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A BILL TO BE ENTITLED
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AN ACT
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relating to the procurement methods of certain political |
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subdivisions and certain other entities for the construction, |
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rehabilitation, alteration, or repair of certain projects. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 271, Local Government Code, is amended |
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by adding Subchapter J to read as follows: |
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SUBCHAPTER J. DESIGN-BUILD PROCEDURES FOR CERTAIN CIVIL WORKS |
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PROJECTS |
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Sec. 271.181. DEFINITIONS. In this subchapter: |
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(1) "Architect" means an individual registered as an |
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architect under Chapter 1051, Occupations Code. |
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(2) "Civil works project" means: |
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(A) roads, streets, bridges, utilities, water |
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supply projects, water plants, wastewater plants, water |
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distribution and wastewater conveyance facilities, desalination |
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projects, airport runways and taxiways, storm drainage and flood |
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control projects, or transit projects; |
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(B) types of projects or facilities related to |
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those described by Paragraph (A) and associated with civil |
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engineering construction; and |
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(C) buildings or structures that are incidental |
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to projects or facilities that are described by Paragraphs (A) and |
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(B) and that are primarily civil engineering construction projects. |
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(3) "Design-build firm" means a partnership, |
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corporation, or other legal entity or team that includes an |
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engineer and a construction contractor qualified to engage in civil |
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works construction in Texas. |
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(4) "Design criteria package" means a set of documents |
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that: |
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(A) provides sufficient information to convey |
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the intent, goals, criteria, and objectives of the civil works |
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project; and |
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(B) permits a design-build firm to: |
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(i) assess the scope of work and the risk |
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involved; and |
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(ii) submit a proposal on the project. |
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(5) "Engineer" means an individual licensed as an |
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engineer under Chapter 1001, Occupations Code. |
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(6) "Local governmental entity" means a municipality, |
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a county, a river authority, a defense base development authority |
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established under Chapter 379B, a municipally owned water utility |
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with a separate governing board appointed by the governing body of a |
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municipality, or any other special district or authority authorized |
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by law to enter into a public works contract for a civil works |
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project. The term does not include a water district or authority |
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created under Section 52, Article III, or Section 59, Article XVI, |
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Texas Constitution, with a population of less than 50,000. |
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Sec. 271.182. APPLICABILITY. (a) Before September 1, |
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2009, this subchapter applies to a local governmental entity with a |
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population of 500,000 or more within its geographic boundaries or |
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service area. |
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(b) On or after September 1, 2009, and before September 1, |
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2011, this subchapter applies to a local governmental entity with a |
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population of more than 100,000 within its geographic boundaries or |
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service area. |
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(c) On or after September 1, 2011, and before September 1, |
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2013, this subchapter applies to a local governmental entity with a |
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population of more than 50,000 within its geographic boundaries or |
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service area. |
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Sec. 271.183. APPLICABILITY OF OTHER LAW. (a) The |
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purchasing requirements of Section 361.426, Health and Safety Code, |
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apply to purchases by a local governmental entity made under this |
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subchapter. |
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(b) Except as provided by this section, to the extent of any |
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conflict, this subchapter prevails over any other law relating to |
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the purchasing of goods and services except a law relating to |
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contracting with historically underutilized businesses. |
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Sec. 271.184. NOTICE REQUIREMENTS. (a) A local |
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governmental entity shall advertise or publish notice of requests |
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for bids, proposals, or qualifications in any manner prescribed by |
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law. |
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(b) For a contract entered into by a local governmental |
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entity under any of the methods provided by this subchapter, the |
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entity shall publish notice of the time and place the bid or |
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proposals or the request for qualifications will be received and |
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opened in any manner prescribed by law. |
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Sec. 271.185. CONTRACTS FOR CIVIL WORKS PROJECTS: |
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DESIGN-BUILD. (a) A local governmental entity may use the |
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design-build method for the construction, rehabilitation, |
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alteration, or repair of a civil works project. In using this method |
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and in entering into a contract for the services of a design-build |
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firm, the contracting local governmental entity and the |
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design-build firm shall follow the procedures provided by this |
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subchapter. |
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(b) A contract for a project under this subchapter may cover |
