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Unraveling the 2023 Legislative Landscape: Southwest Region Fact Sheets

We're excited to present the 2023 Southwest Region Legislative Fact Sheets, covering the period up to September 30, 2023, for the five states that comprise our region: Arkansas (AR), Texas (TX), Oklahoma (OK), New Mexico (NM), and Louisiana (LA).

 


Arkansas (AR)

Alternative Project Delivery Law Fact Sheet - Arkansas

(As of 9/30/23)


2023 - AR Alternative Project Delivery Laws
.pdf
Download PDF • 132KB

State Agencies

CMAR

Permitted (1) & (A)

DB Permitted

Qualifications Based Procurement

​Price Based- best value- Procurement

​Public Private Partnerships

Horizontal construction-transportation

Yes

​Yes (2)

​Yes (2)

​Yes (2)

Yes (3)

​Horizontal construction-water and wastewater

No

No

​Yes (3)

Vertical construction- public buildings

Maybe (1)

No

​Yes (3)

Local Government

CMAR Permitted (1) & (A)

​DB Permitted

​Public Private Partnerships (8)

Horizontal construction-transportation

No

No

​No (6)

Horizontal construction- water and wastewater

​Yes (4)

​Yes (4)

​Yes

No

Vertical construction-public buildings

​Yes (1)

​Yes (5)

Yes

​No (7)



Notes: (Bold denotes revisions to information)


(1) In 2017, the Arkansas legislature created a pilot program for ADOT to utilize CMAR in A.C.A. Sections 19-11-1401 thru 1408. In 2019 the legislation was amended to increase the number of projects from three to five projects. The parameters of the legislation were also changed so that the sum of the construction cost estimates for all five projects were not allowed to exceed $200M combined and no single CMAR project could exceed $100M. (A.C.A. Sec. 19-11-1404(b)). In 2023, the Arkansas legislature passed House Bill 1692 amending the pilot program to create a “Phase one” and “Phase two” with the Phase two starting on the effective date of the new legislation. Phase two allows another five projects that were not in the procurement process at the time of the passage of the bill not to exceed a total of $500M. The new legislation also extended the termination date of the program to June 30, 2026, providing an additional two years. Municipal projects over $2M may use CM methodology. (A.C.A. Sec. 14-58-1001). However, it is unclear whether reference to “construction manager” in A.C.A. Sec. 19-4-1415 for projects exceeding $5M is referring to CMA, CMAR, or both. If the definition of construction management found in A.C.A. Sec. 19-11-801 applies to the situation, then all projects are open to use of both CMA and CMAR.


(2) State Highway Commission has authority to do DB under Arkansas Code (A.C.A. Sec. 27-65-107(c)). The limitations on the number of DB projects to 2 projects over $50M that had been previously set in A.C.A. Sec. 27-67-206(j)(3) was deleted in the 2013 legislative session. Qualifications based selection is allowed under the provisions of A.C.A. Sec. 27-67-206(j)(2) only for DB contracts. Administrative regulations of the use of DB are found at 001 00 CARR 008.


(3) In 2017, the Arkansas legislature passed the Partnership for Public Facilities and Infrastructure Act, A.C.A Sections 22-10-101 to 10-105 which allows all state agencies, except ADOT, but including institutions of higher education to enter public private partnerships. There are a wide range of projects available as set forth in the definition of “Qualifying Projects” found at A.C.A Sec. 22-10-103(10). Administrative regulations for the new PPP legislation are found at 168 00 CARR 027. Additionally, a public institution of higher education may also still rely on the provisions A.C.A Sec. 19-4-1413 when using private sources to finance the construction of public facilities which exceeds $5M as these were not repealed by the legislature.


(4) This authority is only limited to municipalities and sanitation authorities on design-build-operation-maintenance contracts for water, wastewater, storm water treatment systems or any combination. (A.C.A. Sec. 22-9-203). In 2017, new legislation passed allowing municipal sewage systems to use construction manager at-risk and design-build for projects. The municipal sewage system must also employ a professional licensed engineer for assisting with project development and to oversee construction for design-build projects that exceed $2M. (A.C.A. 14-235-226).


