2013 -- S 0888

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LC02308

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO PUBLIC PROPERTY AND WORKS

     Introduced By: Senators Miller, Gallo, Doyle, Ciccone, and Lombardi

     Date Introduced: April 25, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 37-2-18, 37-2-27.1 and 37-2-39 of the General Laws in Chapter

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37-2 entitled "State Purchases" are hereby amended to read as follows:

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     37-2-18. Competitive sealed bidding. -- (a) Contracts exceeding the amount provided by

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section 37-2-22 shall be awarded by competitive sealed bidding unless it is determined in writing

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that this method is not practicable or that the best value for the state may be obtained by using an

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alternative method of management of construction contracting as provided under this chapter or

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regulations promulgated pursuant to section 37-2-39 electronic reverse auction as set forth in

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section 37-2-18.1. Factors to be considered in determining whether competitive sealed bidding is

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practicable shall include whether:

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      (1) Specifications can be prepared that permit award on the basis of either the lowest bid

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price or the lowest evaluated bid price; and

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      (2) The available sources, the time and place of performance, and other relevant

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circumstances as are appropriate for the use of competitive sealed bidding. ;

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     (3) The anticipated complexity of the project such as infrastructure, structure, demolition,

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abatement, adjacency to other structures, or abutters, site constraints, building systems,

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uniqueness of design elements or environmental implications;

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     (4) The size, scope, and estimated cost of the project;

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     (5) The adequacy of available documentation regarding the existing site, buildings or

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structures; abutters infrastructure, buildings, or structures; or other documentation of as-built

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conditions;

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     (6) Phasing or logistical challenges arising out of the need to maintain existing

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occupancy, continue existing operations, provide phased occupancy, or achieve more favorable

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project financing terms;

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     (7) The anticipated impact of fast tracked design and construction on project cost or

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schedule;

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     (8) Potential to achieve optimal minority or women business enterprise participation in

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accordance with applicable state regulations;

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     (9) The amount and type of financing available for the project, including, whether the

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budget is fixed and the source of funding, e.g., general or special appropriation, federal assistance

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moneys, general obligation bonds or revenue bonds;

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     (10) The administration or implementation of procedures required to comply with

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applicable regulations or statutes; and

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     (11) Mitigating the potential claims against the state arising from the inherent risks

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associated with factors noted in subdivisions (3) through (10) above.

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      (b) The invitation for bids shall state whether the award shall be made on the basis of the

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lowest bid price or the lowest evaluated or responsive bid price. If the latter basis is used, the

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objective measurable criteria to be utilized shall be set forth in the invitation for bids, if available.

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All documents submitted in response to the bid proposal are public pursuant to chapter 38-2 upon

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opening of the bids. The invitation for bids shall state that each bidder must submit a copy of their

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bid proposal to be available for public inspection upon the opening of the bids. The burden to

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identify and withhold from the public copy that is released at the bid opening any trade secrets,

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commercial or financial information, or other information the bidder deems not subject to public

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disclosure pursuant to chapter 38-2, the Access to Public Records Act, shall rest with the bidder

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submitting the bid proposal.

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      (c) Unless the invitations for bid are accessible under the provisions as provided in

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section 37-2-17.1, public notice of the invitation for bids shall be given a sufficient time prior to

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the date set forth therein for the opening of bids. Public notice may include publication in a

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newspaper of general circulation in the state as determined by the purchasing agent not less than

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seven (7) days nor more than twenty-eight (28) days before the date set for the opening of the

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bids. The purchasing agent may make a written determination that the twenty-eight (28) day

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limitation needs to be waived. The written determination shall state the reason why the twenty-

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eight (28) day limitation is being waived and shall state the number of days, giving a minimum

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and maximum, before the date set for the opening of bids when public notice is to be given.

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      (d) Bids shall be opened and read aloud publicly at the time and place designated in the

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invitation for bids. Each bid, together with the name of the bidder, shall be recorded and an

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abstract made available for public inspection.

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      (e) The chief purchasing officer shall adopt and file regulations governing the bidding of

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highway and bridge construction projects in the state not later than December 31, 2011.

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      (f) Immediately subsequent to the opening of the bids, the copies of bid documents

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submitted pursuant to subsection 37-2-18(b) shall be made available for inspection by the public.

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Any objection to any bid on the grounds that it is nonresponsive to the invitation for bids must be

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filed with the purchasing agent within five (5) business days of the opening of the bids. The

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purchasing agent shall issue a written determination as to whether the subject bid is

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nonresponsive addressing each assertion in the objection and shall provide a copy of the

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determination to the objector and all those who submitted bids at least seven (7) business days

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prior to the award of the contract. If a bid is nonresponsive to the requirements in the invitation to

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bid, the bid is invalid and the purchasing agent shall reject the bid. The purchasing agent shall

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have no discretion to waive any requirements in the invitation to bid which are identified as

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mandatory. Nothing in this section shall be construed to interfere with or invalidate the results of

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the due diligence conducted by the division of purchasing to determine whether bids are

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responsive and responsible.

