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House File 195 - IntroducedA Bill ForAn Act 1relating to public construction bidding.
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 26.17 Alternative project delivery
2contracts.
31. As used in this section, unless the context otherwise
4requires:
5a. “Alternative project delivery contract” means either a
6design-build or construction manager-at-risk contract.
7b. “Bridging criteria professional” means a person,
8corporation, partnership, or other legal entity that is
9employed by or contracted by a government entity to assist
10the government entity in the development of project design
11criteria, requests for proposals, and any additional services
12requested by the government entity to represent its interests
13in relation to a project and who meets either of the following
14requirements:
15(1) Is duly licensed to practice architecture within the
16state and can demonstrate specific knowledge of the project
17type where alternative project delivery services are being
18sought.
19(2) Is duly licensed as a professional engineer within the
20state and can demonstrate specific knowledge of the project
21type where alternative project delivery services are being
22sought.
23c. “Construction manager-at-risk” means a sole
24proprietorship, partnership, corporation, or other legal entity
25that acts as a consultant to the government entity in the
26development and design phases and then assumes the risk for
27the construction, rehabilitation, alteration, or repair of a
28project at the contracted fixed or guaranteed maximum price,
29similar to a general contractor during the construction phase.
30A project using a construction manager-at-risk does not include
31the construction, reconstruction, or improvement of a highway,
32bridge, or culvert.
33d. “Design-build” means a project delivery method subject to
34a two or three-phase selection process for which the design and
35construction services are furnished under one contract.
-1- 1e. “Design-build contract” means a contract between
2a government entity and a design-builder to furnish the
3architecture of record, engineering of record, and related
4services as required for a given public project, and to
5furnish the labor, materials, and other construction services
6for the same public project. A design-build contract may be
7conditioned upon subsequent refinements in scope and price, and
8may permit the government entity to make changes in the scope
9of the project without invalidating the design-build contract.
10f. “Design-build project” means the design, construction,
11alteration, addition, remodeling, or improvement of any
12buildings, infrastructure, or facilities under contract with a
13government entity. “Design-build project” does not include a
14project for the construction, reconstruction, or improvement of
15a highway, bridge, or culvert.
16g. “Design-builder” means any individual, partnership,
17joint venture, or corporation subject to a best-value or
18qualification-based selection that offers to provide or
19provides design services and general contracting services
20through a design-build contract in which services within
21the scope of the practice of professional architecture or
22engineering are performed respectively by a licensed architect
23or licensed engineer and in which services within the scope of
24general contracting are performed by a general contractor or
25other legal entity that furnishes architecture or engineering
26services and construction services either directly or through
27subcontracts or joint ventures.
28h. “Design bridging criteria package” means the
29performance-oriented program, scope, design, and performance
30specifications for the design-build project sufficient to
31permit a design-builder to prepare a response to a government
32entity’s request for proposals for a design-build project.
33i. “Government entity” means the same as “governmental
34entity” defined in section 26.2 including, for the purpose of
35this section, the state board of regents.
-2- 1j. “Proposal” means an offer by a design-builder in response
2to a request for proposals to enter into a design-build
3contract.
4k. “Request for proposals” means the document by which
5a government entity solicits proposals for a design-build
6contract.
7l. “Stipend” means a payment to a design-builder who did not
8score the highest number of points at the conclusion of phase
9three of the best-value selection process to defray the cost of
10participating in phase two of the selection process, and for
11the use of any intellectual properties obtained.
122. Notwithstanding any other law to the contrary, a
13government entity shall be authorized to enter into an
14alternative project delivery contract.
153. Construction manager-at-risk contracts.
16a. A government entity shall publicly disclose its intent to
17use the construction manager-at-risk method and its selection
18criteria at least one week prior to publishing the request
19for proposals and request for statements of qualifications.
20The government entity shall publish its request for proposals
21and statements of qualifications. Before or concurrently
22with selecting a construction manager-at-risk, the government
23entity shall select or designate an engineer or architect
24who shall prepare the construction documents for the project
25and who shall comply with all state laws, as applicable. If
26the engineer or architect is not a full-time employee of the
27government entity, the government entity shall select the
28engineer or architect on a basis of demonstrated competence and
29qualifications. The government entity’s engineer or architect
30for a project may not serve, alone or in combination with
31another, as the construction manager-at-risk. This paragraph
32does not prohibit a government entity’s engineer or architect
33from providing customary construction-phase services under
34the engineer’s or architect’s original professional service
35agreement in accordance with applicable licensing laws.
-3- 1b. The government entity may provide or contract for,
2independently of the construction manager-at-risk, inspection
3services, testing of construction materials, engineering, and
4verification of testing services necessary for acceptance of
5the project by the government entity.
6c. The government entity shall select the construction
7manager-at-risk in a two-phase process.
8(1) Phase one. The government entity shall prepare a
9request for statements of qualifications for the first phase.
10The request shall include general information on the project
11site, project scope, schedule, selection criteria, the time
12and place for receipt of statements of qualifications, and
13other information that may assist the government entity in its
14selection of a construction manager-at-risk. The selection
15criteria may include the construction manager-at-risk’s
16experience, past performance, safety record, proposed personnel
17and methodology, and other appropriate factors that demonstrate
18the capability of the construction manager-at-risk. The
19government entity shall not request fees or prices in phase
20one.
21(2) Phase two. In phase two, the government entity
22shall issue a request for proposals. The government entity
23may request that no more than five nor fewer than two
24construction managers-at-risk, selected solely on the basis
25of qualifications, provide additional information, including
26the construction manager-at-risk’s project proposal, proposed
27fee, its price for fulfilling the general conditions, and its
28distribution plan for sharing any cost savings after completion
29of said project. Qualifications shall account for a minimum
30of forty percent of the evaluation. Cost shall account for a
31maximum of sixty percent of the evaluation.
