Senate File 183 H-1381 Amend Senate File 183, as passed by the Senate, as follows: 1 1. By striking everything after the enacting clause and 2 inserting: 3 < Section 1. NEW SECTION . 26.17 Alternative project 4 delivery contracts. 5 1. As used in this section, unless the context otherwise 6 requires: 7 a. “Alternative project delivery contract” means either a 8 design-build or construction manager-at-risk contract. 9 b. “Bridging criteria professional” means a person, 10 corporation, partnership, or other legal entity that is 11 employed by or contracted by a government entity to assist 12 the government entity in the development of project design 13 criteria, requests for proposals, and any additional services 14 requested by the government entity to represent its interests 15 in relation to a project and who meets either of the following 16 requirements: 17 (1) Is duly licensed to practice architecture within the 18 state and can demonstrate specific knowledge of the project 19 type where alternative project delivery services are being 20 sought. 21 (2) Is duly licensed as a professional engineer within the 22 state and can demonstrate specific knowledge of the project 23 type where alternative project delivery services are being 24 sought. 25 c. “Construction manager-at-risk” means a sole 26 proprietorship, partnership, corporation, or other legal entity 27 that acts as a consultant to the government entity in the 28 development and design phases and then assumes the risk for 29 the construction, rehabilitation, alteration, or repair of a 30 project at the contracted fixed or guaranteed maximum price, 31 similar to a general contractor during the construction phase. 32 A project using a construction manager-at-risk does not include 33 the construction, reconstruction, or improvement of a highway, 34 bridge, or culvert. 35 -1- SF 183.1562 (1) 89 jda/rn 1/ 14 #1.

d. “Design-build” means a project delivery method subject to 1 a two or three-phase selection process for which the design and 2 construction services are furnished under one contract. 3 e. “Design-build contract” means a contract between 4 a government entity and a design-builder to furnish the 5 architecture of record, engineering of record, and related 6 services as required for a given public project, and to 7 furnish the labor, materials, and other construction services 8 for the same public project. A design-build contract may be 9 conditioned upon subsequent refinements in scope and price, and 10 may permit the government entity to make changes in the scope 11 of the project without invalidating the design-build contract. 12 f. “Design-build project” means the design, construction, 13 alteration, addition, remodeling, or improvement of any 14 buildings, infrastructure, or facilities under contract with a 15 government entity. “Design-build project” does not include a 16 project for the construction, reconstruction, or improvement of 17 a highway, bridge, or culvert. 18 g. “Design-builder” means any individual, partnership, 19 joint venture, or corporation subject to a best-value or 20 qualification-based selection that offers to provide or 21 provides design services and general contracting services 22 through a design-build contract in which services within 23 the scope of the practice of professional architecture or 24 engineering are performed respectively by a licensed architect 25 or licensed engineer and in which services within the scope of 26 general contracting are performed by a general contractor or 27 other legal entity that furnishes architecture or engineering 28 services and construction services either directly or through 29 subcontracts or joint ventures. 30 h. “Design bridging criteria package” means the 31 performance-oriented program, scope, design, and performance 32 specifications for the design-build project sufficient to 33 permit a design-builder to prepare a response to a government 34 entity’s request for proposals for a design-build project. 35 -2- SF 183.1562 (1) 89 jda/rn 2/ 14

i. “Government entity” means the same as “governmental 1 entity” defined in section 26.2 including, for the purpose of 2 this section, the state board of regents. 3 j. “Proposal” means an offer by a design-builder in response 4 to a request for proposals to enter into a design-build 5 contract. 6 k. “Request for proposals” means the document by which 7 a government entity solicits proposals for a design-build 8 contract. 9 l. “Stipend” means a payment to a design-builder who did not 10 score the highest number of points at the conclusion of phase 11 three of the best-value selection process to defray the cost of 12 participating in phase two of the selection process, and for 13 the use of any intellectual properties obtained. 14 2. Notwithstanding any other law to the contrary, a 15 government entity shall be authorized to enter into an 16 alternative project delivery contract. 17 3. Construction manager-at-risk contracts. 18 a. A government entity shall publicly disclose its intent to 19 use the construction manager-at-risk method and its selection 20 criteria at least one week prior to publishing the request 21 for proposals and request for statements of qualifications. 22 The government entity shall publish its request for proposals 23 and statements of qualifications. Before or concurrently 24 with selecting a construction manager-at-risk, the government 25 entity shall select or designate an engineer or architect 26 who shall prepare the construction documents for the project 27 and who shall comply with all state laws, as applicable. If 28 the engineer or architect is not a full-time employee of the 29 government entity, the government entity shall select the 30 engineer or architect on a basis of demonstrated competence and 31 qualifications. The government entity’s engineer or architect 32 for a project may not serve, alone or in combination with 33 another, as the construction manager-at-risk. This paragraph 34 does not prohibit a government entity’s engineer or architect 35 -3- SF 183.1562 (1) 89 jda/rn 3/ 14

