2014 -- H 7392 SUBSTITUTE A AS AMENDED
Enacted 07/02/14
A N A C T
RELATING TO PUBLIC PROPERTY AND WORKS
Introduced By: Representatives Edwards, Almeida, and Blazejewski
Date Introduced: February 06, 2014
It is enacted by the General Assembly as follows:
SECTION 1. Sections 37-2-27.1, 37-2-27.2, 37-2-27.3 and 37-2-27.4 of the General Laws in Chapter 37-2 entitled "State Purchases" are hereby amended to read as follows:
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, the
factors set forth in subsection (c) below, the a general contractor selected
as the lowest responsive bidder based on a lump-sum, fixed fee contract
method of construction management as provided under
§ 37-2-18 is not practicable for the construction of the project and or 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 method of
construction management as defined under § 37-2-7(30) 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 for the project, as set forth in § 37-2-7(32);
and
(6) That the using agency has a detailed, written plan with clearly identified procedures to monitor and approve all reimbursable costs for the project.
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
Except for § 37-2-27.1(d), 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 as defined in § 37-2-7(16), 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, the
factors set forth in subsection (c) below, a the
general contractor selected as the lowest responsive
bidder based on a lump-sum, fixed fee contract method of construction management is not
practicable for the construction of the project and
or will not result in the best value for
the state public
corporation or the public agency;
(2) Why the use of construction
management at-risk services method of construction management 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 the public corporation or public
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 public 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) for
the project as set forth in § 37-2-7(32); and
(6) That there is a detailed, written plan with clearly identified procedures to monitor and approve all reimbursable costs for the project.
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.
(c) When evaluating the procurement of construction manager at-risk services, the factors that may be considered in determining whether the general contractor method of construction management is not practicable or will not result in the best value for the state , public corporation, or public agency shall include:
(1) Whether specifications can be prepared that permit award on the basis of either the lowest bid or the lowest-evaluated bid price;
(2) Whether the available sources, the time and place of performance, and other relevant circumstances exist as are appropriate for the use of competitive sealed bidding;
(3) The complexity of the project, including the existing or proposed infrastructure or structures, required demolition or abatement, adjacency to other structures or abutters, site constraints, building systems, uniqueness of design elements, or environmental implications;
(4) The size, scope, and estimated cost of the project;
(5) The adequacy of available documentation regarding the existing site, buildings, or structures; abutter infrastructure, buildings, or structures; or other documentation of as-built conditions;
(6) Phasing or logistical challenges arising out of the need to maintain existing occupancy, continue existing operations, provide phased occupancy, or achieve more favorable project financing terms;
(7) The anticipated impact of fast-tracked design and construction on project cost or schedule;
(8) Potential to achieve optimal minority or woman business enterprise or other subcontractor or vendor participation required in accordance with any applicable state or federal laws;
(9) The amount and type of financing available for the project, including whether the budget is fixed and the source of funding, for example, general or special appropriation, federal assistance monies, general obligation bonds or revenue bonds;
(10) The administration or implementation of procedures required to comply with applicable regulations or statutes; and
(11) Mitigating the potential claims against the state arising from the inherent risks associated with factors noted in subdivisions (3) through (10) of this subsection.
(d) The provisions of §§ 37-2-27.1 through 37-2-27.5 shall not apply to highway or heavy construction projects that are procured by either the Rhode Island department of transportation, a public corporation, a public agency, or any city or town in Rhode Island.
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 method of construction management, 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 as
defined in § 37-2-7(16), 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 Procurement of construction manager at-risk services
-- Technical review committee. -- (a) When procuring a construction manager at-risk, services for a using
agency, other than a public corporation or a public agency, a
technical review subcommittee committee of the
architectural, engineering and consulting selection committee, as set forth in
sections 37-2-59 -- 37-2-63, shall be appointed
by the chief purchasing officer created
to evaluate the statements of qualifications, performance data, and cost proposals submitted and any other
relevant information. The technical review subcommittee
committee 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 construction
of capital projects; the owner's program
manager, one member from the division of
purchases; and no more than two (2) members from the using agency. The using agency's owner's program manager shall advise and
assist the technical review committee as necessary. The members of a technical
review committee of a public corporation or a public agency shall be determined
in accordance with their own policies and procedures.
