Chapter 385
2011 -- H 6197
Enacted 07/13/11
A N A C T
RELATING TO
PUBLIC PROPERTY AND WORKS -- STATE PURCHASES
Introduced By: Representative John J. McCauley
Date Introduced: May 26, 2011
It is enacted by the
General Assembly as follows:
SECTION 1. Section 37-2-7 of the General Laws in Chapter
37-2 entitled "State
Purchases" is hereby
amended to read as follows:
37-2-7.
Definitions. -- The words defined in this section
have the meanings set forth
below whenever they appear in this chapter, unless the
context in which they are used clearly
requires a different meaning or a different definition is
prescribed for a particular section, group
of sections, or provision:
(1)
"Business" means any corporation, partnership, individual, sole
proprietorship, joint
stock company, joint venture, or any other legal entity
through which business is conducted.
(2) "Change
order" means a written order signed by the purchasing agent or
contractor
directing or allowing the contractor to make changes which the
changes clause of the contract
authorizes the purchasing agent or contractor to order without
the consent of the contractor or
purchasing agent authorization
signed by the purchasing agent directing or allowing the
contractor to proceed with changes, alterations, or
modifications to the terms, conditions, or scope
of work on a previously awarded contract.
(3) "Chief
purchasing officer" shall mean: (i) for a state
agency, the director of the
department of administration, and (ii) for a public agency, the
executive director or the chief
operational officer of the agency.
(4)
"Construction" means the process of building, altering, repairing,
improving, or
demolishing any public structures or building, or other public
improvements of any kind to any
public real property. It does not include the routine
maintenance or repair of existing structures,
buildings, or real property performed by salaried employees of
the state of
usual course of their jobs.
(5)
"Contract" means all types of agreements, including grants and
orders, for the
purchase or disposal of supplies, services, construction, or
any other item. It includes awards;
contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or
incentive type; contracts providing for
the issuance of job or task orders; leases; letter
contracts; purchase orders; and construction
management contracts. It also includes supplemental agreements
with respect to any of the
foregoing. "Contract" does not include labor
contracts with employees of state agencies.
(6) "Contract
amendment" means any written alteration in the specifications, delivery
point, rate of delivery, contract period, price, quantity,
or other contract provisions of any existing
contract, whether accomplished by unilateral action in
accordance with a contract provision, or by
mutual action of the parties to the contract. It includes
bilateral actions, such as supplemental
agreements, and unilateral actions, such as change orders,
administrative changes, notices of
termination, and notices of the exercise of a contract option.
(7)
"Contractor" means any person having a contract with a governmental
body.
(8) "Data" means
recorded information, regardless of form or characteristic.
(9)
"Designee" means a duly authorized representative of a person holding
a superior
position.
(10)
"Employee" means an individual drawing a salary from a state
governmental entity.
(11) "State
governmental entity" means any entity created as a legislative body or a
public or state agency by the general assembly or
constitution of this state, except for municipal,
regional, or county governmental entities.
(12) "May"
means permissive.
(13)
"Negotiation" means contracting by either the method set forth in
section 37-2-19,
37-2-20, or 37-2-21.
(14) "Person"
means any business, individual, organization, or group of individuals.
(15)
"Procurement" means the purchasing, buying, renting, leasing, or
otherwise
obtaining of any supplies, services, or construction. It also
includes all functions that pertain to
the obtaining of any supply, service, or construction
item, including a description of
requirements, selection and solicitation of sources, preparation,
and award of contract, and all
phases of contract administration.
(16) "Public
agency" shall mean the
authority, the
facilities corporation, the
mortgage finance corporation, the
public transit authority, the
corporation, the water resources board corporate, the
corporation, the
and bridge authority, the
quality management district commission, the
convention center authority, the Channel 36 foundation, the
their successors and assigns, any other body corporate and
politic which has been or will be
created or established within this state excepting cities and
towns, and the board of governors for
higher education for all purchases which are funded by
restricted, sponsored, or auxiliary monies.
