Title 37
Public Property and Works

Chapter 2
State Purchases

§ 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.