CHAPTER 2166. BUILDING CONSTRUCTION AND ACQUISITION

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GOVERNMENT CODE

TITLE 10. GENERAL GOVERNMENT

SUBTITLE D. STATE PURCHASING AND GENERAL SERVICES

CHAPTER 2166. BUILDING CONSTRUCTION AND ACQUISITION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 2166.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Facilities Commission.

(1-a) "Construction" includes acquisition and reconstruction.

(2) "Cost of a project" includes the cost of:

(A) real estate;

(B) other property;

(D) utility services;

(E) site development;

(F) construction and initial furnishing and equipment;

(G) architectural, engineering, and legal services;

(H) surveys, plans, and specifications; and

(I) other costs, including those incurred by the commission,

that are necessary or incidental to determining the feasibility

or practicability of a project.

(3) "Private design professional" means a design professional as

described by Subdivisions (6)(A) and (B)(ii).

(4) "Project" means a building construction project that is

financed wholly or partly by a specific appropriation, a bond

issue, or federal money. The term includes the construction of:

(A) a building, structure, or appurtenant facility or utility,

including the acquisition and installation of original equipment

and original furnishings; and

(B) an addition to, or alteration, rehabilitation, or repair of,

an existing building, structure, or appurtenant facility or

utility.

(5) "Project analysis" means work done before the legislative

appropriation for a project to develop a reliable estimate of the

cost of the project to be used in the appropriations request.

(6) "Design professional" means an individual registered as an

architect under Chapter 1051, Occupations Code, or a person

licensed as an engineer under Chapter 1001, Occupations Code:

(A) who provides professional architectural or engineering

services and has overall responsibility for the design of a

building construction undertaking; and

(B) who:

(i) is employed on a salary basis; or

(ii) is in private practice and is retained for a specific

project under a contract with the commission.

(7) "Rehabilitation" includes renewal, restoration, extension,

enlargement, and improvement.

(8) "Small construction project" means a project that:

(A) has an estimated value of less than $100,000; and

(B) requires advance preparation of working plans or drawings.

(9) "Staged construction" means the construction of a project in

phases, with each phase resulting in one or more trade packages,

features, buildings, or structures that individually or together

may be built, regardless of whether later phases of the project

are authorized.

(10) "Using agency" means:

(A) an instrumentality of the state that occupies and uses a

state-owned or state-leased building; or

(B) the commission, with respect to a state-owned building

maintained by the commission.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1329, Sec. 1, eff.

Sept. 1, 1997; Acts 2003, 78th Leg., ch. 309, Sec. 7.39, eff.

June 18, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.778, eff.

Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

937, Sec. 1.31, eff. September 1, 2007.

Sec. 2166.002. APPLICABILITY OF CHAPTER. This chapter applies

only to a building construction project of the state.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.003. EXCEPTIONS. (a) Unless otherwise provided, this

chapter does not apply to:

(1) a project constructed by and for the Texas Department of

Transportation;

(2) a project constructed by and for a state institution of

higher education;

(3) a pen, shed, or ancillary building constructed by and for

the Department of Agriculture for the processing of livestock

before export;

(4) a project constructed by the Parks and Wildlife Department;

(5) a repair or rehabilitation project, except a major

renovation, of buildings and grounds on the commission inventory;

(6) a repair and rehabilitation project of another using agency,

if all labor for the project is provided by the regular

maintenance force of the using agency under specific legislative

authorization and the project does not require the advance

preparation of working plans or drawings;

(7) a repair and rehabilitation project involving the use of

contract labor, if the project has been excluded from this

chapter by commission rule and does not require the advance

preparation of working plans or drawings;

(8) an action taken by the Texas Commission on Environmental

Quality under Subchapter F or I, Chapter 361, Health and Safety

Code;

(9) a repair, rehabilitation, or construction project on

property owned by the Texas Department of Housing and Community

Affairs or the Texas State Affordable Housing Corporation; or

(10) a project constructed by and for the Veterans' Land Board.

(b) Only Sections 2166.104, 2166.151, 2166.152, 2166.153,

2166.154, 2166.155, 2166.251, 2166.252, and Subchapter H apply to

a construction project undertaken by or for the Texas Department

of Criminal Justice for the imprisonment of individuals convicted

of felonies other than state jail felonies.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 793, Sec. 17, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 980, Sec. 1, eff. Sept.

1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 8.19, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

17, Sec. 2, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 25.088, eff. September 1, 2009.

Sec. 2166.004. ADDITIONAL EXCEPTIONS. In addition to the

exceptions provided by Section 2166.003, this chapter does not

apply to:

(1) a project constructed by or under the supervision of a

public authority created by the laws of this state; or

(2) a state-aided local government project.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.005. COMMISSION PARTICIPATION IN OTHER BUILDING

PROJECTS. (a) Section 2166.003 does not prohibit the commission

from undertaking on a cost recovery basis a project generally

excluded from the application of this chapter by that section.