from providing customary construction-phase services under 1 the engineer’s or architect’s original professional service 2 agreement in accordance with applicable licensing laws. 3 b. The government entity may provide or contract for, 4 independently of the construction manager-at-risk, inspection 5 services, testing of construction materials, engineering, and 6 verification of testing services necessary for acceptance of 7 the project by the government entity. 8 c. The government entity shall select the construction 9 manager-at-risk in a two-phase process. 10 (1) Phase one. The government entity shall prepare a 11 request for statements of qualifications for the first phase. 12 The request shall include general information on the project 13 site, project scope, schedule, selection criteria, the time 14 and place for receipt of statements of qualifications, and 15 other information that may assist the government entity in its 16 selection of a construction manager-at-risk. The selection 17 criteria may include the construction manager-at-risk’s 18 experience, past performance, safety record, proposed personnel 19 and methodology, and other appropriate factors that demonstrate 20 the capability of the construction manager-at-risk. The 21 government entity shall not request fees or prices in phase 22 one. 23 (2) Phase two. In phase two, the government entity 24 shall issue a request for proposals. The government entity 25 may request that no more than five nor fewer than two 26 construction managers-at-risk, selected solely on the basis 27 of qualifications, provide additional information, including 28 the construction manager-at-risk’s project proposal, proposed 29 fee, its price for fulfilling the general conditions, and its 30 distribution plan for sharing any cost savings after completion 31 of said project. Qualifications shall account for a minimum 32 of forty percent of the evaluation. Cost shall account for a 33 maximum of sixty percent of the evaluation. 34 d. For each phase, the government entity shall receive, 35 -4- SF 183.1562 (1) 89 jda/rn 4/ 14

publicly open, and read aloud the names of the construction 1 managers submitting proposals or statements of qualifications, 2 respectively. Within forty-five days after the date of opening 3 the proposals or statements of qualification submissions, the 4 government entity or its representative shall evaluate and rank 5 each proposal or statement of qualifications submission in 6 relation to the criteria set forth in the applicable request. 7 e. The government entity or its representative shall 8 select the construction manager-at-risk that submits the 9 proposal that offers the best value for the government entity 10 based on the published selection criteria and on its ranking 11 evaluation. The government entity or its representative 12 shall first attempt to negotiate a contract with the selected 13 construction manager-at-risk. If the government entity or its 14 representative is unable to negotiate a satisfactory contract 15 with the selected construction manager-at-risk, the government 16 entity or its representative shall, formally and in writing, 17 end negotiations with that construction manager-at-risk and 18 proceed to negotiate with the next construction manager-at-risk 19 in the order of the selection ranking until a contract 20 is reached or negotiations with all ranked construction 21 managers-at-risk end. 22 f. The selected construction manager-at-risk shall publicly 23 advertise and receive bids or proposals from trade contractors 24 or subcontractors for the performance of all major elements of 25 the work other than the minor work that may be included in the 26 general conditions. A construction manager-at-risk submits 27 its sealed bid or sealed proposal in the same manner as all 28 other trade contractors or subcontractors. All sealed bids 29 or proposals shall be submitted at the time and location as 30 specified in the advertisement for bids or proposals and shall 31 be publicly opened and the identity of each bidder and their 32 bid amount shall be read aloud. 33 g. The construction manager-at-risk and the government 34 entity or its representative shall review all trade contractor, 35 -5- SF 183.1562 (1) 89 jda/rn 5/ 14