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      (g) Subsequent to the awarding of the bid, all documents pertinent to the awarding of the

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bid that were not made public pursuant to subsection 37-2-18(e) shall be made available and open

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to public inspection, pursuant to chapter 38-2, the Access to Public Records Act, and retained in

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the bid file. The copy of the bid proposal provided pursuant to subsection 37-2-18(b) shall be

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retained until the bid is awarded.

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      (h) The contract shall be awarded with reasonable promptness by written notice to the

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responsive and responsible bidder whose bid is either the lowest bid price, lowest evaluated, or

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responsive bid price.

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      (i) Correction or withdrawal of bids may be allowed only to the extent permitted by

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regulations issued by the chief purchasing officer.

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      (j) As of January 1, 2011, this section shall apply to contracts greater than one million

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dollars ($1,000,000); on January 1, 2012 for all contracts greater than seven hundred fifty

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thousand dollars ($750,000); on January 1, 2013 for all contracts greater than five hundred

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thousand dollars ($500,000); and on January 1, 2014 for all contracts awarded pursuant to this

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section.

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     37-2-27.1. Procurement of construction manager at-risk services -- Written

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determination. -- (a) Prior to procuring construction manager at-risk services the chief

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purchasing officer must sign a written determination documenting the following:

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      (1) That in accordance with the factors set forth in subsection section 37-2-18(a), a

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general contractor selected as the lowest responsive bidder based on a lump-sum, fixed fee

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contract is not practicable for the construction of the project and or will not result in the best

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value for the state;

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      (2) That the using agency has clearly identified in writing why the use of construction

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management at-risk services is appropriate for the building project;

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      (3) That the building project has an estimated construction value of five million dollars

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($5,000,000) or more;

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      (4) That the using agency has in place written procedures to ensure fairness in

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competition, evaluation and reporting of results at every stage in the procurement process;

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      (5) That the using agency has the capacity, a detailed plan and procedures in place to

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effectively procure and manage construction management at-risk services for the specific project

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and has procured the services of a qualified owner's program manager pursuant to chapter 37-2;

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and

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      (6) That the using agency has a detailed, written plan with clearly identified procedures

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to monitor and approve all reimbursable costs.

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      The chief purchasing officer shall file copies of the written determination with the

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president of the senate, the speaker of the house, the senate fiscal advisor and the house fiscal

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advisor no later than three (3) business days after executing the written determination.

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      (b) Notwithstanding any other provision to the contrary, including any provision

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exempting any entity from the requirements of this chapter, the chief executive officer of a public

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corporation as defined in subdivision 35-20-5(4) or the chief executive officer of a quasi-public

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agency, prior to procuring construction manager at-risk services shall sign a written determination

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documenting the following:

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      (1) That in accordance with the factors set forth in subsection section 37-2-18(a), a

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general contractor selected as the lowest responsive bidder based on a lump-sum, fixed fee

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contract is not practicable for the construction of the project and or will not result in the best

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value for the state;

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      (2) Why the use of construction management at-risk services is appropriate for the

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building project;

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      (3) That the building project has an estimated construction value of five million dollars

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($5,000,000) or more;

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      (4) That there is in place written procedures to ensure fairness in competition, evaluation

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and reporting of results at every stage in the procurement process;

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      (5) That the corporation or quasi-public agency has the capacity, a detailed plan, and

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procedures in place to effectively procure and manage construction management at-risk services

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for the specific project and has procured the services of a qualified owner's program manager, as

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set forth in subdivision 37-2-7(32); and

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      (6) That there is a detailed, written plan with clearly identified procedures to monitor and

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approve all reimbursable costs.

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      The chief executive officer shall file copies of the written determination with the

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president of the senate, the speaker of the house, the senate fiscal advisor, and the house fiscal

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advisor no later than three (3) business days after executing the written determination.

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     37-2-39. Responsibility for selection of methods of construction contracting

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management. -- The chief purchasing officer shall issue regulations providing for as many

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alternative methods of management of construction contracting as he or she may determine to be

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feasible, setting forth criteria factors to be used in determining which method of management of

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construction is to be used for a particular project, and granting to the purchasing agent, or the

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purchasing agency responsible for carrying out the construction project, the discretion to select

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the appropriate method of construction contracting for a particular project, provided, however,

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that the chief purchasing officer shall execute and include in the contract file a written statement

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setting forth the facts which led to the selection of a particular method of management of

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construction contracting in each instance.

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     SECTION 2. This act shall take effect upon passage.

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LC02308

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PUBLIC PROPERTY AND WORKS

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     This act would make changes to the law permitting the state to enter into non-competitive

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bid construction and demolition contracts under some circumstances.

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     This act would take effect upon passage.

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LC02308

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