(b) A service provided under this section is not subject to the

requirements of Chapter 771. The commission shall establish a

system of charges and billings for services provided to ensure

recovery of the cost of providing the services and shall submit a

purchase voucher or a journal voucher after the close of each

month to an agency for which services were performed.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.006. LEGAL REPRESENTATION OF COMMISSION. (a) The

attorney general shall represent the commission in legal matters.

(b) The attorney general may employ special assistants to assist

in the performance of duties arising under this chapter.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.007. VENUE. A suit for breach of a contract under

this chapter shall be brought in Travis County.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

SUBCHAPTER B. GENERAL POWERS AND DUTIES OF COMMISSION

Sec. 2166.051. ADMINISTERING AGENCY. The commission shall

administer this chapter.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.052. ACQUISITION AND DISPOSITION OF PROPERTY. (a)

The commission, as provided by law and by legislative

appropriation, may:

(1) acquire necessary real and personal property and modernize,

remodel, build, or equip buildings for state purposes; and

(2) contract as necessary to accomplish these purposes.

(b) The commission may not sell or otherwise dispose of real

property of the state except by specific authority:

(1) granted by the legislature if the legislature is in session;

(2) granted jointly by the governor and the Legislative Budget

Board if the legislature is not in session.

Austin to govern the transfer, sale, or exchange of real property

and interests in real property, including the vacation of street

rights-of-way, easements, and other interests, as necessary or

advantageous to both parties. The agreement may provide for the

transfer, sale, or exchange by one party in favor of the other

for a reasonable value established by the parties and may provide

for a transfer, sale, or exchange to be credited against future

property or interests to be transferred, sold, or exchanged

between the parties. Section 272.001, Local Government Code, does

not apply to a transaction governed by this section.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 587, Sec. 1, eff.

Sept. 1, 1997; Acts 1997, 75th Leg., ch. 660, Sec. 1, eff. June

11, 1997.

Sec. 2166.053. CONTRACT AUTHORITY. To the extent permitted by

appropriations, the commission may take action and contract to

obtain sites that it considers necessary for the orderly future

development of the state building program.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.054. TITLE TO AND CONTROL OF BUILDINGS; INITIAL

OCCUPANTS. (a) The commission shall obtain title for the state

and retain control of:

(1) real property acquired for a building site; and

(2) any building located on the site.

(b) The commission or the legislature shall determine the

initial state agency occupants of a building.

Sept. 1, 1997.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 658, Sec. 1, eff.

Sept. 1, 1997.

Sec. 2166.055. EMINENT DOMAIN. The commission may exercise the

power of eminent domain under the general laws to obtain a

building site.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.056. GRANT OF EASEMENT, FRANCHISE, LICENSE, OR

RIGHT-OF-WAY; JOINT USE AGREEMENTS. (a) The commission may

grant a permanent or temporary easement, franchise, license, or

right-of-way over and on the land of a state agency on a project

administered by the commission or enter into a joint use

agreement regarding the land if it is necessary to ensure the

efficient and expeditious construction, improvement, renovation,

use, or operation of a building or facility of the project.

(b) The commission shall submit an easement or right-of-way that

may extend beyond the period of construction to the asset

management division of the General Land Office for written

comment not later than the 30th day before the date it is granted

by the commission. The commission may enter into a joint use

agreement or grant a franchise or license at the commission's

discretion and for the period determined by the commission if the

commission determines that the joint use agreement, franchise, or

license is in the best interests of the state and if adequate

consideration is received by the state under the agreement or

under the terms of the franchise or license.

asset management division of the General Land Office before

granting an easement or right-of-way.

(d) The commission shall approve all joint use agreements,

franchises, and licenses under this section by a majority vote in

an open meeting.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1999, 76th Leg., ch. 1437, Sec. 1, eff.

June 19, 1999.

Sec. 2166.057. COORDINATION OF MULTIAGENCY PROJECTS. The

commission is the coordinating authority for the construction of

any multiagency state office building authorized by the

legislature.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.058. ASSISTANCE BY OTHER AGENCIES. (a) The

commission may call on a department of state government to assist

it in executing this chapter.

(b) The commission may call on the Texas Department of

Transportation to make appropriate tests and analyses of the

natural materials at the site of a building proposed to be

constructed under this chapter to ensure that the foundation of

the building is adequate for the building's life.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.059. ASSIGNMENT OF COMMISSION EMPLOYEE TO OTHER

AGENCY. (a) The commission may assign a qualified professional

employee to a using agency if, because of the volume of projects,

the commission and using agency agree that full-time coordination

between them is beneficial. The commission and using agency shall

jointly determine the qualifications and duties of the assigned

employee.