32d. For each phase, the government entity shall receive,
33publicly open, and read aloud the names of the construction
34managers submitting proposals or statements of qualifications,
35respectively. Within forty-five days after the date of opening
-4-1the proposals or statements of qualification submissions, the
2government entity or its representative shall evaluate and rank
3each proposal or statement of qualifications submission in
4relation to the criteria set forth in the applicable request.
5e. The government entity or its representative shall
6select the construction manager-at-risk that submits the
7proposal that offers the best value for the government entity
8based on the published selection criteria and on its ranking
9evaluation. The government entity or its representative
10shall first attempt to negotiate a contract with the selected
11construction manager-at-risk. If the government entity or its
12representative is unable to negotiate a satisfactory contract
13with the selected construction manager-at-risk, the government
14entity or its representative shall, formally and in writing,
15end negotiations with that construction manager-at-risk and
16proceed to negotiate with the next construction manager-at-risk
17in the order of the selection ranking until a contract
18is reached or negotiations with all ranked construction
19managers-at-risk end.
20f. The selected construction manager-at-risk shall publicly
21advertise and receive bids or proposals from trade contractors
22or subcontractors for the performance of all major elements of
23the work other than the minor work that may be included in the
24general conditions. A construction manager-at-risk submits
25its sealed bid or sealed proposal in the same manner as all
26other trade contractors or subcontractors. All sealed bids
27or proposals shall be submitted at the time and location as
28specified in the advertisement for bids or proposals and shall
29be publicly opened and the identity of each bidder and their
30bid amount shall be read aloud.
31g. The construction manager-at-risk and the government
32entity or its representative shall review all trade contractor,
33subcontractor, or construction manager-at-risk bids or
34proposals in a manner that does not disclose the contents of
35the bid or proposal during the selection process to a person
-5-1not employed by the construction manager-at-risk, engineer,
2architect, or government entity involved with the project. If
3the construction manager-at-risk submitted bids or proposals,
4the government entity shall determine if the construction
5manager-at-risk’s bid or proposal offers the best value for the
6government entity. After all proposals have been evaluated and
7clarified, the award of all contracts shall be made public.
8h. If the construction manager-at-risk reviews, evaluates,
9and recommends to the government entity a bid or proposal from
10a trade contractor or subcontractor but the government entity
11requires another bid or proposal to be accepted, the government
12entity shall compensate the construction manager-at-risk by
13a change in price, time, or guaranteed maximum cost for any
14additional cost and risk that the construction manager-at-risk
15may incur because of the government entity’s requirement that
16another bid or proposal be accepted.
17i. If a selected trade contractor materially defaults in the
18performance of its work or fails to execute a contract with a
19construction manager-at-risk after being selected in accordance
20with this subsection, the construction manager-at-risk may
21itself, without advertising, fulfill the contract requirements
22or select a replacement trade contractor to fulfill the
23contract requirements.
244. In soliciting proposals for a design-build contract,
25a government entity shall determine the scope and level of
26detail required to permit design-builders to submit proposals
27in accordance with the request for proposals given the nature
28of the project.
295. a. A bridging criteria professional may be retained by
30the government entity as the government entity’s representative
31to advise the government entity on design-build matters. The
32use of the bridging criteria professional shall be strictly
33to guide and administer the government’s needs through the
34process. The bridging criteria professional shall have
35demonstrated sufficient previous experience in rules and
-6-1procedures specific to the design-build process. The bridging
2criteria professional shall, along with the government
3entity, be authorized to make recommendations or influence
4the acceptance of any material, process, or procedure used
5during the design and construction processes in accordance
6with the criteria established for the project for the purpose
7of evaluating compliance of the work. The bridging criteria
8professional may be employed or contracted by the government
9entity to act on behalf of the government entity for the sole
10purpose of administrative procedures and may not be connected
11in any means to the design-build team. The duration of
12bridging criteria professional services, prior to the issuance
13of a design-build contract, may begin when establishing
14the government entity’s program requirements through design
15development if the complexity of the project with the
16governmental entity merits this level of bridging information.
17b. The design bridging criteria package developed by the
18bridging criteria professional, which may include preliminary
19designs for the project, may extend to the design development
20level of detail, including design expectations, capacity,
21durability, standards, ingress and egress requirements,
22international building code considerations, performance
23requirements, the government entity’s operational expectations,
24requirements for interior and exterior spaces, material and
25building system quality standards, and design and construction
26schedule timelines. Longevity of materials and system
27performance requirements shall be identified in the design
28bridging criteria package to identify materials and systems
29that have the potential to exceed the length of time the
30project is funded. The design bridging criteria package may
31include site development requirements, description of the
32site, surveys, soil and environmental information concerning
33the site, provisions for utilities, storm water retention
34and disposal, parking requirements, requirements related
35to applicable local laws, local permitting requirements,
-7-1preliminary designs for the project or portions thereof, and
2other criteria for the intended use of the project.
36. A government entity shall publicly disclose its intent to
4solicit proposals for a design-build contract and its project
5design bridging criteria package in the same manner that it
6would post notice for the competitive bidding process in
7section 26.3.
87. In soliciting proposals for a design-build contract, a
9government entity shall establish in the request for proposals
10a time, place, and other specific instructions for the receipt
11of proposals. Proposals not submitted in strict accordance
12with the instructions may be subject to rejection. Minor
13irregularities may be waived by the government entity.
148. A request for proposals shall be prepared for each
15design-build contract and shall contain, at minimum, the
16following elements:
17a. The procedures to be followed for submitting proposals,
18the criteria for evaluating proposals and their relative
19weight, and the procedure for making awards.
20b. The proposed terms and conditions for the design-build
21contract, if available.
22c. The design bridging criteria package.
23d. A description of the drawings, specifications, or other
24information to be submitted with the proposal, with guidance
25as to the form and level of completeness of the drawings,
26specifications, or other information that will be acceptable.
