What ACEC Texas Does For You
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ACEC TEXAS is involved in a variety of activities and programs, including business and leadership training and promotion of the industry.  But our central focus is political, legislative and administrative advocacy on behalf of the industry.

The State Legislative Committee (SLC) is the group within ACEC TEXAS that guides all of the organization’s legislative and public affairs strategy.  Over the years, the SLC has been involved in a number of legislative accomplishments including:

 

Tort Reform and Liability Protection:

Deceptive Trade Practices Act revisions:  During the liability crisis of the early 1990’s, the primary threat to engineering firms was the use of the state’s consumer protection statute in unintended ways.  The DTPA was enacted in the 1970’s to assist unsophisticated consumers in small, retail-type transactions; consequently, it provided remedies heavily weighted in favor of consumers.  By 1990, however, sophisticated owners such as the City of Houston were claiming consumer status under the DTPA in order to use that law and its remedies in routine construction contract litigation.  Legislation pushed by ACEC and passed in 1995 revised the DTPA to eliminate its use in that sort of litigation.

Certificate of Merit:  In 2003, ACEC was successful in including in the omnibus tort reform package passed that session a provision requiring a certificate of merit in lawsuits against design professionals.  This provision was subsequently strengthened in 2005 and again in 2009.  It provides that in any action against an engineering firm, a plaintiff must provide an affidavit from another engineer knowledgeable in the same area of practice, attesting to (for each theory of recovery) the negligence, if any, or other action, error, or omission of the engineer in providing the professional service.  This provision has helped firms get out of the sort of cases in which all parties involved in a project get sued, regardless of negligence.

To back up this provision, ACEC was successful in 2003 in amending the Texas Engineering Practice Act to make clear that the filing of a certificate of merit is the practice of engineering and that the Texas Board of Professional Engineers can discipline a licensee for negligence in a filing.  This creates a very real disincentive against fraudulent filings.

Indemnification Limits:  ACEC has fought several legislative battles over indemnification limits, and other battles are looming on the horizon. Initially, language was inserted into the state Appropriations Act dealing with the then-TNRCC’s indemnification policy on hazardous waste cleanups.  Later legislation amended the Civil Practices and Remedies Code to provide that an owner may not require an engineer to indemnify the owner against the owner’s negligence.  The law applies to both public and private contracts and provides that such a provision is void and unenforceable.

In 2007, ACEC was successful in amending a provision in the Local Government Code to prohibit political subdivisions from receiving indemnity and/or a duty to defend for anything other than negligence, intentional torts, intellectual property infringement, or failure to pay a subcontractor or supplier.

Errors and Omissions Recovery:  In 2007, ACEC was successful in establishing guidelines for policies by state agencies related to recovering the costs of design consultant errors and omissions including:  notification to the consultant at the time the error is discovered, opportunity for the consultant to be involved in the resolution of the problem, guidelines for distinguishing an error from other reasons for a change order, a process for determining the cost, an evaluation of the totality of the consultant’s services, an internal appeal without requiring prepayment of the claim, a process for tracking the errors and omissions of in-house employees, and a recognition that some errors are likely to occur in any project.  This was in response to one state agency’s efforts to put in place a policy that required an engineering firm to pay a claim before the claim could be appealed.

Good Samaritan Statute:  ACEC, in 2007, joined with others to push for the passage of a “Good Samaritan” statute that provides liability protection for PE’s who provide voluntary services during disasters.

Statute of Repose:  In 2009, ACEC pushed for and won passage of a statute that clarified that the statute of repose is 10 years for all claims against engineers.  This was in response to an appeals court opinion that weakened the statute of repose.  The bill was ultimately vetoed, but the opinion was overturned by the Texas Supreme Court.  ACEC helped with the legal expenses of the appeal.

 

Qualifications-Based Selection/Procurement

In 2001, the SLC was successful in expanding the Professional Services Procurement Act to include local government corporations and other entities created by and acting on behalf of cities, in order to close off the opportunity for end-runs around the PSPA.

Also, in 2001, ACEC was successful in amending the TNRCC/TCEQ Sunset bill to require the use of the PSPA in the selection of non-engineering scientific and technical services.

In 2005 ACEC coordinated a major effort to defeat the efforts of the Transportation Commission to eliminate qualifications-based selection for all public entities.  This effort included public relations, grassroots activity, and a major lobby effort.  A bill was ultimately filed in the House but never got out of committee.

In 2007 ACEC supported an amendment to the QBS law to allow for enforcement through declaratory and injunctive relief, prohibited purchasing cooperatives and buy boards from procuring and offering engineering services, required local government corporations to comply with procurement laws for entities that set them up, and clarified that a design professional has to be selected by and contracted to the owner for projects using the job order contracting method of contracting.