(b) The salary and related expenses of an assigned employee

shall be charged against the projects of the using agency to

which the employee is assigned.

commission determines it is not required.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.060. SITE SELECTION AND CONSTRUCTION IN TEXAS

MUNICIPALITIES. (a) The commission may select and purchase a

site in a municipality in this state to construct a state office

building and adjoining parking spaces if the construction is

considered necessary to house a state department or agency in the

municipality.

(b) The commission may plan, construct, and initially equip a

state office building and adjoining parking spaces on the site

selected and purchased.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.061. GENERAL COMMISSION OVERSIGHT DURING CONSTRUCTION.

The commission is responsible for protecting the state's

interests during the actual construction of a project subject to

this chapter.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.062. RULEMAKING AUTHORITY. (a) The commission may

adopt rules necessary to implement its powers and duties under

this chapter.

(b) A rule adopted under this section is binding on a state

agency on filing of the rule with the secretary of state.

using agencies in complying with this chapter and commission

rules.

(d) Copies of the manual required by this section shall be:

(1) distributed to using agencies; and

(2) available to architects, engineers, contractors, and others

who need and request copies.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.063. FEDERAL REQUIREMENTS. (a) The commission may

waive, suspend, or modify a provision of this chapter that

conflicts with a federal statute or a rule, regulation, or

administrative procedure of a federal agency if a waiver,

suspension, or modification is essential to receive federal money

for a project.

(b) If a project is wholly financed with federal money, a

standard required by an enabling federal statute or required by a

rule or regulation of the administering federal agency controls.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

SUBCHAPTER C. STATEWIDE PLANNING AND REPORTING

Sec. 2166.101. COMPILATION OF CONSTRUCTION AND MAINTENANCE

INFORMATION. (a) This section applies to a state-owned

building, including a building otherwise exempt from this chapter

under Section 2166.003, except that this section does not apply

to a building owned by an institution of higher education as

defined by Section 61.003, Education Code.

(b) The commission shall biennially obtain the following

information for each state-owned building from the using agency:

(1) the year of completion;

(2) the general construction type;

(3) the size;

(4) the use; and

(5) the general condition.

September 1, 1979, obtain from a using agency information showing

the total cost of the project and the cost of construction with

other information necessary to meaningfully compare the cost of

similar buildings.

(d) The commission shall summarize its findings on the status of

state-owned buildings and current information on construction

costs in a report it shall make available to the governor, the

legislature, and the state's budget offices.

(e) State agencies, departments, and institutions shall

cooperate with the commission in providing the information

necessary for the report.

(f) Repealed by Acts 2003, 78th Leg., ch. 1266, Sec. 5.05.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 2001, 77th Leg., ch. 118, Sec. 4.01, eff.

Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1266, Sec. 5.04, 5.05,

eff. June 20, 2003.

Sec. 2166.102. LONG-RANGE PLAN FOR STATE AGENCY SPACE NEEDS.

(a) The commission shall prepare a long-range plan on the needs

of state agencies in Travis County that obtain or occupy space

under this subtitle.

(b) The commission shall maintain a six-year capital planning

cycle and shall file a master facilities plan with the Governor's

Office of Budget and Planning, the Legislative Budget Board, and

the comptroller before July 1 of each even-numbered year.

(1) projections of the amount of administrative office space and

client service space needed by state agencies;

(2) an examination of the use, age, condition, and economic life

of state-owned buildings on the commission's inventory;

(3) an analysis, in accordance with Subchapter D, of projects

that have been requested by state agencies;

(4) an examination of the extent to which the state satisfies

its need for space by leasing building space;

(5) an examination of state-paid operation and maintenance

costs, including costs for telecommunications services, for

existing buildings owned or leased by the state;

(6) a discussion of the economic and market conditions affecting

the costs of the construction or lease of buildings;

(7) an analysis of whether the state will benefit more from

satisfying its needs for space by:

(A) engaging in new projects;

(B) leasing built space; or

(8) an examination of the amount of exempt and nonexempt office

space under Section 2165.104(c); and

(9) other information relevant to the long-range plan that is:

(A) considered appropriate by the commission; or

(B) requested in writing by the governor or the presiding

officer of either house of the legislature.

(d) Each state agency housed wholly or partly in a facility on

the commission's inventory or in a facility leased by the

commission shall participate in the long-range planning process

required by this section.

(e) For purposes of this section, "administrative office space"

has the meaning assigned by Section 2165.1061.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1398, Sec. 2, eff.

Sept. 1, 1997.

Sec. 2166.103. BIENNIAL REPORT ON SPACE NEEDS. (a) The

commission shall continuously survey the state's office space

needs to determine the space needed and the location of the need.

