Bill Text: TX SB2504 | 2023-2024 | 88th Legislature | Introduced
Bill Title: Relating to the method used to select engineers and general contractors for certain state highway construction projects.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-03-23 - Referred to Transportation [SB2504 Detail]
Download: Texas-2023-SB2504-Introduced.html
88R3801 SRA-F | ||
By: Alvarado | S.B. No. 2504 |
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relating to the method used to select engineers and general | ||
contractors for certain state highway construction projects. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 223, Transportation Code, is amended by | ||
adding Subchapter G to read as follows: | ||
SUBCHAPTER G. CONSTRUCTION MANAGER-GENERAL CONTRACTOR METHOD | ||
Sec. 223.301. DEFINITION. In this subchapter, | ||
"construction manager-general contractor method" means a delivery | ||
method by which the department contracts with an engineer for | ||
design and construction phase services and contracts separately | ||
with a construction manager to serve as the general contractor and | ||
to provide consultation during the design and construction of a | ||
state highway. | ||
Sec. 223.302. USE OF CONSTRUCTION MANAGER-GENERAL | ||
CONTRACTOR METHOD. Notwithstanding any other law requiring a | ||
particular procurement procedure, including Subchapter A of this | ||
chapter, the department may use the construction manager-general | ||
contractor method to select a general contractor for a state | ||
highway project as provided by this subchapter. | ||
Sec. 223.303. CONSTRUCTION MANAGER. (a) For purposes of | ||
this subchapter, a construction manager may be a sole | ||
proprietorship, partnership, corporation, or other legal entity. | ||
(b) A construction manager serves as the general contractor | ||
for a state highway project and assumes the risk for the | ||
construction of the state highway at the contracted price. | ||
(c) A construction manager shall provide consultation to | ||
the department regarding construction of a state highway project | ||
during and after the design of the project, including consultation | ||
regarding preconstruction services such as scheduling, pricing, | ||
phasing, technical innovations, site investigation, and risk | ||
mitigation. | ||
(d) The contracted price may be a guaranteed maximum price | ||
or converted to a lump sum. | ||
Sec. 223.304. USE OF ENGINEER. (a) On or before the | ||
selection of a construction manager, the department shall select an | ||
engineer to prepare the construction documents for the state | ||
highway project. | ||
(b) The engineer selected for a state highway project under | ||
Section 223.041 may not serve, alone or in combination with another | ||
person, as the construction manager for that project. | ||
(c) Subsection (b) does not prohibit the engineer from | ||
providing customary construction phase services under the | ||
engineer's contract with the department in accordance with | ||
applicable licensing laws. | ||
Sec. 223.305. ADOPTION OF CRITERIA AND RULES. (a) The | ||
department shall adopt weighted selection criteria and rules for | ||
the selection process and award of contracts under this subchapter, | ||
which may include interviews with top-ranked offerors. | ||
(b) The rules adopted under Subsection (a) must address the | ||
selection process applicable to the award of a contract for | ||
preconstruction services and for construction management and | ||
construction services, including the process for contract | ||
negotiations with the construction manager for construction of the | ||
project or work packages associated with the project in accordance | ||
with contract documents. | ||
Sec. 223.306. EVALUATION TEAM. (a) Before preparing a | ||
request under Section 223.307 for a state highway project, the | ||
director shall appoint a team of at least three members to assist | ||
the department in evaluating proposals and qualifications received | ||
by the department. The members may be department employees or | ||
outside consultants. | ||
(b) At least one-half, or as near one-half as possible, of | ||
the team members must be engineers registered in this state. An | ||
engineer who serves on the team and is not a department employee may | ||
not otherwise be involved in the project for which the request is | ||
prepared under Section 223.307. | ||
(c) The team must include at least one person who is a senior | ||
management employee of a general contractor that: | ||
(1) is registered as a prequalified general contractor | ||
under department rules; | ||
(2) is not involved in the project for which the | ||
request is prepared under Section 223.307; and | ||
(3) has no other conflict of interest as determined by | ||
the department. | ||
Sec. 223.307. SELECTION PROCESS. (a) The department may | ||
select the construction manager in a one-step or two-step process. | ||
(b) The department shall prepare a single request for | ||
proposals, in the case of a one-step process, and an initial request | ||
for qualifications followed by a request for proposals and any | ||
required interviews, in the case of a two-step process. A request | ||
prepared under this subsection must include: | ||