In 2009 ACEC, along with other groups, was twice successful in defeating amendments providing for priced-based selection for engineering and architectural services.  Through the SLC’s efforts, the amendments were resoundingly defeated by a hundred vote margin in the House.

In 2011 ACEC, along with others, was successful in defeating a bill that would have allowed for the cost-based selection of engineering and architectural services by governmental entities, as well as another bill that sought an exemption from QBS laws for universities.

ACEC TEXAS staff plays an active role on an ongoing basis in the enforcement of the PSPA, contacting owners on behalf of members to revise a procurement that does not comply.

 

Government Competition

TxDOT outsourcing has been a major focus of the industry’s efforts in this area going back to 1991.  In the 1991 session, ACEC was successful in inserting a statutory mandate that TxDOT seek a “balance” between the use of inside and contracted services.  (During this period, TxDOT’s payout to the private sector engineering industry was approximately $10 million per year.)    In 1997, after TxDOT had failed to honor the requirement for a balance, ACEC convinced the Legislature to add a minimum floor for outsourced engineering-related services tied to a given budget strategy.  Since then, as the construction program grew, TxDOT attempted to increase its FTE limits in order to absorb the increasing workload in-house, but ACEC opposed that. Spending on outsourced engineering-related services grew to over $500 million per year, although it has declined over the last couple of years due to reduced construction funding.   Several times during the past decade the SLC has initiated and guided special studies (costing well over $100,000) in response to studies initiated by TxDOT on the cost of in-house vs. outsourced services.  In 2009, ACEC participated in a study by the Comptroller on TxDOT’s costs.  This study concluded that TxDOT’s accounting system is not capable of generating an apples-to-apples comparison and that, in particular, the method of allocating overhead is totally different, validating a long-term criticism of ACEC TEXAS.

ACEC has also worked to protect this market in other ways.  For example, the authorization for TxDOT to use comprehensive development agreements provides that money spent on engineering in CDAs does not count toward the minimum spending requirements.

ACEC has made a very high priority of incorporating greater business planning, accountability and transparency into the DOT contracting and planning process.  Many provisions related to these issues were included in HB 330 (the DOT Sunset bill) during the 2009 session.   Although that bill did not pass, TxDOT is moving administratively to adopt as many of the provisions as the agency has authority to adopt.  The result will be a significantly greater ability for the industry to anticipate agency contracting opportunities.

Outside of TxDOT, ACEC worked in 2011 (and will again in 2013) to prohibit governmental entities from using their own staff to perform commercially available services, including engineering, for other governmental entities on projects they do not own.


Project Delivery

Project delivery has been a major focus of SLC discussions in recent years. Beginning in 1997, ACEC, working with other industry groups representing architects and contractors, has been instrumental in shaping project delivery legislation in Texas.  Initially, the consensus within the SLC was to keep alternate project delivery confined to the vertical construction market.  In 2005 and 2007, that changed somewhat and we were successful in passing legislation that would have consolidated various construction procurement statutes into a single procurement statute for construction services, although both bills were subsequently vetoed for unrelated reasons.  Also in 2007, ACEC was successful in expanding construction management at risk and competitive sealed proposals for construction services into the infrastructure market as well as writing a new process for and expanding design-build into the infrastructure market with certain protections for engineering firms.

In 2011, ACEC worked with others to pass a comprehensive alternate project delivery statute that consolidates most of the alternate project delivery statutes into a single construction procurement statute.

Also in 2011, ACEC worked with AGC and others to establish procedures for TxDOT and regional mobility authorities to use design-build procedures.

In 2013, ACEC made several changes to the local government design build statute including giving medium-sized entities the ability to do 4 D/B projects per year (up from 2 per year) two years earlier, added language to disincentives a design-builder to switch team members after winning a contract, and required a local entity to certify compliance with professional licensing laws when purchasing construction related services through a purchasing cooperative.  ACEC also defeated a bill that would have removed almost all limitations and restrictions on local government use of design-build and a bill that would have allowed an E/A to be selected as a CM-at-risk in a one step procurement.


Miscellaneous

TBPE Sunset and Professional Practice Issues:   During the 2003 session, the SLC was heavily involved in the Sunset review of the Board of Professional Engineers.  The highest-profile issue was a fight between the professional engineering community and high-tech and industrial associations over engineering licensure and use of the term “engineer.”  ACEC was instrumental in achieving a compromise that prevented carve-outs from licensure and protects the use of the title in competitive situations or public representations.

During the Sunset session, ACEC also worked to give the Board the authority to issue advisory opinions interpreting the Act as it applies to specific or hypothetical situations.  These questions often arise in the context of procurement situations in which a public entity is attempting to bid engineering services by calling them “planning.”   ACEC has subsequently pushed for a number of advisory opinions on water quality planning, transportation planning, roofing repair and replacement, and other areas intended to protect the boundaries of the engineering practice.

