Texas Education Code - Section 44.038. Contracts For Facilities: Construction Manager-At-Risk
Legal Research Home >
Texas Lawyer > Education Code > Texas Education Code - Section 44.038. Contracts For Facilities: Construction Manager-At-Risk
§ 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) A school district may use the construction
manager-at-risk method for the construction, rehabilitation,
alteration, or repair of a facility. In using that method and in
entering into a contract for the services of a construction
manager-at-risk, a district shall follow the procedures prescribed
by this section.
(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 school district
regarding construction during and after the design of the facility.
(c) Before or concurrently with selecting a construction
manager-at-risk, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with Chapter
1001 or 1051, Occupations Code, as applicable. If the engineer or
architect is not a full-time employee of the district, the district
shall select the engineer or architect on the basis of demonstrated
competence and qualifications as provided by Section 2254.004,
Government Code. The district's engineer, architect, or
construction manager-agent for a project may not serve, alone or in
combination with another, as the construction manager-at-risk
unless the engineer or architect is hired to serve as the
construction manager-at-risk under a separate or concurrent
procurement conducted in accordance with this subchapter. This
subsection does not prohibit the district's engineer or architect
from providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable licensing laws.
(d) The district shall provide or contract for,
independently of the construction manager-at-risk, the inspection
services, the testing of construction materials engineering, and
the verification testing services necessary for acceptance of the
facility by the district. The district shall select those services
for which it contracts in accordance with Section 2254.004,
Government Code.
(e) The district shall select the construction
manager-at-risk in either a one-step or two-step process. The
district shall prepare a request for proposals, in the case of a
one-step process, or a request for qualifications, in the case of a
two-step process, that includes general information on the project
site, project scope, schedule, selection criteria, estimated
budget, and the time and place for receipt of proposals or
qualifications, as applicable, a statement as to whether the
selection process is a one-step or two-step process, and other
information that may assist the district in its selection of a
construction manager-at-risk. The district shall state the
selection criteria in the request for proposals or qualifications,
as applicable. The selection criteria may include the offeror's
experience, past performance, safety record, proposed personnel
and methodology, and other appropriate factors that demonstrate the
capability of the construction manager-at-risk. If a one-step
process is used, the district may request, as part of the offeror's
proposal, proposed fees and prices for fulfilling the general
conditions. If a two-step process is used, the district may not
request fees or prices in step one. In step two, the district 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 its price for
fulfilling the general conditions.
(f) At each step, the district shall receive, publicly open,
and read aloud the names of the offerors. At the appropriate step,
the district shall also read aloud the fees and prices, if any,
stated in each proposal as the proposal is opened. Within 45 days
after the date of opening the proposals, the district shall
evaluate and rank each proposal submitted in relation to the
criteria set forth in the request for proposals.
(g) The district shall select the offeror that submits the
proposal 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 with the selected offeror
a contract. 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
negotiate with the next offeror in the order of the selection
ranking until a contract is reached or negotiations with all ranked
offerors end.
(h) A construction manager-at-risk shall publicly
advertise, in accordance with Section 44.031(g), 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. A construction
manager-at-risk may seek to perform portions of the work itself if
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 if the district determines that
the construction manager-at-risk's bid or proposal provides the
best value for the district.
(i) The construction manager-at-risk and the district or
its representative 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,
engineer, architect, or district. All bids or proposals shall be
made public after the award of the contract or within seven days
after the date of final selection of bids or proposals, whichever is
later.
(j) If the construction manager-at-risk reviews, evaluates,
and recommends to the district a bid or proposal from a trade
contractor or subcontractor but the district requires another bid
or proposal to be accepted, the district 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 may incur because of the district's
requirement that another bid or proposal be accepted.
(k) 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 section,
the construction manager-at-risk may, without advertising, itself
fulfill the contract requirements or select a replacement trade
contractor or subcontractor to fulfill the contract requirements.
(l) 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
district must each be in an amount equal to the project budget, as
specified in the request for qualifications. The construction
manager shall deliver the bonds not later than the 10th day after
the date the construction manager executes the contract unless the
construction manager furnishes a bid bond or other financial
security acceptable to the district to ensure that the construction
manager will furnish the required performance and payment bonds
when a guaranteed maximum price is established.
Added by Acts 1997, 75th Leg., ch. 1179, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 8, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1229, § 3, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1276, § 14A.759, eff. Sept. 1, 2003.
Section: 44.0315 44.032 44.034 44.035 44.036 44.037 44.038 44.039 44.040 44.041 44.042 44.043 44.044 44.051
Last modified: August 10, 2007
|
