§2225.2.4. Construction management at risk; public entity
A.
(1)Notwithstanding any other provision of law to the contrary, a public entity may
use the construction management at risk project delivery method to contract for a project to
construct public works as set forth in this Section.
(2)This Section creates an alternative project delivery method, known as
"construction management at risk", or "CMAR", for use by a public entity to award a contract
to construct public works when deemed in the public interest, beneficial to the owner, and
in accordance with the procedures in this Section. The following are reasons to use the
CMAR delivery method: collaboration and cost control; concurrent execution of design and
construction; a complex project with a tight time frame; owner, designer, a
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§2225.2.4. Construction management at risk; public entity
A.(1) Notwithstanding any other provision of law to the contrary, a public entity may
use the construction management at risk project delivery method to contract for a project to
construct public works as set forth in this Section.
(2) This Section creates an alternative project delivery method, known as
"construction management at risk", or "CMAR", for use by a public entity to award a contract
to construct public works when deemed in the public interest, beneficial to the owner, and
in accordance with the procedures in this Section. The following are reasons to use the
CMAR delivery method: collaboration and cost control; concurrent execution of design and
construction; a complex project with a tight time frame; owner, designer, and contractor with
mutual project goals; risk identification controlled by owner; and minimization of the risk
of construction and design disputes by using a collaborative process.
(3) CMAR shall not be used for any project that is estimated to cost less than five
million dollars, exclusive of a hospital service district as defined by R.S. 46:1072(2)(a) that
may not use CMAR for any project estimated to cost less than two million dollars. At least
sixty days prior to proceeding to use CMAR for any project that is estimated to cost less than
fifteen million dollars, a public entity shall deliver written notification of the proposed
CMAR project by name and description of the project, together with the reason to use
CMAR, to the House and Senate transportation, highways, and public works committees for
review and approval.
B. When used in this Section, the following words and phrases have the meanings
ascribed to them in this Section, unless the context indicates a different meaning:
(1) "Construction management at risk" or "CMAR" means a delivery method by
which the owner uses a design professional, who is engaged by the owner for professional
predesign or design services, or both. The owner contracts separately with a CMAR
contractor to engage in the preconstruction phase. As specified in this Section, the same
CMAR contractor may also provide construction services to build the project.
(2) "Construction management at risk contractor" or "CMAR contractor" means a
person, sole proprietorship, partnership, corporation, or other legal entity, properly licensed,
bonded, and insured, who does one or both of the following:
(a) Provides construction experience to the owner or its design professional during
the preconstruction phase regarding the constructability of the project.
(b) May contract with the owner to assume the risk to construct the project for a
guaranteed maximum price, without re-procurement.
(3) "Design professional" means an engineer, architect, or landscape architect who
has secured a professional license from a Louisiana registration board as required by state
law and who is selected by an owner in accordance with state law.
(4) "Owner" means a "public entity" as defined in R.S. 38:2211.
(5) "Selection review committee" means the committee appointed by the owner to
review the request for qualifications, score, or rank of the proposers, and recommend award
to a construction management at risk contractor. The committee shall consist of no more
than five individuals as follows:
(a) One design professional in the discipline of but not involved in the project.
(b) One licensed contractor in the discipline of but not involved in the project.
(c) One representative of the owner.
(d) Two members at large.
(6) All other terms shall have the meanings as provided for in R.S. 38:2211.
(7) All selection review committee members shall be required to sign an ethics
statement prior to commencement of any committee meeting.
C. Any owner who determines to use the construction management at risk method
shall indicate such intent in the request for qualifications to procure a CMAR contractor and
the reasons it deems such method to be in the public interest and beneficial to the owner.
D. There shall be no challenge by any legal process to the choice of the successful
construction manager at risk contractor except for fraud, bias for pecuniary or personal
reasons not related to the taxpayers' interest, or arbitrary and capricious selection by the
owner.
E.(1) Prior to the selection committee conducting business, the owner, the owner's
representative, or an assigned RFQ coordinator shall inform the committee on the RFQ, the
project, the scoring and ranking procedure, the conduct of the committee's responsibility, and
any particulars of the project.
(2) The owner shall select and contract with a design professional for design services
in the manner provided for by law.
