Alternative Project Delivery - Texas Water Development Board

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San Antonio Water System Legal Review of Alternative Delivery Methods By contract effective February 15, 2000, the San Antonio Water System agreed to purchase a specified amount of non-Edwards Aquifer groundwater. Under the contract, the seller is responsible for constructing and equipping the eight wells required to produce the water. Bexar Metropolitan Water District Bexar Metropolitan Water District used an economic development agency to acquire a treated surface water supply. Bexar Metropolitan owns the land and the water rights, but leased the land to a private entity to design, construct, own, and operate a surface water treatment plant. At the end of the twenty-year contract, Bexar Metropolitan has the option of acquiring the facility. In order to obtain approval of the bonds issued to finance the transaction, Bexar Metropolitan's enabling act was amended to allow this type of privatization activity. The facility became operational within 16 months of commencement of the DBO contract. Conclusion Barriers to use of alternative delivery approaches include the following: • state public entities’ procurement law; • permitting requirements concerning facility design; and • prohibition against competitive bids for professional services. Before contractors can develop water/wastewater infrastructure projects in Texas for public entities using the design/build method or other alternative procurement methods, the state law would need to be amended. Alternative procurement methods would need to be allowed, such as the law specifically allowing the construction of schools using the design/build method. The statute would need to bifurcate the procurement process to avoid violating the state law prohibiting the award of contracts for professional services based upon bids. Engineering services are considered professional services under state law. State law requires regulatory approval of the design of water/wastewater infrastructure and further requires that the design be complete upon submission for approval. To the extent that alternative procurement methods use incomplete design before the start of construction, state laws requiring complete design would need to be amended. The opinions expressed in this memorandum are subject certain limitations. lxiv Legal Review R. W. Beck 11
Legal Review of Alternative Delivery Methods i Tex. Const. Art. 3, § 49-d. ii Tex. Const. Art. 3, § 44, 53 Sec. 44. The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of the same; nor grant, by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the State, unless authorized by pre-existing law. Sec. 53. The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law. iii Tex. Const. Art. III § 52 interp. commentary (Vernon 2000). iv Tex. Const., Art. 16, § 21. v Tex. Const. Art. XVI § 21 interp. commentary (Vernon 2000). vi Texas Engineering Practice Act, Tex. Rev. Civ. Stat. Ann. Art. 3271a § 19(a)(West 2000). vii id. at § 19(b). viii Op. Tex. Att’y Gen. No. JM-1189 (1990). ix id. x Tex. Gov’t Code Ann. § 2254.001-2254.109 (West 2000). xi id. at § 2254.003. xii id. at § 2254.004. xiii Op. Tex. Att’y Gen. No. JM-1189 (1990). xiv id. xv Op. Tex. Att’y. Gen. No. LO-117 (1996). xvi Op. Tex. Att’y. Gen. No. JC-0037 (1999). xvii Id. at page 3-4. xviii Codified as Tex. Natural Resources Code, §§ 191.001-191.174. xix Tex. Nat. Res. Code, § 191.0525 (Vernon Supp. 2000). xx Id. xxi 31 Tex. Admin Code §354.1. xxii 31 Tex. Admin. Code § 354.1(b). xxiii Joe Canterbury Jr., Texas Construction Law Manual (2 nd Ed.) Shepard’s/McGraw Hill 1992, § 3.02-3.04. xxiv Kenneth M. Roberts and Nancy C. Smith, Design-Build Contracts Under State and Local Procurement Laws, 25 Pub. Cont. L.J. 645, 690-692 (1996). xxv Tex. Gov’t Code Ann. § 2155.061 (West 2000). xxvi id. at § 2155.063. 2155.074. xxvii Tex. Const. Art. V, § 11. xxviii Brownsville, Tex. City Charter, Art. IV, § 29. xxix Tex. Local Gov’t Code Ann. § 252.002 (West 2000). xxx id. at § 252.0021. xxxi id. at § 252.022. xxxii Texas Water Code Ann. § 49.002 (West 2000). xxxiii id. at § 49.002(b) and § 36.104. xxxiv Id. at § 49.273. Section 49.273 states: (a) The board shall contract for construction and repair and renovation of district facilities and for the purchase of equipment, materials, machinery, and all things that constitute or will 12 Texas Water Development Board Legal Review
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Alternative Project Delivery Texas
Page 3 and 4:
Table of Contents VI. School Distri
Page 5 and 6:
Executive Summary statutory/regulat
Page 7 and 8:
Table of Contents Areas of Concern.
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Section 1 INTRODUCTION Introduction
Page 11 and 12:
Implementation of Stricter Regulati
Page 13 and 14:
Introduction TABLE 1-1 GLOBAL WATER
Page 15 and 16:
Introduction These large private fi
Page 17 and 18: Section 2 DESCRIPTION OF PROJECT DE
Page 19 and 20: Traditional Design-Bid-Build (“DB
Page 21 and 22: Description of Project Delivery Met
Page 27 and 28: Engineer-Procure-Construct (“EPC
Page 37: Description of Project Delivery Met
Page 40 and 41: PUBLIC/PRIVATE PARTNERSHIPS TRADITI
Page 42 and 43: Section 3 One of the critical areas
Page 44 and 45: Section 3 Figure 3-2 DB or DBO Appr
Page 46 and 47: Section 3 TABLE 3-1 POTENTIAL AREAS
Page 48 and 49: Section 4 • The company, BexarMet
Page 50 and 51: Section 4 receive an up-front conce
Page 52 and 53: Section 4 • Rate stabilization
Page 54 and 55: Section 4 Pursuant to stringent tim
Page 56 and 57: Appendix A GLOSSARY - B - BOOT: Bui
Page 58 and 59: LEGAL REVIEW OF ALTERNATIVE DELIVER
Page 60 and 61: Legal Review of Alternative Deliver
Page 64 and 65: Wastewater Legal Review of Alternat
Page 74 and 75: Neil Callahan - National Director f
Page 76 and 77: Comparison Of Traditional Vs. Alter
Page 78 and 79: Comparison Table Comparison Of Trad
Page 80 and 81: Areas of Concern Potential Areas Of
Page 82 and 83: ISSUES CHECKLIST Introduction The d
Page 84 and 85: Issues Checklist • Public input o
Page 86 and 87: Design-Build-Operate (DBO) Issues C
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Alternative Project Delivery - Texas Water Development Board

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