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AN ACT
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relating to the establishment of the center for alternative finance |
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and procurement within the Texas Facilities Commission and to |
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public and private partnerships; authorizing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter C, Chapter 2152, Government Code, is |
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amended by adding Section 2152.110 to read as follows: |
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Sec. 2152.110. CENTER FOR ALTERNATIVE FINANCE AND |
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PROCUREMENT. The commission shall establish the center for |
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alternative finance and procurement to consult with governmental |
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entities regarding best practices for procurement and the financing |
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of qualifying projects and to assist governmental entities in the |
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receipt of proposals, negotiation of interim and comprehensive |
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agreements, and management of qualifying projects under Chapters |
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2267 and 2268. |
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SECTION 2. Section 2267.001, Government Code, is amended by |
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amending Subdivision (1-a) and adding Subdivision (1-b) to read as |
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follows: |
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(1-a) "Center" means the center for alternative |
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finance and procurement established under Section 2152.110 by the |
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Texas Facilities Commission. |
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(1-b) "Commission" means the Partnership Advisory |
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Commission established under Chapter 2268. |
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SECTION 3. Section 2267.051, Government Code, is amended to |
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read as follows: |
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Sec. 2267.051. APPROVAL REQUIRED[; SUBMISSION OF PROPOSAL
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FOR QUALIFYING PROJECT]. [(a)] A person may not develop or operate |
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a qualifying project unless the person obtains the approval of and |
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contracts with the responsible governmental entity under this |
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chapter. [The person may initiate the approval process by
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submitting a proposal requesting approval under Section
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2267.053(a), or the responsible governmental entity may request
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proposals or invite bids under Section 2267.053(b).
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[(b)
A person submitting a proposal requesting approval of a
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qualifying project shall specifically and conceptually identify
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any facility, building, infrastructure, or improvement included in
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the proposal as a part of the qualifying project.
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[(c)
On receipt of a proposal submitted by a person
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initiating the approval process under Section 2267.053(a), the
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responsible governmental entity shall determine whether to accept
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the proposal for consideration in accordance with Sections 2267.052
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and 2267.065 and the guidelines adopted under those sections. A
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responsible governmental entity that determines not to accept the
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proposal for consideration shall return the proposal, all fees, and
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the accompanying documentation to the person submitting the
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proposal.
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[(d)
The responsible governmental entity may at any time
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reject a proposal initiated by a person under Section 2267.053(a).] |
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SECTION 4. Sections 2267.052(b), (c), and (c-1), Government |
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Code, are amended to read as follows: |
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(b) The guidelines for a responsible governmental entity |
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described by Section 2267.001(5)(A) must: |
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(1) require the responsible governmental entity to: |
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(A) make a representative of the entity available |
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to meet with persons who are considering submitting a proposal; and |
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(B) provide notice of the representative's |
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availability; |
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(2) provide reasonable criteria for choosing among |
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competing proposals; |
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(3) contain suggested timelines for selecting |
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proposals and negotiating an interim or comprehensive agreement; |
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(4) allow the responsible governmental entity to |
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accelerate the selection, review, and documentation timelines for |
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proposals involving a qualifying project considered a priority by |
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the entity; |
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(5) include financial review and analysis procedures |
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that at a minimum consist of: |
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(A) a cost-benefit analysis; |
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(B) an assessment of opportunity cost; |
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(C) consideration of the degree to which |
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functionality and services similar to the functionality and |
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services to be provided by the proposed project are already |
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available in the private market; and |
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(D) consideration of the results of all studies |
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and analyses related to the proposed qualifying project; |
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(6) allow the responsible governmental entity to |
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consider the nonfinancial benefits of a proposed qualifying |
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project; |
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(7) ensure that the governmental entity, for a |
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proposed project to improve real property, evaluates design |
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quality, life-cycle costs, and the proposed project's relationship |
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to any relevant comprehensive planning or zoning requirements; |
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(8) include criteria for: |
