§ 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.