(5) This authority is limited to school districts. (A.C.A. Sec. 19-11-807). Administrative regulations of the use of DB are found at 203 00 CARR 007.


(6) The exception to this is the authority for regional mobility authorities (county and municipalities A.C.A. Sec. 27-76-203) which may enter PPP for transportation projects concerning rail, waterway, or trail (can plan, design, and operate; limitations on toll facilities). (A.C.A. Sec. 27-76-403). Counties may now use PPP as part of the unpaved road projects. (A.C.A. Sec. 14-305-102(b)(3)).


(7) The exception to this is the authority is limited to school districts and public charter schools. (A.C.A. Sec. 6-20-402). Administrative regulations for the use of this method by schools is found at 203 00 CARR 019.


(8) In 2023, the Arkansas legislature enacted Act 203, which amended Arkansas Code Sec. 14-188-109 to allow rural development authorities to utilize public-private partnerships to “contract for, or provide, promote, and support broadband internet services” and to finance public capital facilities and projects that include broadband internet service.


Other Comments:

A. Primary contract award method is competitive bidding for most construction projects over $20,000.00. A negotiated award method is provided for state agencies and higher education institutions for projects exceeding $5M. (A.C.A. Sec. 19-4-1415). An argument might be made that CMAR is permitted for transportation and water and wastewater projects under the definition of construction management under A.C.A. Sec. 19-11-801.


 

Louisiana (LA)

Alternative Project Delivery Law Fact Sheet - Louisiana

(As of 9/30/23)


2023 - LA Alternative Project Delivery Laws
.pdf
Download PDF • 88KB

State Agencies

CMAR

Permitted (1)

DB Permitted (2)

Qualifications Based Procurement

​Price Based- best value- Procurement

​Public Private Partnerships (3)

Horizontal construction-transportation

Possible

Yes

No

Yes

Yes

​Horizontal construction-water and wastewater

Possible

Yes

No

Yes

Possible

Vertical construction- public buildings

Yes

Yes

No

Yes

Possible

Local Government

CMAR Permitted (1)

​DB Permitted (2)

​Public Private Partnerships (3)

Horizontal construction-transportation

Possible

Possible

Yes

Horizontal construction- water and wastewater

Possible

Yes (2)

No

​Yes

Possible

Vertical construction-public buildings

Yes

Yes (2)

No

Yes

Yes


Notes: (Bold denotes revision to information)


(1) Louisiana requires specific legislative approval to use CMAR by any public governmental entity within the state. Currently, specific CMAR authority exists for the Coastal Protection and Restoration Authority Board “for construction, operation and maintenance of any integrated coastal protection project” (LA R.S. 49:214.6.2) and the New Orleans Aviation Board “limited to initial construction of airport terminal and related support facility, aviation facility or any combination thereof” (LA R.S. 38:2225.2.3). The Department of Transportation and Development has the authority to use CMAR in any instance where it is replacing a tunnel with a bridge. (LA R.S. 48:232.1). In 2018, LA R.S. 38:2225.2.4A(3) revising the authority for any public entity to utilize CMAR for a project to construct public works project costing more than $5M (dropped from $25M), and a 60-day public notice to legislature is required for any project less than $15M.


