Bill Text: TX HB628 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to contracts by governmental entities and related professional services and to public works performance and payment bonds.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB628 Detail]
Download: Texas-2011-HB628-Enrolled.html
H.B. No. 628 |
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relating to contracts by governmental entities and related | ||
professional services and to public works performance and payment | ||
bonds. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
ARTICLE 1. PUBLIC WORKS PERFORMANCE AND PAYMENT BONDS | ||
SECTION 1.01. Section 2253.021, Government Code, is amended | ||
by adding Subsection (h) to read as follows: | ||
(h) A reverse auction procedure may not be used to obtain | ||
services related to a public work contract for which a bond is | ||
required under this section. In this subsection, "reverse auction | ||
procedure" has the meaning assigned by Section 2155.062 or a | ||
procedure similar to that described by Section 2155.062. | ||
ARTICLE 2. CONTRACTS BY GOVERNMENTAL ENTITIES | ||
SECTION 2.01. Section 11.168, Education Code, is amended to | ||
read as follows: | ||
Sec. 11.168. USE OF DISTRICT RESOURCES PROHIBITED FOR | ||
CERTAIN PURPOSES; EXCEPTION. (a) Except as provided by Subsection | ||
(b) or Section 45.109(a-1) or [ |
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a school district may not enter into an agreement authorizing the | ||
use of school district employees, property, or resources for the | ||
provision of materials or labor for the design, construction, or | ||
renovation of improvements to real property not owned or leased by | ||
the district. | ||
(b) This section does not prohibit the board of trustees of | ||
a school district from entering into an agreement for the design, | ||
construction, or renovation of improvements to real property not | ||
owned or leased by the district if the improvements benefit real | ||
property owned or leased by the district. Benefits to real property | ||
owned or leased by the district include the design, construction, | ||
or renovation of highways, roads, streets, sidewalks, crosswalks, | ||
utilities, and drainage improvements that serve or benefit the real | ||
property owned or leased by the district. | ||
SECTION 2.02. Sections 44.031(a), (b), and (f), Education | ||
Code, are amended to read as follows: | ||
(a) Except as provided by this subchapter, all school | ||
district contracts for the purchase of goods and services, except | ||
contracts for the purchase of produce or vehicle fuel, valued at | ||
$50,000 or more in the aggregate for each 12-month period shall be | ||
made by the method, of the following methods, that provides the best | ||
value for the district: | ||
(1) competitive bidding for services other than | ||
construction services; | ||
(2) competitive sealed proposals for services other | ||
than construction services; | ||
(3) a request for proposals, for services other than | ||
construction services; | ||
(4) an interlocal contract; | ||
(5) a method provided by Chapter 2267, Government | ||
Code, for construction services [ |
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(6) [ |
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Section 2155.062(d), Government Code; or | ||
(7) [ |
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corporation under Section 304.001, Local Government Code. | ||
(b) Except as provided by this subchapter, in determining to | ||
whom to award a contract, the district shall consider: | ||
(1) the purchase price; | ||
(2) the reputation of the vendor and of the vendor's | ||
goods or services; | ||
(3) the quality of the vendor's goods or services; | ||
(4) the extent to which the goods or services meet the | ||
district's needs; | ||
(5) the vendor's past relationship with the district; | ||
(6) the impact on the ability of the district to comply | ||
with laws and rules relating to historically underutilized | ||
businesses; | ||
(7) the total long-term cost to the district to | ||
acquire the vendor's goods or services; [ |
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(8) for a contract for goods and services, other than | ||
goods and services related to telecommunications and information | ||
services, building construction and maintenance, or instructional | ||
materials, whether the vendor or the vendor's ultimate parent | ||
company or majority owner: | ||
(A) has its principal place of business in this | ||
state; or | ||
(B) employs at least 500 persons in this state; | ||
and | ||
(9) any other relevant factor specifically listed in | ||
the request for bids or proposals. | ||
(f) This section does not apply to a contract for | ||
professional services rendered, including services of an | ||
architect, attorney, certified public accountant, engineer, or | ||
fiscal agent. A school district may, at its option, contract for | ||
professional services rendered by a financial consultant or a | ||
technology consultant in the manner provided by Section 2254.003, | ||
Government Code, in lieu of the methods provided by this section. | ||
SECTION 2.03. Subchapter B, Chapter 44, Education Code, is | ||
amended by adding Sections 44.0351 and 44.0352 to read as follows: | ||
Sec. 44.0351. COMPETITIVE BIDDING. (a) Except to the | ||
extent prohibited by other law and to the extent consistent with | ||
this subchapter, a school district may use competitive bidding to | ||
select a vendor as authorized by Section 44.031(a)(1). | ||
(b) Except as provided by this subsection, Subchapter B, | ||
Chapter 271, Local Government Code, does not apply to a competitive | ||
bidding process under this subchapter. Sections 271.026, | ||
271.027(a), and 271.0275, Local Government Code, apply to a | ||
competitive bidding process under this subchapter. | ||
(c) A school district shall award a competitively bid | ||
contract at the bid amount to the bidder offering the best value for | ||
the district. In determining the best value for the district, the | ||
district is not restricted to considering price alone but may | ||
consider any other factors stated in the selection criteria. The | ||
selection criteria may include the factors listed in Section | ||
44.031(b). | ||
Sec. 44.0352. COMPETITIVE SEALED PROPOSALS. (a) In | ||
selecting a vendor through competitive sealed proposals as | ||
authorized by Section 44.031(a)(2), a school district shall follow | ||
the procedures prescribed by this section. | ||
(b) The district shall prepare a request for competitive | ||
sealed proposals that includes information that vendors may require | ||
to respond to the request. The district shall state in the request | ||
for proposals the selection criteria that will be used in selecting | ||
the successful offeror. | ||
(c) The district shall receive, publicly open, and read | ||
aloud the names of the offerors and, if any are required to be | ||
stated, all prices stated in each proposal. Not later than the 45th | ||
day after the date on which the proposals are opened, the district | ||
shall evaluate and rank each proposal submitted in relation to the | ||
published selection criteria. | ||
(d) The district shall select the offeror that offers the | ||
best value for the district based on the published selection | ||
criteria and on its ranking evaluation. The district shall first | ||
attempt to negotiate a contract with the selected offeror. The | ||
district may discuss with the selected offeror options for a scope | ||
or time modification and any price change associated with the | ||
modification. If the district is unable to negotiate a | ||
satisfactory contract with the selected offeror, the district | ||
shall, formally and in writing, end negotiations with that offeror | ||
and proceed to the next offeror in the order of the selection | ||
ranking until a contract is reached or all proposals are rejected. | ||
(e) In determining the best value for the district, the | ||
district is not restricted to considering price alone but may | ||
consider any other factors stated in the selection criteria. | ||
SECTION 2.04. Subchapter B, Chapter 44, Education Code, is | ||
amended by adding Section 44.0411 to read as follows: | ||
Sec. 44.0411. CHANGE ORDERS. (a) If a change in plans or | ||
specifications is necessary after the performance of a contract is | ||
begun or if it is necessary to decrease or increase the quantity of | ||
work to be performed or of materials, equipment, or supplies to be | ||
furnished, the district may approve change orders making the | ||
changes. | ||
(b) The total contract price may not be increased because of | ||
the changes unless additional money for increased costs is approved | ||
for that purpose from available money or is provided for by the | ||
authorization of the issuance of time warrants. | ||
(c) The district may grant general authority to an | ||
administrative official to approve the change orders. | ||
(d) A contract with an original contract price of $1 million | ||
or more may not be increased under this section by more than 25 | ||
percent. If a change order for a contract with an original contract | ||
price of less than $1 million increases the contract amount to $1 | ||
million or more, the total of the subsequent change orders may not | ||
increase the revised contract amount by more than 25 percent of the | ||
original contract price. | ||
SECTION 2.05. Subchapter A, Chapter 46, Education Code, is | ||
amended by adding Section 46.0111 to read as follows: | ||
Sec. 46.0111. ACTIONS BROUGHT FOR DEFECTIVE DESIGN, | ||
CONSTRUCTION, RENOVATION, OR IMPROVEMENT OF INSTRUCTIONAL | ||
FACILITY. (a) In this section: | ||
(1) "Net proceeds" means the difference between the | ||
amount recovered by or on behalf of a school district in an action, | ||
by settlement or otherwise, and the legal fees and litigation costs | ||
incurred by the district in prosecuting the action. | ||
(2) "State's share" means an amount equal to the | ||
district's net proceeds from the recovery multiplied by a | ||
percentage determined by dividing the amount of state assistance | ||
under this subchapter used to pay the principal of and interest on | ||
bonds issued in connection with the instructional facility that is | ||
the subject of the action by the total amount of principal and | ||
interest paid on the bonds as of the date of the judgment or | ||
settlement. | ||
(b) A school district that brings an action for recovery of | ||
damages for the defective design, construction, renovation, or | ||
improvement of an instructional facility financed by bonds | ||
for which the district receives state assistance under this | ||
subchapter shall provide the commissioner with written notice of | ||
the action. | ||
(c) The commissioner may join in the action on behalf of the | ||
state to protect the state's share in the action. | ||
(d) A school district shall use the net proceeds from an | ||
action brought by the district for the defective design, | ||
construction, renovation, or improvement of an instructional | ||
facility financed by bonds for which the district receives state | ||
