2005 Senate Bill text for SB0952

SENATE BILL 952

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

H. Diane Snyder

AN ACT

RELATING TO PROCUREMENT; PROVIDING FOR DEFINITIONS OF CONSTRUCTION MANAGER AT-RISK AND MAXIMUM ALLOWABLE CONSTRUCTION COST; PROVIDING FOR CONSTRUCTION MANAGER AT-RISK CONTRACTS; PROVIDING FOR SELECTION AND AWARD OF CONSTRUCTION MANAGER AT-RISK CONTRACTS; PROVIDING RESPONSIBILITIES OF CONSTRUCTION MANAGERS AT-RISK.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 13-1-40.1 NMSA 1978 (being Laws 1997, Chapter 171, Section 1) is amended to read:

"[Section] 13-1-40.1. [DEFINITION] DEFINITIONS--CONSTRUCTION MANAGEMENT [AND], CONSTRUCTION MANAGER, CONSTRUCTION MANAGER AT-RISK AND MAXIMUM ALLOWABLE CONSTRUCTION COST.--

A. "Construction management" means consulting services related to the process of management applied to a public works project for any duration from conception to completion of the project for the purpose of controlling time, cost and quality of the project.

B. "Construction manager" means a person who acts as an agent of the state agency or local public body [for] subject to a construction management [for whom the state agency or local public body shall assume all the risks and responsibilities] services contract and who is precluded from performing construction.

C. "Construction manager at-risk" means a New Mexico licensed general contractor who acts as an agent of the state agency or local public body providing construction management services and who also acts as the general contractor entering contracts and assuming risks and responsibility for the construction project.

D. "Maximum allowable construction cost" means the total sum available for construction purposes, including all alternatives."

Section 2. Section 13-1-76 NMSA 1978 (being Laws 1984, Chapter 65, Section 49, as amended) is amended to read:

"13-1-76. DEFINITION--PROFESSIONAL SERVICES.--"Professional services" means the services of architects, [archeologists] archaeologists, engineers, surveyors, landscape architects, medical arts practitioners, scientists, management and systems analysts, certified public accountants, registered public accountants, lawyers, psychologists, planners, researchers, construction managers, construction mangers at-risk and other persons or businesses providing similar professional services, which may be designated as such by a determination issued by the state purchasing agent or a central purchasing office."

Section 3. Section 13-1-100.1 NMSA 1978 (being Laws 1997, Chapter 171, Section 3) is amended to read:

"13-1-100.1. CONSTRUCTION CONTRACTS--CONSTRUCTION MANAGEMENT SERVICES--CONSTRUCTION MANAGER AT-RISK SERVICES.--

A. A construction management services contract or construction manager at-risk contract may be entered into for any construction or state or local public works project when a state agency or local public body makes a determination that it is in the public's interest to [utilize] use construction management services or construction manager at-risk services. Construction management services shall not duplicate and are in addition to the normal scope of separate architect or engineer contracts, the need for which may arise due to the complexity or unusual requirements of a project as requested by a state agency or local public body. A construction management services contract shall not require the construction manager to provide the bonds required under Section 13-4-18 NMSA 1978; however, surety bonds required under Section 13-4-18 NMSA 1978 shall be provided by the contractors who are selected to provide the actual construction or purchasing services and whose contracts run to the state agency or local public body, and such bonds shall name the state agency or local public body as obligee. A construction manager at-risk contract entered into by a state agency or local public body may allow the construction manager at-risk to perform any work with its own work force; provided that such work is awarded in accordance with the Procurement Code. A construction manager at-risk contract entered into by a state agency or local public body shall specify a maximum allowable construction cost and performance schedule and shall include a provision to deliver performance and payment bonds in accordance with Section 13-4-18 NMSA 1978.