(2) Louisiana requires specific legislative approval to use DB by any public governmental entity within the state. (LA R.S. 38:2225.2). Some examples of current entities that have DB authority: Algiers Development District “public improvements and facilities” (LA R.S. 33:2740.27); Gentilly Development District “public improvements and facilities” (LA R.S. 33:2740.70); the Downman Road Economic Development District “expedite the completion of public improvements and facilities” (LA R.S. 33:2740.70.1); The Costal Protection and Restoration Authority Board may utilize DB, DBOM, or DBFOM authority. (LA R.S. 49:214.6.2); Port Authorities “on any non-architectural project where the project involves the transport, production, storage, or manufacturing of port cargos and where sixty percent or more of the construction cost estimate in the "design criteria package", as determined by the port's retained design professional, consists of engineered products and components and the services, fabrication, and installation for such products and components” for project notice of intent advertised prior to 12/31/20. This authority cannot be used for a new project beyond 12/31/20. (LA R.S. 34:3523, 3460 (although 3460 is cross-referenced the legislature did not change 34:3460’s its original expiration date of 12/31/15); and the Department of Transportation and Development “if Secretary determine in best interest of taxpayers can combine design and construction phases of transportation facility or facilities, including by not limited to highways, interchanges, or bridges into a single contract.” 2019 legislative revision to the statute eliminates the requirement of approval of House and Senate transportation, highways, and public works committee. (LA R.S. 48:250.2, 48:250.3). In 2023, the legislature passed Senate Bill 167 which made various revisions to 48:250.3; it also added a new section 48:250.3.1 which provides authority for progressive design-build contracts. (LA R.S. 48:250.3.1). Any regional transit authority may let contracts for any new ferry on Mississippi River as a DB contract. (LA R.S. 38:2225.2.5). The Department of Transportation and Development on any bridge project where the bridge replaces a tunnel may use any contracting method to include DB. (LA R.S. 48:232.1). As of August 1, 2022, the Louisiana Transportation Authority may accept unsolicited proposals for design build projects in excess of $100M. (LA R.S. 48:2085). Also in the 2023 legislative session, Senate Bill 145 was passed adding a new section 38:2225.2.6, which provides for the use of design-build by airports in construction of air traffic control tower or hanger development and redevelopment projects. (LA R.S. 38:2225.2.6).


(3) Louisiana generally requires specific legislative approval to use public-private partnerships (“PPP”) by any public entity within the state. Currently, PPP authority exists for the following entities: the Biodistrict of New Orleans “construct, reconstruct, rehabilitate, improve, repair, operate, lease wet labs, research facilities, manufacturing facilities, clinics, laboratories, or any other facility, building or structure develop biosciences” (LA R.S. 33:9039.69); state and local governmental subdivisions of date to create nonprofit economic development corporations (LA R.S. 33:9021, 9023); any contiguous parishes or municipalities can create local and regional economic development districts (LA R.S. 33:9039.104, 9039.107(8) and 9039.108(6)); certain transportation facility projects, roads, highways, transitways, to include rail, may qualify be allowed to use PPP method (LA R.S. 48:2084.13 - certain qualifying transportation projects when done as public-private partnerships); (LA R.S. 48:2020 - municipalities and parishes – highways, roads, transitways and other transportation facilities); (LA R.S. 48:2084 – state transportation authority – may include use of tolls); and (LA R.S. 48:2171 – railways). The Department of Transportation and Development cannot receive and act on an unsolicited proposal for a public-private partnership project. (LA R.S. 48:250.4).


Other Comments:

A. Primary contract award method is competitive bidding for most construction projects unless otherwise allowed by statute.


B. The CMAR, DB and PPP methodologies that are marked possible would be allowable if there is a specific statute authorizing the use of the specific methodology.



 

New Mexico (NM)

Alternative Project Delivery Law Fact Sheet - New Mexico

(As of 9/30/23)


2023 - NM Alternative Project Delivery Laws
.pdf
Download PDF • 85KB

State Agencies

CMAR

Permitted

DB Permitted

Qualifications Based Procurement (1)

​Price Based- best value- Procurement

​Public Private Partnerships

Horizontal construction-transportation

Yes (1)

Yes (2)

No

​Horizontal construction-water and wastewater

No

Yes (2)

No

Yes (3)

No

Vertical construction- public buildings

Yes (1)

Yes (2)

No

Yes (3)

No

Local Government

CMAR Permitted

​DB Permitted

​Public Private Partnerships

Horizontal construction-transportation

No

No (2)

No

Horizontal construction- water and wastewater

No

Yes

No

Yes (3)

No

Vertical construction-public buildings

Yes (1)

Yes

No

Yes (3)

No


Notes: (Bold denotes revision to information)