assistance under this subchapter to repair the defective design, | ||
construction, renovation, or improvement of the instructional | ||
facility on which the action is brought or to replace the facility. | ||
Section 46.008 applies to the repair. | ||
(e) The state's share is state property. The school | ||
district shall send to the comptroller any portion of the state's | ||
share not used by the school district to repair the defective | ||
design, construction, renovation, or improvement of the | ||
instructional facility on which the action is brought or to replace | ||
the facility. Section 42.258 applies to the state's share under | ||
this subsection. | ||
SECTION 2.06. Section 2155.502(c), Government Code, is | ||
amended to read as follows: | ||
(c) The commission may not list a multiple award contract on | ||
a schedule developed under Subsection (a) if the goods or services | ||
provided by that contract: | ||
(1) are available from only one vendor; | ||
(2) are telecommunications services, facilities, or | ||
equipment; [ |
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(3) are commodity items as defined by Section | ||
2157.068(a); or | ||
(4) are engineering services as described by Section | ||
1001.003, Occupations Code, or architectural services as described | ||
by Section 1051.001, Occupations Code. | ||
SECTION 2.07. Section 2166.2525, Government Code, is | ||
amended to read as follows: | ||
Sec. 2166.2525. DETERMINATION OF CONTRACTING METHOD. The | ||
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for design and construction services is any method provided by | ||
Chapter 2267. [ |
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SECTION 2.08. Subtitle F, Title 10, Government Code, is | ||
amended by adding Chapter 2267 to read as follows: | ||
CHAPTER 2267. CONTRACTING AND DELIVERY PROCEDURES FOR | ||
CONSTRUCTION PROJECTS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 2267.001. DEFINITIONS. In this chapter: | ||
(1) "Architect" means an individual registered as an | ||
architect under Chapter 1051, Occupations Code. | ||
(2) "Engineer" means an individual licensed as an | ||
engineer under Chapter 1001, Occupations Code. | ||
(3) "Facility" means, unless otherwise specifically | ||
provided, an improvement to real property. | ||
(4) "General conditions" in the context of a contract | ||
for the construction, rehabilitation, alteration, or repair of a | ||
facility means on-site management, administrative personnel, | ||
insurance, bonds, equipment, utilities, and incidental work, | ||
including minor field labor and materials. | ||
(5) "General contractor" means a sole proprietorship, | ||
partnership, corporation, or other legal entity that assumes the | ||
risk for constructing, rehabilitating, altering, or repairing all | ||
or part of a facility at the contracted price. | ||
(6) "Public work contract" means a contract for | ||
constructing, altering, or repairing a public building or carrying | ||
out or completing any public work. | ||
Sec. 2267.002. APPLICABILITY OF CHAPTER TO GOVERNMENTAL | ||
ENTITIES ENGAGED IN PUBLIC WORKS. This chapter applies to a public | ||
work contract made by a governmental entity authorized by state law | ||
to make a public work contract, including: | ||
(1) a state agency as defined by Section 2151.002, | ||
including the Texas Facilities Commission; | ||
(2) a local government, including: | ||
(A) a county; | ||
(B) a municipality; | ||
(C) a school district; | ||
(D) any other special district or authority, | ||
including a hospital district, a defense base development authority | ||
established under Chapter 379B, Local Government Code, and a | ||
conservation and reclamation district, including a river authority | ||
or any other type of water district; and | ||
(E) any other political subdivision of this | ||
state; | ||
(3) a public junior college as defined by Section | ||
61.003, Education Code; and | ||
(4) a board of trustees governed by Chapter 54, | ||
Transportation Code. | ||
Sec. 2267.003. CONFLICT OF LAWS; REQUIREMENT TO FOLLOW | ||
PROCEDURES OF THIS CHAPTER. (a) Except as provided by this | ||
section, this chapter prevails over any other law relating to a | ||
public work contract. | ||
(b) This chapter does not prevail over a conflicting | ||
provision in a law relating to contracting with a historically | ||
underutilized business. | ||
(c) This chapter does not prevail over a conflicting | ||
provision in an ordinance or resolution passed by the governing | ||
body of a municipally owned electric utility in a procedure | ||
described by Section 252.022(c), Local Government Code, that: | ||
(1) requires the use of competitive bidding or | ||
competitive sealed proposals; or | ||
(2) prescribes a design-build procurement procedure | ||
that conflicts with this chapter. | ||
(d) This chapter does not prevail over any law, rule, or | ||
regulation relating to competitive bidding or competitive sealed | ||
proposals for construction services, or to procurement of | ||
construction services pursuant to Section 49.273, Water Code, that | ||
applies to a river authority or to a conservation and reclamation | ||
district created under Section 59, Article XVI, Texas Constitution, | ||
unless the governing body of the river authority or conservation | ||
and reclamation district elects to permit this chapter to supersede | ||
the law, rule, or regulation. | ||
(e) This chapter does not prevail over a conflicting | ||
provision in a regulation that prescribes procurement procedures | ||
for construction services that is adopted by the governing board of | ||
a river authority or of a conservation and reclamation district | ||
created pursuant to Section 59, Article XVI, Texas Constitution, | ||
that owns electric generation capacity in excess of 2,500 | ||
megawatts, except with respect to Subchapter H. | ||
Sec. 2267.004. EXEMPTION: TEXAS DEPARTMENT OF | ||
TRANSPORTATION; HIGHWAY PROJECTS. This chapter does not apply to: | ||
(1) a contract entered into by the Texas Department of | ||
Transportation; or | ||
(2) a project that receives money from a state or | ||
federal highway fund. | ||
Sec. 2267.005. APPLICABILITY: INSTITUTIONS OF HIGHER | ||
EDUCATION. (a) In this section, "institution of higher | ||
education," "public junior college," and "university system" have | ||
the meanings assigned by Section 61.003, Education Code. | ||
(b) This chapter applies to a public junior college but does | ||
not apply to: | ||
(1) any other institution of higher education; or | ||
(2) a university system. | ||
Sec. 2267.006. EXEMPTION: REGIONAL TOLLWAY AUTHORITIES. | ||
This chapter does not apply to a regional tollway authority under | ||
Chapter 366, Transportation Code. | ||
Sec. 2267.007. EXEMPTION: CERTAIN LOCAL GOVERNMENT | ||
CORPORATION IMPROVEMENT PROJECTS. This chapter does not apply to | ||
an improvement project undertaken by or through a local government | ||
corporation exempt from competitive bidding requirements or | ||
restrictions under Section 431.110, Transportation Code. | ||
Sec. 2267.008. EXEMPTION: REGIONAL MOBILITY AUTHORITIES. | ||
This chapter does not apply to a regional mobility authority under | ||
Chapter 370, Transportation Code. | ||
Sec. 2267.009. EXEMPTION: COUNTY TOLL AUTHORITIES. This | ||
chapter does not apply to a project of a county under Chapter 284, | ||
Transportation Code, unless the county adopts an order electing to | ||
be governed by this chapter for a project to be developed by the | ||
county under Chapter 284. | ||
Sec. 2267.010. EXEMPTION: COORDINATED COUNTY | ||
TRANSPORTATION AUTHORITY. This chapter does not apply to a | ||
coordinated county transportation authority under Chapter 460, | ||
Transportation Code. | ||
[Sections 2267.011-2267.050 reserved for expansion] | ||
SUBCHAPTER B. GENERAL POWERS AND DUTIES | ||
Sec. 2267.051. RULES. A governmental entity may adopt | ||
rules as necessary to implement this chapter. | ||
Sec. 2267.052. NOTICE REQUIREMENTS. (a) A governmental | ||
entity shall advertise or publish notice of requests for bids, | ||
proposals, or qualifications in a manner prescribed by law. | ||
(b) For a contract entered into by a governmental entity | ||
under a method provided by this chapter, the governmental entity | ||
shall publish notice of the time and place the bid or proposal or | ||
request for qualifications will be received and opened in a manner | ||
prescribed by law. | ||
(c) For a contract entered into by a municipality, river | ||
authority, conservation and reclamation district created pursuant | ||
to Section 59, Article XVI, Texas Constitution, and located in a | ||
county with a population of more than 250,000, or defense base | ||
development authority under any of the methods provided by this | ||
chapter, the municipality, river authority, conservation and | ||
reclamation district created pursuant to Section 59, Article XVI, | ||
Texas Constitution, and located in a county with a population of | ||
more than 250,000, or defense base development authority shall | ||
publish notice of the time and place the bids or proposals, or the | ||
responses to a request for qualifications, will be received and | ||
opened. The notice must be published in a newspaper of general | ||
circulation in the county in which the defense base development | ||
authority's or municipality's central administrative office is | ||
located or the county in which the greatest amount of the river | ||
authority's or such conservation and reclamation district's | ||
territory is located once each week for at least two weeks before | ||
the deadline for receiving bids, proposals, or responses. If there | ||
is not a newspaper of general circulation in that county, the notice | ||
shall be published in a newspaper of general circulation in the | ||
county nearest the county seat of the county in which the defense | ||
base development authority's or municipality's central | ||
administrative office is located or the county in which the | ||
greatest amount of the river authority's or such conservation and | ||
reclamation district's territory is located. In a two-step | ||
procurement process, the time and place the second step bids, | ||
proposals, or responses will be received are not required to be | ||
published separately. | ||
(d) For a contract entered into by a county under any of the | ||
methods provided by this chapter, the county shall publish notice | ||
of the time and place the bids or proposals, or the responses to a | ||
request for qualifications, will be received and opened. The | ||
notice must be published in a newspaper of general circulation in | ||
the county once each week for at least two weeks before the deadline | ||
for receiving bids, proposals, or responses. If there is not a | ||
newspaper of general circulation in the county, the notice shall | ||
be: | ||
(1) posted at the courthouse door of the county; and | ||
(2) published in a newspaper of general circulation in | ||
the nearest county. | ||
Sec. 2267.053. DELEGATION OF AUTHORITY. (a) The governing | ||
body of a governmental entity may delegate its authority under this | ||
