AN
ACT Relating to alternative public works contracting procedures; amending RCW
39.10.051, 39.10.061, 39.10.067, and 39.10.902; and declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
39.10.051 and 2001 c 328 s 2 are each amended to read as follows:
(1)
Notwithstanding any other provision of law, and after complying with RCW
39.10.030, the following public bodies may utilize the design-build procedure
of public works contracting for public works projects authorized under this
section: The state department of general administration; the University of
Washington; Washington State University; every city with a population greater
than seventy thousand and any public authority chartered by such city under RCW
35.21.730 through 35.21.755 and specifically authorized as provided in RCW
39.10.120(4); every county with a population greater than four hundred fifty
thousand; every public utility district with revenues from energy sales greater
than twenty-three million dollars per year; and every port district with total
revenues greater than fifteen million dollars per year. The authority granted
to port districts in this section is in addition to and does not affect
existing contracting authority under RCW 53.08.120 and 53.08.130. For the
purposes of this section, "design-build procedure" means a contract
between a public body and another party in which the party agrees to both
design and build the facility, portion of the facility, or other item specified
in the contract.
(2)
Public bodies authorized under this section may utilize the design-build
procedure for public works projects valued over ((twelve)) ten
million dollars where:
(a)
The construction activities or technologies to be used are highly specialized
and a design-build approach is critical in developing the construction
methodology or implementing the proposed technology; or
(b)
The project design is repetitive in nature and is an incidental part of the
installation or construction; or
(c)
Regular interaction with and feedback from facilities users and operators
during design is not critical to an effective facility design.
(3)
Public bodies authorized under this section may also use the design-build
procedure for the following projects that meet the criteria in subsection
(2)(b) and (c) of this section:
(a)
The construction or erection of preengineered metal buildings or prefabricated
modular buildings, regardless of cost; or
(b)
The construction of new student housing projects valued over five million
dollars.
(4)
Contracts for design-build services shall be awarded through a competitive
process utilizing public solicitation of proposals for design-build services.
The public body shall publish at least once in a legal newspaper of general
circulation published in or as near as possible to that part of the county in
which the public work will be done, a notice of its request for proposals for
design-build services and the availability and location of the request for
proposal documents. The request for proposal documents shall include:
(a)
A detailed description of the project including programmatic, performance, and
technical requirements and specifications, functional and operational elements,
minimum and maximum net and gross areas of any building, and, at the discretion
of the public body, preliminary engineering and architectural drawings;
(b)
The reasons for using the design-build procedure;
(c)
A description of the qualifications to be required of the proposer including,
but not limited to, submission of the proposer's accident prevention program;
(d)
A description of the process the public body will use to evaluate
qualifications and proposals, including evaluation factors and the relative
weight of factors. Evaluation factors shall include, but not be limited to:
Proposal price; ability of professional personnel; past performance on similar
projects; ability to meet time and budget requirements; ability to provide a
performance and payment bond for the project; recent, current, and projected
work loads of the firm; location; and the concept of the proposal;
(e)
The form of the contract to be awarded;
(f)
The amount to be paid to finalists submitting best and final proposals who are
not awarded a design-build contract; and
(g)
Other information relevant to the project.
(5)
The public body shall establish a committee to evaluate the proposals based on
the factors, weighting, and process identified in the request for proposals.
Based on its evaluation, the public body shall select not fewer than three nor
more than five finalists to submit best and final proposals. The public body
may, in its sole discretion, reject all proposals. Design-build contracts
shall be awarded using the procedures in (a) or (b) of this subsection.
(a)
Best and final proposals shall be evaluated and scored based on the factors,
weighting, and process identified in the initial request for proposals. The public
body may score the proposals using a system that measures the quality and
technical merits of the proposal on a unit price basis. Final proposals may
not be considered if the proposal cost is greater than the maximum allowable
construction cost identified in the initial request for proposals. The public
body shall initiate negotiations with the firm submitting the highest scored
best and final proposal. If the public body is unable to execute a contract
with the firm submitting the highest scored best and final proposal,
negotiations with that firm may be suspended or terminated and the public body
may proceed to negotiate with the next highest scored firm. Public bodies
shall continue in accordance with this procedure until a contract agreement is
reached or the selection process is terminated.