27e. A schedule for planned commencement and completion of the
28design-build contract, if available.
29f. Budget limits for the design-build contract, if any.
30g. Requirements including any available ratings for
31performance bonds, payment bonds, and insurance, if any.
32h. If using a three-phase, best-value selection process, the
33amount of the stipend that will be available.
34i. Any other information that the government entity in
35its discretion chooses to request including but not limited
-8-1to surveys, soil reports, drawings of existing structures,
2environmental studies, photographs, references to public
3records, or affirmative action and minority business enterprise
4requirements consistent with state and federal law.
59. A government entity seeking to enter a design-build
6contract shall solicit design-build proposals either by
7using a three-phase, best-value process or a two-phase,
8qualifications-based process.
9a. When solicitations require a three-phase, best-value
10selection process, the process shall be conducted as follows:
11(1) Phase one. Request for statements of qualifications of
12design-builders.
13(a) The government entity shall review submitted statements
14of the qualifications and assign points to each in accordance
15with this section and as set out in the instructions of the
16request for qualifications.
17(b) All design-builders shall submit a statement of
18qualifications that shall include but not be limited to:
19(i) Demonstrated ability to perform projects comparable in
20design, scope, and complexity.
21(ii) References of owners for whom design-build projects,
22construction projects, or design projects have been performed.
23(iii) Qualifications of personnel who will manage the
24design and construction aspects of the project.
25(iv) The names and qualifications of the primary design
26consultants and the primary trade contractors with whom the
27design-builder proposes to subcontract or joint venture. The
28design-builder may not replace an identified contractor,
29subcontractor, design consultant, or subconsultant without the
30written approval of the government entity.
31(c) The government entity shall evaluate the qualifications
32of all the design-builders who submitted statements of
33qualifications in accordance with the instructions of the
34request for qualifications. Qualified design-builders
35selected by the government entity may proceed to phase two
-9-1of the selection process. The evaluation shall narrow the
2number of qualified design-builders submitting statements of
3qualifications to not fewer than two nor more than five. Under
4no circumstances shall price or fees be a part of the request
5for statements of qualifications criteria. Design-builders may
6be interviewed in either phase one or phase two of the process.
7Points assigned in phase one of the evaluation process shall
8not carry forward to phase two or phase three of the process.
9All qualified design-builders shall be ranked on points given
10in phases two and three only.
11(d) Once no fewer than two and no more than five qualified
12design-builders have been selected, the government entity shall
13issue its request for proposals and provide the design-builders
14a specified amount of time in which to concurrently assemble
15phase two and phase three proposals.
16(2) Phase two. Solicitation of technical proposals,
17including conceptual design for the project.
18(a) A design-builder shall submit its design for the project
19to the level of detail required for the proposal along with
20such other information the government entity requests, which
21may include a schedule, qualifications, and experience.
22(b) The ability of the design-builder to meet the schedule
23for completing a project as specified by the government entity
24may be considered as an element of evaluation in phase two.
25(c) Under no circumstances shall the design proposal
26contain any reference to the cost of the proposal.
27(d) The submitted designs shall be evaluated and assigned
28points in accordance with the requirements of the request for
29proposals. Phase two shall account for not less than forty
30percent and no more than sixty percent of the total point score
31as specified in the request for proposals.
32(3) Phase three. Proposal of construction costs.
33(a) The government entity shall invite the selected
34design-builders to participate in phase three. The
35design-builders shall provide a fixed cost of design and
-10-1construction. The proposal shall be accompanied by bid
2security and any other items, such as statements of minority
3participation, as required by the request for proposals.
4(b) Cost proposals shall be submitted in accordance with
5the instructions in the request for proposals. The government
6entity shall reject any proposal that is not submitted within
7the required time frame. Phase three shall account for not
8less than forty percent and no more than sixty percent of the
9total point score as specified in the request for proposals.
10(c) Proposals for phase two and phase three shall be
11submitted concurrently at the time and place specified in the
12request for proposals, but in separate envelopes or other means
13of submission. The phase three cost proposals shall be opened
14and read aloud only after phase two design proposals have been
15evaluated and assigned points, ranked in order, and posted.
16Cost proposals shall be opened and read aloud at the time and
17place specified in the request for proposals. At the same time
18and place, the evaluation team shall make public its scoring
19of phase two. Cost proposals shall be evaluated in accordance
20with the requirements of the request for proposals.
21(d) If the government entity determines that it is not in
22the best interest of the government entity to proceed with the
23project pursuant to the proposal offered by the design-builder
24with the highest total number of points, the government entity
25shall reject all proposals. In this event, all design-builders
26with lower point totals in phases two and three shall receive
27a stipend and the responsive design-builder with the highest
28point total shall receive an amount equal to two times the
29stipend. If the government entity decides to award the
30project, the responsive design-builder with the highest point
31total shall be awarded the contract.
32(e) As an inducement to qualified design-builders, the
33government entity shall pay a stipend, the amount of which
34shall be established in the request for proposals, to each
35design-builder who submitted a proposal but was not accepted.
-11-1Such stipend shall be no less than one-half of one percent
2of the total project budget. Upon payment of the stipend to
3such a design-builder, the government entity shall acquire
4a nonexclusive right to use the design submitted by the
5design-builder, and the design-builder shall have no further
6liability for the use of the design by the government entity in
7any manner. If the design-builder desires to retain all rights
8and interests in the design proposed, the design-builder shall
9forfeit the stipend.
10b. When solicitations require a two-phase,
11qualifications-based selection process, the process shall be
12conducted as follows:
13(1) Phase one. Request for statements of qualifications of
14design-builders.
15(a) The government entity must prepare a request for
16statements of qualifications. The request shall include
17general information on the project site, project scope,
18schedule, selection criteria, the time and place for receipt
19of statements of qualifications, and other information
20that may assist the government entity in its selection of a
21design-builder.
