AN
ACT Relating to general contractor/construction manager self-performance; and
amending RCW 39.10.060.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
39.10.060 and 1997 c 376 s 4 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 general
contractor/construction manager procedure of public works contracting for
public works projects authorized under subsection (2) of this section: The
state department of general administration; the University of Washington;
Washington State University; every city with a population greater than one
hundred fifty thousand; every county with a population greater than four
hundred fifty thousand; and every port district with a population greater than
five hundred thousand. 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)
Public bodies authorized under this section may utilize the general
contractor/construction manager procedure for public works projects valued over
ten million dollars where:
(a)
Implementation of the project involves complex scheduling requirements;
(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; minority and women business enterprise
total project goals, where applicable; 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.
Subcontract work shall not be issued for bid until the public body has
approved, in consultation with the office of minority and women's business
enterprises or the equivalent local agency, a plan prepared by the general
contractor/construction manager for attaining applicable minority and women
business enterprise total project goals that equitably spreads women and
minority enterprise opportunities to as many firms in as many bid packages as
is practicable. When critical to the successful completion of a subcontractor
bid package the owner and general contractor/construction manager may evaluate
for bidding eligibility a subcontractor's ability, time, budget, and
specification requirements based on the subcontractor's performance of those items
on previous projects. 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 ((on projects valued over twenty million dollars)) 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 ((twenty)) 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.