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only a single integrated project. A local governmental entity may |
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not enter into a contract for aggregated projects at multiple |
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locations. If a metropolitan transit authority created under |
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Chapter 451, Transportation Code, enters into a contract for a |
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project involving a bus rapid transit system created under Chapter |
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451, Transportation Code, the bus rapid transit system is a single |
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integrated project for purposes of this subsection. |
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(c) A local governmental entity shall use the following |
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criteria as a minimum basis for determining the circumstances under |
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which the design-build method is appropriate for a project: |
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(1) the extent to which the entity can adequately |
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define the project requirements; |
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(2) the time constraints for the delivery of the |
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project; |
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(3) the ability to ensure that a competitive |
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procurement can be held; and |
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(4) the capability of the entity to manage and oversee |
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the project, including the availability of experienced personnel or |
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outside consultants who are familiar with the design-build method |
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of project delivery. |
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(d) A local governmental entity shall make a formal finding |
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on the criteria described by Subsection (c) before preparing a |
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request for qualifications under Section 271.189. |
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Sec. 271.186. LIMITATION ON NUMBER OF PROJECTS. (a) During |
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the first four years that this subchapter applies to a local |
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governmental entity under Section 271.182, the entity may, under |
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this subchapter, enter into contracts for not more than two |
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projects in any fiscal year. |
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(b) After the period described by Subsection (a): |
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(1) a local governmental entity with a population of |
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500,000 or more may, under this subchapter, enter into contracts |
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for not more than four projects in any fiscal year; |
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(2) a local governmental entity with a population of |
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100,000 or more but less than 500,000 may, under this subchapter, |
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enter into contracts for not more than three projects in any fiscal |
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year; and |
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(3) a local governmental entity with a population of |
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less than 100,000 may, under this subchapter, enter into contracts |
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for not more than two projects in any fiscal year. |
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Sec. 271.187. USE OF ENGINEER. (a) The local governmental |
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entity shall select or designate an engineer who is independent of |
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the design-build firm to act as its representative for the |
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procurement process and for the duration of the work on the civil |
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works project. The selected or designated engineer has full |
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responsibility for complying with Chapter 1001, Occupations Code. |
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(b) If the engineer is not a full-time employee of the local |
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governmental entity, the local governmental entity shall select the |
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engineer on the basis of demonstrated competence and qualifications |
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as provided by Section 2254.004, Government Code. |
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Sec. 271.188. USE OF OTHER PROFESSIONAL SERVICES. (a) The |
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local governmental entity shall provide or contract for, |
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independently of the design-build firm, the following services as |
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necessary for the acceptance of the civil works project by the |
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entity: |
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(1) inspection services; |
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(2) construction materials engineering and testing; |
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and |
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(3) verification testing services. |
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(b) The local governmental entity shall select the services |
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for which it contracts under this section in accordance with |
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Section 2254.004, Government Code. |
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Sec. 271.189. REQUEST FOR QUALIFICATIONS. (a) The local |
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governmental entity shall prepare a request for qualifications that |
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includes: |
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(1) information on the civil works project site; |
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(2) project scope; |
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(3) project budget; |
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(4) project schedule; |
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(5) criteria for selection under Section 271.191 and |
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the weighting of the criteria; and |
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(6) other information that may assist potential |
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design-build firms in submitting proposals for the project. |
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(b) The local governmental entity shall also prepare a |
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design criteria package as described by Section 271.190. |
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Sec. 271.190. CONTENTS OF DESIGN CRITERIA PACKAGE. A |
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design criteria package may include, as appropriate: |
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(1) budget or cost estimates; |
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(2) information on the site; |
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(3) performance criteria; |
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(4) special material requirements; |
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(5) initial design calculations; |
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(6) known utilities; |
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(7) capacity requirements; |
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(8) quality assurance and quality control |
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requirements; and |
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(9) the type, size, and location of structures. |