chapter regarding an action authorized or required by this chapter | ||
to a designated representative, committee, or other person. | ||
(b) The governmental entity shall provide notice of the | ||
delegation, the limits of the delegation, and the name or title of | ||
each person designated under Subsection (a) by rule or in the | ||
request for bids, proposals, or qualifications or in an addendum to | ||
the request. | ||
Sec. 2267.054. RIGHT TO WORK. (a) This section applies to | ||
a governmental entity when the governmental entity is engaged in: | ||
(1) procuring goods or services under this chapter; | ||
(2) awarding a contract under this chapter; or | ||
(3) overseeing procurement or construction for a | ||
public work or public improvement under this chapter. | ||
(b) In engaging in an activity to which this section | ||
applies, a governmental entity: | ||
(1) may not consider whether a person is a member of or | ||
has another relationship with any organization; and | ||
(2) shall ensure that its bid specifications and any | ||
subsequent contract or other agreement do not deny or diminish the | ||
right of a person to work because of the person's membership or | ||
other relationship status with respect to an organization. | ||
Sec. 2267.055. CRITERIA TO CONSIDER. (a) In determining | ||
the award of a contract under this chapter, the governmental entity | ||
may consider: | ||
(1) the price; | ||
(2) the offeror's experience and reputation; | ||
(3) the quality of the offeror's goods or services; | ||
(4) the impact on the ability of the governmental | ||
entity to comply with rules relating to historically underutilized | ||
businesses; | ||
(5) the offeror's safety record; | ||
(6) the offeror's proposed personnel; | ||
(7) whether the offeror's financial capability is | ||
appropriate to the size and scope of the project; and | ||
(8) any other relevant factor specifically listed in | ||
the request for bids, proposals, or qualifications. | ||
(b) In determining the award of a contract under this | ||
chapter, the governmental entity shall: | ||
(1) consider and apply any existing laws, including | ||
any criteria, related to historically underutilized businesses; | ||
and | ||
(2) consider and apply any existing laws, rules, or | ||
applicable municipal charters, including laws applicable to local | ||
governments, related to the use of women, minority, small, or | ||
disadvantaged businesses. | ||
Sec. 2267.056. USING METHOD OTHER THAN COMPETITIVE BIDDING | ||
FOR CONSTRUCTION SERVICES; EVALUATION OF PROPOSALS; CRITERIA. | ||
(a) The governing body of a governmental entity that considers a | ||
construction contract using a method authorized by this chapter | ||
other than competitive bidding must, before advertising, determine | ||
which method provides the best value for the governmental entity. | ||
(b) The governmental entity shall base its selection among | ||
offerors on applicable criteria listed for the particular method | ||
used. The governmental entity shall publish in the request for | ||
proposals or qualifications the criteria that will be used to | ||
evaluate the offerors, and the applicable weighted value for each | ||
criterion. | ||
(c) The governmental entity shall document the basis of its | ||
selection and shall make the evaluations public not later than the | ||
seventh day after the date the contract is awarded. | ||
Sec. 2267.057. ARCHITECT OR ENGINEER SERVICES. (a) An | ||
architect or engineer required to be selected or designated under | ||
this chapter has full responsibility for complying with Chapter | ||
1051 or 1001, Occupations Code, as applicable. | ||
(b) If the selected or designated architect or engineer is | ||
not a full-time employee of the governmental entity, the | ||
governmental entity shall select the architect or engineer on the | ||
basis of demonstrated competence and qualifications as provided by | ||
Section 2254.004. | ||
Sec. 2267.058. USE OF OTHER PROFESSIONAL SERVICES. | ||
(a) Independently of the contractor, construction | ||
manager-at-risk, or design-build firm, the governmental entity | ||
shall provide or contract for the construction materials | ||
engineering, testing, and inspection services and the verification | ||
testing services necessary for acceptance of the facility by the | ||
governmental entity. | ||
(b) The governmental entity shall select the services for | ||
which it contracts under this section in accordance with Section | ||
2254.004. | ||
Sec. 2267.059. SEALED BIDS, PROPOSALS, OR QUALIFICATIONS | ||
REQUIRED. A person who submits a bid, proposal, or qualification to | ||
a governmental entity shall seal it before delivery. | ||
[Sections 2267.060-2267.100 reserved for expansion] | ||
SUBCHAPTER C. COMPETITIVE BIDDING METHOD | ||
Sec. 2267.101. CONTRACTS FOR FACILITIES: COMPETITIVE | ||
BIDDING. (a) In this chapter, "competitive bidding" is a | ||
procurement method by which a governmental entity contracts with a | ||
contractor for the construction, alteration, rehabilitation, or | ||
repair of a facility by awarding the contract to the lowest | ||
responsible bidder. | ||
(b) Except as otherwise provided by this chapter or other | ||
law, a governmental entity may contract for the construction, | ||
alteration, rehabilitation, or repair of a facility only after the | ||
entity advertises for bids for the contract in a manner prescribed | ||
by law, receives competitive bids, and awards the contract to the | ||
lowest responsible bidder. | ||
Sec. 2267.102. USE OF ARCHITECT OR ENGINEER. The | ||
governmental entity shall select or designate an architect or | ||
engineer in accordance with Chapter 1051 or 1001, Occupations Code, | ||
as applicable, to prepare the construction documents required for a | ||
project to be awarded by competitive bidding. | ||
Sec. 2267.103. PREPARATION OF REQUEST. The governmental | ||
entity shall prepare a request for competitive bids that includes | ||
construction documents, estimated budget, project scope, estimated | ||
project completion date, and other information that a contractor | ||
may require to submit a bid. | ||
Sec. 2267.104. EVALUATION OF OFFERORS. The governmental | ||
entity shall receive, publicly open, and read aloud the names of the | ||
offerors and their bids. | ||
Sec. 2267.105. SELECTION OF OFFEROR. Not later than the | ||
seventh day after the date the contract is awarded, the | ||
governmental entity shall document the basis of its selection and | ||
shall make the evaluations public. | ||
Sec. 2267.106. APPLICABILITY OF OTHER COMPETITIVE BIDDING | ||
LAW TO CERTAIN LOCAL GOVERNMENTAL ENTITIES. Except as otherwise | ||
specifically provided by this section, Subchapter B, Chapter 271, | ||
Local Government Code, does not apply to a competitive bidding | ||
process conducted under this chapter. Sections 271.026, | ||
271.027(a), and 271.0275, Local Government Code, apply to a | ||
competitive bidding process conducted under this chapter by a | ||
governmental entity as defined by Section 271.021, Local Government | ||
Code. | ||
[Sections 2267.107-2267.150 reserved for expansion] | ||
SUBCHAPTER D. COMPETITIVE SEALED PROPOSAL METHOD | ||
Sec. 2267.151. CONTRACTS FOR FACILITIES: COMPETITIVE | ||
SEALED PROPOSALS. (a) In this chapter, "competitive sealed | ||
proposals" is a procurement method by which a governmental entity | ||
requests proposals, ranks the offerors, negotiates as prescribed, | ||
and then contracts with a general contractor for the construction, | ||
rehabilitation, alteration, or repair of a facility. | ||
(b) In selecting a contractor through competitive sealed | ||
proposals, a governmental entity shall follow the procedures | ||
provided by this subchapter. | ||
Sec. 2267.152. USE OF ARCHITECT OR ENGINEER. The | ||
governmental entity shall select or designate an architect or | ||
engineer to prepare construction documents for the project. | ||
Sec. 2267.153. PREPARATION OF REQUEST. The governmental | ||
entity shall prepare a request for competitive sealed proposals | ||
that includes construction documents, selection criteria and the | ||
weighted value for each criterion, estimated budget, project scope, | ||
estimated project completion date, and other information that a | ||
contractor may require to respond to the request. | ||
Sec. 2267.154. EVALUATION OF OFFERORS. (a) The | ||
governmental entity shall receive, publicly open, and read aloud | ||
the names of the offerors and any monetary proposals made by the | ||
offerors. | ||
(b) Not later than the 45th day after the date on which the | ||
proposals are opened, the governmental entity shall evaluate and | ||
rank each proposal submitted in relation to the published selection | ||
criteria. | ||
Sec. 2267.155. SELECTION OF OFFEROR. (a) The governmental | ||
entity shall select the offeror that submits the proposal that | ||
offers the best value for the governmental entity based on: | ||
(1) the selection criteria in the request for proposal | ||
and the weighted value for those criteria in the request for | ||
proposal; and | ||
(2) its ranking evaluation. | ||
(b) The governmental entity shall first attempt to | ||
negotiate a contract with the selected offeror. The governmental | ||
entity and its architect or engineer may discuss with the selected | ||
offeror options for a scope or time modification and any price | ||
change associated with the modification. | ||
(c) If the governmental entity is unable to negotiate a | ||
satisfactory contract with the selected offeror, the governmental | ||
entity shall, formally and in writing, end negotiations with that | ||
offeror and proceed to the next offeror in the order of the | ||
selection ranking until a contract is reached or all proposals are | ||
rejected. | ||
[Sections 2267.156-2267.200 reserved for expansion] | ||
SUBCHAPTER E. CONSTRUCTION MANAGER-AGENT METHOD | ||
Sec. 2267.201. CONTRACTS FOR FACILITIES: CONSTRUCTION | ||
MANAGER-AGENT. (a) In this chapter, the "construction | ||
manager-agent method" is a delivery method by which a governmental | ||
entity contracts with a construction manager-agent to provide | ||
consultation or administrative services during the design and | ||
construction phase and to manage multiple contracts with various | ||
construction prime contractors. | ||
(b) A construction manager-agent is a sole proprietorship, | ||
partnership, corporation, or other legal entity that serves as the | ||
agent for the governmental entity by providing construction | ||
administration and management services described by Subsection (a) | ||
for the construction, rehabilitation, alteration, or repair of a | ||
facility. | ||
(c) A governmental entity may retain a construction | ||
manager-agent for assistance in the construction, rehabilitation, | ||
alteration, or repair of a facility only as provided by this | ||
subchapter. | ||
Sec. 2267.202. CONTRACT PROVISIONS OF CONSTRUCTION | ||
MANAGER-AGENT. The contract between the governmental entity and | ||
the construction manager-agent may require the construction | ||
manager-agent to provide: | ||
(1) administrative personnel; | ||
(2) equipment necessary to perform duties under this | ||
subchapter; | ||