22(b) The government entity shall state the selection
23criteria in the request for statements of qualifications. The
24selection criteria may include the design-builder’s experience,
25past performance, safety record, proposed personnel and
26methodology, and other appropriate factors that demonstrate the
27capability of the design-builder.
28(c) Selection criteria will be ranked and assigned points
29for each category. Point assignments shall be included as a
30part of the request for statements of qualifications.
31(d) The government entity shall not request fees or prices
32in phase one. Any submissions with disclosed fees or prices
33will be disqualified and removed from consideration.
34(2) Phase two. Negotiations.
35(a) Negotiations shall be conducted, beginning with the
-12-1design-builder ranked first. If a contract satisfactory
2and advantageous to the government entity can be negotiated
3at a price considered fair and reasonable and pursuant to
4contractual terms and conditions acceptable to the government
5entity, the award shall be made to that design-builder.
6(b) In the event that a contract cannot be negotiated
7with the design-builder ranked first, negotiations with that
8design-builder shall be formally terminated. The government
9entity shall conduct negotiations with the next-highest-ranked
10design-builder and continue this process until a contract can
11be negotiated that meets the terms of subparagraph division (a)
12of this subparagraph.
13 Sec. 2. Section 262.34, subsection 1, Code 2021, is amended
14to read as follows:
151. a. When the estimated cost of construction, repairs,
16or improvement of buildings or grounds under charge of the
17state board of regents, including construction, renovation, or
18repairs by a private party of a property to be lease-purchased
19by the board, exceeds one hundred thousand dollars, the board
20shall advertise for bids for the contemplated improvement or
21construction and shall let the work to the lowest responsible
22bidder. However, if in the judgment of the board bids received
23are not acceptable, the board may reject all bids and proceed
24with the construction, repair, or improvement by a method as
25the board may determine. All plans and specifications for
26repairs or construction, together with bids on the plans or
27specifications, shall be filed by the board and be open for
28public inspection. All bids submitted under this section shall
29be accompanied by a deposit of money, a certified check, or a
30credit union certified share draft in an amount as the board
31may prescribe.
32b. The state board of regents may proceed with a
33construction, repair, or improvement by using an alternative
34project delivery contract in accordance with the provisions of
35section 26.17.
-13-1EXPLANATION
2The inclusion of this explanation does not constitute agreement with
3the explanation’s substance by the members of the general assembly.
4This bill concerns public construction bidding.
5The bill allows a government entity to use an alternative
6project delivery contract in circumstances that normally
7require the government entity to use competitive bidding
8procedures. Currently, most government entities must use
9a competitive bidding process for a construction project
10when that project is estimated to cost at least as much as a
11threshold defined in Code section 26.3. The bill defines a
12government entity to include the state board of regents.
13The bill creates two types of alternative project delivery
14contracts, each with specified requirements. The first
15alternative is the construction manager-at-risk contract. If a
16government entity opts to use a construction manager-at-risk
17contract, the government entity shall select an engineer
18or architect to prepare the construction documents for
19the project. That engineer or architect cannot serve as
20the construction manager-at-risk. The government entity
21shall use a two-phase process in selecting the construction
22manager-at-risk. The first phase shall include a request for
23qualifications and the government entity’s selection criteria.
24The government entity may select at least two but no more
25than five of the construction managers-at-risk who submitted
26qualifications to participate in the second phase, based solely
27on the qualifications of those construction managers-at-risk.
28In phase two, the construction managers-at-risk that the
29government entity selects will provide additional information,
30including the project proposal, costs, and fees. The
31government entity shall rank the construction managers-at-risk
32in a manner in which qualifications account for at least 40
33percent of the evaluation and cost accounts for no more than 60
34percent of the evaluation. The government entity shall select
35the construction manager-at-risk that offers the best value
-14-1based on the evaluation criteria. If the two parties do not
2reach an agreement, the government entity shall proceed with
3the next highest-ranked construction manager-at-risk and follow
4this process until the government entity reaches a contract
5with a construction manager-at-risk. The selected construction
6manager-at-risk shall advertise for and receive sealed bids
7for proposals from trade contractors or subcontractors and
8publicly review those bids with the government entity in a
9manner that does not disclose the contents of the bid or
10proposal during the selection process to a person not employed
11by the construction manager-at-risk, engineer, architect, or
12government entity involved with the project. The construction
13manager-at-risk will select a bid in consultation with the
14government entity.
15The second type of alternative project delivery method is
16the design-build contract, which allows for the selection of
17design-builders in either a three-phase or two-phase process.
18Under the design-build process, a government entity may retain
19a bridging criteria professional to advise the government
20entity on design-build matters. In the three-phase process,
21the government entity shall first request statements of
22qualifications from design-builders. The government entity
23shall select at least two but no more than five qualified
24design-builders to move on to phases two and three. In
25the second phase, the government entity shall solicit
26technical proposals and conceptual designs from the remaining
27design-builders. The government entity shall pay a stipend
28to any design-builder that participates in phase two but
29whose contract the entity does not select. The third phase
30involves the design-builders submitting construction costs.
31The government entity shall award points for each proposal. If
32the government entity chooses to award a contract, it shall
33award the contract to the design-builder with the highest point
34total.
35If the government entity uses the two-phase process, the
-15-1government entity will request qualifications and include
2its selection criteria. The government entity will rank the
3qualifications of a design-builder. In the second phase, the
4government entity shall negotiate with the highest-ranked
5design-builder. If the two parties cannot agree to a contract
6with terms and conditions acceptable to the government
7entity, those negotiations shall be formally terminated
8and the government entity shall negotiate with the next
9highest-ranked design-builder. That process shall continue
10until the government entity can negotiate a contract with a
11design-builder with terms and conditions acceptable to the
12government entity.
