TITLE 1. ADMINISTRATION

PART 5. TEXAS FACILITIES COMMISSION

CHAPTER 123. FACILITIES DESIGN AND CONSTRUCTION

SUBCHAPTER C. CONSTRUCTION PROJECT ADMINISTRATION

1 TAC §§123.23 - 123.25, 123.27, 123.29 - 123.31, 123.34

Introduction and Background.

The Texas Facilities Commission files this notice to propose amendments to §§123.23 - 123.25, 123.27, 123.29-123.31, 123.34 of Title 1, Part 5, Chapter 123, Subchapter C of the Texas Administrative Code. During its rule review, published in the May 6, 2016 issue of the Texas Register (41 TexReg 3317), the Texas Facilities Commission ("Commission") reviewed and considered Texas Administrative Code, Title 1, Chapter 123 for readoption, revision, or repeal in accordance with the Texas Government Code §2001.039 (West 2016). The Commission determined that Texas Administrative Code, Title 1, Chapter 123 was still necessary but that several sections required amendments. The Commission closed the rule review by readopting the rules with amendments and published notice of the same in the November 11, 2016 issue of the Texas Register (41 TexReg 9029). The revised rules are proposed pursuant to the Commission’s rulemaking authority found in Tex. Gov’t Code, Sections 2166.062, 2166.202, 2166.257, 2166.258, and 2166.404 (West 2016).

Section by Section Summary.

The Commission has determined that §§123.23, General Project Responsibility; 123.24, Project Analysis Process; 123.25, Construction Project Process; 123.27, Selection of Design Professionals for Construction Projects; 123.29, Bidding Procedures; 123.30, Construction Contract Award; 123.31, Emergency Bidding and Award Procedures; and 123.34, Xeriscaping, require amendments to reflect statutory changes and current procedures and practices of the Commission.

Fiscal Note.

Harvey Hilderbran, Executive Director, has determined that for each year of the first five-year period the proposed rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rules.

Public Benefit/Cost Note.

Mr. Hilderbran has also determined that for each year of the first five-year period the proposed rules are in effect the public benefit will be further clarification by updating the references to the Commission and correcting typographical errors, and ensuring consistency with governing statutes.

Mr. Hilderbran has further determined that there will be no effect on individuals or large, small, and micro-businesses as a result of the proposed rules. Consequently, an Economic Impact Statement and Regulatory Flexibility Analysis, pursuant to Texas Government Code, §2006.002 (West 2016), are not required.

In addition, Mr. Hilderbran has determined that for each year of the first five-year period the proposed rules are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under Administrative Procedure Act, Texas Government Code, §2001.022 (West 2016).

Takings Impact Assessment.

Mr. Hilderbran has determined that this proposal does not restrict or limit an owner’s right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043 (West 2016).

Request for Comments.

Interested persons may submit written comments on the proposed rules to General Counsel, Legal Services Division, Texas Facilities Commission, P.O. Box 13047, Austin, Texas, 78711-3047. Comments may also be sent via email to rulescomments@tfc.state.tx.us. For comments submitted electronically, please include "Proposed Facilities Design and Construction Rules" in the subject line. Comments must be received no later than thirty (30) days from the date of publication of the proposed rule amendments in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed rule amendments. Questions concerning the proposed rule amendments may be directed to Ms. Naomi Gonzalez, Assistant General Counsel, at (512) 463-3960.

Statutory Authority.

The amendments are proposed under Texas Government Code §§2166.062, 2166.202, 2166.257, 2166.258, and 2166.404 (West 2016).

Cross Reference to Statute.

The statutory provisions affected by the proposed rule amendments are those set forth in Chapter 2165 and 2166 of the Texas Government Code.

§123.23.General Project Responsibility.

(a) The Commission is responsible for the administration of Project Analyses and Projects for all state agencies except as otherwise provided in Texas Government Code, §§2165.007, 2166.003, [and] 2166.004 and other statutes.

(b) The Commission will act as the owner for the benefit of the Using Agency and shall provide timely and complete information to the Using Agency for any pending Project for which it is responsible.

(c) The Commission shall act in the best interests of the State of Texas in administering Project contracts for which it is responsible.

(d) Each Project administered by the Commission shall bear the Cost of Services to be rendered. At the start of a Project, an estimate of the Cost of Services provided by the Commission will be provided to the Using Agency. This estimate may be changed by agreement of the Commission and the Using Agency.

(e) The funds for all costs of the Project, when allowed by law, shall be transferred to the Commission by an agreement signed by both parties and an interagency transfer voucher to convey the funds. This process shall occur immediately after the Project request is received and analyzed by the Commission and before work commences on the Project. Once the Project is accepted and the initial funding requirements are identified, the voucher shall be processed and the funds transferred. For Projects where statute required the funding to be controlled by the Using Agency, the Commission shall be responsible for oversight and approval of expenditures, and the Using Agency shall be responsible for payment.

§123.24.Project Analysis Process.

(a) The Using Agency shall initiate a Project Analysis by submitting a request to the Commission or a proposed project analysis. Requests shall be made in writing and submitted via e-mail to the Commission’s Deputy Executive Director of Facilities Design and Construction. The request shall include: [Standard request forms are available on the Commission website, under the Division’s link to forms.]