(17) "Purchase
request" or "purchase requisition" means that document whereby a
using
agency requests that a contract be entered into to obtain
goods and/or services for a specified
need, and may include, but is not limited to, the
technical description of the requested item,
delivery requirements, transportation mode request, criteria
for evaluation of proposals, and/or
preparation of suggested sources of supply, and information
supplied for the making of any
written determination and finding required by section 37-2-6.
(18) "Purchasing
agency" means any state governmental entity which is authorized by
this chapter, its implementing regulations, or by way of
delegation from the chief purchasing
officer to contract on its own behalf rather than through the
central contracting authority of the
chief purchasing officer.
(19) "Purchasing
agent" means any person authorized by a governmental entity in
accordance with procedures prescribed by regulations, to enter
into and administer contracts and
make written determinations and findings with respect to
contracts. The term also includes an
authorized representative acting within the limits of authority.
"Purchasing agent" also means the
person appointed in accordance with section 37-2-1.
(20)
"Services" means the rendering, by a contractor, of its time and
effort rather than the
furnishing of a specific end product, other than reports which are
merely incidental to the required
performance of services. "Services" does not include
labor contracts with employees of state
agencies.
(21) "Shall"
means imperative.
(22) "State"
means the state of
public agencies.
(23) "Supplemental
agreement" means any contract modification which is accomplished
by the mutual action of the parties.
(24)
"Supplies" means all property, including, but not limited to, leases
of real property,
printing, and insurance, except land or permanent interest in
land.
(25) "Using
agency" means any state governmental entity which utilizes any supplies,
services, or construction purchased under this chapter.
(26) As used in section
37-2-59, "architect" or "engineer" services means those
professional services within the scope of practice of
architecture, professional engineering, or
registered land surveying pertaining to construction, as defined
by the laws of this state.
"Consultant" means any person with whom the
state and/or a public agency has a contract which
contract provides for the person to give direction or
information as regards a particular area of
knowledge in which the person is a specialist and/or has
expertise.
(27) For purposes of
sections 37-2-62 -- 37-2-70, "directors" means those members of a
public agency appointed pursuant to a statute who comprise
the governing authority of the board,
commission, authority, and/or corporation.
(28) "State
agency" means any department, commission, council, board, bureau,
committee, institution, or other governmental entity of the
executive or judicial branch of this
state not otherwise established as a body corporate and
politic, and includes, without limitation,
the board of governors for higher education except for
purchases which are funded by restricted,
sponsored, or auxiliary moneys and the board of regents for
elementary and secondary education.
(29) "Governmental
entity" means any department, commission, council, board, bureau,
committee, institution, legislative body, agency, or government
corporation of the executive,
legislative, or judicial branches of state, federal, and/or local
governments.
(30)
"Construction management at-risk" or "construction management
at-risk services" or
"construction management
at-risk delivery method" is a construction method wherein a
construction manager at-risk provides a range of preconstruction
services and construction
management services which may include cost estimation and
consultation regarding the design of
the building project, the preparation and coordination of
bid packages, scheduling, cost control,
and value engineering, acting as the general contractor
during the construction, detailing the trade
contractor scope of work, holding the trade contracts and other
contracts, evaluating trade
contractors and subcontractors, and providing management and
construction services, all at a
guaranteed maximum price, which shall represent the maximum amount
to be paid by the using
agency for the building project, including the cost of work,
the general conditions and the fee
payable to the construction management at-risk firm.
(31)
"Construction manager at-risk" or "construction management at-risk
firm" is a
person or business experienced in construction that has the
ability to evaluate and to implement
drawings and specifications as they affect time, cost and
quality of construction and the ability to
coordinate and deliver the construction of the project within a
guaranteed maximum price, which
shall represent the maximum amount to be paid by the using
agency for the building project,
including the cost of the work, the general conditions and the
fee payable to the construction
management at-risk firm. The construction manager at-risk
provides consultation services during
the preconstruction and construction phases of the
project. The project engineer, architect or
owner's program manager may not serve as the construction
manager at-risk.