(b) Before each legislative session, the commission shall send

to the governor, the lieutenant governor, the speaker of the

house of representatives, and the Legislative Budget Board a

report identifying counties in which more than 50,000 square feet

of usable office space is needed and the commission's

recommendations for meeting that need. The commission may

recommend leasing or purchasing and renovating one or more

existing buildings or constructing one or more buildings.

considers necessary for preparing its recommendations and report.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.104. BIENNIAL REPORT ON REQUESTED PROJECTS. (a) On

or before a date specified by the state's budget agencies in each

year immediately preceding a regular session of the legislature,

the commission shall send to the budget agencies a report listing

all projects requested under Subchapter D.

(b) The report must contain:

(1) a brief and specific justification prepared by the using

agency for each project;

(2) a summary of the project analysis or, if the analysis was

not made, a statement briefly describing the method used to

estimate costs for the project;

(3) a project cost estimate developed in accordance with

Subchapter D, detailed enough to allow the budget agencies, the

governor, and the legislature the widest possible latitude in

developing policy regarding each project request;

(4) an estimate, prepared by the commission with the cooperation

of both the using agency and any private design professional

retained, of the annual cost of maintaining the completed

project, including the estimated cost of utility services; and

(5) an estimate, prepared by the using agency, of the annual

cost of staffing and operating the completed project, excluding

maintenance cost.

approval, may indicate:

(1) the feasibility of stage construction of a requested

project; and

(2) the degree to which money will be required in the next

biennium if the project is undertaken in stages.

(d) If a using agency requests three or more projects, it shall

designate its priority rating for each project. The budget

agencies shall, with the commission's cooperation, develop

detailed instructions to implement the priority system required

by this subsection. The commission's report must show the

designated priority of each project to which a priority rating

has been assigned.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

SUBCHAPTER D. INDIVIDUAL PROJECT ANALYSIS

Sec. 2166.151. USING AGENCY'S GENERAL PROJECT DESCRIPTION;

INITIATION OF PROJECT ANALYSIS PROCESS. (a) A using agency

requesting a project shall prepare and send to the commission a

general description of the project. The description must specify

whether the using agency requests that a portion of the cost of

the project be used for fine arts projects at or near the site of

the project as provided by Section 2166.552.

(b) The commission shall study a project description sent to it

and shall initiate the preparation of a project analysis for:

(1) a new construction project; and

(2) any other project for which, in the commission's opinion,

the cost of preparing a project analysis is justified.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.06(a),

eff. Sept. 1, 1997.

Sec. 2166.152. PREPARATION OF PROJECT ANALYSIS. (a) The

commission may retain a private design professional or use its

own staff to prepare a project analysis.

(b) A private design professional retained to prepare a project

analysis shall be selected as provided by Subchapter E.

private design professional it retains shall cooperate and work

closely with the using agency so that the project analysis fully

reflects the using agency's needs.

(d) A contract to prepare a project analysis must specify that

the analysis becomes the commission's property.

(e) Money appropriated by the legislature may not be used for a

capital construction project for which a project analysis

described by this section is required until the analysis is filed

with the Legislative Budget Board, the budget division of the

governor's office, and the comptroller.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1999, 76th Leg., ch. 281, Sec. 9, eff.

Sept. 1, 1999.

Sec. 2166.153. CONTENTS OF PROJECT ANALYSIS. (a) A project

analysis consists of:

(1) a complete description of the project and a justification of

the project prepared by the using agency;

(2) a detailed estimate of the amount of space needed to meet

the needs of the using agency and to allow for realistic growth;

(3) a description of the proposed project prepared by a design

professional that:

(A) includes schematic plans and outline specifications

describing the type of construction and probable materials to be

used; and

(B) is sufficient to establish the general scope and quality of

construction;

(4) an estimate of the probable cost of construction;

(5) a description of the proposed site of the project and an

estimate of the cost of site preparation;

(6) an overall estimate of the cost of the project, including

necessary funding for life-cycle costing, whole building

integrated design, commissioning, and postoccupancy building

performance verification;

(7) information prepared under Section 2166.451 about historic

structures considered as alternatives to new construction;

(8) an evaluation of energy alternatives and energy-efficient

architectural and engineering design alternatives as required by

Sections 2166.401, 2166.403, and 2166.408; and

(9) other information required by the commission.

(b) A project analysis may include two or more alternative

proposals for meeting the using agency's space needs by:

(1) new construction;

(2) the acquisition and rehabilitation of an existing or

historic structure; or

(3) a combination of new and existing structures.

rehabilitation of a building that is to be used primarily as a

parking garage or for office space for state government, the

project analysis also must include:

(1) a description of the amount and location of space in the

building that can be made available for lease to private tenants

under Subchapter E, Chapter 2165; or

(2) a statement of the reason that lease of space in the

building to private tenants is not feasible.

(d) All estimates involved in the preparation of a project

analysis shall be carefully and fully documented and incorporated

into the project analysis.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Amended by:

Acts 2005, 79th Leg., Ch.