On a related subject, in 2001 ACEC promoted and achieved language in the TEPA that required continuing education for P.E.s but did so in a very flexible manner that recognizes in-house training and self-study.  In the absence of this effort, it is likely that a more restrictive approach would have been implemented during the 2003 Sunset bill.

In 2009, ACEC was successful in amending the Engineering Practice Act to provide that a P.E. may not be required to have any additional certification other than a P.E. license to seal an engineering plan, specification, plat, or report.

In 2013, ACEC was instrumental in passing a 12-year Sunset extension of the TBPE without any harmful amendments.

Related Professional/Industry Issues:  There have been a number of bills in recent years involving associated service providers attempting to achieve or revise licensure requirements in a way that affects engineering practices.  For example, ACEC opposed (and killed) a bill for geologist licensure for several sessions until a compromise was agreed to that establishes as a matter of law the boundaries between the two professions and protects the rights of geotechnical engineers to practice freely in this area.  Similarly, landscape architects sought licensing revisions in 2003 that would have greatly expanded the role of landscape architects in drainage and projects that border on civil works; this bill was substantially revised and limited prior to passage.  In 2011 and 2013, ACEC opposed and defeated a measure that would have allowed for separate licensure (apart from PE) for structural engineers.

Taxes:  In 2006, the franchise tax was repealed and replaced by the margins tax.  ACEC was successful in adding an amendment to insure that funds passed on to subcontractors were not taxable.  In 2013, ACEC clarified that payments passed on to subcontractors, under a contract or subcontract, are excluded from the total revenue calculations.

Conflict of Interest Disclosure:  In 2007, the SLC worked with others to revise the conflict of interest disclosure notice (making it less onerous and clarifying the intent) that is required to be provided by firms working or seeking to do work with local governmental entities.

Land Development:  In 2011, a floor amendment to the TCEQ Sunset bill would have exempted from dam safety regulations all dams impounding less than 1,000 acre-feet, regardless of hazard or location.  ACEC worked to limit this exemption in the final version of the bill to only low or significant hazards dams impounding less than 500 acre-feet and located outside incorporated areas or in counties of less than 215,000 population.  This keeps all high-hazard dams and others in more populated areas within the regulatory structure.  The provision also includes a four-year sunset provision. 

Furthermore, ACEC worked with others to pass a bill that provides significant changes to the process for expedited release from a CCN for a landowner of 25 acres or more who is not receiving water or sewer service.  The bill applies to counties with 1 million or more population and adjacent counties to those, plus Smith County.  The TCEQ may award compensation to be paid to the decertified utility.  The bill also revises provisions that apply to other parts of the state to put time limits (180 days) on a municipality’s requirement to respond to a request for service.  Also prohibits a municipality from extending a CCN beyond its ETJ without a landowner’s consent.

In 2013, ACEC worked with water district and development representatives to water down and kill proposals that, in the name of “government transparency,” would have

Infrastructure Funding:  During the 2011 legislative session, ACEC was successful in pushing for the authorization for $3 billion in transportation bonds as well as the approval of a constitutional amendment for water infrastructure bonds.

In the run-up to the 2013 legislative session, ACEC spent considerable resources to educate the public, opinion leaders and legislators about funding shortfalls in water and transportation.  Although the legislative leadership opposed new fees and taxes, the Legislature did approve two constitutional amendments.  In November 2013, voters will have an opportunity to vote on Proposition 6, which will move $2 billion from the state’s Rainy Day Fund to a water plan implementation fund for loans and financial assistance to water projects.  And in November 2014, a proposal to allocate part of oil and gas severance tax collections to the Highway Fund will go before the voters.  ACEC will aggressively support both of these initiatives.

In any legislative session the SLC monitors and attempts to kill or influence dozens of pieces of legislation.   A few examples of bills that we opposed in recent sessions that did not pass include such items as:

  • Licensing of construction/program managers
  • Requirements for mandatory errors and omissions insurance
  • Requirement for annual CPA audit for businesses that contract with the state for more than $25,000
  • Provisions exempting telephone companies from being required by cities to obtain engineering plans for street cut repairs
  • Prohibition of pay-when-paid provisions in engineering and design contracts
  • Sales tax on services
  • Creation of inspector-general positions in large state agencies
  • Exemptions from local drainage fees
  • Exemption of certain volunteer fire departments from the Engineering Practice Act
  • Consolidation of professional licensing agencies
  • Licensing of Energy Efficiency Professionals
  • Licensing of stormwater professionals
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6/6/2017
ACEC Central Texas Chapter Meeting-06/06/17