subcontractor, or construction manager-at-risk bids or 1 proposals in a manner that does not disclose the contents of 2 the bid or proposal during the selection process to a person 3 not employed by the construction manager-at-risk, engineer, 4 architect, or government entity involved with the project. If 5 the construction manager-at-risk submitted bids or proposals, 6 the government entity shall determine if the construction 7 manager-at-risk’s bid or proposal offers the best value for the 8 government entity. After all proposals have been evaluated and 9 clarified, the award of all contracts shall be made public. 10 h. If the construction manager-at-risk reviews, evaluates, 11 and recommends to the government entity a bid or proposal from 12 a trade contractor or subcontractor but the government entity 13 requires another bid or proposal to be accepted, the government 14 entity shall compensate the construction manager-at-risk by 15 a change in price, time, or guaranteed maximum cost for any 16 additional cost and risk that the construction manager-at-risk 17 may incur because of the government entity’s requirement that 18 another bid or proposal be accepted. 19 i. If a selected trade contractor materially defaults in the 20 performance of its work or fails to execute a contract with a 21 construction manager-at-risk after being selected in accordance 22 with this subsection, the construction manager-at-risk may 23 itself, without advertising, fulfill the contract requirements 24 or select a replacement trade contractor to fulfill the 25 contract requirements. 26 4. In soliciting proposals for a design-build contract, 27 a government entity shall determine the scope and level of 28 detail required to permit design-builders to submit proposals 29 in accordance with the request for proposals given the nature 30 of the project. 31 5. a. A bridging criteria professional may be retained by 32 the government entity as the government entity’s representative 33 to advise the government entity on design-build matters. The 34 use of the bridging criteria professional shall be strictly 35 -6- SF 183.1562 (1) 89 jda/rn 6/ 14

to guide and administer the government’s needs through the 1 process. The bridging criteria professional shall have 2 demonstrated sufficient previous experience in rules and 3 procedures specific to the design-build process. The bridging 4 criteria professional shall, along with the government 5 entity, be authorized to make recommendations or influence 6 the acceptance of any material, process, or procedure used 7 during the design and construction processes in accordance 8 with the criteria established for the project for the purpose 9 of evaluating compliance of the work. The bridging criteria 10 professional may be employed or contracted by the government 11 entity to act on behalf of the government entity for the sole 12 purpose of administrative procedures and may not be connected 13 in any means to the design-build team. The duration of 14 bridging criteria professional services, prior to the issuance 15 of a design-build contract, may begin when establishing 16 the government entity’s program requirements through design 17 development if the complexity of the project with the 18 governmental entity merits this level of bridging information. 19 b. The design bridging criteria package developed by the 20 bridging criteria professional, which may include preliminary 21 designs for the project, may extend to the design development 22 level of detail, including design expectations, capacity, 23 durability, standards, ingress and egress requirements, 24 international building code considerations, performance 25 requirements, the government entity’s operational expectations, 26 requirements for interior and exterior spaces, material and 27 building system quality standards, and design and construction 28 schedule timelines. Longevity of materials and system 29 performance requirements shall be identified in the design 30 bridging criteria package to identify materials and systems 31 that have the potential to exceed the length of time the 32 project is funded. The design bridging criteria package may 33 include site development requirements, description of the 34 site, surveys, soil and environmental information concerning 35 -7- SF 183.1562 (1) 89 jda/rn 7/ 14

the site, provisions for utilities, storm water retention 1 and disposal, parking requirements, requirements related 2 to applicable local laws, local permitting requirements, 3 preliminary designs for the project or portions thereof, and 4 other criteria for the intended use of the project. 5 6. A government entity shall publicly disclose its intent to 6 solicit proposals for a design-build contract and its project 7 design bridging criteria package in the same manner that it 8 would post notice for the competitive bidding process in 9 section 26.3. 10 7. In soliciting proposals for a design-build contract, a 11 government entity shall establish in the request for proposals 12 a time, place, and other specific instructions for the receipt 13 of proposals. Proposals not submitted in strict accordance 14 with the instructions may be subject to rejection. Minor 15 irregularities may be waived by the government entity. 16 8. A request for proposals shall be prepared for each 17 design-build contract and shall contain, at minimum, the 18 following elements: 19 a. The procedures to be followed for submitting proposals, 20 the criteria for evaluating proposals and their relative 21 weight, and the procedure for making awards. 22 b. The proposed terms and conditions for the design-build 23 contract, if available. 24 c. The design bridging criteria package. 25 d. A description of the drawings, specifications, or other 26 information to be submitted with the proposal, with guidance 27 as to the form and level of completeness of the drawings, 28 specifications, or other information that will be acceptable. 29 e. A schedule for planned commencement and completion of the 30 design-build contract, if available. 31 f. Budget limits for the design-build contract, if any. 32 g. Requirements including any available ratings for 33 performance bonds, payment bonds, and insurance, if any. 34 h. If using a three-phase, best-value selection process, the 35 -8- SF 183.1562 (1) 89 jda/rn 8/ 14