B. To [insure] ensure fair, uniform, clear and effective procedures that will strive for the delivery of a quality project, on time and within budget, the secretary, in conjunction with the appropriate and affected professional associations and contractors, shall promulgate regulations, which shall be adopted by the governing bodies of all using agencies and shall be followed by all using agencies when procuring construction management services or construction manager at-risk services as authorized in Subsection A of this section.

C. A state agency shall make the decision on a construction management services contract or construction manager at-risk contract for a state public works project, and a local public body shall make that decision for a local public works project. A state agency shall not make the decision on a construction management services contract or construction manager at-risk contract for a local public works project."

Section 4. A new section of the Procurement Code is enacted to read:

"[NEW MATERIAL] PUBLIC WORKS PROJECT DELIVERY SYSTEM--CONSTRUCTION MANAGER AT-RISK PROJECTS AUTHORIZED--MULTIPHASE PROCEDURE DESCRIBED--SELECTION COMMITTEE DESCRIBED--SELECTION PROCESS DESCRIBED.--

A. A construction manager at-risk delivery system may be authorized when a state agency or local public body makes a determination that it is in the public's interest to use the system on a specific project. The determination shall be issued in writing by the state agency or local public body only after the state agency or local public body has taken into consideration the following criteria, which shall be used as the minimum basis in determining when to use the construction manager at-risk delivery process:

(1) input of a construction manager at-risk during the design process will contribute to significant cost savings;

(2) time for delivery of the project is constrained;

(3) the project requires technical expertise best addressed by a cooperative approach with a construction manager at-risk working for the state agency or local public body and architect or engineer before construction begins and throughout the construction process;

(4) considering the capabilities and experience of potential construction managers at-risk with the construction manager at-risk delivery system and the benefits to be derived from using such professionals; and

(5) the capability of the state agency or local public body to manage the project.

B. A determination to use the construction manager at-risk delivery system issued by a state agency or local public body shall specify that the construction manager at-risk be a registered and licensed contractor holding a license for the type of work required and registration certificates indicating the ability to bid on public works projects.

C. All authorized construction manager at-risk projects shall use a multiphase procedure for awarding the construction manager at-risk contract and shall include at a minimum the procedures provided for in this section.

D. The state agency or local public body shall form a selection committee, consisting of three to five members, including at least one senior management employee of a licensed general contractor and at least one architect or engineer; provided that such members shall not be the owner's agents or involved in the design of the project. The selection committee shall develop an evaluation process to determine differences between persons seeking a construction manager at-risk contract, considering each phase of the selection process. The selection committee may require a multiphase procedure consisting of two or three steps. A two-step procedure shall include a request for qualifications and an interview. A three-step procedure shall consist of a request for qualifications, a request for proposals and an interview. The evaluation process using a two-step or three-step procedure shall include at a minimum a ranking of responses to the following criteria in the order listed:

(1) experience with the construction manager at-risk method;

(2) experience with construction of similar types of projects;

(3) qualifications and experience of the proposer's personnel and consultants and the role of each in the project;

(4) the plan for management actions to be undertaken on the project, including services to be rendered in connection with safety and the safety plan for the project; and

(5) all other selection criteria.

E. The decisions of the selection committee shall be final and shall not be subject to appeal except on grounds of fraud or collusion.

F. During the first phase of either a two-step or three-step procedure, and prior to solicitation, documents shall be prepared by an architect, engineer or construction manager, either in-house or selected in accordance with the provisions of Sections 13-1-120 through 13-1-124 NMSA 1978, which shall include:

(1) minimum qualifications;

(2) state contractor license;

(3) state preference number;

(4) bond capacity; and

(5) scope of work statement to include:

(a) location and maximum allowable construction cost;

(b) schedule;

(d) the composition of the selection committee;

(e) a description of the process the selection committee shall use to evaluate qualifications;

(f) proposed contract, including a provision describing the apportionment of savings achieved below the maximum allowed construction cost or such other amount addressed in the contract; and

(g) a detailed statement of the relationships and obligations of all parties, including the construction manager at-risk, the architect or engineer and the state agency or local public body.

