Senate File 2364 S-5089 Amend Senate File 2364 as follows: 1 1. By striking everything after the enacting clause and 2 inserting: 3 < DIVISION I 4 PUBLIC CONSTRUCTION BIDDING REQUIREMENTS 5 Section 1. Section 26.2, subsection 3, paragraph b, 6 subparagraph (5), Code 2020, is amended to read as follows: 7 (5) Construction or repair or maintenance work performed 8 for a city utility under chapter 388 when such work is 9 performed by its employees or performed for a rural water 10 district under chapter 357A by its employees when such work 11 relates to existing utility infrastructure or establishing 12 connections to existing utility infrastructure. For purposes 13 of this subparagraph, “utility infrastructure” includes 14 facilities used for the storage, collection, disposal, 15 treatment, generation, transmission, or distribution of water, 16 sewage, waste, electricity, gas, or telecommunications service . 17 Sec. 2. Section 26.2, subsection 3, paragraph b, Code 2020, 18 is amended by adding the following new subparagraph: 19 NEW SUBPARAGRAPH . (6) Construction or repair or 20 maintenance work performed for a rural water district under 21 chapter 357A by its employees. 22 Sec. 3. Section 26.4, Code 2020, is amended to read as 23 follows: 24 26.4 Exemptions from competitive bids and quotations 25 Architectural and engineering services —— exemptions —— 26 prohibitions . 27 1. Architectural, landscape architectural, or engineering 28 design services procured for a public improvement are not 29 subject to sections 26.3 and 26.14 . 30 2. Fee-based selection of an architect, landscape 31 architect, or engineer for a public improvement shall be 32 prohibited. 33 Sec. 4. Section 262.34, Code 2020, is amended by adding the 34 following new subsection: 35 -1- SF2364.3896 (1) 88 ec/rn 1/ 10 #1.

NEW SUBSECTION . 6. Notwithstanding any provision of this 1 chapter to the contrary, the state board of regents shall 2 not be authorized to enter into a design-build contract to 3 construct, repair, or improve buildings or grounds. For 4 purposes of this subsection, “design-build contract” means 5 a single contract providing for both design services and 6 construction services that may include maintenance, operations, 7 preconstruction, and other related services. 8 Sec. 5. EFFECTIVE DATE. The following, being deemed of 9 immediate importance, takes effect upon enactment: 10 The section of this division of this Act amending section 11 262.34. 12 Sec. 6. APPLICABILITY. The section of this division of 13 this Act amending section 262.34 does not apply to projects 14 using design-build if an architect has entered into a contract 15 to work with the state board of regents on a project using 16 design-build prior to the effective date of the section of this 17 division of this Act amending section 262.34. 18 DIVISION II 19 GUARANTEED MAXIMUM PRICE CONTRACTS 20 Sec. 7. NEW SECTION . 26A.1 Definitions. 21 As used in this chapter, unless the context clearly 22 indicates otherwise: 23 1. “Construction manager-at-risk” means a sole 24 proprietorship, partnership, corporation, or other legal entity 25 that assumes the risk for the construction, rehabilitation, 26 alteration, or repair of a project and provides consultant 27 services to the government entity in the development and design 28 phases, working collaboratively with the design professionals 29 involved. 30 2. “General conditions” means work which will not be 31 incorporated into the completed project. This work includes 32 but is not limited to job site cleaning and temporary 33 structures. 34 3. “ Governmental entity” means the state, political 35 -2- SF2364.3896 (1) 88 ec/rn 2/ 10

