AN ACT Relating to
innovative prison construction; amending RCW 39.04.210, 39.04.220, and
39.04.230; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 39.04.210 and 1991 c
130 s 1 are each amended to read as follows:
The legislature
recognizes that fair and open competition is a basic tenet of public works
procurement, that such competition reduces the appearance of and
opportunity for favoritism and inspires public confidence that contracts are
awarded equitably and economically, and that effective monitoring
mechanisms are important means of curbing any improprieties and establishing
public confidence in the process by which contractual services are procured.
The legislature finds that there ((exists an urgent)) will continue
to exist a need for additional correctional facilities due to the
inadequate capacity of existing correctional facilities to accommodate the ((present
size and)) predicted growth of offender populations and that it is
necessary to provide public works contract options for the effective
construction and repair of additional department of corrections facilities.
((The legislature further finds that both the need and the urgency to
construct additional state correctional facilities requires the temporary use
of more expedient methods for awarding state construction contracts for
correctional facilities.))
Sec. 2. RCW 39.04.220 and 1991 c
130 s 2 are each amended to read as follows:
(1) In addition to
currently authorized methods of public works contracting, and in lieu of the
requirements of RCW 39.04.010 and 39.04.020 through 39.04.060, capital projects
funded for over ten million dollars ((appropriated and)) authorized by
the legislature for the department of corrections ((in the 1989‑91
biennium at the McNeil Island corrections center, the Clallam Bay corrections
center, the construction of new correctional facilities under the authority of
the secretary of corrections including drug camps; work camps; a new medium
security prison and such other correctional)) to construct or repair
facilities ((as may be authorized by the legislature during the biennium
ending June 30, 1993,)) may be accomplished under contract using the
general contractor/construction manager method described in this section. In
addition, the general contractor/construction manager method may be used for up
to two demonstration projects under ten million dollars for the department of
corrections. Each demonstration project shall aggregate capital projects
authorized by the legislature at a single site to total no less than three
million dollars with the approval of the office of financial management. The
department of general administration shall present its plan for the aggregation
of projects under each demonstration project to the oversight advisory
committee established under subsection (2) of this section prior to soliciting
proposals for general contractor/construction manager services for the
demonstration project.
(2) For the
purposes of this section, "general contractor/construction manager"
means a firm with which the department of general administration has selected
and negotiated a maximum allowable construction cost to be guaranteed by the
firm, after competitive selection through a formal advertisement, and
competitive bids to provide services during the design phase that may
include life-cycle cost design considerations, value engineering, scheduling, cost
estimating, constructability, alternative construction options for cost
savings, and sequencing of work, and to act as the construction manager and
general contractor during the construction phase. The department of general
administration shall establish an independent oversight advisory committee with
representatives of interest groups with an interest in this subject area, the
department of corrections, and the private sector, to review selection and
contracting procedures and contracting documents. The oversight advisory
committee shall discuss and review the progress of the demonstration projects.
The general contractor/construction manager method is limited to ((contracts
signed)) projects authorized on or before July 1, ((1996)) 1997.
(((2))) (3)
Contracts for the services of a general contractor/construction manager awarded
under the authority of this section shall be awarded through a competitive
process requiring the public solicitation of proposals for general
contractor/construction manager services. Minority and women enterprise total
project goals shall be specified in the bid instructions to the general
contractor/construction manager finalists. The director of general
administration is authorized to include an incentive clause in any contract
awarded under this section for savings of either time or cost or both from that
originally negotiated. No incentives granted shall exceed five percent of the
maximum allowable construction cost. The director of general administration or
his or her designee shall establish a committee to evaluate the proposals
considering such factors as: Ability of professional personnel; past
performance in negotiated and complex projects; ability to meet time and budget
requirements; location; recent, current, and projected work loads of the firm;
and the concept of their proposal. After the committee has selected the most
qualified finalists, these finalists shall submit sealed bids for the percent
fee, which is the percentage amount to be earned by the general
contractor/construction manager as overhead and profit, on the estimated
maximum allowable construction cost and the fixed amount for the detailed
specified general conditions work. The maximum allowable construction cost may
be negotiated between the department of general administration and the selected
firm after the scope of the project is adequately determined to establish a
guaranteed contract cost for which the general contractor/construction manager
will provide a performance and payment bond. The guaranteed contract cost
includes the fixed amount for the detailed specified general conditions work,
the negotiated maximum allowable construction cost, the percent fee on the
negotiated maximum allowable construction cost, and sales tax. If the department
of general administration is unable to negotiate a satisfactory maximum
allowable construction cost with the firm selected that the department of
general administration determines to be fair, reasonable, and within the
available funds, negotiations with that firm shall be formally terminated and
the department of general administration shall negotiate with the next low
bidder and continue until an agreement is reached or the process is
terminated. If the maximum allowable construction cost varies more than
fifteen percent from the bid estimated maximum allowable construction cost due
to requested and approved changes in the scope by the state, the percent fee
shall be renegotiated. All subcontract work shall be competitively bid with
public bid openings. Specific ((goals)) contract requirements
for women and minority enterprise((s)) participation shall be
specified in each subcontract bid package that ((responsive bidders will
have to meet or)) exceeds ten percent of the department's estimated
project cost. All subcontractors who bid work over ((one)) two
hundred thousand dollars shall post a bid bond and the awarded subcontractor
shall provide a performance and payment bond for their contract amount if
required by the general contractor/construction manager. ((The)) Bidding
((of)) on subcontract work by the general contractor/construction
manager or its subsidiaries is prohibited ((but it)). The general
contractor/construction manager may negotiate with the low-responsive
bidder only in accordance with RCW 39.04.015 or, if unsuccessful in
such negotiations, rebid ((if authorized by the director of general
administration in the event no bids are received, the bids received are over
the budget amount, or the subcontractor fails to perform)).
(((3))) (4)
If the project is completed for less than the agreed upon maximum allowable
construction cost, any savings not otherwise negotiated as part of an incentive
clause shall accrue to the state. If the project is completed for more than
the agreed upon maximum allowable construction cost, excepting increases due to
any contract change orders approved by the state, the additional cost shall be
the responsibility of the general contractor/construction manager.
(((4))) (5)
The powers and authority conferred by this section shall be construed as in
addition and supplemental to powers or authority conferred by any other law,
and nothing contained herein shall be construed as limiting any other powers or
authority of the department of general administration. However, all actions
taken pursuant to the powers and authority granted to the director or the
department of general administration under this section may only be taken with
the concurrence of the department of corrections.
Sec. 3. RCW 39.04.230 and 1991 c
130 s 3 are each amended to read as follows:
Methods of public works
contracting authorized by RCW 39.04.210 and 39.04.220 shall remain in full
force and effect until completion of ((contracts signed on or before June
30, 1996)) projects authorized on or before July 1, 1997.
NEW SECTION. Sec.
4. If any provision of this
act or its application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other persons or
circumstances is not affected.
NEW
SECTION. Sec. 5. This act is necessary for
the immediate preservation of the public peace, health, or safety, or support
of the state government and its existing public institutions, and shall take
effect immediately.