F.(1) A request for qualifications, or RFQ, to award a contract for a construction
management at risk contractor for preconstruction and construction services shall be
advertised in the official journal of the owner and, if one exists, on the Internet website of
the owner. The RFQ shall be advertised at least two times within the thirty-day period prior
to the deadline for receipt of responses.
(2) The RFQ shall include the following as well as any other pertinent information
limited to the qualifications of a proposer that the owner determines a proposer may need to
submit in a response to an RFQ:
(a) The preconstruction scope of services.
(b) Submittal criteria for the project.
(c) Procurement grading criteria.
(d) Scoring methodology.
(e) Total fees and compensation payable to the CMAR contractor for preconstruction
services.
(f) The estimate of the probable construction costs for the project.
(3) The RFQ may request that proposers include the following in response to the
RFQ, as well as any other appropriate factors that would, in the opinion of the owner,
demonstrate the capability of the proposer to perform the role of CMAR contractor:
(a) The proposer's surety.
(b) Construction methodologies previously used by the proposer on other projects.
(c) Extent to which the proposer intends to self-perform portions of the work, if
applicable.
(d) Past performance of the proposer including timely completion of other public
works projects of similar complexity and size.
(e) Proposed management and staffing for the project.
(f) The proposer's last safety record to include current experience modification rate,
or EMR, recordable incident rate, or RIR, lost work time incident rate, or other data as
required by the owner.
(g) The proposer's standard safety plan.
(4) Within ninety days after the deadline for responses to the RFQ, a selection review
committee chosen by the owner and identified in the RFQ shall make a written
recommendation to the owner as to which proposer should be awarded the contract. The
results of the selection review committee, inclusive of its findings, grading, score sheets, and
recommendations, shall be available for review by all proposers and shall be deemed public
records. The exceptions to the Open Meetings Law are applicable to the selection review
committee meetings where individual proposers will be interviewed pursuant to R.S.
42:17(A)(10).
(5) The benefits of using the CMAR method reduce as the design process progresses.
The owner shall select the CMAR contractor either before, but not later than, when in the
professional opinion of the owner's design professional, the design professional's design of
the project is not more than thirty percent complete.
(6) If the owner deems the highest scored or ranked proposer to be nonresponsive
or nonresponsible, then the public entity may award the project to the next highest scored or
ranked proposer.
G. After award and execution of the contract with the CMAR contractor, the
following actions shall proceed:
(1) The design professional, in consultation with the CMAR contractor, shall proceed
with design services.
(2) The owner shall obtain an opinion of probable cost of the project from both the
CMAR contractor and the design professional when final design of the project is not more
than sixty percent complete, and again when final design of the project is not more than
ninety percent complete.
(3) The CMAR contractor shall provide to the owner a guaranteed maximum price
for construction of the project, before or upon completion of the final design.
(4) If the owner and CMAR contractor are able to negotiate, and to establish and
agree upon a guaranteed maximum price, or GMP, to render construction services for the
project, and additionally, to agree upon constructability, construction phasing and
sequencing, and the maximum number of contract days to complete the project, the owner
may then award the contract for construction services to the CMAR contractor for the
construction phase of the contract.
(5) Once a guaranteed maximum price is agreed upon, the owner may contract with
the CMAR contractor to undertake construction services. Additionally, the owner may
determine and contract with the CMAR contractor to undertake specific items of construction
services prior to agreement upon a GMP for such items, provided such undertaking is for the
benefit of the project and a GMP for the undertaking can be agreed upon between the owner
and CMAR contractor. Such items may benefit the project, including but not limited to items
that require a long lead time, may further the understanding of unknown site conditions, or
other items.
(6) If the owner and the CMAR contractor are not able to agree upon
constructability, construction phasing and sequencing, the GMP for the project, the
maximum number of contract days to complete the project, and to reach a negotiated
agreement, then the project shall be readvertised and publicly bid utilizing the design-bid-build delivery method, provided the CMAR contractor shall be prohibited from bidding on
the project.
H. The provisions of this Section shall supersede any conflicting provisions of any
law, including but not limited to the requirements of Chapter 10 of this Title, but the
provisions of such Chapter shall otherwise be applicable to such contracts.