AN
ACT Relating to alternative public works contracting procedures; amending RCW
39.10.020, 39.10.115, and 39.10.902; reenacting and amending RCW 39.10.120;
adding new sections to chapter 39.10 RCW; repealing RCW 39.10.050, 39.10.060,
and 39.10.110; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
39.10.020 and 2000 c 209 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)) sections 2 and 3 of
this act, 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)) 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
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; every port district with
((a population)) total revenues greater than ((five hundred
thousand)) fifteen million dollars per year; every public utility
district with revenues from energy sales greater than twenty-three million
dollars per year; and those school districts proposing projects that are considered
and approved by the school district project review board under RCW 39.10.115.
(3)
"Public works project" means any work for a public body within the
definition of the term public work in RCW 39.04.010.
NEW
SECTION. Sec. 2. A
new section is added to chapter 39.10 RCW 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 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.
NEW
SECTION. Sec. 3. A
new section is added to chapter 39.10 RCW 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 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.
4. RCW
39.10.115 and 2000 c 209 s 4 are each amended 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)) After July 1, 2001, any appointments for full
terms or to fill a vacancy shall be made by the governor 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 June 8, 2000. 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).))
Sec.
5. RCW
39.10.120 and 1997 c 376 s 7 and 1997 c 220 s 404 are each reenacted and
amended to read as follows:
(1)
Except as provided in subsections (2) and (3) of this section, the alternative
public works contracting procedures authorized under this chapter are limited
to public works contracts signed before July 1, ((2001)) 2007.
Methods of public works contracting authorized by RCW 39.10.050 and 39.10.060 or
sections 2 and 3 of this act shall remain in full force and effect until
completion of contracts signed before July 1, ((2001)) 2007.
(2)
For the purposes of a baseball stadium as defined in RCW 82.14.0485, the
design-build contracting procedures under RCW 39.10.050 shall remain in full
force and effect until completion of contracts signed before December 31, 1997.
(3)
For the purposes of a stadium and exhibition center, as defined in RCW
36.102.010, the design-build contracting procedures under RCW 39.10.050 or
section 2 of this act shall remain in full force and effect until
completion of contracts signed before December 31, 2002.
(4)
A public authority chartered by a city that is a public body may utilize an
alternative public works contracting procedure under this chapter only after
receiving specific authorization on a project-by-project basis from the
governing body of the city. For purposes of public authorities authorized to
use alternative public works contracting procedures under this chapter, the
city chartering any such public authority shall itself comply with RCW
39.10.030 on behalf of the public authority.
Sec.
6. RCW
39.10.902 and 1997 c 376 s 8 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, ((2001)) 2007:
(1)
RCW 39.10.010 and 1994 c 132 s 1;
(2)
RCW 39.10.020 and section 1 of this act, 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 39.10.050 and 1994 c 132 s 5)) Section 2 of this act;
(6)
((RCW 39.10.060 and 1994 c 132 s 6)) Section 3 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;
(9)
RCW 39.10.070 and 1994 c 132 s 7;
(((9)))
(10) RCW 39.10.080 and 1994 c 132 s 8;
(((10)))
(11) RCW 39.10.090 and 1994 c 132 s 9;
(((11)))
(12) RCW 39.10.100 and 1994 c 132 s 10;
(((12)
RCW 39.10.110 and 1994 c 132 s 11;))
(13)
RCW 39.10.115 and section 4 of this act & 2000 c 209 s 4;
(14)
RCW 39.10.900 and 1994 c 132 s 13; and
(((14)))
(15) RCW 39.10.901 and 1994 c 132 s 14((; and
(15)
RCW 39.10.902 and 1994 c 132 s 15)).
NEW
SECTION. Sec. 7. The
following acts or parts of acts are each repealed:
(1) RCW
39.10.050 (Design-build procedure--Which public bodies may use)
and 1997 c 376 s 3 & 1994 c 132 s 5;
(2) RCW
39.10.060 (General contractor/construction manager
procedure--Which public bodies may use--Limitations) and 2000 c 209 s 2, 2000 c
194 s 1, 1997 c 376 s 4, 1996 c 18 s 6, & 1994 c 132 s 6; and
(3) RCW
39.10.110 (Temporary independent oversight committee) and 1997 c
376 s 6 & 1994 c 132 s 11.
NEW SECTION. Sec. 8. 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 July 1, 2001.