856, Sec. 2, eff. June 17, 2005.

Sec. 2166.154. USE OF PROJECT ANALYSIS OR COST ESTIMATE IN

APPROPRIATIONS PROCESS. The using agency shall use the cost of

the project as determined by the project analysis or the cost

estimate developed under Section 2166.155 as the basis of a

request to the state's budget offices.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.155. ESTIMATE OF PROJECT COSTS IN LIEU OF PROJECT

ANALYSIS. (a) If the commission determines that the cost of a

project analysis is not justified or required, the commission

shall, in cooperation with the using agency, develop a realistic

estimate of the project's cost.

(b) If necessary, the commission shall arrange for an on-site

inspection and analysis of the proposed project by a commission

staff member.

estimate developed under this section.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.156. PREPARATION OF PRELIMINARY AND WORKING PLANS AND

SPECIFICATIONS. (a) The preliminary plans and outline

specifications and the working plans and specifications for a

project shall be prepared by:

(1) a private design professional selected and retained by the

commission in accordance with Subchapter E; or

(2) unless the commission is required to retain a design

professional under Subsection (b), the commission's professional

staff.

(b) The commission shall retain a private design professional

for:

(1) a new construction project estimated to cost more than

$100,000; or

(2) a new construction project for which the using agency

requests a private design professional.

(1) are clear and complete;

(2) permit execution of the project with appropriate economy and

efficiency; and

(3) conform with the requirements described by the previously

prepared project analysis.

(d) The commission must approve plans and specifications before

the using agency may accept or use them.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.157. ACCOUNTING FOR PROJECT ANALYSIS EXPENSES. When

the legislature approves a project and appropriates money for its

construction, the engineering, architectural, and other planning

expenses necessary to make a project analysis are the first

charge against the project for which the analysis was made.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

SUBCHAPTER E. PRIVATE DESIGN PROFESSIONALS

Sec. 2166.202. SELECTION OF PRIVATE DESIGN PROFESSIONAL; RULES.

(a) The commission is responsible for selecting any private

design professional retained for a project subject to this

chapter.

(b) The commission, in consultation with the Texas Board of

Architectural Examiners and the Texas Board of Professional

Engineers, shall adopt by rule criteria to evaluate the

competence and qualifications of a prospective private design

professional.

accordance with a rule adopted under this section and the ethical

standards of the professional societies of architects and

engineers.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.779,

eff. Sept. 1, 2003.

Sec. 2166.203. INTERVIEW NOTIFICATION TO PRIVATE DESIGN

PROFESSIONAL. (a) Except as provided by Subsection (b), the

commission shall notify a private design professional selected

for an interview on a project of the person's selection not later

than the 30th day before the date of the interview to allow

preparation for the interview.

(b) The commission shall notify a private design professional

selected for an interview on a small construction project of the

person's selection not later than the 14th day before the date of

the interview to allow preparation for the interview.

situation that:

(1) presents an imminent peril to the public health, safety, or

welfare;

(2) presents an imminent peril to property;

(3) requires expeditious action to prevent a hazard to life,

health, safety, welfare, or property; or

(4) requires expeditious action to avoid undue additional cost

to the state.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1329, Sec. 2, eff.

Sept. 1, 1997.

Sec. 2166.204. USING AGENCY RECOMMENDATIONS. The commission

shall request that the using agency make recommendations

regarding private design professionals. The commission shall

consider the recommendations in selecting a private design

professional to be retained for a particular project.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.07, eff.

Sept. 1, 1997.

Sec. 2166.205. COMPENSATION OF PRIVATE DESIGN PROFESSIONAL. (a)

A private design professional retained under this chapter shall

be compensated under this section.

(b) The commission shall establish compensation for a new

project or rehabilitation project by studying compensation paid

in this state by private clients for projects of comparable size

and complexity. Compensation may not exceed the minimum

recommended for similar projects by the:

(1) Texas Society of Architects, if the private design

professional is an architect; or

(2) Texas Society of Professional Engineers, if the private

design professional is an engineer.

professional services rendered by a private design professional,

including professional inspection as defined by Section 2166.351.

If the commission requires detailed inspection as defined by

Section 2166.351, the commission shall increase compensation by

an amount equal to the actual cost of providing the detailed

inspection.

(d) Compensation for preparation of a project analysis under

Subchapter D may not exceed one percent of the estimated cost of

construction. If the project is approved by the legislature in

substantially the form originally requested and the same private

design professional is retained for the later phases of design,

compensation paid for preparing the project analysis under this

subsection shall be deducted from compensation paid under

Subsections (b) and (c).