(1) CMA only is allowed but cannot duplicate services provided under another contract. (N.M. Stat. Sec. 13-1-100.1). N.M. Administrative Code, Title 1, Chapter 5, Part 8 sets forth criteria for use of CMA. Selection of CMA is competitive qualification based with selection criteria set out in N.M. Administrative Code Sec. 1.5.8.10). As of July 1, 2022, the Department of Transportation will be allowed to utilize CMAR (although it is called “Construction manager general contractor”) for a state public works project for highway construction or reconstruction. (N.M. Stat. Sections 13-1-122.1 through 13-1-122.4). There is a CMAR exception for educational facilities. (N.M. Stat. Sec. 13-1-124.1). CMAR is awarded through use of (N.M. Stat. Sec. 13-1-124.4 using a multi-step process. For education projects below $500,000 a two-step process of qualifications and interview is used. For all education projects above $500,00.00 will use a three-step process of qualifications, a request for proposals and interview. Educational facilities include public school, locally chartered or state charted charter school and certain state educational institutions as defined in N.M. Stat. Sec. 6-17-1.1.


(2) Road and highway construction or reconstruction projects specifically prohibited under N.M. Stat. Sec. 13-1-119.1. However, Sec. 13-1-119.2 has been amended so that as of July 1, 2022, the Department of Transportation is allowed to utilize the design and build project delivery system. The previous language restricting use of design and build to road and highway project funded in whole or part by federal-aid highway funds was deleted by an amendment in 2021 and the language restricting use to projects with a maximum allowable construction cost of more than $50M was deleted by the 2022 amendment. Based upon the language this design-build authority is available to the state Department of Transportation and is not available for local public works projects that involve road construction.


(3) N.M. Administrative Code, Title 1, Chapter 5, Part 7 sets forth criteria for use of DB. Two-step process with request for proposal evaluation of technical competence and capability to perform and other criteria. Select a maximum of five firms for second portion of competition evaluating criteria in detail for decision. (N.M. Administrative Code Sec. 1.5.7.9). Both the architect or engineer and the contractor portions of the DB team must be licensed in New Mexico.





Other Comments:

A. For all state public works projects for which the design and build project delivery system is proposed require authorization of the state purchasing agent or a central purchasing office who will issue a written determination that it is appropriate or in the best interest of the state. The local public body shall make the determination for a local public works project. (N.M. Sec. 13-1-119.1E).


B. Architects, engineers and construction manager agents are selected based on qualifications. (N.M. Stat. Sections 13-1-120 through 13-1-124).



 

Oklahoma (OK)

Alternative Project Delivery Law Fact Sheet - Oklahoma

(As of 9/30/23)


2023 - OK Alternative Project Delivery Laws
.pdf
Download PDF • 93KB

State Agencies

CMAR Permitted (1)

DB Permitted (1)

Qualifications Based Procurement

​Price Based- best value- Procurement

Public Private-Partnerships (4)

Horizontal construction-transportation

No

No

Yes

​Horizontal construction-water and wastewater

Yes (2)

Yes (2)

Yes

Vertical construction- public buildings

Yes

Yes

Yes (1)

Yes

Yes

Local Government

CMAR Permitted (2)

​DB Permitted (2)(3)

​Public Private Partnerships (4)

Horizontal construction-transportation

No

No

Yes

Horizontal construction- water and wastewater

Yes

Yes (3)

Yes

Vertical construction-public buildings

Yes

No

Yes (2)

Yes

Yes


Notes: (Bold denotes revision to information)


(1) State Agencies allowed to use CMAR or DB with the written approval of the Director of Office of Management and Enterprise Services. (61 Okl. St. Sections 202 and 202.1). CMA and CMAR to be selected using the qualifications-based criteria set forth in 61 Okl. St. Sec. 62. Must meet the criteria set forth in the administrative rules which are set forth in the Oklahoma Administrative Code, Title 260, Chapter 65, Subchapters 17 (CMAR) and 19 (DB). Selection of CMAR and DB is set forth in the Oklahoma Administrative Code, Title 260, Chapter 65, Subchapter 21. Certain state agencies, boards, commissions, offices, institutions, and other governmental bodies of the state are required to use mandatory consultant and construction contract forms. (61 Okl. Sec. 60). Oklahoma DOT and Oklahoma Turnpike Authority may use CMA. (69 Okl. St. Sections 708.1 (definition of construction management) and 708.2).