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(A) the qualifying project, including the scope, |
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costs, and duration of the project and the involvement or impact of |
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the project on multiple public entities; |
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(B) the creation of and the responsibilities of |
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an oversight committee, with members representing the responsible |
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governmental entity, that acts as an advisory committee to review |
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the terms of any proposed interim or comprehensive agreement; and |
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(C) the center's role in the review, analysis, or |
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evaluation of the qualifying project [compliance with the
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requirements of Chapter 2268]; |
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(9) require the responsible governmental entity to |
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analyze the adequacy of the information to be released by the entity |
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when seeking competing proposals and require that the entity |
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provide more detailed information, if the entity determines |
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necessary, to encourage competition, subject to Section |
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2267.053(g); and |
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(10) establish criteria, key decision points, and |
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approvals required to ensure that the responsible governmental |
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entity considers the extent of competition before selecting |
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proposals and negotiating an interim or comprehensive agreement[;
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and
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[(11)
require the posting and publishing of public
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notice of a proposal requesting approval of a qualifying project,
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including:
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[(A)
specific information and documentation
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regarding the nature, timing, and scope of the qualifying project,
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as required under Section 2267.053(a);
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[(B)
a reasonable period, as determined by the
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responsible governmental entity, of not less than 45 days or more
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than 180 days, or a longer period specified by the governing body of
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the responsible governmental entity to accommodate a large-scale
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project, to encourage competition and partnerships with private
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entities and other persons in accordance with the goals of this
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chapter, during which the responsible governmental entity must
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accept submission of competing proposals for the qualifying
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project; and
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[(C)
a requirement for advertising the notice on
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the governmental entity's Internet website and on TexasOnline or
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the state's official Internet website]. |
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(c) The guidelines of a responsible governmental entity |
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described by Section 2267.001(5)(B) must include: |
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(1) the provisions required under Subsection (b); and |
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(2) a requirement that the governmental entity engage |
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the services of qualified professionals, including an architect, |
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professional engineer, or registered municipal advisor [certified
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public accountant], not otherwise employed by the governmental |
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entity, or the center to provide independent analyses regarding the |
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specifics, advantages, disadvantages, and long-term and short-term |
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costs of [any proposal requesting approval of] a qualifying project |
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unless the governing body of the governmental entity determines |
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that the analysis [of the proposal] is to be performed by similarly |
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qualified employees of the governmental entity. |
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(c-1) For a proposal with an estimated cost of $5 million or |
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more for [the] construction or renovation of a qualifying |
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[structure or] project, the analysis conducted under Subsection |
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(c)(2) must include review [of the proposal] by an architect, a |
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professional engineer, and a registered municipal advisor |
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[certified public accountant] not otherwise employed by the |
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governmental entity. |
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SECTION 5. Section 2267.053(d), Government Code, is amended |
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to read as follows: |
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(d) The responsible governmental entity may charge a |
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reasonable fee to cover the costs of processing, reviewing, and |
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evaluating the proposal, including reasonable legal fees, [and] |
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fees for financial and[,] technical[, and other necessary] advisors |
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or consultants, and fees for the center's review or consultation. |
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SECTION 6. Section 2267.058(g), Government Code, is amended |
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to read as follows: |
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(g) The comprehensive agreement must provide that a |
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security document or other instrument purporting to mortgage, |
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pledge, encumber, or create a lien, charge, or security interest on |
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or against the contracting party's interest may not extend to or |
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affect the fee simple interest of the state in the qualifying |
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project or the state's rights or interests under the comprehensive |
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agreement. Any holder of debt shall acknowledge that the mortgage, |
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pledge, or encumbrance or a lien, charge, or security interest on or |
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against the contracting party's interest is subordinate to the fee |
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simple interest of the state in the qualifying project [and the
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state's rights or interests under the comprehensive agreement]. |
