CHAPTER 30 - STATE CONSTRUCTION OFFICE
SUBCHAPTER 30G - STATE BUILDING COMMISSION PROCEDURES AND
CRITERIA FOR AUTHORIZATION TO USE AN ALTERNATIVE CONTRACTING METHOD
SECTION .0100 - GENERAL PROVISIONS
01 NCAC 30G .0101 AUTHORITY
The State Building Commission, hereinafter referred to as
SBC, is a statutory body, empowered by law to perform a multiplicity of duties
with regard to the State's capital facilities development and management
program. In the specific area of State capital improvement project
requirements for building contracts, the SBC is empowered by G.S. 143-135.26 to
adopt procedures which allows a State agency or institution, a local
governmental unit, or any other entity subject to the provisions of G.S.
143-129 to use a method of contracting not authorized under G.S. 143-128. The
use of any other alternative method shall be approved in advance by the SBC for
any single project.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1, 1996;
Eff. August 1, 1998.
01 NCAC 30G .0102 POLICY
Generally, it is the policy of the SBC that the public=s
interest is typically best served by the letting of public construction
contracts pursuant to the regular statutory procedures, particularly the
provisions of G.S. 143-128. Nevertheless, in addition to those situations when
a project cannot be completed using the standard methods, the SBC will
recognize certain extraordinary circumstances that are appropriate, in the
public's interest, and will justify an exemption from the methods of
contracting authorized under G.S. 143-128. Such extraordinary circumstances
must be created by some unusual or unforeseen occurrence or situation and
includes those situations set forth in 1 NCAC 30G .0105(b); any request made
for an exemption as a result of such extraordinary circumstance must
demonstrate to the SBC that requisite justification exists to obtain the
exemption.
History Note: Authority G.S. 143-135.26(9)(b);
Temporary Adoption Eff. July 1, 1996;
Eff. August 1, 1998.
01 NCAC 30G .0103 DEFINITIONS
For the purposes of the rules in this Section, the following
definitions shall apply:
(1) "Alternative contracting method" includes
but is not limited to:
(a) the single-prime contracting system, not
otherwise authorized under G.S. 143-128,
(b) the design-build delivery system, or
(c) the construction management delivery system.
(2) "Chairman" means the Chairman of the
State Building Commission.
(3) "Construction management delivery system"
means the alternative contracting method where the public owner contracts for a
fee with a single person, but not the project general contractor, who
administers contracts with separate contractors for the construction of the
project and who is responsible as agent to the public owner for the
coordination and management of the project, but where the public owner remains
liable to the separate contractors.
(4) "Design-build delivery system" means that
the public owner contracts for a fee with a single person for the design,
management and construction of a project.
(5) "Director" means the Director of the
State Construction Office.
(6) "Exemption" means the grant of
authorization by the SBC for the use of a method of contracting not otherwise
authorized under G.S. 143-128.
(7) "Person" means a person, firm or
corporation.
(8) "Project" means the building or facility
for which an exemption is requested by the public owner, and upon which the
work will be performed.
(9) "Public owner" means a state agency or
institution, a local government unit, or any other entity subject to the
provisions of G.S. 143-129.
(10) "SBC" means the State Building Commission.
(11) "Work" means the erection, repair,
construction, renovation or alteration to be performed upon a building or
facility.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1, 1996;
Eff. August 1, 1998.
01 NCAC 30G .0104 GENERAL PROCEDURES
(a) Application Form - The SBC shall establish a form of
application to be used by public owners requesting an exemption, which shall
upon request be provided to public owners. A completed application shall
contain all of the information necessary to enable the SBC to determine the
appropriateness and merits of approving an exemption.
(b) Rules for Application - The SBC, upon request, shall
provide public owners with a copy of the rules it adopts under the authority of
G.S. 143-135.26(9).
(c) Review of Application:
(1) The public owner shall submit the
application to the State Construction Office, Attention: Director, Department
of Administration, New Education Building, Suite 450, 301 North Wilmington
Street, Raleigh, North Carolina 27601-2827. The Director shall review the
application upon its receipt. If the Director determines that the application
is not complete, he shall return the application to the public owner along with
a written notice of the reasons for the return. Despite the return of an
application, a public owner may request in writing to the Director that the SBC
consider the application as originally submitted, and the notice of return to
the public owner shall so state this option. An application shall be
considered abandoned if it is returned pursuant to this section, and no further
action is taken by the public owner to satisfy the reasons for its return.