-16-jda/rn
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 26.17 Alternative project delivery
2contracts.
31. As used in this section, unless the context otherwise
4requires:
5a. “Alternative project delivery contract” means either a
6design-build or construction manager-at-risk contract.
7b. “Bridging criteria professional” means a person,
8corporation, partnership, or other legal entity that is
9employed by or contracted by a government entity to assist
10the government entity in the development of project design
11criteria, requests for proposals, and any additional services
12requested by the government entity to represent its interests
13in relation to a project and who meets either of the following
14requirements:
15(1) Is duly licensed to practice architecture within the
16state and can demonstrate specific knowledge of the project
17type where alternative project delivery services are being
18sought.
19(2) Is duly licensed as a professional engineer within the
20state and can demonstrate specific knowledge of the project
21type where alternative project delivery services are being
22sought.
23c. “Construction manager-at-risk” means a sole
24proprietorship, partnership, corporation, or other legal entity
25that acts as a consultant to the government entity in the
26development and design phases and then assumes the risk for
27the construction, rehabilitation, alteration, or repair of a
28project at the contracted fixed or guaranteed maximum price,
29similar to a general contractor during the construction phase.
30A project using a construction manager-at-risk does not include
31the construction, reconstruction, or improvement of a highway,
32bridge, or culvert.
33d. “Design-build” means a project delivery method subject to
34a two or three-phase selection process for which the design and
35construction services are furnished under one contract.
-1- 1e. “Design-build contract” means a contract between
2a government entity and a design-builder to furnish the
3architecture of record, engineering of record, and related
4services as required for a given public project, and to
5furnish the labor, materials, and other construction services
6for the same public project. A design-build contract may be
7conditioned upon subsequent refinements in scope and price, and
8may permit the government entity to make changes in the scope
9of the project without invalidating the design-build contract.
10f. “Design-build project” means the design, construction,
11alteration, addition, remodeling, or improvement of any
12buildings, infrastructure, or facilities under contract with a
13government entity. “Design-build project” does not include a
14project for the construction, reconstruction, or improvement of
15a highway, bridge, or culvert.
16g. “Design-builder” means any individual, partnership,
17joint venture, or corporation subject to a best-value or
18qualification-based selection that offers to provide or
19provides design services and general contracting services
20through a design-build contract in which services within
21the scope of the practice of professional architecture or
22engineering are performed respectively by a licensed architect
23or licensed engineer and in which services within the scope of
24general contracting are performed by a general contractor or
25other legal entity that furnishes architecture or engineering
26services and construction services either directly or through
27subcontracts or joint ventures.
28h. “Design bridging criteria package” means the
29performance-oriented program, scope, design, and performance
30specifications for the design-build project sufficient to
31permit a design-builder to prepare a response to a government
32entity’s request for proposals for a design-build project.
33i. “Government entity” means the same as “governmental
34entity” defined in section 26.2 including, for the purpose of
35this section, the state board of regents.
-2- 1j. “Proposal” means an offer by a design-builder in response
2to a request for proposals to enter into a design-build
3contract.
4k. “Request for proposals” means the document by which
5a government entity solicits proposals for a design-build
6contract.
7l. “Stipend” means a payment to a design-builder who did not
8score the highest number of points at the conclusion of phase
9three of the best-value selection process to defray the cost of
10participating in phase two of the selection process, and for
11the use of any intellectual properties obtained.
122. Notwithstanding any other law to the contrary, a
13government entity shall be authorized to enter into an
14alternative project delivery contract.
153. Construction manager-at-risk contracts.
16a. A government entity shall publicly disclose its intent to
17use the construction manager-at-risk method and its selection
18criteria at least one week prior to publishing the request
19for proposals and request for statements of qualifications.
20The government entity shall publish its request for proposals
21and statements of qualifications. Before or concurrently
22with selecting a construction manager-at-risk, the government
23entity shall select or designate an engineer or architect
24who shall prepare the construction documents for the project
25and who shall comply with all state laws, as applicable. If
26the engineer or architect is not a full-time employee of the
27government entity, the government entity shall select the
28engineer or architect on a basis of demonstrated competence and
29qualifications. The government entity’s engineer or architect
30for a project may not serve, alone or in combination with
31another, as the construction manager-at-risk. This paragraph
32does not prohibit a government entity’s engineer or architect
33from providing customary construction-phase services under
34the engineer’s or architect’s original professional service
35agreement in accordance with applicable licensing laws.
-3- 1b. The government entity may provide or contract for,
2independently of the construction manager-at-risk, inspection
3services, testing of construction materials, engineering, and
4verification of testing services necessary for acceptance of
5the project by the government entity.
6c. The government entity shall select the construction
7manager-at-risk in a two-phase process.
8(1) Phase one. The government entity shall prepare a
9request for statements of qualifications for the first phase.
10The request shall include general information on the project
11site, project scope, schedule, selection criteria, the time
12and place for receipt of statements of qualifications, and
13other information that may assist the government entity in its
14selection of a construction manager-at-risk. The selection
15criteria may include the construction manager-at-risk’s
16experience, past performance, safety record, proposed personnel
17and methodology, and other appropriate factors that demonstrate
18the capability of the construction manager-at-risk. The
19government entity shall not request fees or prices in phase
20one.
21(2) Phase two. In phase two, the government entity
22shall issue a request for proposals. The government entity
23may request that no more than five nor fewer than two
24construction managers-at-risk, selected solely on the basis
25of qualifications, provide additional information, including
26the construction manager-at-risk’s project proposal, proposed
27fee, its price for fulfilling the general conditions, and its
28distribution plan for sharing any cost savings after completion
29of said project. Qualifications shall account for a minimum
30of forty percent of the evaluation. Cost shall account for a
31maximum of sixty percent of the evaluation.