(2) In 2019, the Oklahoma legislature passed HB 2666, which removed “political subdivisions” from 61 Okl. St. Sec. 202.1(B) and (C) and created a new “Public Construction Management Act for Political Subdivisions” 61 Okl. St. Sections 215 through 217. 61 Okl. St. Sec. 216 defines “Construction Management” to include CMA and CMAR which are still available for use. There is no definition included for DB as the reference to DB previously contained in Sec. 202.1(C) did not carry over to the Public Construction Management Act for Political Subdivisions. 61 Okl. St. Sec. 217 requires that CMA and CMAR be selected using the qualifications-based criteria set forth in 61 Okl. St. Sec. 62. Sec. 217 also sets out criteria for CMAR bidding and awarding contracts. There is no definition of the term “Construction” under the new Public Construction Management Act for Political Subdivisions. If the definition of “Construction” from 61 Okl. St. Sec. 202(3) still applies then water and utility projects appear to be allowed to use CMAR and sewer projects do not appear to be allowed unless they are related to a structure or appurtenance under construction.


(3) In 2021, House Bill 2402 was enacted with emergency status which means it took effect on April 14, 2021, rather than having to wait for the Governor’s signature.


A new Sec. 220.1, 61 Okl. St. is created that authorizes a conservancy district formed under 82 Okl. St. Sec. 541, a municipality, a county, a public trust, and any other political subdivision in this state that operates a public water supply system or wastewater treatment, or collection system is authorized to utilize design-build as a project delivery method for public water supply and wastewater treatment facilities and wastewater collection systems. No later than November 1, 2022, the Oklahoma Department of Environmental Quality shall incorporate into its administrative rules a flexible permitting process to allow the utilization of the design-build project delivery method for public water supply and wastewater treatment facilities and wastewater collection systems for all public entities that are authorized by the Sec. 220.1B.


In the interim between the effective date of this act and promulgation of rules, the Department is authorized to use DB on five pilot projects using the design-build project delivery method for public water supply and wastewater treatment facilities and wastewater collection systems, and the Department may use the results to promulgate rules.


(4) In 2017, the Oklahoma legislature passed two bills, Senate Bill 430 and House Bill 1534 both of which purport to create a new authority for public private partnerships at 74 Okl. St. Sections 5151 through 5157. The two bills provide different authorities and procedures for use of public private partnerships and are titled the “Oklahoma Local Public and Private Facilities and Infrastructure Act” (HB 1534) and the “Oklahoma Public and Private Facilities and Infrastructure Act” (SB 430). This provides authority as of November 1, 2017 for public private partnership contracts for certain public facilities and infrastructure projects. Oklahoma has passed legislation that allows for subcontractor bond claims on public-private partnership projects. (61 Okl. St. Sec. 2).



Other Comments:

A. “Construction” is defined as process of planning, acquiring, designing, building, equipping, altering, repairing, improving, maintaining, or demolishing any structure or appurtenance thereto including facilities, utilities or other improvements to any real property but not including highways, bridges, airports, railroads, tunnels, sewers not related to a structure or appurtenance thereto, or dams. (61 Okl. St. Sec. 202(3)).


B. While not addressed in design-build statute or administrative code sections, licensing is required to perform work as architect or engineer. (59 Okl. St. Sections. 46.1 (architects) and 475.1 (engineers)).



 

Texas (TX)

Alternative Project Delivery Law Fact Sheet - Texas

(As of 9/30/23)


2023 - TX Alternative Project Delivery Laws
.pdf
Download PDF • 86KB

State Agencies

CMAR Permitted (1)

DB Permitted

Qualifications Based Procurement (4)

Price Based- best value- Procurement (1)

Public Private Partnerships (5)

Horizontal construction-transportation

Yes

Yes (2)

Yes

​Horizontal construction-water and wastewater

Yes

Yes (2)

No

Yes

Yes

Vertical construction- public buildings

Yes

Yes (3)

No

Yes

Yes

Local Government

CMAR Permitted (1)

DB Permitted

Qualifications Based Procurement (4)

Price Based- best value- Procurement (1)

Public Private Partnerships (5)