(32) "Owner's
program manager" shall be an entity engaged to provide project
management services on behalf of a state agency for the
construction and supervision of the
construction of a building project. The owner's program manager
acts as the owner's agent in all
aspects of the construction project, including, but not
limited to, architectural programming,
planning, design, construction, and the selection and
procurement of an appropriate construction
delivery method. The owner's program manager shall have at
least seven (7) years experience in
the construction and supervision of construction of
buildings of similar size and complexity. The
owner's program manager shall not have been employed during
the preceding year by the design
firm, the construction firm, and/or the subcontractors
associated with the project.
SECTION 2. Chapter 37-2 of the General Laws entitled
"State Purchases" is hereby
amended by adding thereto the following sections:
37-2-27.1. Procurement
of construction manager at-risk services - Written
determination. -- (a)
Prior to procuring construction manager at-risk services the chief
purchasing officer must sign a written determination documenting
the following:
(1) That in accordance
with section 37-2-18, a general contractor selected as the lowest
responsive bidder based on a lump-sum, fixed fee contract is not
practicable for the construction
of the project and will not result in the best value for
the state;
(2) That the using
agency has clearly identified in writing why the use of construction
management at-risk services is appropriate for the building
project;
(3) That the building
project has an estimated construction value of five million dollars
($5,000,000) or more;
(4) That the using
agency has in place written procedures to ensure fairness in
competition, evaluation and reporting of results at every stage
in the procurement process;
(5) That the using
agency has the capacity, a detailed plan and procedures in place to
effectively procure and manage construction management at-risk
services for the specific project
and has procured the services of a qualified owner's
program manager pursuant to chapter 37-2;
and
(6) That the using
agency has a detailed, written plan with clearly identified procedures to
monitor and approve all reimbursable costs.
The chief purchasing
officer shall file copies of the written determination with the
president of the senate, the speaker of the house, the senate
fiscal advisor and the house fiscal
advisor no later than three (3) business days after executing
the written determination.
(b) Notwithstanding
any other provision to the contrary, including any provision
exempting any entity from the requirements of this chapter, the
chief executive officer of a public
corporation as defined in subdivision 35-20-5(4) or the chief
executive officer of a quasi-public
agency, prior to procuring construction manager at-risk services
shall sign a written determination
documenting the following:
(1) That in
accordance with section 37-2-18, a general contractor selected as the lowest
responsive bidder based on a lump-sum, fixed fee contract is not
practicable for the construction
of the project and will not result in the best value for
the state;
(2) Why the use of
construction management at-risk services is appropriate for the
building project;
(3) That the building
project has an estimated construction value of five million dollars
($5,000,000) or more;
(4) That there is in
place written procedures to ensure fairness in competition, evaluation
and reporting of results at every stage in the
procurement process;
(5) That the
corporation or quasi-public agency has the capacity, a detailed plan, and
procedures in place to effectively procure and manage
construction management at-risk services
for the specific project and has procured the services of
a qualified owner's program manager, as
set forth in subdivision 37-2-7(32); and
(6) That there is a
detailed, written plan with clearly identified procedures to monitor and
approve all reimbursable costs.
The chief executive
officer shall file copies of the written determination with the
president of the senate, the speaker of the house, the senate
fiscal advisor, and the house fiscal
advisor no later than three (3) business days after executing
the written determination.
37-2-27.2.
Procurement of construction manager at-risk services - Owner's
program manager. -- (a) In order to bring the experience and knowledge necessary to
maximize
the benefits of the construction manager at-risk
services, a using agency shall procure an owner’s
program manager as set forth in subdivision 37-2-7(32) prior
to procuring a construction manager
at-risk. The owner’s program manager shall have at least
seven (7) years experience in the
construction and supervision of the construction of buildings of
similar size and complexity. The
owner’s program manager shall not have been employed
during the preceding year by the design
firm, the construction management at-risk firm, and/or the
subcontractors associated with the
project.