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.206. INFORMATION FURNISHED BY STATE. The state shall

furnish to a private design professional retained under this

chapter:

(1) detailed information on space requirements and relationships

and the justification for, use of, and general requirements for

the project; and

(2) a complete site survey and soil analysis.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

SUBCHAPTER F. PROJECT AUTHORIZATION; BIDDING AND CONTRACT

PROCEDURES

Sec. 2166.251. LEGISLATIVE AUTHORIZATIONS AND APPROPRIATIONS.

(a) Only the legislature may authorize a project.

(b) A legislative appropriation for a project is directly to a

using agency unless the project is to be constructed by the

commission, in which event the appropriation is to the

commission.

the legislative intent that the project be completed within the

limits of the appropriation.

(d) If the legislative authorization provides for stage

construction of a project, the commission shall proceed with the

project through the specifically authorized stage.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.2511. DEFINITIONS. In this subchapter:

(1) "Architect" means an individual registered as an architect

under Chapter 1051, Occupations Code.

(2) "Contractor" in the context of a contract for a project

means a sole proprietorship, partnership, corporation, or other

legal entity that assumes the risk for constructing,

rehabilitating, altering, or repairing all or part of the project

at the contracted price.

(3) "Engineer" means an individual licensed as an engineer under

Chapter 1001, Occupations Code.

(4) "Facility" means buildings or structures the design and

construction of which is governed by accepted building codes. The

term does not include:

(A) highways, roads, streets, bridges, utilities, water supply

projects, water plants, wastewater plants, water and wastewater

distribution or conveyance facilities, wharves, docks, airport

runways and taxiways, drainage projects, or related types of

projects associated with civil engineering construction; or

(B) buildings or structures that are incidental to projects that

are primarily civil engineering construction projects.

(5) "Fee" in the context of a contract for a project means the

payment a construction manager receives for its overhead and

profit in performing its services.

(6) "General conditions" in the context of a contract for a

project means on-site management, administrative personnel,

insurance, bonds, equipment, utilities, and incidental work,

including minor field labor and materials.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.01, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.780,

eff. Sept. 1, 2003.

Sec. 2166.252. MODIFYING PROJECT TO CONFORM TO APPROPRIATIONS.

(a) If money appropriated for a project is less than the amount

originally requested or is less than the amount required for the

project as originally submitted to the state budget agencies, the

commission and the using agency shall confer on how to bring the

project cost within the amount appropriated. The commission and

the using agency shall make every effort to comply with

legislative intent to modify the project as originally submitted.

(b) The commission shall notify the using agency that it

considers the project canceled if it is impossible to modify the

project to bring the cost within the amount appropriated.

using agency may appeal the decision of the commission to cancel

a project to the governor by submitting a request that:

(1) the project be undertaken as stage construction; or

(2) the money available for the project be supplemented by the

transfer of money appropriated to the same using agency for other

projects of equal or lower priority or from the unused

contingency reserves of any project of the same using agency.

(d) The governor shall, after obtaining the advice of the

Legislative Budget Board, rule on a request submitted under

Subsection (c). If the ruling favors the using agency, the

commission shall proceed with the project.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995.

Sec. 2166.2525. DETERMINATION OF CONTRACTING METHOD. The

commission shall adopt rules that determine the circumstances for

use of each method of contracting allowed under this subchapter

for design and construction services. In developing the rules,

the commission shall solicit advice and comment from design and

construction professionals regarding the criteria the commission

will use in determining which contracting method is best suited

for a project.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.02, eff. Sept. 1,

2001.

Sec. 2166.2526. EVALUATION OF BIDS AND PROPOSALS FOR

CONSTRUCTION SERVICES. (a) For each project, the commission

must, before advertising, establish which method of contracting

provides the best value for the commission or using agency.

(b) Under each method of contracting, the commission shall base

its selection among the offerors on criteria established by the

commission. The commission shall publish in the request for bids,

proposals, or qualifications all of the criteria that will be

used to evaluate the offerors.

an offeror and shall make the evaluations public not later than

the seventh day after the date the contract is awarded.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.03, eff. Sept. 1,

2001.

Sec. 2166.253. LOWEST AND BEST BID METHOD. (a) The commission

may use the lowest and best bid method for a project. In using

that method, the commission shall follow the procedures provided

by Subsections (b)-(g).

(b) After final approval of a project's working plans and

specifications and their acceptance by a using agency, the

commission shall advertise in one newspaper of general

circulation and the Texas Register for bids or proposals for the

construction of and related work on the project.

allow bidders not less than 30 days after the date the commission

issues the bid documents to respond to an invitation to bid.

(d) The commission shall allow bidders for small construction

projects not less than 14 days after the date the commission

issues the bid documents to respond to an invitation to bid.

(e) The commission may shorten the time for response to prevent

undue additional costs to a state agency or, for emergency

projects, to prevent or remove a hazard to life or property.

(f) A contract shall be awarded to the qualified bidder making

the lowest and best bid in accordance with the law on awarding a

state contract.