subdivisions of the state, public school corporations, and all 1 officers, boards, or commissions empowered by law to enter 2 into contracts for the construction of public improvements, 3 including the state board of regents. 4 4. “Guaranteed maximum price contract” means the agreed 5 to fixed or guaranteed maximum price pursuant to a contract 6 entered into by the construction manager-at-risk and the 7 governmental entity. 8 5. “Public improvement” means as defined in section 26.2. 9 6. “Repair or maintenance work” means as defined in section 10 26.2. 11 7. “Self-perform” means work that is executed by 12 the construction manager-at-risk without the use of a 13 subcontractor. Electrical, mechanical, fire suppression, and 14 plumbing work may not be self-performed. 15 Sec. 8. NEW SECTION . 26A.2 Authorization. 16 Notwithstanding any other law to the contrary, a 17 governmental entity shall be authorized to enter into a 18 guaranteed maximum price contract for the construction of a 19 public improvement pursuant to this chapter. 20 Sec. 9. NEW SECTION . 26A.3 Guaranteed maximum price 21 contract —— process. 22 1. A governmental entity shall publicly disclose the 23 governmental entity’s intent to enter into a guaranteed 24 maximum price contract and the governmental entity’s selection 25 criteria at least fourteen days prior to publishing a request 26 for statements of qualifications. Public disclosure shall 27 be in a relevant contractor plan room service with statewide 28 circulation, a relevant construction lead generating service 29 with statewide circulation, and on an internet site sponsored 30 by either a governmental entity or a statewide association that 31 represents the governmental entity. 32 2. The governmental entity shall select or designate an 33 engineer licensed under chapter 542B, a landscape architect 34 licensed under chapter 544B, or an architect licensed 35 -3- SF2364.3896 (1) 88 ec/rn 3/ 10

under chapter 544A by utilizing a quality-based selection 1 process. Fee-based selection of the engineer, landscape 2 architect, or architect shall be prohibited. The engineer, 3 landscape architect, or architect selected or designated by 4 the government entity under this subsection shall have the 5 responsibility of preparing construction documents for the 6 project and shall review the construction for conformance with 7 design intent. 8 3. a. (1) The governmental entity shall prepare a request 9 for statements of qualifications. The request shall include 10 general information on the project site, project scope, 11 schedule, selection criteria, and the time and place for 12 receipt of statements of qualifications. Selection criteria 13 and general information included in the request for statements 14 of qualifications may be developed in coordination with 15 the engineer, landscape architect, or architect selected or 16 designated by the governmental entity as provided under this 17 section. 18 (2) Selection criteria may include the contractor’s 19 experience undertaking projects of similar size and scope 20 in either the public or private sector, past performance, 21 safety record, proposed personnel, and proposed methodology. 22 Selection criteria shall include experience in both the public 23 and the private sector. Selection criteria shall not include 24 specific delivery methods, including guaranteed maximum price 25 projects. In addition, selection criteria shall not include 26 training, testing, or other certifications that may only 27 be obtained through organized labor affiliations or other 28 limited-membership organizations. 29 (3) A request for statements of qualifications under this 30 subsection shall be subject to the requirements of section 31 73A.28. In addition, a governmental entity shall not by 32 ordinance, rule, or any other action relating to the request 33 for qualifications stipulate criteria that would directly 34 or indirectly restrict the selection of a construction 35 -4- SF2364.3896 (1) 88 ec/rn 4/ 10

manager-at-risk to any predetermined class of providers based 1 on labor organization affiliation or any other criteria other 2 than that allowed pursuant to this paragraph. 3 b. The request for statements of qualifications shall be 4 posted not less than thirteen and not more than forty-five days 5 before the date for response in a relevant contractor plan room 6 service with statewide circulation, in a relevant construction 7 lead generating service with statewide circulation, and on an 8 internet site sponsored by either a governmental entity or a 9 statewide association that represents the governmental entity. 10 If circumstances beyond the control of the governmental 11 entity require postponement and there are no changes to the 12 project’s contract documents, a notice of the revised date 13 shall be posted not less than four and not more than forty-five 14 days before the revised date for answering the request for 15 proposals and statements of qualifications in a relevant 16 contractor plan room service with statewide circulation, in a 17 relevant construction lead generating service with statewide 18 circulation, and on an internet site sponsored by either a 19 government entity or a statewide association that represents 20 the governmental entity. 21 c. The governmental entity shall receive, publicly open, and 22 read aloud the names of the contractors submitting statements 23 of qualifications. Within forty-five days after the date of 24 opening the statements of qualifications submissions, the 25 governmental entity shall evaluate each proposal or statement 26 of qualifications submission in relation to the criteria set 27 forth in the request. 28 4. a. After considering the statements of qualifications, 29 the governmental entity shall issue a request for proposals 30 to each contractor who meets the qualifications which shall 31 include selection and evaluation criteria. Each contractor 32 issued a request for proposals shall be permitted to submit 33 a proposal and each proposal submitted shall include the 34 construction manager-at-risk’s proposed fees. The request 35 -5- SF2364.3896 (1) 88 ec/rn 5/ 10

