Subchapter A. STATE LEASED PROPERTY

The Texas Building and Procurement Commission adopts the repeal of old Title 1, TAC, Chapter 123, Subchapter A--General Matters, §123.1 and §123.2; Subchapter B--Real Property Acquisition, §123.12 and §123.13; Subchapter C--Construction Project Administration, §§123.23 - 123.33; and Subchapter D--Wage Rates, §123.43 and §123.44 that was published in the November 30, 2001, issue of the Texas Register (26 TexReg 9688) without changes to the proposed repeal, and the text of the repealed rules will not be republished.

The adoption of these repealed rules is being published simultaneously in this issue of the Texas Register with the adoption of new rules under Title 1, TAC, Chapter 123 relating to the Facilities Construction and Space Management Division.

The repeal of old Title 1, TAC, Chapter 123, Subchapter A--General Matters, §123.1 and §123.2; Subchapter B--Real Property Acquisition, §123.12 and §123.13; Subchapter C--Construction Project Administration, §§123.23 - 123.33; and Subchapter D--Wage Rates, §123.43 and §123.44 relating to the Facilities Construction and Space Management Division is adopted in order to allow for the adoption of more efficient and streamlined new rules that are compliant with the requirements of Senate Bill 311, Art. 9, §14.05 and Senate Bill 1268, 77th Legislature (2001).

The repeal of Title 1, TAC, Chapter 123 will delete obsolete language and allow for the adoption of new rules.

No comments were received concerning the adoption of the repeal to Title 1, TAC, Chapter 123.

Subchapter A. GENERAL MATTERS

The Texas Building and Procurement Commission adopts new Title 1, TAC, Chapter 123, Subchapter A--General Matters, §123.1 and §123.2; Subchapter B--Real Property Acquisition, §123.12 and §123.13; Subchapter C--Construction Project Administration, §§123.23 - 123.33; and Subchapter D--§123.43 and §123.44, concerning the Facilities Construction and Space Management Program. The new rules are adopted without changes to the proposed text that was published in the November 30, 2001, issue of the Texas Register (26 TexReg 9690), and the text will not be republished. The adoption of the new rules are being published simultaneously in this issue of the Texas Register with the adoption of the repeal of old Title 1, TAC, Chapter 123.

The adopted new rules will delete obsolete language found in the adopted repeal of old Title 1, TAC, Chapter 123--Facilities Construction and Space Management Division. The new rules are expected to result in better contracts for the state.

One comment was received from the Texas Department of Public Safety concerning §123.23(e). The comment expressed concern that the provisions of Government Code Chapter 771--Interagency Cooperation Act--was impermissibly relied upon to authorize the transfer of funds in the manner contemplated by the proposed §123.23(e). The comment also noted that this advance transfer would reduce "ability to participate in managing the quality and timeliness of the services performed by the commission."

The second part of the Texas Department of Public Safety's comment addressed by reference to the powers and duties, expressed and implied, under Chapter 2166 and, specifically, §2166.356(a) which states "The commission is responsible for directing final payment for work done on each project. (etc.)" Therefore, the authority for management of quality and timeliness of performance regarding construction projects is within the commission's purview.

Government Code §771.007(c) is not relied on for the Texas Building and Procurement Commission's source of authority to transfer funds to the commission before services are performed. The rule making authority granted by Government Code §2166.062(a) states "The commission may adopt rules necessary to implement its powers and duties under this chapter". (See Chapter 2166, Building Construction and Acquisition). The new rule also implements a recommendation for advance payment made in a report prepared by UT System upon commission by the State Auditor's Office, "A Report for: Design and Construction Process Improvement (phase 4: Present Recommendations)" issued May 1, 2000.

In response to the second part of their question, the prior rule required transfer of funds upon approval of the total project cost by the using agency. However, the prior rule had not been fully implemented and there were projects billed on a monthly basis to the using agency. The proposed rule requires a 50% transfer of funds upon approval of the total project cost and the remaining half upon award of the primary construction contract or approval to begin construction on projects using alternate delivery systems. Expressed and implied authority for the rule are derived from the provisions of Government Code Chapter 2166.

The new rules are adopted in accordance with the requirements of Senate Bill 311, Art. 9 and §14.05, 77th Legislature (2001), and Senate Bill 1268, 77th Legislature (2001) which contain language relating to the lowest and best bid method for awarding a contract, including design-build; the construction manager-at-risk and competitive sealed proposal methods for a project; surety technical assistance services for the benefit of small and historically underutilized businesses; determination of the prevailing wage rate in counties bordering the United Mexican States, or a county adjacent to a county bordering the United Mexican States; and requirements that the commission establish procedures for the process to acquire property, for implementing the exclusion process from the commission's authority, for the selection of design professionals, and procedures for the management of the construction process.

Subchapter A. GENERAL MATTERS