(b) Notwithstanding any
other provision of this section or of the general or public laws to
the contrary, including any provision exempting any
entity from the requirements of this chapter,
all public corporations as defined in subdivision
35-20-5(4) and quasi-public agencies, shall be
subject to and shall comply with the terms of this section.
37-2-27.3.
Procurement of construction manager at-risk services – Technical review
subcommittee. -- (a)
When procuring a construction manager at-risk, a
technical review
subcommittee of the architectural, engineering and consulting
selection committee, as set forth in
sections 37-2-59 through 37-2-63, shall be created to evaluate
the statements of qualifications,
performance data and cost proposals submitted and any other relevant
information. The technical
review subcommittee shall be comprised of five (5) members
with one member from the division
of legal services at the department of administration,
one member from the department of
administration with experience in the procurement of construction
manager at- risk services, the
owner's program manager, and no more than two (2) members
from the using agency.
(b) Prior to opening
the cost or pricing data the technical review subcommittee shall
prequalify at least two (2) firms as professionally and
technically qualified. If unable to
prequalify two (2) firms, the technical review subcommittee may
re-advertise the request for
proposals or may complete the project through the procurement
of a general contractor. If unable
to prequalify at least two (2) firms after the second
advertising of the request for proposals for
construction manager at-risk services, the using agency shall
complete the project through the
procurement of a general contractor.
(c) The technical
review subcommittee shall draft and evaluate the request for proposals
used to procure the construction manger at-risk.
(1) If federal
restrictions do not prohibit the consideration of cost in the selection
process,
the request for proposals shall require that the
proposals submitted itemize the following:
(i)
The fee for pre-construction services;
(ii) The fee for
construction services with the profit and overhead separately itemized;
and
(iii) The estimated cost
of the general conditions.
(2) The request for
proposals shall include a standardized contract for construction
manager at-risk services. Firms responding to the request for
proposals shall submit proposed
changes to the contract language in writing as part of their
proposal. The technical review
subcommittee shall consider the favorability to the state of any
proposed changes to the
standardized contract as a criteria for evaluating and ranking the
firms.
(3) The technical
review subcommittee may conduct written or oral discussions
concerning proposed changes to the standardized contract with
all offerors determined in writing
to be reasonably susceptible to being selected for
award. Any discussions conducted must be
clearly memorialized through the detailed documentation of
the decisions made and the reasons
for those decisions.
(4) The technical
review subcommittee shall submit its final recommendation for
selection to the architectural, engineering and consultant
services selection committee, as set forth
in sections 37-2-59 through 37-2-63.
(5) The chief
purchasing officer must determine through signature that all the terms of the
contract are fair and reasonable to the state.
(6) The firm selected
may not be reimbursed or paid for any services provided prior to the
execution of the contract through signature by the chief
purchasing officer, a representative of the
using agency and a representative of the construction
manager at-risk firm.
(d) The technical review
subcommittee shall negotiate the guaranteed maximum price as
an amendment to the contract executed pursuant to
subsection (c) of this section when the design
documents are no less than sixty percent (60%) complete. The
guaranteed maximum price shall
represent the maximum amount to be paid by the using agency for
the building project, including
the cost of the work, the general conditions and the fee
payable to the construction management
at-risk firm.
(1) The guaranteed
maximum price shall itemize:
(i)
The amount of any construction manger at-risk contingency;
(ii) The amount of
the general conditions;
(iii) Any fees,
including fees incurred prior to the guaranteed maximum price;
(iv)
Each allowance with a statement of its basis;
(v) A breakdown of
costs by trade;
(vi)
The dates for substantial and final completion upon which the
guaranteed maximum
price is based;
(vii) A schedule of
applicable alternates and the unit prices; and
(viii) The drawings,
specifications and other information on which the price is based.
