§ 40-905 — CONTRACTS — CONSTRUCTION MANAGER/GENERAL CONTRACTOR

(1) The preferred contracting method of the department shall be as described in section 40-902, Idaho Code. The department may select construction manager/general contractor (CM/GC) firms and award contracts for highway projects as provided herein. CM/GC highway projects shall be of appropriate size and scope to encourage maximum competition and participation by qualified firms. CM/GC procedures may be used for a specific highway project only after the board determines that awarding a CM/GC contract will serve the public interest and is superior to that described in section 40-902, Idaho Code. The following criteria shall be used as the minimum basis for determining when to use CM/GC contract procedures:
(a) Project suitability for CM/GC contracting regarding time constraints, costs and quality factors;
(b) The availability, capability and experience of potential CM/GC firms;
(c) The department’s ability to manage CM/GC projects, including employing experienced personnel or outside consultants; and
(d) Other criteria the department deems relevant and states in writing in its determination to use CM/GC contract procedures.
(2) No more than twenty percent (20%) of the department’s annual highway construction budget for the state transportation improvement program shall be used for design-build and CM/GC contracts combined.
(3) No less than thirty percent (30%) of any CM/GC contract awarded shall be self-performed by the CM/GC firm awarded such contract.
(4) A professional engineer licensed in the state of Idaho shall have responsible charge of preparing the request for proposals (RFP). Responsible charge shall be as defined in section 54-1202, Idaho Code. The professional engineer shall not be affiliated with any CM/GC firm submitting proposals on the project.
(5) Any CM/CG firm shall comply with all applicable requirements of chapter 19, title 54, Idaho Code. The requirements of chapter 45, title 54, Idaho Code, do not apply.
(6) For each proposed CM/GC project, the department shall designate an evaluation committee. The members of the evaluation committee shall include at least five (5) members who are qualified by education and experience. To assist in the evaluation process, the evaluation committee may retain the services of nonvoting members.
(7) After award of the contract, and upon written request, all unsuccessful CM/GC firms shall be afforded the opportunity for a debriefing. Debriefings shall be provided at the earliest feasible time after a CM/GC firm has been selected for award. The debriefing shall:
(a) Be limited to discussion of the unsuccessful CM/GC firm’s proposal and shall not include specific discussion of a competing proposal;
(b) Provide information on areas in which the unsuccessful CM/GC firm’s proposal had weaknesses or deficiencies; and
(c) Maintain the confidentiality of the evaluation committee members and the other CM/GC firms.
(8) Contracts for the services of a CM/GC shall be awarded through a competitive process requiring the public solicitation of requests for proposals for CM/GC services. The request for proposals shall include price components and meeting requirements as stated in the request for proposals.
(9) The department shall advertise requests for proposals in accordance with the procedures outlined in section 40-902 (1), Idaho Code.
(10) The RFP shall address potential organizational conflicts of interest.
(a) No person or business entity that assisted the department in preparing the solicitation documents will be allowed to participate as a CM/GC firm or as a member of the CM/GC firm’s team; however, the department may determine that there is not an organizational conflict of interest where:
(i) The role of the person or business entity was limited to provision of preliminary design, reports or similar "low-level" documents that may be incorporated into the solicitation but did not include assistance in the development of instructions to CM/GC firms or evaluation criteria; or
(ii) Where all documents and reports delivered to the department by the person or business entity are made available to all potential CM/GC firms.
(b) The CM/GC firm shall disclose all relevant facts concerning any past, present or currently planned interests that may present an organizational conflict of interest.
(c) If at any time during the selection process or during the contract period a previously undetermined organizational conflict of interest arises, the CM/GC firm must disclose that information as soon as discovered and mitigate or eliminate the conflict.
(11) At a minimum, the request for proposals shall include:
(a) A description of the project, including programmatic, performance, and technical requirements and specifications when available;
(b) A description of the qualifications to be required of the firm;
(c) A description of the requirements of key personnel;
(d) A description of the process the department will use to evaluate qualifications and proposals, including evaluation and scoring criteria;
(e) Schedule of items for which the CM/GC firm shall submit unit prices;
(f) A requirement that the CM/GC firm describe its approach to pricing; and
(g) The form of the contract, including any contract for preconstruction services, to be awarded.
(12) Evaluation factors for selection of the CM/GC shall include, but not be limited to:
(a) Ability of the firm’s key personnel;
(b) Financial, labor and equipment resources available for the project;
(c) Ability of the firm to meet time and budget requirements;
(d) Scope of work the firm proposes to self-perform and its ability to perform that work;
(e) The firm’s approach to working collaboratively with the department, and the department’s consultant(s) when applicable, and to executing the project;
(f) Construction experience in similar projects;
(g) Submitted unit prices;
(h) Approach to pricing; and
(i) Organizational conflicts of interest.
(13) The basis for selection shall be stated in the request for proposal. Selection shall be based on the responsible proposer whose proposal is evaluated as providing the best value to the department.
(14) The contract shall be awarded in two (2) phases. The first is for services during the design phase that may include life-cycle cost considerations, scheduling, cost estimating, constructability, alternative construction options for cost savings, and sequencing of work. The second phase is for construction services. The second phase will be awarded after the plans have been sufficiently developed and a guaranteed maximum price for construction services has been successfully negotiated. Incremental construction phases may be awarded after guaranteed maximum prices are negotiated for each phase.
(a) For the first phase, the department may either:
(i) Reject all proposals;
(ii) Award a contract to the best evaluated CM/GC firm; or
(iii) Award to the next best evaluated CM/GC firm if the best evaluated CM/GC firm is determined to be nonresponsive, declines the award and forfeits the proposal guaranty or the parties are unable to reach a mutually acceptable contract.
(b) For the second phase, the department may either:
(i) Award a construction contract or incremental construction contracts upon successful negotiations of a guaranteed maximum price; or
(ii) Advertise, bid and award in accordance with section 40-902, Idaho Code.
(15) The CM/GC shall provide performance and payment bonds during construction phases.
(16) The department is not required to award a contract. If awarded, however, a contract shall be executed and notice given to proceed with the work.
(17) The department shall provide to each CM/GC firm that submitted proposals the summary of scores of all proposers and the CM/GC firms’ evaluation worksheets within three (3) business days following notification of intent to award. The confidentiality of the evaluation committee members and other CM/GC firms shall be maintained.
(18) CM/GC firms that submit proposals and are not selected for the award of the contract may challenge the department’s determination in accordance with the procedures outlined in section 40-902 (5), Idaho Code. A challenge must be filed with the department within seven (7) calendar days following the date the department transmitted the evaluation scores and worksheets.

Legislative History

[40-905, added 2010, ch. 293, sec. 15, p. 791.]