32d. For each phase, the government entity shall receive,
33publicly open, and read aloud the names of the construction
34managers submitting proposals or statements of qualifications,
35respectively. Within forty-five days after the date of opening
-4-1the proposals or statements of qualification submissions, the
2government entity or its representative shall evaluate and rank
3each proposal or statement of qualifications submission in
4relation to the criteria set forth in the applicable request.
5e. The government entity or its representative shall
6select the construction manager-at-risk that submits the
7proposal that offers the best value for the government entity
8based on the published selection criteria and on its ranking
9evaluation. The government entity or its representative
10shall first attempt to negotiate a contract with the selected
11construction manager-at-risk. If the government entity or its
12representative is unable to negotiate a satisfactory contract
13with the selected construction manager-at-risk, the government
14entity or its representative shall, formally and in writing,
15end negotiations with that construction manager-at-risk and
16proceed to negotiate with the next construction manager-at-risk
17in the order of the selection ranking until a contract
18is reached or negotiations with all ranked construction
19managers-at-risk end.
20f. The selected construction manager-at-risk shall publicly
21advertise and receive bids or proposals from trade contractors
22or subcontractors for the performance of all major elements of
23the work other than the minor work that may be included in the
24general conditions. A construction manager-at-risk submits
25its sealed bid or sealed proposal in the same manner as all
26other trade contractors or subcontractors. All sealed bids
27or proposals shall be submitted at the time and location as
28specified in the advertisement for bids or proposals and shall
29be publicly opened and the identity of each bidder and their
30bid amount shall be read aloud.
31g. The construction manager-at-risk and the government
32entity or its representative shall review all trade contractor,
33subcontractor, or construction manager-at-risk bids or
34proposals in a manner that does not disclose the contents of
35the bid or proposal during the selection process to a person
-5-1not employed by the construction manager-at-risk, engineer,
2architect, or government entity involved with the project. If
3the construction manager-at-risk submitted bids or proposals,
4the government entity shall determine if the construction
5manager-at-risk’s bid or proposal offers the best value for the
6government entity. After all proposals have been evaluated and
7clarified, the award of all contracts shall be made public.
8h. If the construction manager-at-risk reviews, evaluates,
9and recommends to the government entity a bid or proposal from
10a trade contractor or subcontractor but the government entity
11requires another bid or proposal to be accepted, the government
12entity shall compensate the construction manager-at-risk by
13a change in price, time, or guaranteed maximum cost for any
14additional cost and risk that the construction manager-at-risk
15may incur because of the government entity’s requirement that
16another bid or proposal be accepted.
17i. If a selected trade contractor materially defaults in the
18performance of its work or fails to execute a contract with a
19construction manager-at-risk after being selected in accordance
20with this subsection, the construction manager-at-risk may
21itself, without advertising, fulfill the contract requirements
22or select a replacement trade contractor to fulfill the
23contract requirements.
244. In soliciting proposals for a design-build contract,
25a government entity shall determine the scope and level of
26detail required to permit design-builders to submit proposals
27in accordance with the request for proposals given the nature
28of the project.
295. a. A bridging criteria professional may be retained by
30the government entity as the government entity’s representative
31to advise the government entity on design-build matters. The
32use of the bridging criteria professional shall be strictly
33to guide and administer the government’s needs through the
34process. The bridging criteria professional shall have
35demonstrated sufficient previous experience in rules and
-6-1procedures specific to the design-build process. The bridging
2criteria professional shall, along with the government
3entity, be authorized to make recommendations or influence
4the acceptance of any material, process, or procedure used
5during the design and construction processes in accordance
6with the criteria established for the project for the purpose
7of evaluating compliance of the work. The bridging criteria
8professional may be employed or contracted by the government
9entity to act on behalf of the government entity for the sole
10purpose of administrative procedures and may not be connected
11in any means to the design-build team. The duration of
12bridging criteria professional services, prior to the issuance
13of a design-build contract, may begin when establishing
14the government entity’s program requirements through design
15development if the complexity of the project with the
16governmental entity merits this level of bridging information.
17b. The design bridging criteria package developed by the
18bridging criteria professional, which may include preliminary
19designs for the project, may extend to the design development
20level of detail, including design expectations, capacity,
21durability, standards, ingress and egress requirements,
22international building code considerations, performance
23requirements, the government entity’s operational expectations,
24requirements for interior and exterior spaces, material and
25building system quality standards, and design and construction
26schedule timelines. Longevity of materials and system
27performance requirements shall be identified in the design
28bridging criteria package to identify materials and systems
29that have the potential to exceed the length of time the
30project is funded. The design bridging criteria package may
31include site development requirements, description of the
32site, surveys, soil and environmental information concerning
33the site, provisions for utilities, storm water retention
34and disposal, parking requirements, requirements related
35to applicable local laws, local permitting requirements,
-7-1preliminary designs for the project or portions thereof, and
2other criteria for the intended use of the project.
36. A government entity shall publicly disclose its intent to
4solicit proposals for a design-build contract and its project
5design bridging criteria package in the same manner that it
6would post notice for the competitive bidding process in
7section 26.3.
87. In soliciting proposals for a design-build contract, a
9government entity shall establish in the request for proposals
10a time, place, and other specific instructions for the receipt
11of proposals. Proposals not submitted in strict accordance
12with the instructions may be subject to rejection. Minor
13irregularities may be waived by the government entity.
148. A request for proposals shall be prepared for each
15design-build contract and shall contain, at minimum, the
16following elements:
17a. The procedures to be followed for submitting proposals,
18the criteria for evaluating proposals and their relative
19weight, and the procedure for making awards.
20b. The proposed terms and conditions for the design-build
21contract, if available.
22c. The design bridging criteria package.
23d. A description of the drawings, specifications, or other
24information to be submitted with the proposal, with guidance
25as to the form and level of completeness of the drawings,
26specifications, or other information that will be acceptable.