for proposals shall be subject to the requirements of section 1 73A.28 and the same limitations applied to selection criteria 2 for the request for statements of qualifications in this 3 chapter. 4 b. The governmental entity shall receive, publicly open, and 5 read aloud the names of the contractors submitting proposals. 6 Within forty-five days after the date of opening the proposals, 7 the governmental entity shall evaluate and rank each proposal 8 in relation to the criteria set forth in the applicable 9 request. 10 c. The governmental entity or its representative shall 11 select the construction manager-at-risk that submits the 12 proposal that offers the best value for the governmental 13 entity based on the published selection criteria and on 14 its ranking evaluation. The governmental entity shall 15 first attempt to negotiate a contract with the selected 16 construction manager-at-risk. If the governmental entity 17 is unable to negotiate a satisfactory contract with the 18 selected construction manager-at-risk, the governmental entity 19 shall, formally and in writing, end negotiations with that 20 construction manager-at-risk and proceed to negotiate with the 21 next construction manager-at-risk in the order of the selection 22 ranking until a contract is reached or negotiations with all 23 ranked construction managers-at-risk end. 24 d. The governmental entity shall make available to the 25 public the final scoring and ranking evaluation of the request 26 for proposals received. 27 5. a. If the estimated total cost of trade contract work 28 and materials packages is in excess of the adjusted competitive 29 bid threshold established in section 314.1B, the construction 30 manager-at-risk shall advertise for competitive bids, receive 31 bids, prepare bid analyses, and award contracts to qualified 32 firms on trade contract work and materials packages in 33 accordance with all of the following: 34 (1) The construction manager-at-risk shall prepare a 35 -6- SF2364.3896 (1) 88 ec/rn 6/ 10

request for statements of qualifications. The request shall 1 include general information on the project site, project 2 scope, schedule, selection criteria, and the time and place 3 for receipt of statements of qualifications. The construction 4 manager-at-risk shall provide public notice of the request for 5 statements of qualifications in a relevant contractor plan room 6 service with statewide circulation, a relevant construction 7 lead generating service with statewide circulation, and on an 8 internet site sponsored by either a governmental entity or a 9 statewide association that represents the governmental entity. 10 The request for statements of qualifications shall be posted 11 not less than thirteen and not more than forty-five days before 12 the date for response. 13 (2) (a) The construction manager-at-risk shall utilize 14 objective prequalification criteria in the request for 15 statements of qualifications. All firms who meet the 16 objective prequalification criteria as a qualified firm 17 shall be allowed to submit a bid for the relevant trade 18 contract work and materials package. Upon determining which 19 firms meet the prequalification criteria, the construction 20 manager-at-risk shall notify all firms who responded to the 21 request for qualifications whether they successfully meet the 22 prequalification criteria. The notification shall include a 23 list of all firms who were deemed to have successfully met the 24 prequalification criteria. Notification shall be given no 25 less than fifteen days prior to the subcontractor bids being 26 due. Subcontractors who failed to meet the prequalification 27 standards shall also be provided with information regarding 28 which prequalification criteria were not met. In addition, 29 a firm that is prequalified with the state department of 30 transportation pursuant to section 314.1 shall be considered 31 to meet the objective prequalification criteria as a qualified 32 firm and shall be allowed to submit a bid for purposes of work 33 related to parking lots, streets, site development, or bridge 34 structure components. 35 -7- SF2364.3896 (1) 88 ec/rn 7/ 10