(g) The commission may reject all bids.

Added by Acts 1995, 74th Leg., ch. 41, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1329, Sec. 3, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1422, Sec. 9.04, eff.

Sept. 1, 2001.

Sec. 2166.2531. DESIGN-BUILD METHOD. (a) In this section:

(1) "Design-build contract" means a single contract with a

design-build firm for the design and construction of a facility.

(2) "Design-build firm" means a partnership, corporation, or

other legal entity or team that includes an engineer or architect

and a builder qualified to engage in building construction in

this state.

(3) "Design criteria package" means a set of documents that

provides sufficient information to permit a design-build firm to

prepare a response to the commission's request for qualifications

and any additional information requested, including criteria for

selection. The design criteria package must specify criteria the

commission 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, or any other requirement, as

applicable.

(b) The commission may use the design-build method for a

project. In using that method and in entering into a contract for

the services of a design-build firm, the commission and the

design-build firm shall follow the procedures provided by

Subsections (c)-(k).

act as its representative. If the commission's engineer or

architect is not a full-time employee of the commission, any

engineer or architect designated shall be selected on the basis

of demonstrated competence and qualifications in accordance with

Subchapter A, Chapter 2254.

(d) The commission shall prepare a request for qualifications

that includes general information on the project site, project

scope, special systems, selection criteria, and other information

that may assist potential design-build firms in submitting

proposals for the project. The commission shall also prepare a

design criteria package that includes more detailed information

on the project. If the preparation of the design criteria package

requires engineering or architectural services that constitute

the practice of engineering within the meaning of Chapter 1001,

Occupations Code, or the practice of architecture within the

meaning of Chapter 1001, Occupations Code, those services shall

be provided in accordance with the applicable law.

(e) The commission or its representative shall publish the

request for qualifications in a manner prescribed by the

commission.

(f)(1) The commission or its representative shall evaluate

statements of qualifications and select a design-build firm in

two phases.

(2) In phase one, the commission or its representative shall

prepare a request for qualifications and 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. Each offeror must certify to the commission that each

engineer or architect that is a member of its team was selected

based on demonstrated competence and qualifications. The

commission or its representative shall qualify a maximum of five

offerors to submit additional information and, if the commission

or its representative chooses, to interview for final selection.

(3) In phase two, the commission or its representative shall

evaluate the information submitted by the offerors on the basis

of the selection criteria stated in the request for

qualifications and the results of any interview. The commission

or its representative 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, costing

methodology, or other factors as appropriate. The commission or

its representative may not require offerors to submit detailed

engineering or architectural designs as part of the proposal. The

commission or its representative shall rank each proposal

submitted on the basis of the criteria specified in the request

for qualifications. The commission or its representative shall

select the design-build firm that submits the proposal offering

the best value for the commission or using agency on the basis of

the published selection criteria and on its ranking evaluations.

The commission or its representative shall first attempt to

negotiate a contract with the selected offeror. If the commission

or its representative is unable to negotiate a satisfactory

contract with the selected offeror, the commission shall,

formally and in writing, end all 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.

(g) Following selection of a design-build firm under Subsection

(f), that firm's engineers or architects shall complete the

design, submitting all design elements for review and

determination of scope compliance by the commission's engineer or

architect before or concurrently with the beginning of

construction.

(h) An engineer shall have responsibility for compliance with

the engineering design requirements and all other applicable

requirements of Chapter 1001, Occupations Code. An architect

shall have responsibility for compliance with the requirements of

Chapter 1051, Occupations Code.

(i) The commission shall provide or contract for, independently

of the design-build firm, the inspection services, the testing of

construction materials engineering, and the verification testing

services necessary for acceptance of the facility by the

commission. The commission shall select those services for which

it contracts in accordance with Section 2254.004.

(j) The design-build firm shall supply a signed and sealed set

of construction documents for the project to the commission at

the conclusion of construction.

(k) A payment or performance bond is not required for, and may

not provide coverage for, the portion of a design-build contract

under this section that includes design services only. 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

commission shall each be in an amount equal to the project

budget, as specified in the design criteria package. 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 commission to ensure that

the design-build firm will furnish the required performance and

payment bonds when a guaranteed maximum price is established.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.05, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 309, Sec. 7.40, eff.

June 18, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.781, eff.

Sept. 1, 2003.

Sec. 2166.2532. CONSTRUCTION MANAGER-AT-RISK METHOD. (a) The

commission may use the construction manager-at-risk method for a

project. In using that method and in entering into a contract for

the services of a construction manager-at-risk, the commission

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 commission regarding construction

during and after the design of the facility.

manager-at-risk, the commission 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 commission, the commission shall select the

engineer or architect on the basis of demonstrated competence and

qualifications as provided by Section 2254.004. The commission's

engineer or architect 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 a commission 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 commission 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 commission. The commission shall select those

services for which it contracts in accordance with Section

2254.004.