(b)
If the public body determines that all finalists are capable of producing plans
and specifications that adequately meet project requirements, the public body
may award the contract to the firm that submits the responsive best and final
proposal with the lowest price.
(6) The firm awarded the contract shall provide a performance and
payment bond for the contracted amount. The public body shall provide
appropriate honorarium payments to finalists submitting best and final
proposals who are not awarded a design-build contract. Honorarium payments
shall be sufficient to generate meaningful competition among potential
proposers on design-build projects.
Sec.
2. RCW
39.10.061 and 2001 c 328 s 3 are each amended to read as follows:
(1)
Notwithstanding any other provision of law, and after complying with RCW
39.10.030, a public body may utilize the general contractor/construction
manager procedure of public works contracting for public works projects
authorized under subsection (2) of this section. For the purposes of this
section, "general contractor/construction manager" means a firm with
which a public body has selected and negotiated a maximum allowable construction
cost to be guaranteed by the firm, after competitive selection through 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.
(2)
Except those school districts proposing projects that are considered and
approved by the school district project review board, public bodies authorized
under this section may utilize the general contractor/construction manager
procedure for public works projects valued over ((twelve)) ten
million dollars where:
(a)
Implementation of the project involves complex scheduling requirements; or
(b)
The project involves construction at an existing facility which must continue
to operate during construction; or
(c)
The involvement of the general contractor/construction manager during the
design stage is critical to the success of the project.
(3)
Public bodies should select general contractor/construction managers early in
the life of public works projects, and in most situations no later than the
completion of schematic design.
(4)
Contracts for the services of a general contractor/construction manager under
this section shall be awarded through a competitive process requiring the
public solicitation of proposals for general contractor/construction manager
services. The public solicitation of proposals shall include: A description
of the project, including programmatic, performance, and technical requirements
and specifications when available; the reasons for using the general
contractor/construction manager procedure; a description of the qualifications
to be required of the proposer, including submission of the proposer's accident
prevention program; a description of the process the public body will use to
evaluate qualifications and proposals, including evaluation factors and the
relative weight of factors; the form of the contract to be awarded; the
estimated maximum allowable construction cost; and the bid instructions to be
used by the general contractor/construction manager finalists. Evaluation
factors shall include, but not be limited to: Ability of professional
personnel, past performance in negotiated and complex projects, and ability to
meet time and budget requirements; the scope of work the general
contractor/construction manager proposes to self-perform and its ability to
perform it; location; recent, current, and projected work loads of the firm;
and the concept of their proposal. A public body shall establish a committee
to evaluate the proposals. After the committee has selected the most qualified
finalists, these finalists shall submit final proposals, including 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 public body shall select the firm
submitting the highest scored final proposal using the evaluation factors and
the relative weight of factors published in the public solicitation of
proposals.
(5)
The maximum allowable construction cost may be negotiated between the public
body 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 public body is unable to negotiate a
satisfactory maximum allowable construction cost with the firm selected that
the public body determines to be fair, reasonable, and within the available funds,
negotiations with that firm shall be formally terminated and the public body
shall negotiate with the next highest scored firm 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 public body, the percent fee shall be renegotiated.
(6)
All subcontract work shall be competitively bid with public bid openings. When
critical to the successful completion of a subcontractor bid package and after
publication of notice of intent to determine bidder eligibility in a legal
newspaper of general circulation published in or as near as possible to that
part of the county in which the public work will be done at least twenty days
before requesting qualifications from interested subcontract bidders, the owner
and general contractor/construction manager may determine subcontractor bidding
eligibility using the following evaluation criteria:
(a)
Adequate financial resources or the ability to secure such resources;
(b)
History of successful completion of a contract of similar type and scope;
(c)
Project management and project supervision personnel with experience on similar
projects and the availability of such personnel for the project;
(d)
Current and projected workload and the impact the project will have on the
subcontractor's current and projected workload;
(e)
Ability to accurately estimate the subcontract bid package scope of work;
(f)
Ability to meet subcontract bid package shop drawing and other coordination
procedures;
(g)
Eligibility to receive an award under applicable laws and regulations; and
(h)
Ability to meet subcontract bid package scheduling requirements.