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SECTION 7. Section 2267.065(b), Government Code, is amended |
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to read as follows: |
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(b) A responsible governmental entity may enter into a |
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comprehensive agreement only in accordance with guidelines that |
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require the contracting person to design and construct the |
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qualifying project in accordance with procedures that do not |
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materially conflict with those specified in: |
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(1) Subchapter G, Chapter 2269, for facilities |
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projects described by Section 2269.302 [2166.2531]; or |
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(2) Subchapter H, Chapter 2269 [Section 44.036,
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Education Code;
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[(3) Section 51.780, Education Code;
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[(4) Section 271.119, Local Government Code; or
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[(5)
Subchapter J, Chapter 271, Local Government
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Code], for civil works projects as defined by Section 2269.351 |
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[271.181(2), Local Government Code]. |
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SECTION 8. Section 2267.066(a), Government Code, is amended |
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to read as follows: |
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(a) Not later than the 10th day after the date a responsible |
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governmental entity accepts a proposal submitted in accordance with |
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Section 2267.053(b) [2267.053(a) or (b)], the responsible |
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governmental entity shall provide notice of the proposal as |
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follows: |
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(1) for a responsible governmental entity described by |
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Section 2267.001(5)(A), by posting the proposal on the entity's |
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Internet website; and |
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(2) for a responsible governmental entity described by |
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Section 2267.001(5)(B), by: |
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(A) posting a copy of the proposal on the |
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entity's Internet website; or |
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(B) publishing in a newspaper of general |
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circulation in the area in which the qualifying project is to be |
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performed a summary of the proposal and the location where copies of |
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the proposal are available for public inspection. |
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SECTION 9. Section 2268.001, Government Code, is amended by |
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amending Subdivision (1) and adding Subdivision (1-a) to read as |
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follows: |
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(1) "Center" means the center for alternative finance |
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and procurement established under Section 2152.110 by the Texas |
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Facilities Commission. |
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(1-a) "Commission" means the Partnership Advisory |
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Commission. |
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SECTION 10. Section 2268.056(d), Government Code, is |
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amended to read as follows: |
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(d) The center [Texas Facilities Commission], using the |
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qualifying project fees authorized under Section 2165.353, shall |
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provide, on a cost recovery basis, professional services [of its
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architectural, engineering, and real estate staff and the
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expertise] of financial, technical, and other necessary advisors |
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and consultants, authorized under Section 2267.053(d), as |
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necessary to support the Partnership Advisory Commission in its |
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review and evaluation of proposals, including financial and risk |
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allocation analysis and ongoing contract performance monitoring of |
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qualifying projects. The center [Texas Facilities Commission] |
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shall assign staff and contracted advisors and consultants |
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necessary to perform the duties required by this subsection. |
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SECTION 11. Section 2268.059, Government Code, is amended |
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to read as follows: |
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Sec. 2268.059. CONFIDENTIALITY OF CERTAIN RECORDS |
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SUBMITTED TO COMMISSION. Records and information afforded |
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protection under Section 552.153 that are provided by a responsible |
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governmental entity to the commission and the presiding officer of |
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the House Appropriations Committee and of the Senate Finance |
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Committee, or their designees, shall continue to be protected from |
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disclosure when in the possession of the commission and the |
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presiding officers or their designees. |
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SECTION 12. The following provisions of the Government Code |
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are repealed: |
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(1) Section 2267.002(e); and |
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(2) Sections 2267.053(a) and (a-1). |
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SECTION 13. As soon as practicable after the effective date |
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of this Act, the Texas Facilities Commission shall adopt the rules |
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necessary to establish the center for alternative finance and |
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procurement in accordance with Section 2152.110, Government Code, |
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as added by this Act. |
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SECTION 14. This Act takes effect September 1, 2015. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2475 was passed by the House on May |
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15, 2015, by the following vote: Yeas 123, Nays 6, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2475 on May 28, 2015, by the following vote: Yeas 139, Nays 5, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2475 was passed by the Senate, with |
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amendments, on May 26, 2015, by the following vote: Yeas 30, Nays |
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1. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |