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