200 KAR 5:365. Alternative project delivery methods for capital
construction.
RELATES
TO: KRS 45A.030, 45A.085, 45A.180, 45A.183, 45A.690-45A.725
STATUTORY
AUTHORITY: KRS 45A.180, 45A.183
NECESSITY,
FUNCTION, AND CONFORMITY: KRS 45A.180 requires the Secretary of the Finance and
Administration Cabinet to promulgate administrative regulations for the
implementation of as many recognized alternative methods of management of
construction contracting as are determined to be feasible. This administrative
regulation implements the provisions of KRS 45A.180 and 45A.183 relating to
alternative construction delivery methods.
Section
1. Definitions. (1) "Alternative construction delivery method" means
a delivery method other than design-bid-build.
(2)
"Chief purchasing officer" is defined by KRS 45A.030(3).
(3)
"Construction management-at-risk" is defined by KRS 45A.030(6).
(4)
"Construction manager-agency" is defined by KRS 45A.030(5).
(5)
"Construction manager-general contractor" is defined by KRS 45A.030(7).
(6)
"Design-bid-build" is defined by KRS 45A.030(12).
(7)
"Design-build" is defined by KRS 45A.030(13).
Section
2. Use of Alternative Construction Delivery Methods. (1) An alternative construction
delivery method may be appropriate for a competitive process, consistent with
KRS Chapter 45A, if the chief purchasing officer issues a written determination
that due to the nature, detail, or circumstances of a project:
(a)
It is not appropriate to solicit competitive bids using the conventional
design-bid-build delivery method; and
(b)
An alternative construction delivery method is justified. The determination
shall include a description of facts justifying use of an alternative
construction delivery method, and shall state whether the method to be used shall
be one of "construction management-at-risk,"
"design-build," "construction manager-general contractor,"
or "construction manager-agency."
(2)
The criteria for determining the utilization of a specific alternative delivery
method for a particular project shall include factors, such as the project's:
(a)
Dollar scope;
(b)
Anticipated schedule;
(c)
Type; and
(D)
Overall complexity.
Section
3. (1) If it has been determined that it is not appropriate to solicit
competitive bids using the conventional design-bid-build delivery method,
action to deliver a capital construction project using a specific alternative
construction delivery method shall commence by solicitation of written
proposals as provided in this section. A copy of the request for proposals
shall be transmitted to the Capital Projects and Bond Oversight Committee
staff.
(2)
A solicitation of proposals for competitive negotiation shall state:
(a)
That the purchasing agency proposes to enter into competitive negotiation with
responsible offerors;
(b)
The date, hour, and place that written proposals shall be received;
(c)
The type of alternative delivery method involved and the associated
requirements;
(d)
A description of the services sought and the procurement procedures to be
followed;
(e)
Specifications, or the location where specifications may be obtained;
(f)
The specific qualitative and pricing evaluative factors, with associated
scoring values or weights, to be considered in determining the proposal most
advantageous to the commonwealth, with qualifications and price to be weighted
at not less than twenty-five (25) percent and fifty (50) percent respectively;
(g)
The level or quantity of information required from each offeror to allow for
equitable evaluation;
(h)
The proposed method of award of contract;
(i)
Other information as may be desirable or necessary to reasonably inform
potential offerors of technical, performance, and any other data and
requirements of the procurement;
(j)
The existence of a funding limitation, if determined to be in the best interest
of the commonwealth;
(k)
The amount of the funding limit, if it is determined by the Director of the
Division of Contracting and Administration that disclosure of the amount of the
funding limit will promote competition and will be in the best interest of the commonwealth;
and
(l)
The level or amount of stipends, if any, to be provided and to whom, contingent
upon funding limitations. Stipends shall only be provided if adequate funds are
available over and above the required project costs.
(3)
If a funding limit has been established, proposals that exceed the funding
limit may be rejected.
Section
4. (1) Procedures for the manner in which proposals will be evaluated shall be
established by the purchasing officer per the requirements of the competitive
negotiation for each procurement and shall be set forth in the request for
proposals. The purchasing officer may request offerors to submit written
clarification or explanation of their proposals, and the proposal of any
offeror who fails to respond or to request an extension of time to respond
within the time requested may be rejected.
(2)
Proposals shall be evaluated based upon factors stated in the request for
proposals. Numerical rating systems shall be used.
Section
5. The Director of the Division of Contracting and Administration shall appoint
an evaluation committee of scoring and nonscoring (technical) members with
membership comprised of personnel from the Finance and Administration Cabinet
and the user agency for which the project is being constructed. The Director of
the Division of Contracting and Administration shall determine, in writing, the
number of committee members based upon the financial scope and technical
complexity of the subject project, with no less than four (4), nor more than
seven (7), scoring members.
Section
6. Interim preproposal meetings may be conducted with potential offerors to
allow for questions and clarifications regarding project plans and
specifications provided as a part of the request for proposals. A written
confirmation of all information presented in these meetings shall become an
official addendum to the procurement documents and provided to all potential
offerors. The number of preproposal meetings shall be determined by the
Director of the Division of Contracting and Administration and stated in the
request for proposals.
Section
7. All written proposals received by the procurement agency in response to a
solicitation shall be kept secure and unopened by the purchasing officer until
the date and hour established for opening the proposals. If a proposal is not
clearly marked, it may be opened for identification purposes, and shall be
appropriately identified with reference to the particular procurement and resealed
until the time for opening proposals.
Section
8. At the close of the proposal submission deadline, all proposals received
shall be opened by the purchasing officer. The purchasing officer shall examine
each written proposal received for general conformity with the terms of the
procurement. If, after examination of the written proposals initially
submitted, there is a written determination that no acceptable proposal has
been submitted:
(a)
All proposals may be rejected and new proposals may be solicited on the basis
of the same, or revised terms; or
(b)
The procurement may be abandoned.
Section
9. If, after solicitation of proposals to enter into competitive negotiations,
only one (1) proposal responsive to the solicitation is received, the
purchasing officer may commence negotiations with the single offeror and any
resulting contract entered into with that offeror shall be valid as if it was a
competitively negotiated contract and awarded in accordance with KRS 45A.085
and this administrative regulation. The terms and conditions of the contract
shall not in any material respect deviate in a manner detrimental to the
purchasing agency from the terms and conditions specified in the solicitation
for proposals.
Section
10. The purchasing officer shall hold separate any pricing information before
forwarding all conforming proposals to the appropriate, designated evaluation
committee for qualitative evaluation. Pricing information shall be kept
separate and secure until it is combined with the evaluation committee aggregate
qualitative scoring to achieve the final score for the procurement process as
set forth in the request for proposals.
Section
11. Proposals shall not be subject to public inspection until the procurement
process has been completed and a contract awarded to the highest scoring,
responsible offeror submitting the proposal determined to be the most
advantageous to the commonwealth, based upon the pricing and qualitative
evaluation factors set forth in the solicitation.
Section
12. Discussions with offerors by any member of the evaluation committee
relative to the procurement shall be discouraged except during the selection
committee interview process. Any ex parte communications between offerors and
members shall be documented by each member with a written summary of all discussions
setting forth both the dates and the general substance of the discussions.
Verbatim records of the discussion shall not be required. The written summaries
shall become part of the procurement file.
Section
13. An awarded contract utilizing an alternative project delivery method shall
be submitted to the Government Contract Review Committee for review in
accordance with KRS 45A.690 to 45A.725. (31 Ky.R. 229; Am. 931, eff. 11-22-2004; 42
Ky.R. 456; 1130; eff. 11-6-2015.)