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Sec. 271.191. EVALUATION OF DESIGN-BUILD FIRMS. (a) The |
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local governmental entity shall receive proposals and shall |
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evaluate each offeror's experience, technical competence, |
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capability to perform, the past performance of the offeror's team |
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and members of the team, and other appropriate factors submitted by |
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the team or firm in response to the request for qualifications, |
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except that cost-related or price-related evaluation factors are |
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not permitted at this stage. |
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(b) Each offeror must: |
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(1) select or designate each engineer that is a member |
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of its team based on demonstrated competence and qualifications, in |
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the manner provided by Section 2254.004, Government Code; and |
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(2) certify to the local governmental entity that each |
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selection or designation was based on demonstrated competence and |
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qualifications, in the manner provided by Section 2254.004, |
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Government Code. |
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(c) The local governmental entity shall qualify a maximum of |
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three offerors to submit additional information and, if the entity |
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chooses, to interview for final selection. |
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Sec. 271.192. SELECTION OF DESIGN-BUILD FIRM. The local |
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governmental entity shall select a design-build firm using one of |
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the following selection options: |
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(1) qualifications-based selection as provided by |
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Section 271.193; or |
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(2) a combination of technical and cost proposals as |
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provided by Section 271.194. |
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Sec. 271.193. PROCEDURES FOR QUALIFICATIONS-BASED |
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SELECTION. A local governmental entity that selects a design-build |
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firm using the qualifications-based selection option: |
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(1) may request that the firms identified under |
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Section 271.191(c) provide additional information regarding |
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demonstrated competence and qualifications, project approaches, |
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the ability of the firm to meet schedules, or other factors as |
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appropriate, except that price or cost-related criteria may not be |
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utilized; |
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(2) may not require firms to submit and may not accept |
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or consider conceptual or detailed engineering designs as part of |
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the proposal; and |
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(3) shall: |
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(A) rank each proposal submitted on the basis of |
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the criteria set forth in the request for qualifications and the |
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results of any interview; and |
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(B) select the design-build firm that is most |
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highly qualified on the basis of the published selection criteria |
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and on its ranking evaluations. |
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Sec. 271.194. PROCEDURES FOR COMBINATION OF TECHNICAL AND |
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COST PROPOSALS. (a) A local governmental entity that selects a |
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design-build firm using a combination of technical and cost |
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proposals shall request proposals from firms identified under |
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Section 271.191(c). A firm must submit a proposal not later than |
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the 180th day after the date the local governmental entity makes a |
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public request for the proposals from the selected firms. The |
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request for proposals must include: |
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(1) a design criteria package; |
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(2) a report containing geotechnical information |
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relating to the project site; |
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(3) detailed instructions for preparing the technical |
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proposal and the items to be included, including a description of |
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the form and level of completeness of drawings expected; and |
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(4) the relative weighting of the technical and price |
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proposals and the formula by which the proposals will be evaluated |
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and ranked. |
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(b) The technical proposal component under this section |
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must be weighted a minimum of 50 percent. |
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(c) Each proposal must include a sealed technical proposal |
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and a separate sealed cost proposal. |
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(d) The technical proposal must address: |
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(1) project approach; |
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(2) anticipated problems; |
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(3) proposed solutions to anticipated problems; |
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(4) ability to meet schedules; |
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(5) conceptual engineering design; and |
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(6) other information requested by the local |
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governmental entity. |
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(e) The local governmental entity shall first open, |
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evaluate, and score each responsive technical proposal submitted on |
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the basis of the criteria described in the request for proposals and |
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assign points on the basis of the weighting specified in the request |
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for proposals. The local governmental entity may reject as |
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nonresponsive any firm that makes a significant change to the |
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composition of its firm as initially submitted. The local |
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governmental entity shall subsequently open, evaluate, and score |
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the cost proposals from firms that submitted a responsive technical |
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proposal and assign points on the basis of the weighting specified |
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in the request for proposals. The local governmental entity shall |