(2) Completed applications shall be considered
within 60 days of receipt by the Director of the completed application. Once
scheduled for consideration by the SBC, the public owner shall be given notice
of the date, time and location of the SBC meeting at which the application
shall be considered.
(3) The SBC shall only accept written applications.
After due consideration of these applications, the SBC shall take one of the
following actions:
(A) Delay consideration of the application;
(B) Deny the application; or
(C) Approve the application.
Within five days of the SBC's action upon the application,
notice of the same shall be sent to the public owner, and to the Director.
Upon a delay of consideration pursuant to Paragraph (a) of this Rule, the SBC
shall immediately request from the public owner or other person further
information required in order to make a determination, or provide the public
owner with notice of the reason for the delay.
(d) Approval of an Application - Approval of an application
authorizes the public owner to utilize only the alternative contracting method
as proposed by the public owner and no other method of contracting. Approval of
an application shall be effective for a period to be
determined by the SBC but not exceeding 12 months. Standards used by the SBC
in determining the effective length of an approval shall include, but not be
limited to, the request of the public owner, the experience of the public
owner, the SBC and the Director with the approved method, the recommendation of
the Director, and the nature of the project. The SBC may extend the effective
time period upon good cause shown by the public owner for no more than an
additional 12 months. Good cause must be shown by serious reasons including,
but not limited to, unforeseen acts or events that delay the project, acts of
war or terrorism, unavoidable casualties or other causes beyond the public
owner's control. The extension of an effective time period shall run from the
last day of the prior effective time period. The effective time period shall
run from the date the SBC approves the application.
(e) Conflicts of Interest - A member of the SBC is not
qualified to vote upon any matter or influence any other member's vote upon any
matter in which he has a conflict of interest. A conflict of interest, as
related to members of the SBC having an interest in contracts authorized by the
SBC, is defined in G.S. 143-135.28, and that definition applies to conflicts of
SBC members having an interest in projects for which alternative contracting
methods are authorized by the SBC.
(f) Public Records - The Director shall maintain a list of
applications which states the name of the public owner, the name of the
project, the project amount, a brief description of the category for which the
exemption is sought, and a record of the SBC's action. Applications, and a record
of the SBC's action upon those applications, shall be available for public
inspection.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1, 1996;
Eff. August 1, 1998.
01 NCAC 30G .0105 CRITERIA FOR CONSIDERATION
(a) General Considerations - Applications shall be subject
to the following general considerations which the SBC shall utilize in
reviewing all applications:
(1) Whether the public owner has adequately justified
that the requested exemption is applicable to the project.
(2) Whether under the circumstances presented
the project can be reasonably completed under the methods authorized under G.S.
143-128, and if not, whether the public owner has adequately demonstrated that
the proposed alternative contracting method is necessary.
(3) Whether the exemption sought is appropriate
and in the public's interest.
(4) Whether the public owner has been
responsible in the pre-planning stages of the project.
(b) Criteria for Exemptions - The following criteria
describe circumstances where the SBC recognizes that a project may not be able
to be reasonably completed under the methods authorized by G.S. 143-128, and
where the use of an alternative contracting system, not otherwise authorized by
G.S. 143-128, may be appropriate and in the public's interest:
(1) Special Technology or Equipment - The
project involves the erection or construction of special or unique technology
or equipment whose vendor requires that its services be purchased in
conjunction with the technology or equipment; or the vendor guarantees the
technology or equipment only if its services are purchased in conjunction with
the technology or equipment.
(2) Unusual Complexity - The project involves
one or more of the following conditions:
(A) very specialized or complex type of construction
involving unconventional construction techniques or materials, or unusual
working conditions;
(B) major renovations or an addition to an existing
facility requiring continuous coordination of occupied programs or operations
necessary for the protection of public health or safety; or
(C) extensive repairs, renovations or an addition to a
major building or facility listed either in the North Carolina or Federal
Register of Historic Properties.
(3) Accelerated Schedule - A fast track
schedule is required due to actual or impending judicial intervention by means
of a State or Federal court order, or to address actual or impending regulatory
mandates or citation for noncompliance.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1, 1996;
Eff. August 1, 1998.