(1) a general description of the project;

(2) whether the Using Agency is requesting that a portion of the cost be used for a fine arts component of the project;

(3) key point of contact for Using Agency and/or description of the agency’s representative body assigned to collaborate with the Commission on the development of the Project Analysis;

(4) a written justification for the project;

(5) if applicable, a justification statement addressing the reason that lease space in the new or renovated facility to private tenants is not feasible; and

(6) any known cost limitations for the project.

(b) Requests for Project Analyses shall be made no later than January 1 of even-numbered years in order to ensure the Project Analysis is completed in time to be submitted with the Using Agency’s budget prior to a regular session of the legislature.

§123.25.Construction Project Process.

(a) Initiation of a Construction Project.

(1) The Using Agency is responsible for initiating a construction project. The Using Agency may commence the process by submitting a request to initiate work on the Project on its letterhead or any other method that the Commission deems acceptable. The Using Agency shall include their statutory authority in their request; [on the Commission website, under the Division’s link to forms;] and

(2) Projects should be initiated not later than January 1 of even-numbered years. This is required for a contract award to be made within the fiscal year for which appropriated Project funds are available.

(b) If a proposed contingency expenditure is required for the Project and the Commission [Division] refuses to concur with the request, the Using Agency may appeal to the Commission’s Executive Director. The appeal shall be articulated in a letter to the Executive Director on the Using Agency’s letterhead, including a description of the proposed expenditure, reason for the necessity of the change, and the Using Agency’s justification for requesting the change. The Commission’s Executive Director shall make the final decision concerning the acceptance of the contingency expenditure.

§123.27.Selection of Design Professionals for Construction Projects.

The Commission is responsible for selecting any private Design Professional retained for a Project. The Commission shall conduct selections of Design Professionals in accordance with Texas Government Code, Chapter 2254, Subchapter A. The Commission shall request that the Using Agency make recommendations regarding private Design Professionals and may include a representative of the Using Agency to observe [in] the selection process. The criteria upon which Design Professionals are evaluated may include, but not be limited to, relevant project experience and qualifications, previous recent project experience relative to budget and schedule compliance, design methodology, quality assurance and quality control, and any other qualifications the Commission deems relevant. Notification to Design Professionals for an interview on a Project shall be provided 30 days prior to the date of the interview. Notification may be provisional based on the Design Professional’s selection and be included in the schedule of events in the original solicitation request for qualifications.

§123.29.Bidding Procedures.

(a) Commission Projects are bid competitively or bid using best value alternative delivery methods, and publicly opened in the office designated by the Commission. When Projects are bid using best value alternate delivery methods, the public opening is conducted in accordance with Texas Government Code, §2269 et seq.[only conveys the names of the respondents.]

(b) The Commission [Division] shall develop detailed operating procedures for the contractor selection and bidding process, including selection for best value alternate delivery methods.

(c) The Commission may require a proposal guaranty for competitive pricing submitted as a response to a request for proposal. The value of the guaranty will be established in the language of the request for proposal document. The guaranty may be in the form of a:

(1) cashier’s check or money order drawn on an account with a financial entity determined by the Commission;

(2) bid bond issued by a surety authorized to do business in this state; or

(3) any other method approved by the Commission.

(d) Upon award and execution of the construction contract, all proposal guaranties shall be returned to their respective issuers. In the case of best value alternative delivery method contracts, proposal guaranties shall be returned upon receipt of payment and performance bonds for the initial phase of work.

§123.30.Construction Contract Award.

(a) Award of construction contracts will be made by the Commission except in cases of emergency as outlined in §123.31 (c) of this chapter (relating to Emergency Bidding and Award Procedures). Award will be based upon the best value to the state for bids and proposals received from a qualified bidder.

(b) The Commission shall develop detailed operating procedures for construction contract awards[award].

§123.31.Emergency Bidding and Award Procedures.

(a) Emergency Bidding. The Division may issue an advertisement for a bid and let a bid for a period of time less than required by Texas Government Code, 2166.253, when an emergency condition requires expedient action.

(b) Emergency conditions. Emergency conditions include, but are not limited to:

(1) preventing undue additional cost to a state agency; or

(2) preventing or removing a hazard to life or property.

(c) Emergency Award Procedures. The Executive Director, or designee of the Executive Director [his designee], is authorized to award construction contracts when conditions as described in subsection (b) of this section are determined to exist. The award shall be reported to the Commission at its next regularly scheduled meeting.

(d) Documenting Emergency Conditions. Each time an emergency is determined to exist, a written statement describing the emergency condition shall be prepared for approval by the Executive Director, or designee of the Executive Director. Copies of the document shall be maintained in the Project file.

§123.34.Xeriscaping.

The Commission [Division] shall consult with the Texas Commission on Environmental Quality, the Texas Department of Transportation, the Texas Turfgrass Association[American Society of Landscape Architects], and the Texas Nursery and Landscape Association to develop design guidelines for the required use of xeriscape on state property associated with construction of a new state building.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605996

Kay Molina

General Counsel

Texas Facilities Commission

Earliest possible date of adoption: January 1, 2017

For further information, please call: (512) 463-3960