(b) Prequalification criteria shall be limited to a 1 firm’s experience as a contractor, capacity of key personnel, 2 technical competence, capability to perform, the past 3 performance of the firm and the firm’s employees to include 4 the firm’s safety record and compliance with state and federal 5 law, and availability to and familiarity with the location of 6 the project subject to bid. Prequalification criteria shall 7 be reasonably and materially related to the relevant trade 8 contract work and materials package. The prequalification 9 criteria shall not include training, testing, or other 10 certifications that may only be obtained through organized 11 labor affiliated organizations or other limited-membership 12 organizations. 13 (3) The governmental entity and the construction 14 manager-at-risk shall participate in the bid review and 15 evaluation process. The governmental entity and the 16 construction manager-at-risk shall open, announce the name 17 of the contractor submitting a bid, and file all proposals 18 received, at the time and place specified in the notice to 19 bidders. After the bids have been opened, reviewed, and 20 tabulated, the contracts shall be awarded to the lowest 21 responsive, responsible bidder. All awards and bids shall be 22 made available to the public. 23 (4) Notwithstanding any other provisions of this paragraph 24 to the contrary, the construction manager-at-risk may 25 self-perform work for a trade package that is below the 26 adjusted competitive bid threshold established in section 27 314.1B. If a trade package is in excess of the adjusted 28 competitive bid threshold established in section 314.1B, the 29 construction manager-at-risk shall notify the governmental 30 entity in writing of its intent to submit a bid proposal for 31 a trade package. In submission of a bid, the construction 32 manager-at-risk shall comply with the requirements of this 33 paragraph. The governmental entity shall receive the bids, 34 participate in, and provide oversight of all bid analyses 35 -8- SF2364.3896 (1) 88 ec/rn 8/ 10

pertinent to the award of subcontracts or rejection of bids on 1 any trade package for which the construction manager-at-risk 2 submits a bid to self-perform. Where the construction 3 manager-at-risk is not the apparent low bidder, the government 4 shall be responsible for determining whether a recommendation 5 of award to the construction manager-at-risk is in the best 6 interests of the project. A construction manager-at-risk shall 7 not be required to comply with bidding requirements for general 8 conditions as provided in the contract with the governmental 9 entity. If the construction manager-at-risk self-performs 10 the construction work, it shall adhere to any agreement it 11 may have with one or more labor organizations. However, the 12 construction manager-at-risk shall not be obligated to adhere 13 to any terms and conditions of any labor agreement with one or 14 more labor organizations for those trade contracts that are 15 not self-performed by the construction manager-at-risk for the 16 public improvement, and such terms shall be deemed void and 17 unenforceable. 18 b. If a selected trade contractor materially defaults in 19 the performance of its work or fails to execute a contract, 20 the construction manager-at-risk may, without advertising, 21 fulfill the contract requirements or select a replacement trade 22 contractor to fulfill the contract requirements. 23 Sec. 10. NEW SECTION . 26A.4 Prohibited contracts. 24 1. Notwithstanding any other provision of law to the 25 contrary, a governmental entity shall not be authorized 26 to enter into a design-build contract for the construction 27 of a public improvement. For purposes of this subsection, 28 “design-build contract” means a single contract providing for 29 both design services and construction services that may include 30 maintenance, operations, preconstruction, and other related 31 services. 32 2. A governmental entity shall not be authorized to 33 enter into a guaranteed maximum price contract for public 34 improvements relating to highway, bridge, or culvert 35 -9- SF2364.3896 (1) 88 ec/rn 9/ 10