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select the design-build firm in accordance with the formula |
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provided in the request for proposals. |
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Sec. 271.195. NEGOTIATION. After selecting the highest |
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ranked design-build firm under Section 271.193 or 271.194, the |
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local governmental entity shall first attempt to negotiate a |
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contract with the selected firm. If the local governmental entity |
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is unable to negotiate a satisfactory contract with the selected |
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firm, the entity shall, formally and in writing, end all |
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negotiations with that firm and proceed to negotiate with the next |
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firm in the order of the selection ranking until a contract is |
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reached or negotiations with all ranked firms end. |
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Sec. 271.196. ASSUMPTION OF RISKS. The local governmental |
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entity shall assume: |
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(1) all risks and costs associated with: |
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(A) scope changes and modifications; |
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(B) unknown or differing site conditions; |
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(C) regulatory permitting, if the local |
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governmental entity is responsible for those risks and costs by law |
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or contract; and |
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(D) natural disasters and other force majeure |
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events; and |
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(2) all costs associated with property acquisition. |
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Sec. 271.197. STIPEND AMOUNT FOR UNSUCCESSFUL OFFERORS. |
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(a) Not later than the 30th day after the date a contract is |
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executed under this subchapter, the local governmental entity shall |
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offer unsuccessful design-build firms that submit a response to the |
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entity's request for additional information under Section 271.194 a |
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stipend for preliminary engineering costs associated with the |
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development of the proposal that is equal to a minimum of one-half |
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of one percent of the preliminary estimate or budgeted cost for the |
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construction of the project. A greater amount may be negotiated |
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with a firm as compensation for the use of intellectual property. |
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If the offer is accepted and paid, the local governmental entity may |
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make use of any work product contained in the proposal, including |
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the techniques, methods, processes, and information contained in |
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the proposal. The use by the local governmental entity of any |
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design element contained in an unsuccessful proposal is at the sole |
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risk and discretion of the entity and does not confer liability on |
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the recipient of the stipend under this subsection. |
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(b) If a design-build firm rejects the offer of the stipend, |
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the firm retains all rights to the work product and the local |
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governmental entity may not make use of any unique design element, |
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technique, method, or process contained in the unsuccessful |
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proposal that was not also contained in the successful proposal at |
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the time of the original submittal. If the local governmental |
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entity wants to acquire the rights to the work product of an |
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unsuccessful firm and the local governmental entity and that firm |
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are unable to reach an agreement on the value of the work product, |
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the matter may be submitted to binding arbitration. |
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(c) If a local governmental entity requests and receives |
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proposals and subsequently cancels the request or suspends the |
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selection process for more than 270 days after the date the local |
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governmental entity requests the design-build firms to provide |
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additional information, each offeror who submitted a proposal as |
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requested shall receive the minimum stipend required by this |
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section. |
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(d) To the extent of a conflict between this section and a |
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federal law or rule governing the expenditure of federal transit |
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funds by a transit authority created under Chapter 451, |
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Transportation Code, the federal law or rule prevails. |
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Sec. 271.198. COMPLETION OF DESIGN. (a) Following |
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selection of a design-build firm under this subchapter, the firm's |
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engineers shall submit all design elements for review and |
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determination of scope compliance to the local governmental entity |
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before or concurrently with construction. |
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(b) An appropriately licensed design professional shall |
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sign and seal construction documents before the documents are |
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released for construction. |
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Sec. 271.199. FINAL CONSTRUCTION DOCUMENTS. At the |
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conclusion of construction, the design-build firm shall supply to |
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the local governmental entity a record set of construction |
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documents for the project prepared as provided by Chapter 1001, |
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Occupations Code. |
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Sec. 271.200. PERFORMANCE OR PAYMENT BOND. (a) A payment |
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or performance bond is not required for, and may not provide |
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coverage for, the portion of a design-build contract under this |
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section that includes design services only. |
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(b) If a fixed contract amount or guaranteed maximum price |
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has not been determined at the time a design-build contract is |
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awarded, the penal sums of the performance and payment bonds |
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delivered to the local governmental entity must each be in an amount |