amount of the stipend that will be available. 1 i. Any other information that the government entity in 2 its discretion chooses to request including but not limited 3 to surveys, soil reports, drawings of existing structures, 4 environmental studies, photographs, references to public 5 records, or affirmative action and minority business enterprise 6 requirements consistent with state and federal law. 7 9. A government entity seeking to enter a design-build 8 contract shall solicit design-build proposals either by 9 using a three-phase, best-value process or a two-phase, 10 qualifications-based process. 11 a. When solicitations require a three-phase, best-value 12 selection process, the process shall be conducted as follows: 13 (1) Phase one. Request for statements of qualifications of 14 design-builders. 15 (a) The government entity shall review submitted statements 16 of the qualifications and assign points to each in accordance 17 with this section and as set out in the instructions of the 18 request for qualifications. 19 (b) All design-builders shall submit a statement of 20 qualifications that shall include but not be limited to: 21 (i) Demonstrated ability to perform projects comparable in 22 design, scope, and complexity. 23 (ii) References of owners for whom design-build projects, 24 construction projects, or design projects have been performed. 25 (iii) Qualifications of personnel who will manage the 26 design and construction aspects of the project. 27 (iv) The names and qualifications of the primary design 28 consultants and the primary trade contractors with whom the 29 design-builder proposes to subcontract or joint venture. The 30 design-builder may not replace an identified contractor, 31 subcontractor, design consultant, or subconsultant without the 32 written approval of the government entity. 33 (c) The government entity shall evaluate the qualifications 34 of all the design-builders who submitted statements of 35 -9- SF 183.1562 (1) 89 jda/rn 9/ 14

qualifications in accordance with the instructions of the 1 request for qualifications. Qualified design-builders 2 selected by the government entity may proceed to phase two 3 of the selection process. The evaluation shall narrow the 4 number of qualified design-builders submitting statements of 5 qualifications to not fewer than two nor more than five. Under 6 no circumstances shall price or fees be a part of the request 7 for statements of qualifications criteria. Design-builders may 8 be interviewed in either phase one or phase two of the process. 9 Points assigned in phase one of the evaluation process shall 10 not carry forward to phase two or phase three of the process. 11 All qualified design-builders shall be ranked on points given 12 in phases two and three only. 13 (d) Once no fewer than two and no more than five qualified 14 design-builders have been selected, the government entity shall 15 issue its request for proposals and provide the design-builders 16 a specified amount of time in which to concurrently assemble 17 phase two and phase three proposals. 18 (2) Phase two. Solicitation of technical proposals, 19 including conceptual design for the project. 20 (a) A design-builder shall submit its design for the project 21 to the level of detail required for the proposal along with 22 such other information the government entity requests, which 23 may include a schedule, qualifications, and experience. 24 (b) The ability of the design-builder to meet the schedule 25 for completing a project as specified by the government entity 26 may be considered as an element of evaluation in phase two. 27 (c) Under no circumstances shall the design proposal 28 contain any reference to the cost of the proposal. 29 (d) The submitted designs shall be evaluated and assigned 30 points in accordance with the requirements of the request for 31 proposals. Phase two shall account for not less than forty 32 percent and no more than sixty percent of the total point score 33 as specified in the request for proposals. 34 (3) Phase three. Proposal of construction costs. 35 -10- SF 183.1562 (1) 89 jda/rn 10/ 14

(a) The government entity shall invite the selected 1 design-builders to participate in phase three. The 2 design-builders shall provide a fixed cost of design and 3 construction. The proposal shall be accompanied by bid 4 security and any other items, such as statements of minority 5 participation, as required by the request for proposals. 6 (b) Cost proposals shall be submitted in accordance with 7 the instructions in the request for proposals. The government 8 entity shall reject any proposal that is not submitted within 9 the required time frame. Phase three shall account for not 10 less than forty percent and no more than sixty percent of the 11 total point score as specified in the request for proposals. 12 (c) Proposals for phase two and phase three shall be 13 submitted concurrently at the time and place specified in the 14 request for proposals, but in separate envelopes or other means 15 of submission. The phase three cost proposals shall be opened 16 and read aloud only after phase two design proposals have been 17 evaluated and assigned points, ranked in order, and posted. 18 Cost proposals shall be opened and read aloud at the time and 19 place specified in the request for proposals. At the same time 20 and place, the evaluation team shall make public its scoring 21 of phase two. Cost proposals shall be evaluated in accordance 22 with the requirements of the request for proposals. 23 (d) If the government entity determines that it is not in 24 the best interest of the government entity to proceed with the 25 project pursuant to the proposal offered by the design-builder 26 with the highest total number of points, the government entity 27 shall reject all proposals. In this event, all design-builders 28 with lower point totals in phases two and three shall receive 29 a stipend and the responsive design-builder with the highest 30 point total shall receive an amount equal to two times the 31 stipend. If the government entity decides to award the 32 project, the responsive design-builder with the highest point 33 total shall be awarded the contract. 34 (e) As an inducement to qualified design-builders, the 35 -11- SF 183.1562 (1) 89 jda/rn 11/ 14

