction
manager-at-risk's bid or proposal provides the best value under
Subsection (b)(2) and that bid or proposal is selected, the
governmental entity shall compensate the construction
manager-at-risk for the performance of that work in the same manner
that the governmental entity would have compensated one of the
other competing trade contractors or subcontractors that submitted
a bid or proposal for the work, as determined by the governmental
entity.
(d) If one or more bids or proposals received under this
section offer to provide services under a stipulated sum contract
and the construction manager-at-risk's bid or proposal is selected
as described by Subsection (c):
(1) the construction manager-at-risk shall be
compensated for the work in the manner that a stipulated sum
contract would provide; and
(2) the price proposed by the construction
manager-at-risk may not be audited.
(e) A construction manager-at-risk's compensation for the
performance of work under Subsection (b) is considered an allowable
trade contractor or subcontractor cost for all purposes of the
construction contract, including for purposes of calculating the
construction manager-at-risk's fee.
(f) For purposes of Subsection (d), a "stipulated sum
contract" is a contract in which the contractor agrees to provide
services for a fixed price resulting in the contractor bearing
substantial risk for any underestimated costs to provide the
services and is also known as a lump sum contract.
(g) A provision of a request for proposals, an advertisement
for bids or proposals, or a construction contract entered into
under this subchapter that conflicts with the requirements of
Subsection (c), (d), or (e) has no effect.
SECTION 3. Section 2269.307, Government Code, is amended by
amending Subsection (e) and adding Subsection (e-1) to read as
follows:
(e) Except as provided by Subsection (e-1), the [The]
governmental entity may request additional information regarding
demonstrated competence and qualifications, considerations of the
safety and long-term durability of the project, the feasibility of
implementing the project as proposed, the ability of the offeror to
meet schedules, or costing methodology. As used in this
subsection, "costing methodology" means an offeror's policies on
subcontractor markup, definition of general conditions, range of
cost for general conditions, policies on retainage, policies on
contingencies, discount for prompt payment, policies and pricing
for preventing and managing the risk of default by a trade
contractor or subcontractor, and expected staffing for
administrative duties. The term does not include a guaranteed
maximum price or bid for overall design or construction.
(e-1) The governmental entity may not request a guaranteed
maximum price or bid for overall design or construction.
SECTION 4. Subchapter G, Chapter 2269, Government Code, is
amended by adding Section 2269.3065 to read as follows:
Sec. 2269.3065. PRICES AND METHODS FOR PREVENTING AND
MANAGING RISK OF DEFAULT BY TRADE CONTRACTOR OR SUBCONTRACTOR. (a)
Any request for proposals, request for qualifications, or
construction contract entered into under this subchapter must
clearly provide that:
(1) the selected design-build firm may implement the
firm's proposed methods of preventing and managing the risk of
default by a trade contractor or subcontractor; and
(2) the proposed prices for the methods described by
Subdivision (1) are allowable costs for all purposes of the
construction contract, including for purposes of calculating the
selected design-build firm's fee.
(b) A provision of a request for proposals, a request for
qualifications, or a construction contract entered into under this
subchapter that conflicts with the requirements of Subsection (a)
has no effect.
SECTION 5. Subchapter G, Chapter 2269, Government Code, is
amended by adding Section 2269.312 to read as follows:
Sec. 2269.312. PERFORMANCE OF WORK. (a) A contract entered
into under this subchapter must allow the design-build firm to
perform portions of the construction work required by the contract
instead of contracting with another person to perform that work.
(b) The governmental entity may select the design-build
firm to perform portions of the construction work required by the
contract if:
(1) the design-build firm publicly advertises for bids
or proposals for the performance of the construction work required
by the contract;
(2) the design-build firm receives bids or proposals
from trade contractors or subcontractors for that work;
(3) the design-build firm submits a bid or proposal
for that work; and
(4) the governmental entity determines that the
design-build firm provides the best value for the governmental
entity.
(c) Sections 2269.255(c), (d), (e), (f), and (g) apply to
the compensation of the design-build firm and the construction
contract entered into under this subchapter in the same manner as
those laws apply to a construction manager-at-risk's compensation
and a construction contract entered into under Subchapter F.
(d) A provision of a request for proposals, an advertisement
for bids or proposals, or a construction contract entered into
under this subchapter that conflicts with this section has no
effect.
SECTION 6. Subchapters F and G, Chapter 2269, Government
Code, as amended by this Act, apply only to a request for
qualifications or proposals first advertised on or after the
effective date of this Act. A request for qualifications or
proposals first advertised before the effective date of this Act is
governed by the law in effect on the date the request for
qualifications or proposals was first advertised, and the former
law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2025.