(1) a statement as to whether the selection process is | ||
a one-step or two-step process; | ||
(2) information regarding the project's location, | ||
scope, and limits; | ||
(3) publicly available cost estimates and a budget for | ||
the project; | ||
(4) information regarding funding that may be | ||
available for the project; | ||
(5) the selection criteria adopted under Section | ||
223.305 and the relative weighted value for each criterion; | ||
(6) the time and place for receipt of qualifications | ||
or proposals, as applicable; and | ||
(7) any other information that may assist the | ||
department in the selection of a construction manager. | ||
(c) If a one-step process is used, the department may | ||
request, as part of the offeror's proposal, the offeror's: | ||
(1) proposed billable rates for preconstruction | ||
services personnel; | ||
(2) proposed fee for home office overhead; and | ||
(3) profit fee on the negotiated construction price | ||
for performing construction services. | ||
(d) If a two-step process is used, the department may not | ||
request proposed billable rates, fees, or prices in step one. In | ||
step two, the department may request that five or fewer offerors, | ||
selected on the basis of qualifications, experience, technical | ||
competence, and ability to develop the project, provide additional | ||
information, including the offeror's: | ||
(1) proposed billable rates for preconstruction | ||
services and general conditions personnel; | ||
(2) proposed fee for home office overhead; and | ||
(3) profit fee on the negotiated construction price | ||
for performing construction services. | ||
(e) If a one-step process is used, proposed billable rates | ||
for general conditions personnel must be negotiated on selection of | ||
the construction manager. | ||
Sec. 223.308. SELECTION OF CONSTRUCTION MANAGER. (a) The | ||
department shall: | ||
(1) rank the offerors in accordance with the selection | ||
criteria provided in the request for proposals under Section | ||
223.307(b)(5); and | ||
(2) select the offeror that submits the proposal with | ||
the highest ranking. | ||
(b) The award of a preconstruction services contract under | ||
Subsection (a) authorizes the construction manager to: | ||
(1) provide consultation to the department and project | ||
engineer; and | ||
(2) enter into open and transparent negotiations with | ||
the department during the design phase of the project to refine the | ||
project's cost and schedule for the construction management and | ||
construction services contract. | ||
(c) The department shall use the services of an independent | ||
cost estimator for each work package associated with the project to | ||
validate the negotiated costs for the construction management and | ||
construction services contract. The independent cost estimator | ||
shall follow procedures outlined in the Federal Highway | ||
Administration Major Project Program Cost Estimating Guidance, as | ||
it existed on September 1, 2023, and as adapted by the department. | ||
(d) On successful negotiations under Subsection (b)(2), the | ||
department shall execute a construction management and | ||
construction services contract with the construction manager for | ||
either construction of the project or selected work packages | ||
associated with the project. | ||
(e) Negotiations under Subsection (b)(2) shall be | ||
terminated if the department is unable to reach a price agreement | ||
with the construction manager. If negotiations are terminated, the | ||
department may competitively bid the construction of the project in | ||
accordance with the department's procedures under Subchapter A. | ||
(f) Not later than the seventh day after the date a | ||
preconstruction services contract is awarded under this section, | ||
the department shall make public the selection rankings determined | ||
under Subsection (a). | ||
Sec. 223.309. PERFORMANCE OF WORK. (a) A construction | ||
manager shall perform a minimum percentage of construction work, | ||
excluding general conditions work, as required by the department's | ||
rules regarding standard specifications for highway and bridge | ||
construction. | ||
(b) A construction manager shall publicly advertise for | ||
bids or proposals and receive bids or proposals from subcontractors | ||
for the performance of the remaining construction work. | ||
Sec. 223.310. PERFORMANCE OR PAYMENT BOND. The | ||
construction manager shall deliver any performance and payment | ||
bonds not later than the 10th day after the date the construction | ||
manager is awarded a preconstruction services contract under | ||
Section 223.308 unless the construction manager furnishes a bid | ||
bond or other financial security acceptable to the department to | ||
ensure that the construction manager will furnish the required | ||
performance and payment bonds when a guaranteed maximum price is | ||
established. | ||
SECTION 2. This Act takes effect immediately if it receives | ||
a vote of two-thirds of all the members elected to each house, as | ||
provided by Section 39, Article III, Texas Constitution. If this | ||
Act does not receive the vote necessary for immediate effect, this | ||
Act takes effect September 1, 2023. |