(3) on-site management; and | ||
(4) other services specified in the contract. | ||
Sec. 2267.203. LIMITS ON CONSTRUCTION MANAGER-AGENT. A | ||
construction manager-agent may not: | ||
(1) self-perform any aspect of the construction, | ||
rehabilitation, alteration, or repair of the facility; | ||
(2) be a party to a construction subcontract for the | ||
construction, rehabilitation, alteration, or repair of the | ||
facility; or | ||
(3) provide or be required to provide performance and | ||
payment bonds for the construction, rehabilitation, alteration, or | ||
repair of the facility. | ||
Sec. 2267.204. FIDUCIARY CAPACITY OF CONSTRUCTION | ||
MANAGER-AGENT. A construction manager-agent represents the | ||
governmental entity in a fiduciary capacity. | ||
Sec. 2267.205. USE OF ARCHITECT OR ENGINEER. (a) On or | ||
before the selection of a construction manager-agent, the | ||
governmental entity shall select or designate an architect or | ||
engineer in accordance with Chapter 1051 or 1001, Occupations Code, | ||
as applicable, to prepare the construction documents for the | ||
project. | ||
(b) The governmental entity's architect or engineer may not | ||
serve, alone or in combination with another person, as the | ||
construction manager-agent unless the architect or engineer is | ||
hired to serve as the construction manager-agent under a separate | ||
or concurrent selection process conducted in accordance with this | ||
subchapter. This subsection does not prohibit the governmental | ||
entity's architect or engineer from providing customary | ||
construction phase services under the architect's or engineer's | ||
original professional service agreement in accordance with | ||
applicable licensing laws. | ||
(c) To the extent that the construction manager-agent's | ||
services are defined as part of the practice of architecture or | ||
engineering under Chapter 1051 or 1001, Occupations Code, those | ||
services must be conducted by a person licensed under the | ||
applicable chapter. | ||
Sec. 2267.206. SELECTION OF CONTRACTORS. A governmental | ||
entity using the construction manager-agent method shall procure, | ||
in accordance with applicable law and in any manner authorized by | ||
this chapter, a general contractor or trade contractors who will | ||
serve as the prime contractor for their specific portion of the work | ||
and provide performance and payment bonds to the governmental | ||
entity in accordance with applicable laws. | ||
Sec. 2267.207. SELECTION OF CONSTRUCTION MANAGER-AGENT. A | ||
governmental entity shall select a construction manager-agent on | ||
the basis of demonstrated competence and qualifications in the same | ||
manner that an architect or engineer is selected under Section | ||
2254.004. | ||
Sec. 2267.208. INSURANCE. A construction manager-agent | ||
selected under this subchapter shall maintain professional | ||
liability or errors and omissions insurance in the amount of at | ||
least $1 million for each occurrence. | ||
[Sections 2267.209-2267.250 reserved for expansion] | ||
SUBCHAPTER F. CONSTRUCTION MANAGER-AT-RISK METHOD | ||
Sec. 2267.251. CONTRACTS FOR FACILITIES: CONSTRUCTION | ||
MANAGER-AT-RISK. (a) In this chapter, the "construction | ||
manager-at-risk method" is a delivery method by which a | ||
governmental entity contracts with an architect or engineer for | ||
design and construction phase services and contracts separately | ||
with a construction manager-at-risk to serve as the general | ||
contractor and to provide consultation during the design and | ||
construction, rehabilitation, alteration, or repair of a facility. | ||
(b) A construction manager-at-risk is a sole | ||
proprietorship, partnership, corporation, or other legal entity | ||
that assumes the risk for construction, rehabilitation, | ||
alteration, or repair of a facility at the contracted price as a | ||
general contractor and provides consultation to the governmental | ||
entity regarding construction during and after the design of the | ||
facility. The contracted price may be a guaranteed maximum price. | ||
(c) A governmental entity may use the construction | ||
manager-at-risk method in selecting a general contractor for the | ||
construction, rehabilitation, alteration, or repair of a facility | ||
only as provided by this subchapter. | ||
Sec. 2267.252. USE OF ARCHITECT OR ENGINEER. (a) On or | ||
before the selection of a construction manager-at-risk, the | ||
governmental entity shall select or designate an architect or | ||
engineer to prepare the construction documents for the project. | ||
(b) The governmental entity's architect or engineer for a | ||
project may not serve, alone or in combination with another person, | ||
as the construction manager-at-risk unless the architect or | ||
engineer is hired to serve as the construction manager-at-risk | ||
under a separate or concurrent selection process conducted in | ||
accordance with this subchapter. This subsection does not prohibit | ||
the governmental entity's architect or engineer from providing | ||
customary construction phase services under the architect's or | ||
engineer's original professional service agreement in accordance | ||
with applicable licensing laws. | ||
Sec. 2267.253. SELECTION PROCESS. (a) The governmental | ||
entity shall select the construction manager-at-risk in a one-step | ||
or two-step process. | ||
(b) The governmental entity shall prepare a single request | ||
for proposals, in the case of a one-step process, and an initial | ||
request for qualifications, in the case of a two-step process, that | ||
includes: | ||
(1) a statement as to whether the selection process is | ||
a one-step or two-step process; | ||
(2) general information on the project site, project | ||
scope, schedule, selection criteria and the weighted value for each | ||
criterion, and estimated budget and the time and place for receipt | ||
of the proposals or qualifications; and | ||
(3) other information that may assist the governmental | ||
entity in its selection of a construction manager-at-risk. | ||
(c) The governmental entity shall state the selection | ||
criteria in the request for proposals or qualifications. | ||
(d) If a one-step process is used, the governmental entity | ||
may request, as part of the offeror's proposal, proposed fees and | ||
prices for fulfilling the general conditions. | ||
(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 may request that five or fewer offerors, | ||
selected solely on the basis of qualifications, provide additional | ||
information, including the construction manager-at-risk's proposed | ||
fee and prices for fulfilling the general conditions. | ||
(f) At each step, the governmental entity shall receive, | ||
publicly open, and read aloud the names of the offerors. At the | ||
appropriate step, the governmental entity shall also read aloud the | ||
fees and prices, if any, stated in each proposal as the proposal is | ||
opened. | ||
(g) Not later than the 45th day after the date on which the | ||
final proposals are opened, the governmental entity shall evaluate | ||
and rank each proposal submitted in relation to the criteria set | ||
forth in the request for proposals. | ||
Sec. 2267.254. SELECTION OF OFFEROR. (a) The governmental | ||
entity shall select the offeror that submits the proposal that | ||
offers the best value for the governmental entity based on the | ||
published selection criteria and on its ranking evaluation. | ||
(b) The governmental entity shall first attempt to | ||
negotiate a contract with the selected offeror. | ||
(c) If the governmental entity is unable to negotiate a | ||
satisfactory contract with the selected offeror, the governmental | ||
entity shall, formally and in writing, end negotiations with that | ||
offeror and proceed to negotiate with the next offeror in the order | ||
of the selection ranking until a contract is reached or | ||
negotiations with all ranked offerors end. | ||
(d) Not later than the seventh day after the date the | ||
contract is awarded, the governmental entity shall make the | ||
rankings determined under Section 2267.253(g) public. | ||
Sec. 2267.255. PERFORMANCE OF WORK. (a) A construction | ||
manager-at-risk shall publicly advertise for bids or proposals and | ||
receive bids or proposals from trade contractors or subcontractors | ||
for the performance of all major elements of the work other than the | ||
minor work that may be included in the general conditions. | ||
(b) A construction manager-at-risk may seek to perform | ||
portions of the work itself if: | ||
(1) the construction manager-at-risk submits its bid | ||
or proposal for those portions of the work in the same manner as all | ||
other trade contractors or subcontractors; and | ||
(2) the governmental entity determines that the | ||
construction manager-at-risk's bid or proposal provides the best | ||
value for the governmental entity. | ||
Sec. 2267.256. REVIEW OF BIDS OR PROPOSALS. (a) The | ||
construction manager-at-risk shall review all trade contractor or | ||
subcontractor bids or proposals in a manner that does not disclose | ||
the contents of the bid or proposal during the selection process to | ||
a person not employed by the construction manager-at-risk, | ||
architect, engineer, or governmental entity. All bids or proposals | ||
shall be made available to the governmental entity on request and to | ||
the public after the later of the award of the contract or the | ||
seventh day after the date of final selection of bids or proposals. | ||
(b) If the construction manager-at-risk reviews, evaluates, | ||
and recommends to the governmental entity a bid or proposal from a | ||
trade contractor or subcontractor but the governmental entity | ||
requires another bid or proposal to be accepted, the governmental | ||
entity shall compensate the construction manager-at-risk by a | ||
change in price, time, or guaranteed maximum cost for any | ||
additional cost and risk that the construction manager-at-risk | ||
incurs because of the governmental entity's requirement that | ||
another bid or proposal be accepted. | ||
Sec. 2267.257. DEFAULT; PERFORMANCE OF WORK. If a selected | ||
trade contractor or subcontractor defaults in the performance of | ||
its work or fails to execute a subcontract after being selected in | ||
accordance with this subchapter, the construction manager-at-risk | ||
may itself fulfill, without advertising, the contract requirements | ||
or select a replacement trade contractor or subcontractor to | ||
fulfill the contract requirements. | ||
Sec. 2267.258. PERFORMANCE OR PAYMENT BOND. (a) If a | ||
fixed contract amount or guaranteed maximum price has not been | ||
determined at the time the contract is awarded, the penal sums of | ||
the performance and payment bonds delivered to the governmental | ||
entity must each be in an amount equal to the construction budget, | ||
as specified in the request for proposals or qualifications. | ||
(b) The construction manager-at-risk shall deliver the | ||
bonds not later than the 10th day after the date the construction | ||
manager-at-risk executes the contract unless the construction | ||
manager-at-risk furnishes a bid bond or other financial security | ||
acceptable to the governmental entity to ensure that the | ||
construction manager will furnish the required performance and | ||
payment bonds when a guaranteed maximum price is established. | ||
[Sections 2267.259-2267.300 reserved for expansion] | ||
SUBCHAPTER G. BUILDING USING DESIGN-BUILD METHOD | ||
Sec. 2267.301. CONTRACTS FOR FACILITIES: DESIGN-BUILD. In | ||
this chapter, "design-build" is a project delivery method by which | ||
a governmental entity contracts with a single entity to provide | ||
both design and construction services for the construction, | ||
rehabilitation, alteration, or repair of a facility. | ||
Sec. 2267.302. APPLICABILITY OF SUBCHAPTER TO BUILDINGS; | ||
EXCEPTIONS. This subchapter applies only to a facility that is a | ||
building or an associated structure, including an electric utility | ||
structure. This subchapter does not apply to: | ||
(1) a highway, road, street, bridge, underground | ||
utility, water supply project, water plant, wastewater plant, water | ||
and wastewater distribution or conveyance facility, wharf, dock, | ||
airport runway or taxiway, drainage project, or related type of | ||
project associated with civil engineering construction; or | ||
(2) a building or structure that is incidental to a | ||
project that is primarily a civil engineering construction project. | ||
Sec. 2267.303. CONTRACTS FOR BUILDINGS: DESIGN-BUILD. A | ||
governmental entity may use the design-build method for the | ||
construction, rehabilitation, alteration, or repair of a building | ||
or associated structure only as provided by this subchapter. In | ||
using that method, the governmental entity shall enter into a | ||
single contract with a design-build firm for the design and | ||
construction of the building or associated structure. | ||
Sec. 2267.304. DESIGN-BUILD FIRMS. A design-build firm | ||
under this subchapter must be a sole proprietorship, partnership, | ||
corporation, or other legal entity or team that includes an | ||
architect or engineer and a construction contractor. | ||
Sec. 2267.305. USE OF ARCHITECT OR ENGINEER AS INDEPENDENT | ||
REPRESENTATIVE. The governmental entity shall select or designate | ||
an architect or engineer independent of the design-build firm to | ||
act as the governmental entity's representative for the duration of | ||
the project. | ||
Sec. 2267.306. PREPARATION OF REQUEST. (a) The | ||
governmental entity shall prepare a request for qualifications that | ||
includes general information on the project site, project scope, | ||
budget, special systems, selection criteria and the weighted value | ||
for each criterion, and other information that may assist potential | ||
design-build firms in submitting proposals for the project. | ||
(b) The governmental entity shall also prepare the design | ||
criteria package that includes more detailed information on the | ||
project. If the preparation of the design criteria package | ||
requires architectural or engineering services that constitute the | ||
practice of architecture within the meaning of Chapter 1051, | ||
Occupations Code, or the practice of engineering within the meaning | ||
of Chapter 1001, Occupations Code, those services shall be provided | ||
in accordance with the applicable law. | ||
(c) The design criteria package must include a set of | ||
documents that provides sufficient information, including criteria | ||
for selection, to permit a design-build firm to prepare a response | ||
to the governmental entity's request for qualifications and to | ||
provide any additional information requested. The design criteria | ||
package must specify criteria the governmental entity considers | ||
necessary to describe the project and may include, as appropriate, | ||
the legal description of the site, survey information concerning | ||
the site, interior space requirements, special material | ||
requirements, material quality standards, conceptual criteria for | ||
the project, special equipment requirements, cost or budget | ||
estimates, time schedules, quality assurance and quality control | ||
requirements, site development requirements, applicable codes and | ||
ordinances, provisions for utilities, parking requirements, and | ||
any other requirement. | ||
(d) The governmental entity may not require offerors to | ||
submit architectural or engineering designs as part of a proposal | ||
or a response to a request for qualifications. | ||
Sec. 2267.307. EVALUATION OF DESIGN-BUILD FIRMS. (a) For | ||
each design-build firm that responded to the request for | ||
qualifications, the governmental entity shall evaluate the firm's | ||
experience, technical competence, and capability to perform, the | ||
past performance of the firm and members of the firm, and other | ||
appropriate factors submitted by the firm in response to the | ||
request for qualifications, except that cost-related or | ||
price-related evaluation factors are not permitted. | ||
(b) Each firm must certify to the governmental entity that | ||
each architect or engineer that is a member of the firm was selected | ||
based on demonstrated competence and qualifications, in the manner | ||
provided by Section 2254.004. | ||
(c) The governmental entity shall qualify a maximum of five | ||
responders to submit proposals that contain additional information | ||
and, if the governmental entity chooses, to interview for final | ||
selection. | ||
(d) The governmental entity shall evaluate the additional | ||
information submitted by the offerors on the basis of the selection | ||
criteria stated in the request for qualifications and the results | ||
of any interview. | ||
(e) 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, and expected staffing for administrative duties. The term | ||
does not include a guaranteed maximum price or bid for overall | ||
design or construction. | ||
(f) The governmental entity shall rank each proposal | ||
submitted on the basis of the criteria set forth in the request for | ||
qualifications. | ||
Sec. 2267.308. SELECTION OF DESIGN-BUILD FIRM. (a) The | ||
governmental entity shall select the design-build firm that submits | ||
the proposal offering the best value for the governmental entity on | ||
the basis of the published selection criteria and on its ranking | ||
evaluations. | ||
(b) The governmental entity shall first attempt to | ||
negotiate a contract with the selected firm. | ||
(c) If the governmental entity is unable to negotiate a | ||
satisfactory contract with the selected firm, the governmental | ||
entity shall, formally and in writing, end all negotiations with | ||
that firm and proceed to negotiate with the next firm in the order | ||
of the selection ranking until a contract is reached or | ||
negotiations with all ranked firms end. | ||
(d) Not later than the seventh day after the date the | ||
contract is awarded, the governmental entity shall make the | ||
rankings determined under Section 2267.307(f) public. | ||
Sec. 2267.309. SUBMISSION OF DESIGN AFTER SELECTION. After | ||
selection of the design-build firm, that firm's architects or | ||
engineers shall submit all design elements for review and | ||
determination of scope compliance to the governmental entity or the | ||
governmental entity's architect or engineer before or concurrently | ||
with construction. | ||
Sec. 2267.310. FINAL CONSTRUCTION DOCUMENTS. The | ||
design-build firm shall supply a set of construction documents for | ||
the completed project to the governmental entity at the conclusion | ||
of construction. The documents must note any changes made during | ||
construction. | ||
Sec. 2267.311. PERFORMANCE OR PAYMENT BOND. (a) A payment | ||
or performance bond is not required and may not provide coverage for | ||
the design portion of the design-build contract with the | ||
design-build firm under this subchapter. | ||
(b) If a fixed contract amount or guaranteed maximum price | ||
has not been determined at the time the design-build contract is | ||
awarded, the penal sums of the performance and payment bonds | ||
delivered to the governmental entity must each be in an amount equal | ||
to the construction budget, as specified in the design criteria | ||
package. | ||
(c) The design-build firm shall deliver the bonds not later | ||
than the 10th day after the date the design-build firm executes the | ||
contract unless the design-build firm furnishes a bid bond or other | ||
financial security acceptable to the governmental entity to ensure | ||
that the design-build firm will furnish the required performance | ||
and payment bonds before construction begins. | ||
[Sections 2267.312-2267.350 reserved for expansion] | ||
SUBCHAPTER H. DESIGN-BUILD PROCEDURES FOR CERTAIN CIVIL WORKS | ||
PROJECTS | ||
Sec. 2267.351. DEFINITIONS. In this subchapter: | ||
(1) "Civil works project" means: | ||
(A) roads, streets, bridges, utilities, water | ||
supply projects, water plants, wastewater plants, water | ||
distribution and wastewater conveyance facilities, desalination | ||
projects, wharves, docks, airport runways and taxiways, storm | ||
drainage and flood control projects, or transit projects; | ||
(B) types of projects or facilities related to | ||
those described by Paragraph (A) and associated with civil | ||
engineering construction; and | ||
(C) buildings or structures that are incidental | ||
to projects or facilities that are described by Paragraphs (A) and | ||
(B) and that are primarily civil engineering construction projects. | ||
(2) "Design-build firm" means a partnership, | ||
corporation, or other legal entity or team that includes an | ||
engineer and a construction contractor qualified to engage in civil | ||
works construction in Texas. | ||
(3) "Design criteria package" means a set of documents | ||
that: | ||
(A) provides sufficient information to convey | ||
the intent, goals, criteria, and objectives of the civil works | ||
project; and | ||
(B) permits a design-build firm to: | ||
(i) assess the scope of work and the risk | ||
involved; and | ||
(ii) submit a proposal on the project. | ||
Sec. 2267.352. APPLICABILITY. This subchapter applies to a | ||
governmental entity that: | ||
(1) has a population of more than 100,000 within the | ||
entity's geographic boundary or service area; or | ||
(2) is a board of trustees governed by Chapter 54, | ||
Transportation Code. | ||
Sec. 2267.353. CONTRACTS FOR CIVIL WORKS PROJECTS: | ||
DESIGN-BUILD. (a) A governmental entity may use the design-build | ||
method for the construction, rehabilitation, alteration, or repair | ||
of a civil works project. In using this method and in entering into | ||
a contract for the services of a design-build firm, the contracting | ||
governmental entity and the design-build firm shall follow the | ||
procedures provided by this subchapter. | ||
(b) A contract for a project under this subchapter may cover | ||
only a single integrated project. A governmental entity may not | ||
enter into a contract for aggregated projects at multiple | ||
locations. For purposes of this subsection: | ||
(1) if a metropolitan transit authority created under | ||
Chapter 451, Transportation Code, enters into a contract for a | ||
project involving a bus rapid transit system created under Chapter | ||
451, Transportation Code, the bus rapid transit system is a single | ||
integrated project; and | ||
(2) a water treatment plant, including a desalination | ||
plant, that includes treatment facilities, well fields, and | ||
pipelines is a single integrated project. | ||
(c) A governmental entity shall use the following criteria | ||
as a minimum basis for determining the circumstances under which | ||
the design-build method is appropriate for a project: | ||
(1) the extent to which the entity can adequately | ||
define the project requirements; | ||
(2) the time constraints for the delivery of the | ||
project; | ||
(3) the ability to ensure that a competitive | ||
procurement can be held; and | ||
(4) the capability of the entity to manage and oversee | ||
the project, including the availability of experienced personnel or | ||
outside consultants who are familiar with the design-build method | ||
of project delivery. | ||
(d) A governmental entity shall make a formal finding on the | ||
criteria described by Subsection (c) before preparing a request for | ||
qualifications under Section 2267.357. | ||
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 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. | ||
(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. | ||
Sec. 2267.355. USE OF ENGINEER. (a) The governmental | ||
entity shall select or designate an engineer who is independent of | ||
the design-build firm to act as its representative for the | ||
procurement process and for the duration of the work on the civil | ||
works project. The selected or designated engineer has full | ||
responsibility for complying with Chapter 1001, Occupations Code. | ||
(b) If the engineer is not a full-time employee of the | ||
governmental entity, the governmental entity shall select the | ||
engineer on the basis of demonstrated competence and qualifications | ||
as provided by Section 2254.004. | ||
Sec. 2267.356. USE OF OTHER PROFESSIONAL SERVICES. | ||
(a) The governmental entity shall provide or contract for, | ||
independently of the design-build firm, the following services as | ||
necessary for the acceptance of the civil works project by the | ||
entity: | ||
(1) inspection services; | ||
(2) construction materials engineering and testing; | ||
and | ||
(3) verification testing services. | ||
(b) The governmental entity shall select the services for | ||
which it contracts under this section in accordance with Section | ||
2254.004. | ||
Sec. 2267.357. REQUEST FOR QUALIFICATIONS. (a) The | ||
governmental entity shall prepare a request for qualifications that | ||
includes: | ||
(1) information on the civil works project site; | ||
(2) project scope; | ||
(3) project budget; | ||
(4) project schedule; | ||
(5) criteria for selection under Section 2267.359 and | ||
the weighting of the criteria; and | ||
(6) other information that may assist potential | ||
design-build firms in submitting proposals for the project. | ||
(b) The governmental entity shall also prepare a design | ||
criteria package as described by Section 2267.358. | ||
Sec. 2267.358. CONTENTS OF DESIGN CRITERIA PACKAGE. A | ||
design criteria package may include, as appropriate: | ||
(1) budget or cost estimates; | ||
(2) information on the site; | ||
(3) performance criteria; | ||
(4) special material requirements; | ||
(5) initial design calculations; | ||
(6) known utilities; | ||
(7) capacity requirements; | ||
(8) quality assurance and quality control | ||
requirements; | ||
(9) the type, size, and location of structures; and | ||
(10) notice of any ordinances, rules, or goals adopted | ||
by the governmental entity relating to awarding contracts to | ||
historically underutilized businesses. | ||
Sec. 2267.359. EVALUATION OF DESIGN-BUILD FIRMS. (a) The | ||
governmental entity shall receive proposals and shall evaluate each | ||
offeror's experience, technical competence, and capability to | ||
perform, the past performance of the offeror's team and members of | ||
the team, and other appropriate factors submitted by the team or | ||
firm in response to the request for qualifications, except that | ||
cost-related or price-related evaluation factors are not permitted | ||
at this stage. | ||
(b) Each offeror must: | ||
(1) select or designate each engineer that is a member | ||
of its team based on demonstrated competence and qualifications, in | ||
the manner provided by Section 2254.004; and | ||
(2) certify to the governmental entity that each | ||
selection or designation was based on demonstrated competence and | ||
qualifications, in the manner provided by Section 2254.004. | ||
(c) The governmental entity shall qualify offerors to | ||
submit additional information and, if the entity chooses, to | ||
interview for final selection. | ||
Sec. 2267.360. SELECTION OF DESIGN-BUILD FIRM. The | ||
governmental entity shall select a design-build firm using a | ||
combination of technical and cost proposals as provided by Section | ||
2267.361. | ||
Sec. 2267.361. PROCEDURES FOR COMBINATION OF TECHNICAL AND | ||
COST PROPOSALS. (a) A governmental entity shall request proposals | ||
from design-build firms identified under Section 2267.359(c). A | ||
firm must submit a proposal not later than the 180th day after the | ||
date the governmental entity makes a public request for the | ||
proposals from the selected firms. The request for proposals must | ||
include: | ||
(1) a design criteria package; | ||
(2) if the project site is identified, a geotechnical | ||
baseline report or other information that provides the design-build | ||
firm minimum geotechnical design parameters to submit a proposal; | ||
(3) detailed instructions for preparing the technical | ||
proposal and the items to be included, including a description of | ||
the form and level of completeness of drawings expected; and | ||
(4) the relative weighting of the technical and price | ||
proposals and the formula by which the proposals will be evaluated | ||
and ranked. | ||
(b) The technical proposal is a component of the proposal | ||
under this section. | ||
(c) Each proposal must include a sealed technical proposal | ||
and a separate sealed cost proposal. | ||
(d) The technical proposal must address: | ||
(1) project approach; | ||
(2) anticipated problems; | ||
(3) proposed solutions to anticipated problems; | ||
(4) ability to meet schedules; | ||
(5) conceptual engineering design; and | ||
(6) other information requested by the governmental | ||
entity. | ||
(e) The governmental entity shall first open, evaluate, and | ||
score each responsive technical proposal submitted on the basis of | ||
the criteria described in the request for proposals and assign | ||
points on the basis of the weighting specified in the request for | ||
proposals. The governmental entity may reject as nonresponsive any | ||
firm that makes a significant change to the composition of its firm | ||
as initially submitted. The governmental entity shall subsequently | ||
open, evaluate, and score the cost proposals from firms that | ||
submitted a responsive technical proposal and assign points on the | ||
basis of the weighting specified in the request for proposals. The | ||
governmental entity shall select the design-build firm in | ||
accordance with the formula provided in the request for proposals. | ||
Sec. 2267.362. NEGOTIATION. After selecting the | ||
highest-ranked design-build firm under Section 2267.361, the | ||
governmental entity shall first attempt to negotiate a contract | ||
with the selected firm. If the governmental entity is unable to | ||
negotiate a satisfactory contract with the selected firm, the | ||
entity shall, formally and in writing, end all negotiations with | ||
that firm and proceed to negotiate with the next firm in the order | ||
of the selection ranking until a contract is reached or | ||
negotiations with all ranked firms end. | ||
Sec. 2267.363. ASSUMPTION OF RISKS. The governmental | ||
entity shall assume: | ||
(1) all risks and costs associated with: | ||
(A) scope changes and modifications, as | ||
requested by the governmental entity; | ||
(B) unknown or differing site conditions unless | ||
otherwise provided by the governmental entity in the request for | ||
proposals and final contract; | ||
(C) regulatory permitting, if the governmental | ||
entity is responsible for those risks and costs by law or contract; | ||
and | ||
(D) natural disasters and other force majeure | ||
events unless otherwise provided by the governmental entity in the | ||
request for proposals and final contract; and | ||
(2) all costs associated with property acquisition, | ||
excluding costs associated with acquiring a temporary easement or | ||
work area associated with staging or construction for the project. | ||
Sec. 2267.364. STIPEND AMOUNT FOR UNSUCCESSFUL OFFERORS. | ||
(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 may offer an unsuccessful | ||
design-build firm that submits a response to the 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 one-half of one percent of the | ||
contract amount and must be specified in the initial request for | ||
proposals. 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. | ||
(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). | ||
Sec. 2267.365. COMPLETION OF DESIGN. (a) Following | ||
selection of a design-build firm under this subchapter, the firm's | ||
engineers shall submit all design elements for review and | ||
determination of scope compliance to the governmental entity before | ||
or concurrently with construction. | ||
(b) An appropriately licensed design professional shall | ||
sign and seal construction documents before the documents are | ||
released for construction. | ||
Sec. 2267.366. FINAL CONSTRUCTION DOCUMENTS. At the | ||
conclusion of construction, the design-build firm shall supply to | ||
the governmental entity a record set of construction documents for | ||
the project prepared as provided by Chapter 1001, Occupations Code. | ||
Sec. 2267.367. PERFORMANCE OR PAYMENT BOND. (a) A | ||
performance or payment bond is not required for the portion of a | ||
design-build contract under this section that includes design | ||
services only. | ||
(b) If a fixed contract amount or guaranteed maximum price | ||
has not been determined at the time a design-build contract is | ||
awarded, the penal sums of the performance and payment bonds | ||
delivered to the governmental entity must each be in an amount equal | ||
to the construction budget, if commercially available and | ||
practical, as specified in the design criteria package. | ||
(c) If the governmental entity awards a design-build | ||
contract under Section 2267.362, the design-build firm shall | ||
deliver the bonds not later than the 10th day after the date the | ||
design-build firm executes the contract unless the design-build | ||
firm furnishes a bid bond or other financial security acceptable to | ||
the governmental entity to ensure that the design-build firm will | ||
furnish the required performance and payment bonds before the | ||