Horizontal construction-transportation

Yes

Yes (2)

No

Yes

Yes

Horizontal construction- water and wastewater

Yes

Yes (2)

No

Yes

Yes (5)

Vertical construction-public buildings

Yes

Yes (3)

No

Yes

Yes


Notes: (Bold denotes revision to information)


(1) Authorization found in multiple statutes: Most public entities (Tx. Gov. Code, Chapter 2269, Subchapter F, Section 2269.251); Universities (Tx. Educ. Code, Chapter 51, Subchapter T, Section 51.782); Regional Tollway Authorities (Tx. Trans. Code, Chapter 366, Subchapter E, Section 366.185); Certain Water and Navigation Districts (Tx. Water Code, Chapter 60, Subchapter O, Sections 60.451, 454 and 462). However, Chapter 2269 does not apply to certain Local Government Corporation projects (2269.007). NOTE: Section 2269.252 prohibits an architect or engineer that has served as the governmental entity’s project architect or engineer from serving as a CMAR on the same project.


(2) Authorizes design-build for both vertical and horizontal construction. Authorization for most horizontal design-build is found in Texas Government Code, Chapter 2269, Subchapter H, Section 2269.351. Design-build methods do contain a step that is qualifications based. However, Chapter 2269 does not apply to any projects for Texas Department of Transportation (TxDOT), Regional Tollway Authorities, Regional Mobility Authorities, County Toll Authorities and Coordinated County Transportation Authorities (Sections 2269.004, .006, 008, .009 and .010). Authority for use of DB in certain transportation projects is found in multiple statutes: State highway system (Tx. Trans. Code, Chapter 223, Subchapters E – Comprehensive Development Agreements and F – Design-Build Contracts); Regional Mobility Authorities (Tx. Trans. Code, Chapter 370, Subchapter K – Design-Build Contracts); Regional Transportation Authorities (Tx. Trans. Code, Chapter 452, Subchapter C – Management of Authority). The Department of Transportation statutory threshold for use of DB has been increased from $50M to $150M. (House Bill 20, 2015 Session). With passage of HB 1, there may be funding limitations on the Department of Transportation’s use of DB. In HB 2830, effective 9-1-19, TxDOT is limited to six design-build projects every two years.


(3) Authorization for vertical DB is found in multiple statutes: Most public entities (Tx. Gov. Code, Chapter 2269, Subchapter G, Section 2269.301); Universities (Tx. Educ. Code, Chapter 51, Subchapter T, Section 51.780); Navigation districts and port authorities (Tx. Water Code, Chapter 60, Subchapter O, Section 60.460).


(4) Currently only purely qualifications-based selection process in Texas involves the selection of professional services. (Tx. Gov. Code, Chapter 2254).


(5) Authorization for use of PPP for most Texas state agencies and local governmental entities will fall under the provisions and limitations set forth in Chapter 2267 of the Texas Government Code. Construction, design, operation or maintenance of state highway system or transportation authorities created under Chapters 451(Metro Rapid Transit), 452 (Regional Transportation), 453 (Municipal Transit Departments) or 460 (Coordinated County Transportation) of the Texas Transportation Code are not covered by Chapter 2267 of the Texas Government Code. Texas Transportation Code, Section 366.174 (regional tollway authorities) and 370.173 (regional mobility authorities) provides authority for use of revolving fund monies to provide matching funds for public-private partnerships. Chapter 371 of the Texas Transportation Code governs use of Comprehensive Development Agreements for highway toll projects. In the 2023 legislative session, SB 1914 was passed amending Sections 6B(b), (c), and (e), Chapter 1472, Acts of the 77th Legislature, Regular Session, 2001, providing the Sabine-Neches Navigation District of Jefferson County, Texas the authority to use PPP.



 



These fact sheets provide a comprehensive overview of the legislative landscape in the Southwest Region up to September 30, 2023. We encourage you to delve deeper into these initiatives and explore how they may impact your industry or organization. Thank you to our Legal & Legislative Committee chair, Timothy D. Matheny, for assisting us in tracking these updates across the region!

For questions, please contact info@dbia-sw.org

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