27e. A schedule for planned commencement and completion of the
28design-build contract, if available.
29f. Budget limits for the design-build contract, if any.
30g. Requirements including any available ratings for
31performance bonds, payment bonds, and insurance, if any.
32h. If using a three-phase, best-value selection process, the
33amount of the stipend that will be available.
34i. Any other information that the government entity in
35its discretion chooses to request including but not limited
-8-1to surveys, soil reports, drawings of existing structures,
2environmental studies, photographs, references to public
3records, or affirmative action and minority business enterprise
4requirements consistent with state and federal law.
59. A government entity seeking to enter a design-build
6contract shall solicit design-build proposals either by
7using a three-phase, best-value process or a two-phase,
8qualifications-based process.
9a. When solicitations require a three-phase, best-value
10selection process, the process shall be conducted as follows:
11(1) Phase one. Request for statements of qualifications of
12design-builders.
13(a) The government entity shall review submitted statements
14of the qualifications and assign points to each in accordance
15with this section and as set out in the instructions of the
16request for qualifications.
17(b) All design-builders shall submit a statement of
18qualifications that shall include but not be limited to:
19(i) Demonstrated ability to perform projects comparable in
20design, scope, and complexity.
21(ii) References of owners for whom design-build projects,
22construction projects, or design projects have been performed.
23(iii) Qualifications of personnel who will manage the
24design and construction aspects of the project.
25(iv) The names and qualifications of the primary design
26consultants and the primary trade contractors with whom the
27design-builder proposes to subcontract or joint venture. The
28design-builder may not replace an identified contractor,
29subcontractor, design consultant, or subconsultant without the
30written approval of the government entity.
31(c) The government entity shall evaluate the qualifications
32of all the design-builders who submitted statements of
33qualifications in accordance with the instructions of the
34request for qualifications. Qualified design-builders
35selected by the government entity may proceed to phase two
-9-1of the selection process. The evaluation shall narrow the
2number of qualified design-builders submitting statements of
3qualifications to not fewer than two nor more than five. Under
4no circumstances shall price or fees be a part of the request
5for statements of qualifications criteria. Design-builders may
6be interviewed in either phase one or phase two of the process.
7Points assigned in phase one of the evaluation process shall
8not carry forward to phase two or phase three of the process.
9All qualified design-builders shall be ranked on points given
10in phases two and three only.
11(d) Once no fewer than two and no more than five qualified
12design-builders have been selected, the government entity shall
13issue its request for proposals and provide the design-builders
14a specified amount of time in which to concurrently assemble
15phase two and phase three proposals.
16(2) Phase two. Solicitation of technical proposals,
17including conceptual design for the project.
18(a) A design-builder shall submit its design for the project
19to the level of detail required for the proposal along with
20such other information the government entity requests, which
21may include a schedule, qualifications, and experience.
22(b) The ability of the design-builder to meet the schedule
23for completing a project as specified by the government entity
24may be considered as an element of evaluation in phase two.
25(c) Under no circumstances shall the design proposal
26contain any reference to the cost of the proposal.
27(d) The submitted designs shall be evaluated and assigned
28points in accordance with the requirements of the request for
29proposals. Phase two shall account for not less than forty
30percent and no more than sixty percent of the total point score
31as specified in the request for proposals.
32(3) Phase three. Proposal of construction costs.
33(a) The government entity shall invite the selected
34design-builders to participate in phase three. The
35design-builders shall provide a fixed cost of design and
-10-1construction. The proposal shall be accompanied by bid
2security and any other items, such as statements of minority
3participation, as required by the request for proposals.
4(b) Cost proposals shall be submitted in accordance with
5the instructions in the request for proposals. The government
6entity shall reject any proposal that is not submitted within
7the required time frame. Phase three shall account for not
8less than forty percent and no more than sixty percent of the
9total point score as specified in the request for proposals.
10(c) Proposals for phase two and phase three shall be
11submitted concurrently at the time and place specified in the
12request for proposals, but in separate envelopes or other means
13of submission. The phase three cost proposals shall be opened
14and read aloud only after phase two design proposals have been
15evaluated and assigned points, ranked in order, and posted.
16Cost proposals shall be opened and read aloud at the time and
17place specified in the request for proposals. At the same time
18and place, the evaluation team shall make public its scoring
19of phase two. Cost proposals shall be evaluated in accordance
20with the requirements of the request for proposals.
21(d) If the government entity determines that it is not in
22the best interest of the government entity to proceed with the
23project pursuant to the proposal offered by the design-builder
24with the highest total number of points, the government entity
25shall reject all proposals. In this event, all design-builders
26with lower point totals in phases two and three shall receive
27a stipend and the responsive design-builder with the highest
28point total shall receive an amount equal to two times the
29stipend. If the government entity decides to award the
30project, the responsive design-builder with the highest point
31total shall be awarded the contract.
32(e) As an inducement to qualified design-builders, the
33government entity shall pay a stipend, the amount of which
34shall be established in the request for proposals, to each
35design-builder who submitted a proposal but was not accepted.
-11-1Such stipend shall be no less than one-half of one percent
2of the total project budget. Upon payment of the stipend to
3such a design-builder, the government entity shall acquire
4a nonexclusive right to use the design submitted by the
5design-builder, and the design-builder shall have no further
6liability for the use of the design by the government entity in
7any manner. If the design-builder desires to retain all rights
8and interests in the design proposed, the design-builder shall
9forfeit the stipend.
10b. When solicitations require a two-phase,
11qualifications-based selection process, the process shall be
12conducted as follows:
13(1) Phase one. Request for statements of qualifications of
14design-builders.
15(a) The government entity must prepare a request for
16statements of qualifications. The request shall include
17general information on the project site, project scope,
18schedule, selection criteria, the time and place for receipt
19of statements of qualifications, and other information
20that may assist the government entity in its selection of a
21design-builder.