government entity shall pay a stipend, the amount of which 1 shall be established in the request for proposals, to each 2 design-builder who submitted a proposal but was not accepted. 3 Such stipend shall be no less than one-half of one percent 4 of the total project budget. Upon payment of the stipend to 5 such a design-builder, the government entity shall acquire 6 a nonexclusive right to use the design submitted by the 7 design-builder, and the design-builder shall have no further 8 liability for the use of the design by the government entity in 9 any manner. If the design-builder desires to retain all rights 10 and interests in the design proposed, the design-builder shall 11 forfeit the stipend. 12 b. When solicitations require a two-phase, 13 qualifications-based selection process, the process shall be 14 conducted as follows: 15 (1) Phase one. Request for statements of qualifications of 16 design-builders. 17 (a) The government entity must prepare a request for 18 statements of qualifications. The request shall include 19 general information on the project site, project scope, 20 schedule, selection criteria, the time and place for receipt 21 of statements of qualifications, and other information 22 that may assist the government entity in its selection of a 23 design-builder. 24 (b) The government entity shall state the selection 25 criteria in the request for statements of qualifications. The 26 selection criteria may include the design-builder’s experience, 27 past performance, safety record, proposed personnel and 28 methodology, and other appropriate factors that demonstrate the 29 capability of the design-builder. 30 (c) Selection criteria will be ranked and assigned points 31 for each category. Point assignments shall be included as a 32 part of the request for statements of qualifications. 33 (d) The government entity shall not request fees or prices 34 in phase one. Any submissions with disclosed fees or prices 35 -12- SF 183.1562 (1) 89 jda/rn 12/ 14

will be disqualified and removed from consideration. 1 (2) Phase two. Negotiations. 2 (a) Negotiations shall be conducted, beginning with the 3 design-builder ranked first. If a contract satisfactory 4 and advantageous to the government entity can be negotiated 5 at a price considered fair and reasonable and pursuant to 6 contractual terms and conditions acceptable to the government 7 entity, the award shall be made to that design-builder. 8 (b) In the event that a contract cannot be negotiated 9 with the design-builder ranked first, negotiations with that 10 design-builder shall be formally terminated. The government 11 entity shall conduct negotiations with the next-highest-ranked 12 design-builder and continue this process until a contract can 13 be negotiated that meets the terms of subparagraph division (a) 14 of this subparagraph. 15 10. A governmental entity or the state department of 16 transportation shall not be authorized to enter into an 17 alternative project delivery contract for public improvements 18 relating to highway, bridge, or culvert construction. 19 Sec. 2. Section 262.34, subsection 1, Code 2021, is amended 20 to read as follows: 21 1. a. When the estimated cost of construction, repairs, 22 or improvement of buildings or grounds under charge of the 23 state board of regents, including construction, renovation, or 24 repairs by a private party of a property to be lease-purchased 25 by the board, exceeds one hundred thousand dollars, the board 26 shall advertise for bids for the contemplated improvement or 27 construction and shall let the work to the lowest responsible 28 bidder. However, if in the judgment of the board bids received 29 are not acceptable, the board may reject all bids and proceed 30 with the construction, repair, or improvement by a method as 31 the board may determine. All plans and specifications for 32 repairs or construction, together with bids on the plans or 33 specifications, shall be filed by the board and be open for 34 public inspection. All bids submitted under this section shall 35 -13- SF 183.1562 (1) 89 jda/rn 13/ 14

be accompanied by a deposit of money, a certified check, or a 1 credit union certified share draft in an amount as the board 2 may prescribe. 3 b. The state board of regents may proceed with a 4 construction, repair, or improvement by using an alternative 5 project delivery contract in accordance with the provisions of 6 section 26.17. > 7 2. Title page, by striking lines 1 through 5 and inserting 8 < An Act relating to public construction bidding. > 9 ______________________________ HUNTER of Polk -14- SF 183.1562 (1) 89 jda/rn 14/ 14 #2.