The
owner and general contractor/construction manager shall weigh the evaluation
criteria and determine a minimum acceptable score to be considered an eligible
subcontract bidder.
After
publication of notice of intent to determine bidder eligibility, subcontractors
requesting eligibility shall be provided the evaluation criteria and weighting
to be used by the owner and general contractor/construction manager to
determine eligible subcontract bidders. After the owner and general
contractor/construction manager determine eligible subcontract bidders,
subcontractors requesting eligibility shall be provided the results and scoring
of the subcontract bidder eligibility determination.
Subcontract
bid packages shall be awarded to the responsible bidder submitting the low
responsive bid. The requirements of RCW 39.30.060 apply to each subcontract
bid package. All subcontractors who bid work over three hundred thousand
dollars shall post a bid bond and all subcontractors who are awarded a contract
over three hundred thousand dollars shall provide a performance and payment
bond for their contract amount. All other subcontractors shall provide a
performance and payment bond if required by the general contractor/construction
manager. A low bidder who claims error and fails to enter into a contract is
prohibited from bidding on the same project if a second or subsequent call for
bids is made for the project. Except as provided for under subsection (7) of
this section, bidding on subcontract work by the general
contractor/construction manager or its subsidiaries is prohibited. The general
contractor/construction manager may negotiate with the low-responsive bidder in
accordance with RCW 39.10.080 or, if unsuccessful in such negotiations, rebid.
(7)
The general contractor/construction manager, or its subsidiaries, may bid on
subcontract work if:
(a)
The work within the subcontract bid package is customarily performed by the
general contractor/construction manager;
(b)
The bid opening is managed by the public body; and
(c)
Notification of the general contractor/construction manager's intention to bid
is included in the public solicitation of bids for the bid package.
In
no event may the value of subcontract work performed by the general
contractor/construction manager exceed thirty percent of the negotiated maximum
allowable construction cost.
(8) A public body may 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 may exceed five percent of the
maximum allowable construction cost. 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 public body. 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 public body, the additional cost shall be the responsibility of
the general contractor/construction manager.
Sec.
3. RCW
39.10.067 and 2000 c 209 s 3 are each amended to read as follows:
In
addition to the projects authorized in RCW ((39.10.060)) 39.10.061,
public bodies may also use the general contractor/construction manager
contracting procedure for the construction of school district capital
demonstration projects, subject to the following conditions:
(1)
The project must receive approval from the school district project review board
established under RCW 39.10.115.
(2)
The school district project review board may not authorize more than ((two))
ten demonstration projects valued over ((ten)) five
million dollars ((and)), of which at least two demonstration
projects must be valued between five and ten million dollars.
(((3)
The school district project review board may not approve more than one
demonstration project under this section for each school district.))
Sec.
4. RCW
39.10.902 and 2001 c 328 s 6 are each amended to read as follows:
The
following acts or parts of acts, as now existing or hereafter amended, are each
repealed, effective July 1, 2007:
(1)
RCW 39.10.010 and 1994 c 132 s 1;
(2)
RCW 39.10.020 and 2001 c 328 s 1, 2000 c 209 s 1, 1997 c 376 s 1, & 1994 c
132 s 2;
(3)
RCW 39.10.030 and 1997 c 376 s 2 & 1994 c 132 s 3;
(4)
RCW 39.10.040 and 1994 c 132 s 4;
(5)
RCW 39.10.051 and 2001 c 328 s 2 and section 1 of this act;
(6)
RCW 39.10.061 and 2001 c 328 s 3 and section 2 of this act;
(7)
RCW 39.10.065 and 1997 c 376 s 5;
(8)
RCW 39.10.067 and 2000 c 209 s 3 and section 3 of this act;
(9)
RCW 39.10.070 and 1994 c 132 s 7;
(10)
RCW 39.10.080 and 1994 c 132 s 8;
(11)
RCW 39.10.090 and 1994 c 132 s 9;
(12)
RCW 39.10.100 and 1994 c 132 s 10;
(13)
RCW 39.10.115 and 2001 c 328 s 4 & 2000 c 209 s 4;
(14)
RCW 39.10.900 and 1994 c 132 s 13; and
(15)
RCW 39.10.901 and 1994 c 132 s 14.
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 takes effect immediately.
