2014 -- S 2344

========

LC004107

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

____________

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS

     Introduced By: Senators Lombardi, McCaffrey, Lombardo, Conley, and Jabour

     Date Introduced: February 12, 2014

     Referred To: Senate Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 37-2-27.1 of the General Laws in Chapter 37-2 entitled "State

Purchases" is hereby amended to read as follows:

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

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

purchasing officer must sign a written determination documenting the following:

      (1) That in accordance with the factors set forth in subsection (c) of this section section

37-2-18, a general contractor selected as the lowest responsive bidder based on a lump-sum, fixed

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

value for the state;

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

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

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

($5,000,000) or more;

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

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

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

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

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

and

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

to monitor and approve all reimbursable costs.

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

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

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

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

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

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

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

documenting the following:

      (1) That in accordance with the factors set forth in subsection (c) of this section section

37-2-18, a general contractor selected as the lowest responsive bidder based on a lump-sum, fixed

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

value for the state;

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

building project;

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

($5,000,000) or more;

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

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

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

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

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

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

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

approve all reimbursable costs.

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

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

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

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

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

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

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

lowest bid or the lowest evaluated bid price;

LC004107 - Page 2 of 4

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

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

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

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

constraints, building systems, uniqueness of design elements, or environmental implications;

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

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

structures, abutter infrastructure, buildings, or structures, or other documentation of as-built

conditions;

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

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

project financing terms;

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

schedule;

     (8) Potential to achieve optimal minority or woman business enterprise or other

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

laws;

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

budget is fixed and the source of funding, for example, general or special appropriation, federal

assistance moneys, general obligation bonds or revenue bonds;

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

applicable regulations or statutes; and

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

associated with factors noted in subdivisions (3) through (10) of this subsection.

     (d) The provisions of Rhode Island general law §§ 37-2-27.1 through 37-2-27.5 shall not

apply to road, bridge and heavy construction projects that are managed by the Rhode Island

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

are subject to the methods of management of construction contracting, including the criteria for

selecting such methods, that are set forth in applicable federal laws including, but not limited to,

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

     SECTION 2. This act shall take effect upon passage.

========

LC004107

========

LC004107 - Page 3 of 4

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS

***

     This act would amend the provisions of the general laws relating to the written

determination of procurement of construction manager at-risk services, by delineating those

conditions or situations when competitive sealed bidding is not practicable or will not result in the

best values for the state.

     This act would take effect upon passage.

========

LC004107

========

LC004107 - Page 4 of 4