(2) The chief
purchasing officer must determine through signature that all the terms of the
guaranteed maximum price amendment are fair and reasonable to
the state.
(3) The project may
not proceed to the construction phase without the execution of the
guaranteed maximum price amendment to the contract through
signature by the chief purchasing
officer, a representative of the using agency and a representative
of the construction management
at-risk firm.
(4) If the technical
review subcommittee is unable to obtain a guaranteed maximum price
amendment that is fair and reasonable to the state or if the
construction management at-risk firm
is unable to provide all necessary bonds within five (5)
days of the execution of the amendment,
the contract shall be terminated in writing and the
project shall be completed through the
procurement of a general contractor.
(e) No provision of
this section is intended to require a party to breach a contract
disclosed to the using agency and executed prior to the award
of the CMAR contract.
37-2-27.4.
Procurement of construction manager at-risk services - Bidding of
subcontracts. -- (a) In order to promote transparency and the fair and
equitable treatment of all
persons who deal with the procurement system, when using the
construction manager at-risk
(CMAR) delivery method all subcontract work and
equipment and material purchases shall be
procured pursuant to the following:
(1) All vendors shall
be prequalified as a responsible bidder or offeror as
defined in
subdivision 37-2-15(6);
(2) All subcontract
work and equipment and material purchases shall be procured through
the
(3) All bids shall be
opened in public at the time and place designated in the invitation for
bids and each bid, together with the name of the bidder,
shall be recorded and an abstract made
available for public inspection;
(4) The three (3)
lowest responsive bids, as defined in subdivision 37-2-15(7), shall be
forwarded to the CMAR who shall evaluate the bids and conduct
further negotiations where
appropriate;
(5) Prior to the awarding
of a bid, the using agency shall provide written approval of the
final award;
(6) The final award
shall be awarded with reasonable promptness.
(b) When using the
construction manager at-risk (CMAR) delivery method, all
subcontract work and equipment and material purchases shall be
memorialized through the
detailed documentation of the decisions made and the reasons
for those decisions.
(c) All bid documents, bid abstracts and documents referring to the bid process shall be
public in accordance with the provisions of chapter 38-2, the Access to Public Records Act. The
burden to identify trade secrets, commercial or financial information, or other records not subject
to public disclosure pursuant to chapter 38-2 shall rest with the bidder or offeror.
Any person or entity
denied the right to inspect records may appeal the denial in
accordance with the provisions of chapter 38-2, the Access to
Public Records Act.
(d) No provision of
this section is intended to require a party to breach a contract
disclosed to the using agency and executed prior to the award
of the CMAR contract.
37-2-27.5.
Procurement of construction manager at-risk services - Public records.
--
(a) All documents related to a construction project delivered
through a construction manager at-
risk, including, but not limited to, design documents,
construction documents, bid documents,
financial documents and contract documents, shall be considered
public records and be made
available for public inspection in accordance with chapter
38-2, entitled the Access to Public
Records Act. Information may only be withheld from
public inspection if the construction
manager at-risk firm or the relevant subcontractor
specifically states in writing a description of
the data or materials to be protected and the reasons why
protection is necessary, and if the chief
purchasing officer determines through a written determination
that the records are not public
pursuant to chapter 38-2 access to public records law. The
burden to identify trade secrets,
commercial or financial information, or other information not
subject to public disclosure
pursuant to chapter 38-2 shall rest with the construction
manager at-risk or the relevant
subcontractor. Any person or entity denied the right to inspect
records may appeal the denial in
accordance with chapter 38-2, the Access to Public Records law.
(b) Notwithstanding
any other provision to the contrary, including any provision
exempting any entity from the requirements of this chapter, all
public corporations as defined in
subdivision 35-20-5(4) and quasi-public agencies, shall be
subject to and shall comply with the
terms of this section.
SECTION 3. This act shall take effect upon passage.
=======
LC02746
=======