AN
ACT Relating to the general contractor/construction manager procedure for
school districts; amending RCW 39.10.020 and 39.10.060; and adding new sections
to chapter 39.10 RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
39.10.020 and 1997 c 376 s 1 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Alternative public works contracting procedure" means the
design-build and the general contractor/construction manager contracting
procedures authorized in RCW 39.10.050 and 39.10.060, respectively.
(2)
"Public body" means 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 city authorized to
use the design-build procedure for a water system demonstration project under
RCW 39.10.065(3); every county with a population greater than four hundred
fifty thousand; ((and)) every port district with a population greater
than five hundred thousand; and those school districts proposing projects
that are considered and approved by the school district project review board
under section 4 of this act.
(3)
"Public works project" means any work for a public body within the
definition of the term public work in RCW 39.04.010.
Sec.
2. 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; and those school districts proposing
projects that are considered and approved by the school district project review
board under section 4 of this act. 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 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; 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 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.
NEW
SECTION. Sec. 3. A
new section is added to chapter 39.10 RCW to read as follows:
In
addition to the projects authorized in RCW 39.10.060, 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 section 4 of this act.
(2)
The school district project review board may not authorize more than two
demonstration projects valued over ten million dollars and two demonstration
projects 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.
NEW
SECTION. Sec. 4. A
new section is added to chapter 39.10 RCW to read as follows:
(1)
The school district project review board is established to review school
district proposals submitted by school districts to use alternative public
works contracting procedures. The board shall select and approve qualified
projects based upon an evaluation of the information submitted by the school
district under subsection (2) of this section. The membership of the board
shall be selected by the independent oversight committee as established under
RCW 39.10.110 and shall include the following representatives, each having
experience with public works or commercial construction: One representative
from the office of the superintendent of public instruction; one representative
from the office of financial management; two representatives from the
construction industry, one of whom works for a construction company with gross
annual revenues of twenty million dollars or less; one representative from the
specialty contracting industry; one representative from organized labor; one
representative from the design industry; one representative from a public body
previously authorized under this chapter to use an alternative public works
contracting procedure who has experience using such alternative contracting
procedures; one representative from school districts with ten thousand or more
annual average full-time equivalent pupils; and one representative from school
districts with fewer than ten thousand average full-time equivalent pupils.
Each member shall be appointed for a term of three years, with the first
three-year term commencing after the effective date of this section. Any
member of the school district project review board who is directly affiliated
with any applicant before the board must recuse him or herself from
consideration of the application.
(2)
A school district seeking to use alternative contracting procedures authorized
under this chapter shall file an application with the school district project
review board. The application form shall require the district to submit a
detailed statement of the proposed project, including the school district's
name; student population based upon October full-time equivalents; the current
projected total budget for the project, including the estimated construction
costs, costs for professional services, equipment and furnishing costs,
off-site costs, contract administration costs, and other related project costs;
the anticipated project design and construction schedule; a summary of the
school district's construction activity for the preceding six years; and an
explanation of why the school district believes the use of an alternative
contracting procedure is in the public interest and why the school district is
qualified to use an alternative contracting procedure, including a summary of
the relevant experience of the school district's management team. The
applicant shall also provide in a timely manner any other information
concerning implementation of projects under this chapter requested by the
school district project review board to assist in its consideration.
(3)
Any school district whose application is approved by the school district
project review board shall comply with the public notification and review
requirements in RCW 39.10.030.
(4)
Any school district whose application is approved by the school district
project review board shall not use as an evaluation factor whether a contractor
submitting a bid for the approved project has had prior general
contractor/construction manager procedure experience.
(5)
The school district project review board shall prepare and issue a report
reviewing the use of the alternative public works contracting procedures by
school districts. The board shall report to the independent oversight
committee at least sixty days before the oversight committee is required to
report to the legislature under RCW 39.10.110(4).