commencement of construction. | ||
[Sections 2267.368-2267.400 reserved for expansion] | ||
SUBCHAPTER I. JOB ORDER CONTRACTS METHOD | ||
Sec. 2267.401. JOB ORDER CONTRACTING. In this chapter, | ||
"job order contracting" is a procurement method used for | ||
maintenance, repair, alteration, renovation, remediation, or minor | ||
construction of a facility when the work is of a recurring nature | ||
but the delivery times, type, and quantities of work required are | ||
indefinite. | ||
Sec. 2267.402. APPLICABILITY OF SUBCHAPTER TO BUILDINGS; | ||
EXCEPTIONS. This subchapter applies only to a facility that is a | ||
building, the design and construction of which is governed by | ||
accepted building codes, or a structure or land, whether improved | ||
or unimproved, that is associated with a building. This subchapter | ||
does not apply to: | ||
(1) a highway, road, street, bridge, utility, water | ||
supply project, water plant, wastewater plant, water and wastewater | ||
distribution or conveyance facility, wharf, dock, airport runway or | ||
taxiway, drainage project, or related type of project associated | ||
with civil engineering construction; or | ||
(2) a building or structure that is incidental to a | ||
project that is primarily a civil engineering construction project. | ||
Sec. 2267.403. REQUIREMENTS FOR JOB ORDER CONTRACTS FOR | ||
FACILITIES. (a) A governmental entity may award job order | ||
contracts for the maintenance, repair, alteration, renovation, | ||
remediation, or minor construction of a facility if: | ||
(1) the work is of a recurring nature but the delivery | ||
times are indefinite; and | ||
(2) indefinite quantities and orders are awarded | ||
substantially on the basis of predescribed and prepriced tasks. | ||
(b) The governmental entity shall establish the maximum | ||
aggregate contract price when it advertises the proposal. | ||
(c) The governing body of a governmental entity shall | ||
approve each job, task, or purchase order that exceeds $500,000. | ||
Sec. 2267.404. CONTRACTUAL UNIT PRICES. The governmental | ||
entity may establish contractual unit prices for a job order | ||
contract by: | ||
(1) specifying one or more published construction unit | ||
price books and the applicable divisions or line items; or | ||
(2) providing a list of work items and requiring the | ||
offerors to propose one or more coefficients or multipliers to be | ||
applied to the price book or prepriced work items as the price | ||
proposal. | ||
Sec. 2267.405. COMPETITIVE SEALED PROPOSAL METHOD. (a) A | ||
governmental entity may use the competitive sealed proposal method | ||
under Subchapter D for job order contracts. | ||
(b) The governmental entity shall advertise for, receive, | ||
and publicly open sealed proposals for job order contracts. | ||
(c) The governmental entity may require offerors to submit | ||
information in addition to rates, including experience, past | ||
performance, and proposed personnel and methodology. | ||
Sec. 2267.406. AWARDING OF JOB ORDER CONTRACTS. The | ||
governmental entity may award job order contracts to one or more job | ||
order contractors in connection with each solicitation of | ||
proposals. | ||
Sec. 2267.407. USE OF JOB ORDER CONTRACT. A job order | ||
contract may be used to accomplish work only for the governmental | ||
entity that awards the contract unless: | ||
(1) the solicitation for the job order contract and | ||
the contract specifically provide for use by other persons; or | ||
(2) the governmental entity enters into an interlocal | ||
agreement that provides otherwise. | ||
Sec. 2267.408. USE OF ARCHITECT OR ENGINEER. (a) If a job | ||
order contract or an order issued under the contract requires | ||
architectural or engineering services that constitute the practice | ||
of architecture within the meaning of Chapter 1051, Occupations | ||
Code, or the practice of engineering within the meaning of Chapter | ||
1001, Occupations Code, the governmental entity shall select or | ||
designate an architect or engineer to prepare the construction | ||
documents for the project. | ||
(b) Subsection (a) does not apply to a job order contract or | ||
an order issued under the contract for industrialized housing, | ||
industrialized buildings, or relocatable educational facilities | ||
subject to and approved under Chapter 1202, Occupations Code, if | ||
the contractor employs the services of an architect or engineer who | ||
approves the documents for the project. | ||
Sec. 2267.409. JOB ORDER CONTRACT TERM. The base term for a | ||
job order contract may not exceed two years. The governmental | ||
entity may renew the contract annually for not more than three | ||
additional years. | ||
Sec. 2267.410. JOB ORDERS. (a) An order for a job or | ||
project under a job order contract must be signed by the | ||
governmental entity's representative and the contractor. | ||
(b) The order may be: | ||
(1) a fixed price, lump-sum contract based | ||
substantially on contractual unit pricing applied to estimated | ||
quantities; or | ||
(2) a unit price order based on the quantities and line | ||
items delivered. | ||
Sec. 2267.411. PAYMENT AND PERFORMANCE BONDS. The | ||
contractor shall provide payment and performance bonds, if required | ||
by law, based on the amount or estimated amount of any order. | ||
[Sections 2267.412-2267.450 reserved for expansion] | ||
SUBCHAPTER J. ENFORCEMENT | ||
Sec. 2267.451. VOID CONTRACT. A contract, including a job | ||
order, entered into in violation of this chapter is voidable as | ||
against public policy. | ||
Sec. 2267.452. DECLARATORY OR INJUNCTIVE RELIEF. (a) This | ||
chapter may be enforced through an action for declaratory or | ||
injunctive relief filed not later than the 10th day after the date | ||
on which the contract is awarded. | ||
(b) This section does not apply to enforcement of a contract | ||
entered into by a state agency. In this subsection, "state agency" | ||
has the meaning assigned by Section 2151.002. The term includes the | ||
Texas Facilities Commission. | ||
SECTION 2.09. Section 252.048, Local Government Code, is | ||
amended by adding Subsection (c-1) to read as follows: | ||
(c-1) If a change order for a public works contract in a | ||
municipality with a population of 500,000 or more involves a | ||
decrease or an increase of $100,000 or less, or a lesser amount as | ||
provided by ordinance, the governing body of the municipality may | ||
grant general authority to an administrative official of the | ||
municipality to approve the change order. | ||
SECTION 2.10. Section 271.054, Local Government Code, is | ||
amended to read as follows: | ||
Sec. 271.054. COMPETITIVE PROCUREMENT REQUIREMENT. Before | ||
the governing body of an issuer may enter into a contract requiring | ||
an expenditure by or imposing an obligation or liability on the | ||
issuer, or on a subdivision of the issuer if the issuer is a county, | ||
of more than $50,000, the governing body must: | ||
(1) submit the proposed contract to competitive | ||
procurement; or | ||
(2) use an alternate method of project delivery | ||
authorized by Chapter 2267, Government Code. | ||
SECTION 2.11. Section 271.060, Local Government Code, is | ||
amended by amending Subsection (b) and adding Subsection (c) to | ||
read as follows: | ||
(b) The total price of a contract may not be increased by a | ||
change order unless provision has been made for the payment of the | ||
added cost by the appropriation of current funds or bond funds for | ||
that purpose, by the authorization of the issuance of certificates, | ||
or by a combination of those procedures. | ||
(c) A contract with an [ |
||
million or more may not be increased by more than 25 percent. If a | ||
change order for a contract with an original contract price of less | ||
than $1 million increases the contract amount to $1 million or more, | ||
subsequent change orders may not increase the revised contract | ||
amount by more than 25 percent. [ |
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SECTION 2.12. Section 271.9051(b), Local Government Code, | ||
is amended to read as follows: | ||
(b) In purchasing under this title any real property, | ||
personal property that is not affixed to real property, or | ||
services, if a municipality receives one or more competitive sealed | ||
bids from a bidder whose principal place of business is in the | ||
municipality and whose bid is within five percent of the lowest bid | ||
price received by the municipality from a bidder who is not a | ||
resident of the municipality, the municipality may enter into a | ||
contract for construction services in an amount [ |
||
less than $100,000 or a contract for other purchases in an amount of | ||
less than $500,000 with: | ||
(1) the lowest bidder; or | ||
(2) the bidder whose principal place of business is in | ||
the municipality if the governing body of the municipality | ||
determines, in writing, that the local bidder offers the | ||
municipality the best combination of contract price and additional | ||
economic development opportunities for the municipality created by | ||
the contract award, including the employment of residents of the | ||
municipality and increased tax revenues to the municipality. | ||
SECTION 2.13. Subchapter B, Chapter 223, Transportation | ||
Code, is amended by adding Section 223.049 to read as follows: | ||
Sec. 223.049. CONTRACT WITH LAND OWNER FOR IMPROVING ACCESS | ||
TO LAND. (a) The department may, without complying with the | ||
competitive bidding procedures of Subchapter A, contract with an | ||
owner of land, including a subdivision, adjacent to a highway that | ||
is part of the state highway system to construct an improvement on | ||
the highway right-of-way that is directly related to improving | ||
access to or from the owner's land. | ||
(b) An owner that enters into a contract with the department | ||
under this section must: | ||
(1) comply with applicable department design and | ||
construction standards; | ||
(2) comply with all laws, rules, regulations, and | ||
ordinances, including environmental requirements, that would be | ||
applicable if the department were performing the work; | ||
(3) execute a performance and payment bond in | ||
accordance with Chapter 2253, Government Code; and | ||
(4) make available for inspection by the department | ||
all books and other records in the possession of the owner that are | ||
related to the project. | ||
(c) State and federal funds may not be used for the design, | ||
development, financing, or construction of a highway improvement | ||
under a contract described by this section. | ||
ARTICLE 3. ADDITIONAL EXEMPTIONS | ||
SECTION 3.01. Section 44.901, Education Code, is amended by | ||
adding Subsection (j) to read as follows: | ||
(j) Chapter 2267, Government Code, does not apply to this | ||
section. | ||
SECTION 3.02. Section 51.927, Education Code, is amended by | ||
adding Subsection (k) to read as follows: | ||
(k) Chapter 2267, Government Code, does not apply to this | ||
section. | ||
SECTION 3.03. Section 2166.406, Government Code, is amended | ||
by adding Subsection (k) to read as follows: | ||