(e) The commission shall select the construction manager-at-risk

in either a one-step or two-step process. The commission 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, 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 commission in its selection of a construction

manager-at-risk. The commission 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 commission 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 commission

may not request fees or prices in step one. In step two, the

commission 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) The commission shall publish the request for qualifications

in a manner prescribed by the commission.

(g) At each step, the commission shall receive, publicly open,

and read aloud the names of the offerors. Within 45 days after

the date of opening the proposals, the commission or its

representative shall evaluate and rank each proposal submitted in

relation to the criteria set forth in the request for proposals.

(h) The commission or its representative shall select the

offeror that submits the proposal that offers the best value for

the commission or using agency based on the published selection

criteria and on its ranking evaluation. The commission or its

representative shall first attempt to negotiate a contract with

the selected offeror. If the commission or its representative is

unable to negotiate a satisfactory contract with the selected

offeror, the commission or its representative 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.

(i) A construction manager-at-risk shall publicly advertise, in

the manner prescribed by the commission, 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

commission determines that the construction manager-at-risk's bid

or proposal provides the best value for the commission or using

agency.

(j) The construction manager-at-risk and the commission 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 commission. 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 and proposals, whichever is

later.

(k) If the construction manager-at-risk reviews, evaluates, and

recommends to the commission a bid or proposal from a trade

contractor or subcontractor but the commission requires another

bid or proposal to be accepted, the commission 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

commission's requirement that another bid or proposal be

accepted.

(l) 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.

(m) 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

commission must each be in an amount equal to the project budget,

as set forth in the request for qualifications. 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 commission to

ensure that the construction manager-at-risk will furnish the

required performance and payment bonds when a guaranteed maximum

price is established.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.06, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 309, Sec. 7.41, eff.

June 18, 2003; Acts 2003, 78th Leg., ch. 1229, Sec. 2, eff. Sept.

1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.782, eff. Sept.

1, 2003.

Sec. 2166.2533. COMPETITIVE SEALED PROPOSAL METHOD. (a) The

commission may select a contractor for a project using the

competitive sealed proposal method prescribed by this section.

(b) The commission shall select or designate an engineer or

architect to prepare construction documents for the project. The

selected or designated engineer or architect 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 commission, the commission shall

select the engineer or architect on the basis of demonstrated

competence and qualifications as provided by Section 2254.004.

of the contractor, the inspection services, the testing of

construction materials engineering, and the verification testing

services necessary for acceptance of the facility by the

commission. The commission shall select those services for which

it contracts in accordance with Section 2254.004 and shall

identify them in the request for proposals.

(d) The commission shall prepare a request for competitive

sealed proposals that includes construction documents, selection

criteria, project scope, schedule, and other information that

contractors may require to respond to the request. The commission

shall state in the request for proposals all of the selection

criteria that will be used in selecting the successful offeror.

(e) The commission shall publish notice of the request for

proposals in a manner prescribed by the commission.

(f) The commission shall receive, publicly open, and read aloud

the names of the offerors. Within 45 days after the date of

opening the proposals, the commission shall evaluate and rank

each proposal submitted in relation to the published selection

criteria.

(g) The commission shall select the offeror that offers the best

value for the commission or using agency based on the published

selection criteria and on its ranking evaluation. The commission

shall first attempt to negotiate a contract with the selected

offeror. The commission and its engineer or architect may discuss

with the selected offeror options for a scope or time

modification and any price change associated with the

modification. If the commission is unable to reach a contract

with the selected offeror, the commission 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.

(h) In determining the best value for the commission or using

agency, the commission is not restricted to considering price

alone but may consider any other factor stated in the selection

criteria.

Added by Acts 2001, 77th Leg., ch. 1422, Sec. 9.07, eff. Sept. 1,

2001. Amended by Acts 2003, 78th Leg., ch. 309, Sec. 7.42, eff.

June 18, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.783, eff.

Sept. 1, 2003.

Sec. 2166.2535. CONSTRUCTION MANAGER-AGENT. (a) The commission

may use the construction manager-agent method for a project. In

using that method and in entering into a contract for the

services of a construction manager-agent, the commission shall

follow the procedures prescribed by this section.

(b) A construction manager-agent is a sole proprietorship,

partnership, corporation, or other legal entity that provides

consultation to the commission regarding construction,

rehabilitation, alteration, or repair of a facility. The

commission, when using the construction manager-agent method,

may, under the contract between the commission and the

construction manager-agent, require the construction

manager-agent to provide administrative personnel, equipment

necessary to perform duties under this section, and on-site

management and other services specified in the contract. A

construction manager-agent represents the commission in a

fiduciary capacity.

manager-agent, the commission 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

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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