(b) Prior to opening the cost or
pricing data, the technical review subcommittee committee
shall prequalify at least two (2) firms as professionally and technically
qualified. If unable to prequalify two (2) firms, then
the technical review subcommittee committee may either
re-advertise the request for proposals or may complete
the project through the procurement of a general contractor recommend to the chief purchasing officer that the general
contractor method of construction management be utilized on the project.
If the technical review committee is
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 then
the chief purchasing officer shall require the using agency to utilize the
general contractor method of construction management for the project.
(c) The
technical review subcommittee shall draft and evaluate the request for
proposals used to procure the construction manger at-risk. The department of administration's division of capital
projects, in conjunction with the division of purchases, shall assist the using
agency in drafting the request for proposals used to procure the construction
manager at-risk services, provided that such assistance is not mandatory for a
public corporation or a public agency which may develop the request for
proposals without such assistance.
(1) If federal restrictions do not prohibit the consideration of cost in the selection process, then 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 in a form acceptable to the chief purchasing officer.
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 committee 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 negotiations concerning proposed changes to the
standardized contract with all offerors determined in writing to be reasonably
susceptible to being selected for award. Any discussions
negotiations conducted must be clearly
memorialized through the detailed documentation of the decisions made and the
reasons for those decisions.
(4) The technical review subcommittee committee
shall submit its final recommendation written recommendations of eligible construction management
at-risk firms to the chief purchasing officer. for selection to the architectural, engineering and
consultant services selection committee, as set forth in sections 37-2-59 --
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. The chief purchasing officer shall issue a written
determination selecting a construction management at-risk firm for the project that
includes findings that all the terms of the proposed contract are fair and
reasonable to the state.
(6) The construction
management at-risk firm selected for the
project 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 and the
issuance of a purchase order.
(d) The technical
review subcommittee chief purchasing
officer 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 manager
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 shall issue a written determination 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 and issuance of an approved change order; provided,
nevertheless, the chief purchasing officer may authorize the commencement of
preliminary investigatory, site, or other construction if the chief purchasing
officer issues a written determination that such preliminary construction is
advantageous to, and in the best interest of, the state, public corporation, or
public agency, and the remaining requirements for the commencement of construction
set forth above are satisfied as it relates to the proposed preliminary
construction.
(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.
If the chief purchasing officer 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 ten (10) days of the execution of the amendment, then
the chief purchasing officer may terminate the construction management at-risk
contract and:
(i) Negotiate a new construction management at-risk contract and guaranteed, maximum-price agreement with the next-most qualified construction management at-risk firm as determined by the technical review committee; or
(ii) Order that the project shall be completed through the utilization of the general contractor method of construction management.
(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
construction manager at-risk 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 of
construction management on a project, all
subcontract work and subcontractors,
equipment, and material purchases shall
be procured pursuant to the following:
(1) All potential
vendors shall be prequalified as a
responsible bidder or offeror bidders or offerors as defined in subdivision §
37-2-15(6);
(2) All
subcontract work and equipment and material purchases shall be procured through
the Rhode Island vendor information program (RIVIP); The construction management at-risk firm shall be provided
with access to the Rhode Island Vendor Information Program ("RIVIP")
and/or the relevant portion of the program or information thereon in such
direct or indirect manner as the director of the department of administration
may determine for the purpose of issuing solicitations to pre-qualified vendors
for subcontracts, equipment, and materials necessary for the project. The
construction manager at-risk shall use the RIVIP for solicitation of bids for
all subcontractors, equipment, and material necessary for the project;
(3) All bids shall be opened in public
at the time and place designated in the invitation
solicitation 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 The
construction manager at-risk shall evaluate the bids bid proposals
and conduct further negotiations with vendors
where appropriate;
(5) Prior to the awarding of a bid project-related
contract by the construction manager at-risk, the using agency shall
provide its written approval of the final award;
(6) The final
award shall be awarded construction
manager at-risk shall award all project-related contracts with
reasonable promptness after approval by the using
agency.
(b) When using the construction
manager at-risk (CMAR) delivery method of construction management, all subcontract work, and
equipment, and material purchases shall
be memorialized by the construction management
at-risk firm and the using agency 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 of title 38,
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 of title 38 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 of
title 38, 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
construction management at-risk
contract.
SECTION 2. This act shall take effect upon passage.
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LC004076/SUB A
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