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equal to the construction budget, as specified in the design |
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criteria package. |
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(c) The design-build firm shall deliver the bonds not later |
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than the 10th day after the date the design-build firm executes the |
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contract unless the design-build firm furnishes a bid bond or other |
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financial security acceptable to the local governmental entity to |
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ensure that the design-build firm will furnish the required |
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performance and payment bonds before the commencement of |
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construction. |
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SECTION 2. Section 271.904(a), Local Government Code, is |
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amended to read as follows: |
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(a) A covenant or promise in, in connection with, or |
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collateral to a contract for engineering or architectural services |
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to which a governmental agency is a party is void and unenforceable |
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if the covenant or promise provides that a licensed engineer or |
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registered architect whose work product is the subject of the |
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contract must indemnify, [or] hold harmless, or defend the |
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governmental agency against liability for damage, other than |
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liability for damage that is caused by or results from an act of |
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[the] negligence, intentional tort, intellectual property |
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infringement, or failure to pay a subcontractor or supplier |
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committed by [of] the indemnitor or the indemnitor's agent, |
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consultant under contract, or another entity over which the |
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indemnitor exercises control [governmental agency or its agent or
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employee]. |
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SECTION 3. Section 46.008, Education Code, is amended to |
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read as follows: |
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Sec. 46.008. STANDARDS. (a) The commissioner shall |
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establish standards for adequacy of school facilities. The |
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standards must include requirements related to space, educational |
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adequacy, and construction quality. All new facilities constructed |
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after September 1, 1998, must meet the standards to be eligible to |
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be financed with state or local tax funds. |
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(b) Any portable, modular building capable of being |
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relocated that is purchased or leased after September 1, 2007, for |
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use as a school facility, regardless of whether the building is an |
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industrialized building as defined by Section 1202.003, |
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Occupations Code, must be inspected as provided by Subchapter E, |
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Chapter 1202, Occupations Code, to ensure compliance with the |
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mandatory building codes or approved designs, plans, and |
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specifications. |
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SECTION 4. Section 51.784(i), Education Code, is amended to |
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read as follows: |
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(i) If a job order contract or an order issued under the |
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contract requires engineering or architectural services that |
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constitute the practice of engineering within the meaning of |
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Chapter 1001, Occupations Code, or the practice of architecture |
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within the meaning of Chapter 1051, Occupations Code, the board |
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shall select or designate an architect or engineer to prepare the |
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construction documents for the facility [those services shall be
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provided in accordance with applicable law]. If the architect or |
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engineer is not a full-time employee of the institution, the board |
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shall select the architect or engineer on the basis of demonstrated |
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competence and qualifications as provided by Section 2254.004, |
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Government Code. |
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SECTION 5. Section 60.464(i), Water Code, is amended to |
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read as follows: |
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(i) If a job order contract or an order issued under the |
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contract requires engineering or architectural services that |
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constitute the practice of engineering within the meaning of |
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Chapter 1001, Occupations Code, or the practice of architecture |
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within the meaning of Chapter 1051, Occupations Code, the district |
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shall select or designate an architect or engineer to prepare the |
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construction documents for the facility [those services shall be
|
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provided in accordance with applicable law]. If the architect or |
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engineer is not a full-time employee of the district, the district |
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shall select the architect or engineer on the basis of demonstrated |
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competence and qualifications as provided by Section 2254.004, |
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Government Code. |
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SECTION 6. The changes in law made by this Act apply only to |
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a contract for which a request for proposals or a request for |
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qualifications is first published or distributed on or after the |
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effective date of this Act. A contract for which a request for |
|
proposals or a request for qualifications is first published or |
|
distributed before the effective date of this Act is governed by the |
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law in effect at the time the request is published or distributed, |
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and the former law is continued in effect for that purpose. |
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SECTION 7. (a) Except as provided by Subsection (b), this |
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Act takes effect September 1, 2007. |
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(b) This Act takes effect only if H.B. No. 447, Acts of the |
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80th Legislature, Regular Session, 2007, takes effect. If H.B. No. |
|
447, Acts of the 80th Legislature, Regular Session, 2007, does not |
|
take effect, this Act has no effect. |