G. The state agency or local public body shall solicit qualifications from qualified construction manager at-risk proposers based on the documents described in Subsection F of this section. Public notice by a state agency or local public body of a request for qualifications shall be published in accordance with Section 13-1-104 NMSA 1978.

H. The selection committee shall evaluate the statements of qualifications submitted and interview the three highest-ranked proposers. Any decision of the selection committee, including a decision to invite fewer than three proposers to be interviewed, shall be final and shall not be subject to appeal except on grounds of fraud or collusion. Additionally, the selection committee may recommend termination of the selection procedure pursuant to Section 13-1-131 NMSA 1978 and that new notices of solicitation be sent pursuant to Section 13-1-104 NMSA 1978. Any material received by the selection committee in response to a solicitation that is terminated shall not be disclosed so as to be available to competing proposers or offerors. Such decision shall not be subject to appeal except on grounds of fraud or collusion.

I. The selected proposers shall be invited to interview and may have persons who may be doing the work appear at the interview. During the interview of the highest-ranked proposers, the selection committee shall evaluate each of them based upon:

(1) experience with the construction manager at-risk method;

(2) experience with construction of similar types of projects;

(3) qualifications and experience of the proposer's personnel and the role of each in the project; and

(4) the plan for management actions to be undertaken on the project, including services to be rendered in connection with safety and the safety plan for the project.

J. The selection committee shall award the construction manager at-risk contract in accordance with Section 13-1-117 NMSA 1978. The selection committee shall make the names of all proposers and the names of all proposers selected for interview available for public inspection along with the selection committee's final ranking and evaluation scores. Proposers who were interviewed but not selected for contract award shall be notified in writing within fifteen days of the award."

Section 5. A new section of the Procurement Code is enacted to read:

"[NEW MATERIAL] RESPONSIBILITIES OF CONSTRUCTION MANAGER AT-RISK FOLLOWING AWARD OF PROJECT.--

A. The project construction manager at-risk, in cooperation with the state agency or local public body, shall seek to develop subcontractor interest in the project and shall furnish to the owner and architect or engineer a list of subcontractors who state in writing that they are responsible as defined in Section 13-1-82 or 13-1-83 NMSA 1978, including suppliers who are to furnish materials or equipment fabricated to a special design and from whom proposals or bids will be requested for each principal portion of the project. The architect or engineer shall promptly reply in writing to the construction manager at-risk if the owner, architect or engineer knows of any objection to such subcontractor or supplier. The receipt of such list shall not require the owner, architect or engineer to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the owner, architect or engineer to later object to or reject any proposed subcontractor or supplier.

B. The construction manager at-risk shall specify the percentage of the maximum allowable construction cost the construction manager at-risk will perform with its own work force.

C. The construction manager at-risk shall:

(1) conduct pre-bid meetings;

(2) advise the owner about the bidding or proposals in accordance with the Procurement Code;

(3) enter into contracts;

(4) assist the owner in evaluations; and

(5) recommend to the owner the lowest responsible bidder or proposer for each segment of the project.

D. The construction manager at-risk shall recommend to the owner a schedule for procurement of long-lead time items that shall constitute part of the project schedule. If long-lead time items are procured by the owner, they shall be procured on terms and conditions acceptable to the construction manager at-risk.

E. A construction manager at-risk contract shall consider any materials essential to the project that are experiencing or are expected to experience significant, industrywide economic fluctuation during construction of the project that may affect price, availability and delivery time frames. Such potentially time- and price-affected material shall be considered in a construction manager at-risk contract and provide a fair allocation of the risk of such market conditions on the project. In the event the construction manager at-risk is delayed at any time in the commencement or progress of the project due to a delay in the delivery or unavailability of a potentially time- and price-affected material, beyond the control of and without the fault of the construction manager at-risk, its subcontractors or material suppliers, any affected party to the project shall be entitled to an equitable extension of the contract time and an equitable adjustment in the contract."

Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.

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