TITLE 37
Public Property and Works
CHAPTER 37-2
State Purchases
SECTION 37-2-27.3
§ 37-2-27.3 Procurement of construction
manager at-risk services Technical review committee.
(a) When procuring construction manager at-risk services for a using agency,
other than a public corporation or a public agency, a technical review
committee shall be appointed by the chief purchasing officer to evaluate the
statements of qualifications, performance data, and cost proposals submitted
and any other relevant information. The technical review 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 construction of capital projects; 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 committee shall prequalify at least two (2) firms as professionally and
technically qualified. If unable to prequalify two (2) firms, then the
technical review committee may either re-advertise the request for proposals or
may 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, then the chief purchasing officer shall require the using
agency to utilize the general contractor method of construction management for
the project.
(c) 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 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 negotiations concerning proposed changes to the standardized contract with
all offerors determined in writing to be reasonably susceptible to being
selected for award. Any negotiations conducted must be clearly memorialized
through the detailed documentation of the decisions made and the reasons for
those decisions.
(4) The technical review committee shall submit its written
recommendations of eligible construction management at-risk firms to the chief
purchasing officer.
(5) 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 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 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 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 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 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 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 construction management at-risk contract.
History of Section.
(P.L. 2011, ch. 336, § 2; P.L. 2011, ch. 385, § 2; P.L. 2014, ch.
357, § 1; P.L. 2014, ch. 400, § 1.)