(k) Chapter 2267 does not apply to this section. | ||
SECTION 3.04. Chapter 302, Local Government Code, is | ||
amended by adding Section 302.007 to read as follows: | ||
Sec. 302.007. EXEMPTION FROM OTHER CONTRACTING LAW. | ||
Chapter 2267, Government Code, does not apply to this chapter. | ||
SECTION 3.05. Subchapter E, Chapter 335, Local Government | ||
Code, is amended by adding Section 335.077 to read as follows: | ||
Sec. 335.077. EXEMPTION FROM CONSTRUCTION CONTRACTING LAW. | ||
Chapter 2267, Government Code, does not apply to this chapter. | ||
SECTION 3.06. Subchapter Q, Chapter 451, Transportation | ||
Code, is amended by adding Section 451.8025 to read as follows: | ||
Sec. 451.8025. EXEMPTION FROM OTHER CONTRACTING LAW. | ||
Chapter 2267, Government Code, does not apply to this subchapter. | ||
SECTION 3.07. Subchapter C, Chapter 452, Transportation | ||
Code, is amended by adding Section 452.1095 to read as follows: | ||
Sec. 452.1095. EXEMPTION FROM OTHER CONTRACTING LAW FOR | ||
CERTAIN AUTHORITIES. (a) Chapter 2267, Government Code, does not | ||
apply to an authority consisting of one subregion governed by a | ||
subregional board created under Subchapter O. | ||
(b) An authority to which this section applies may adopt | ||
design-build procedures that do not materially conflict with | ||
Subchapter H, Chapter 2267, Government Code. | ||
SECTION 3.08. Section 60.401, Water Code, is amended by | ||
adding Subsection (d) to read as follows: | ||
(d) Chapter 2267, Government Code, does not apply to this | ||
subchapter. | ||
SECTION 3.09. Section 60.452(c), Water Code, is amended to | ||
read as follows: | ||
(c) Chapter 2267, [ |
||
Government Code, does not apply to this subchapter. | ||
ARTICLE 4. CONFORMING AMENDMENTS | ||
SECTION 4.01. Section 252.021(a), Local Government Code, is | ||
amended to read as follows: | ||
(a) Before a municipality may enter into a contract that | ||
requires an expenditure of more than $50,000 from one or more | ||
municipal funds, the municipality must: | ||
(1) comply with the procedure prescribed by this | ||
subchapter and Subchapter C for competitive sealed bidding or | ||
competitive sealed proposals; | ||
(2) use the reverse auction procedure, as defined by | ||
Section 2155.062(d), Government Code, for purchasing; or | ||
(3) comply with a method described by Chapter 2267, | ||
Government Code [ |
||
SECTION 4.02. Section 252.022(d), Local Government Code, is | ||
amended to read as follows: | ||
(d) This chapter does not apply to an expenditure described | ||
by Section 252.021(a) if the governing body of a municipality | ||
determines that a method described by Chapter 2267, Government Code | ||
[ |
||
municipality with respect to that expenditure than the procedures | ||
described in this chapter and the municipality adopts and uses a | ||
method described in that subchapter with respect to that | ||
expenditure. | ||
SECTION 4.03. Sections 252.043(d-1) and (e), Local | ||
Government Code, are amended to read as follows: | ||
(d-1) A contract for construction of a project described by | ||
Subsection (d) that requires an expenditure of $1.5 million or less | ||
may be awarded using the competitive sealed proposal procedure | ||
prescribed by Subchapter D, Chapter 2267, Government Code [ |
||
|
||
(e) If the competitive sealed bidding requirement applies | ||
to the contract for construction of a facility, as that term is | ||
defined by Section 2267.001, Government Code [ |
||
contract must be awarded to the lowest responsible bidder or | ||
awarded under the method described by Chapter 2267, Government Code | ||
[ |
||
SECTION 4.04. Sections 262.023(a) and (b-1), Local | ||
Government Code, are amended to read as follows: | ||
(a) Before a county may purchase one or more items under a | ||
contract that will require an expenditure exceeding $50,000, the | ||
commissioners court of the county must: | ||
(1) comply with the competitive bidding or competitive | ||
proposal procedures prescribed by this subchapter; | ||
(2) use the reverse auction procedure, as defined by | ||
Section 2155.062(d), Government Code, for purchasing; or | ||
(3) comply with a method described by Chapter 2267, | ||
Government Code [ |
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(b-1) A county that complies with a method described by | ||
Chapter 2267, Government Code [ |
||
provided by Subsection (a)(3), to enter into a contract for which | ||
payment will be made through anticipation notes authorized by | ||
Chapter 1431, Government Code, may not issue anticipation notes for | ||
the payment of that contract in an amount that exceeds the lesser | ||
of: | ||
(1) 20 percent of the county's budget for the fiscal | ||
year in which the county enters into the contract; or | ||
(2) $10 million. | ||
SECTION 4.05. Section 1002.110, Special District Local Laws | ||
Code, is amended to read as follows: | ||
Sec. 1002.110. PUBLIC WORKS CONTRACTS. With respect to the | ||
construction of public works, the district has all of the powers and | ||
duties conferred on a municipality under Chapter 2267, [ |
||
|
||
construction of a facility. To the extent of any conflict, this | ||
section prevails over any other law relating to the construction of | ||
public works engaged in by the district. | ||
SECTION 4.06. Section 1024.105(b), Special District Local | ||
Laws Code, is amended to read as follows: | ||
(b) The board may act as a governmental entity under Chapter | ||
2267, [ |
||
purposes of using the procurement procedures authorized by that | ||
chapter. For purposes of this subsection, notice under Section | ||
2267.052(c), [ |
||
by the district in the same manner as provided for a conservation | ||
and reclamation district created under Section 59, Article XVI, | ||
Texas Constitution. | ||
SECTION 4.07. Section 366.185(d-1), Transportation Code, | ||
is amended to read as follows: | ||
(d-1) The rules adopted under Subsection (d) may not | ||
materially conflict with the design-build procedures provided by | ||
Subchapter H, Chapter 2267, [ |
||
Government Code, and shall provide materially similar injunctive | ||
and declaratory action enforcement rights regarding the improper | ||
disclosure or use of unique or nonordinary information as provided | ||
in that subchapter. | ||
SECTION 4.08. Section 370.314(b), Transportation Code, is | ||
amended to read as follows: | ||
(b) Procedures adopted under Subsection (a) may not | ||
materially conflict with the design-build procedures provided by | ||
Subchapter H, Chapter 2267, [ |
||
Government Code. | ||
SECTION 4.09. Sections 460.406(c) and (d), Transportation | ||
Code, are amended to read as follows: | ||
(c) The board of directors may authorize the negotiation of | ||
a contract without competitive sealed bids or proposals if: | ||
(1) the aggregate amount involved in the contract is | ||
$25,000 or less; | ||
(2) the contract is for construction for which not | ||
more than one bid or proposal is received; | ||
(3) the contract is for services or property for which | ||
there is only one source or for which it is otherwise impracticable | ||
to obtain competition; | ||
(4) the contract is to respond to an emergency for | ||
which the public exigency does not permit the delay incident to the | ||
competitive process; | ||
(5) the contract is for personal or professional | ||
services or services for which competitive bidding is precluded by | ||
law; | ||
(6) the contract, without regard to form and which may | ||
include bonds, notes, loan agreements, or other obligations, is for | ||
the purpose of borrowing money or is a part of a transaction | ||
relating to the borrowing of money, including: | ||
(A) a credit support agreement, such as a line or | ||
letter of credit or other debt guaranty; | ||
(B) a bond, note, debt sale or purchase, trustee, | ||
paying agent, remarketing agent, indexing agent, or similar | ||
agreement; | ||
(C) an agreement with a securities dealer, | ||
broker, or underwriter; and | ||
(D) any other contract or agreement considered by | ||
the board of directors to be appropriate or necessary in support of | ||
the authority's financing activities; | ||
(7) the contract is for work that is performed and paid | ||
for by the day as the work progresses; | ||
(8) the contract is for the purchase of land or a | ||
right-of-way; | ||
(9) the contract is for the purchase of personal | ||
property sold: | ||
(A) at an auction by a state licensed auctioneer; | ||
(B) at a going out of business sale held in | ||
compliance with Subchapter F, Chapter 17, Business & Commerce Code; | ||
or | ||
(C) by a political subdivision of this state, a | ||
state agency, or an entity of the federal government; | ||
(10) the contract is for services performed by blind | ||
or severely disabled persons; | ||
(11) the contract is for the purchase of electricity; | ||
or | ||
(12) the contract is one awarded for alternate project | ||
delivery under Subchapters E, F, and G, Chapter 2267, [ |
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(d) For the purposes of entering into a contract authorized | ||
by Subsection (c)(12), an authority is considered a "governmental | ||
entity" as described [ |
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ARTICLE 5. REPEALER | ||
SECTION 5.01. The following are repealed: | ||
(1) Sections 44.0315, 44.035, 44.036, 44.037, 44.038, | ||
44.039, 44.040, and 44.041, Education Code; | ||
(2) Sections 2166.2511, 2166.2526, 2166.2531, | ||
2166.2532, 2166.2533, and 2166.2535, Government Code; | ||
(3) Subchapters H and J, Chapter 271, Local Government | ||
Code; and | ||
(4) Section 431.101(e), Transportation Code. | ||
ARTICLE 6. TRANSITION; EFFECTIVE DATE | ||
SECTION 6.01. (a) The changes in law made 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. | ||
(b) 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, before the effective date of this Act is governed by | ||
the law as it existed immediately before the effective date of this | ||
Act, and that law is continued in effect for that purpose. | ||
SECTION 6.02. This Act takes effect September 1, 2011. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 628 was passed by the House on May 12, | ||
2011, by the following vote: Yeas 145, Nays 1, 2 present, not | ||
voting; that the House refused to concur in Senate amendments to | ||
H.B. No. 628 on May 26, 2011, and requested the appointment of a | ||
conference committee to consider the differences between the two | ||
houses; and that the House adopted the conference committee report | ||
on H.B. No. 628 on May 29, 2011, by the following vote: Yeas 145, | ||
Nays 0, 1 present, not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 628 was passed by the Senate, with | ||
amendments, on May 24, 2011, by the following vote: Yeas 31, Nays | ||
0 | ||
; at the request of the House, the Senate appointed a conference | ||
committee to consider the differences between the two houses; and | ||
that the Senate adopted the conference committee report on H.B. No. | ||
628 on May 28, 2011, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: __________________ | ||
Date | ||
__________________ | ||
Governor |