22(b) The government entity shall state the selection
23criteria in the request for statements of qualifications. The
24selection criteria may include the design-builder’s experience,
25past performance, safety record, proposed personnel and
26methodology, and other appropriate factors that demonstrate the
27capability of the design-builder.
28(c) Selection criteria will be ranked and assigned points
29for each category. Point assignments shall be included as a
30part of the request for statements of qualifications.
31(d) The government entity shall not request fees or prices
32in phase one. Any submissions with disclosed fees or prices
33will be disqualified and removed from consideration.
34(2) Phase two. Negotiations.
35(a) Negotiations shall be conducted, beginning with the
-12-1design-builder ranked first. If a contract satisfactory
2and advantageous to the government entity can be negotiated
3at a price considered fair and reasonable and pursuant to
4contractual terms and conditions acceptable to the government
5entity, the award shall be made to that design-builder.
6(b) In the event that a contract cannot be negotiated
7with the design-builder ranked first, negotiations with that
8design-builder shall be formally terminated. The government
9entity shall conduct negotiations with the next-highest-ranked
10design-builder and continue this process until a contract can
11be negotiated that meets the terms of subparagraph division (a)
12of this subparagraph.
13 Sec. 2. Section 262.34, subsection 1, Code 2021, is amended
14to read as follows:
151. a. When the estimated cost of construction, repairs,
16or improvement of buildings or grounds under charge of the
17state board of regents, including construction, renovation, or
18repairs by a private party of a property to be lease-purchased
19by the board, exceeds one hundred thousand dollars, the board
20shall advertise for bids for the contemplated improvement or
21construction and shall let the work to the lowest responsible
22bidder. However, if in the judgment of the board bids received
23are not acceptable, the board may reject all bids and proceed
24with the construction, repair, or improvement by a method as
25the board may determine. All plans and specifications for
26repairs or construction, together with bids on the plans or
27specifications, shall be filed by the board and be open for
28public inspection. All bids submitted under this section shall
29be accompanied by a deposit of money, a certified check, or a
30credit union certified share draft in an amount as the board
31may prescribe.
32b. The state board of regents may proceed with a
33construction, repair, or improvement by using an alternative
34project delivery contract in accordance with the provisions of
35section 26.17.
-13-1EXPLANATION
2The inclusion of this explanation does not constitute agreement with
3the explanation’s substance by the members of the general assembly.
4This bill concerns public construction bidding.
5The bill allows a government entity to use an alternative
6project delivery contract in circumstances that normally
7require the government entity to use competitive bidding
8procedures. Currently, most government entities must use
9a competitive bidding process for a construction project
10when that project is estimated to cost at least as much as a
11threshold defined in Code section 26.3. The bill defines a
12government entity to include the state board of regents.
13The bill creates two types of alternative project delivery
14contracts, each with specified requirements. The first
15alternative is the construction manager-at-risk contract. If a
16government entity opts to use a construction manager-at-risk
17contract, the government entity shall select an engineer
18or architect to prepare the construction documents for
19the project. That engineer or architect cannot serve as
20the construction manager-at-risk. The government entity
21shall use a two-phase process in selecting the construction
22manager-at-risk. The first phase shall include a request for
23qualifications and the government entity’s selection criteria.
24The government entity may select at least two but no more
25than five of the construction managers-at-risk who submitted
26qualifications to participate in the second phase, based solely
27on the qualifications of those construction managers-at-risk.
28In phase two, the construction managers-at-risk that the
29government entity selects will provide additional information,
30including the project proposal, costs, and fees. The
31government entity shall rank the construction managers-at-risk
32in a manner in which qualifications account for at least 40
33percent of the evaluation and cost accounts for no more than 60
34percent of the evaluation. The government entity shall select
35the construction manager-at-risk that offers the best value
-14-1based on the evaluation criteria. If the two parties do not
2reach an agreement, the government entity shall proceed with
3the next highest-ranked construction manager-at-risk and follow
4this process until the government entity reaches a contract
5with a construction manager-at-risk. The selected construction
6manager-at-risk shall advertise for and receive sealed bids
7for proposals from trade contractors or subcontractors and
8publicly review those bids with the government entity in a
9manner that does not disclose the contents of the bid or
10proposal during the selection process to a person not employed
11by the construction manager-at-risk, engineer, architect, or
12government entity involved with the project. The construction
13manager-at-risk will select a bid in consultation with the
14government entity.
15The second type of alternative project delivery method is
16the design-build contract, which allows for the selection of
17design-builders in either a three-phase or two-phase process.
18Under the design-build process, a government entity may retain
19a bridging criteria professional to advise the government
20entity on design-build matters. In the three-phase process,
21the government entity shall first request statements of
22qualifications from design-builders. The government entity
23shall select at least two but no more than five qualified
24design-builders to move on to phases two and three. In
25the second phase, the government entity shall solicit
26technical proposals and conceptual designs from the remaining
27design-builders. The government entity shall pay a stipend
28to any design-builder that participates in phase two but
29whose contract the entity does not select. The third phase
30involves the design-builders submitting construction costs.
31The government entity shall award points for each proposal. If
32the government entity chooses to award a contract, it shall
33award the contract to the design-builder with the highest point
34total.
35If the government entity uses the two-phase process, the
-15-1government entity will request qualifications and include
2its selection criteria. The government entity will rank the
3qualifications of a design-builder. In the second phase, the
4government entity shall negotiate with the highest-ranked
5design-builder. If the two parties cannot agree to a contract
6with terms and conditions acceptable to the government
7entity, those negotiations shall be formally terminated
8and the government entity shall negotiate with the next
9highest-ranked design-builder. That process shall continue
10until the government entity can negotiate a contract with a
11design-builder with terms and conditions acceptable to the
12government entity.
-16-jda/rn