2013 -- S 0888 SUBSTITUTE A

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LC02308/SUB A

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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. Section 37-2-27.1 of the General Laws in Chapter 37-2 entitled "State

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Purchases" is hereby amended to read as follows:

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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 (c) below section 37-2-18,

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a 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 (c) below section 37-2-18,

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a 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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     (c) When evaluating the procurement of construction manager at-risk services, the factors

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which may be considered in determining whether competitive sealed bidding is not practicable or

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will not result in the best value for the state shall include:

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     (1) Whether specifications can be prepared that permit award on the basis of either the

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lowest bid or the lowest evaluated bid price;

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

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

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     (3) The complexity of the project including the existing or proposed infrastructure or

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structures, required demolition or abatement, adjacency to other structures or abutters, site

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constraints, building systems, 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, abutter 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 woman business enterprise or other

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subcontractor or vendor participation required in accordance with any applicable state or federal

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laws;

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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, for example, general or special appropriation, federal

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assistance 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 (3) through (10) above.

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     (d) The provisions of Rhode Island general law sections 37-2-27.1 through 37-2-27.5

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shall not apply to road, bridge and heavy construction projects that are managed by the Rhode

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Island department of transportation and are funded in whole or in part by federal funds. Such

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projects are subject to the methods of management of construction contracting, including the

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criteria for selecting such methods, that are set forth in applicable federal laws including, but not

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limited to, 23 U.S.C. section 112(b) as amended, and regulations promulgated thereunder.

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     SECTION 2. This act shall take effect upon passage.

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LC02308/SUB A

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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 amend the provisions of the written determination of procurement of

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construction manager at-risk services by delineating those conditions or situations when

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competitive sealed bidding is not practicable or will not result in the best values for the state.

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     This act would take effect upon passage.

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LC02308/SUB A

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