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Senate File 183 - IntroducedA Bill ForAn Act 1relating to a construction manager-at-risk commercial
2construction alternative delivery method and prohibiting
3certain other alternative delivery methods in the public
4sector and including effective date and applicability
5provisions.
6BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2PUBLIC CONSTRUCTION BIDDING REQUIREMENTS
3 Section 1. Section 26.4, Code 2021, is amended to read as
4follows:
526.4 Exemptions from competitive bids and quotations
6 Architectural and engineering services — exemptions —
7prohibitions.
81. Architectural, landscape architectural, or engineering
9design services procured for a public improvement are not
10subject to sections 26.3 and 26.14.
112. Fee-based selection of an architect, landscape
12architect, or engineer for a public improvement shall be
13prohibited.
14 Sec. 2. Section 262.34, Code 2021, is amended by adding the
15following new subsection:
16 NEW SUBSECTION. 6. Notwithstanding any provision of this
17chapter to the contrary, the state board of regents shall
18not be authorized to enter into a design-build contract to
19construct, repair, or improve buildings or grounds. For
20purposes of this subsection, “design-build contract” means
21a single contract providing for both design services and
22construction services that may include maintenance, operations,
23preconstruction, and other related services.
24 Sec. 3. EFFECTIVE DATE. The following, being deemed of
25immediate importance, takes effect upon enactment:
26The section of this division of this Act amending section
27262.34.
28 Sec. 4. APPLICABILITY. The section of this division of
29this Act amending section 262.34 does not apply to projects
30using design-build if an architect has entered into a contract
31to work with the state board of regents on a project using
32design-build prior to the effective date of the section of this
33division of this Act amending section 262.34.
34DIVISION II
35GUARANTEED MAXIMUM PRICE CONTRACTS
-1-1 Sec. 5. NEW SECTION. 26A.1 Definitions.
2As used in this chapter, unless the context clearly
3indicates otherwise:
41. “Construction manager-at-risk” means a sole
5proprietorship, partnership, corporation, or other legal entity
6that assumes the risk for the construction, rehabilitation,
7alteration, or repair of a project and provides consultant
8services to the government entity in the development and design
9phases, working collaboratively with the design professionals
10involved.
112. “General conditions” means work which will not be
12incorporated into the completed project. This work includes
13but is not limited to job site cleaning and temporary
14structures.
153. “Governmental entity” means the state, political
16subdivisions of the state, public school corporations, and all
17officers, boards, or commissions empowered by law to enter
18into contracts for the construction of public improvements,
19including the state board of regents.
204. “Guaranteed maximum price contract” means the agreed
21to fixed or guaranteed maximum price pursuant to a contract
22entered into by the construction manager-at-risk and the
23governmental entity.
245. “Public improvement” means as defined in section 26.2.
256. “Repair or maintenance work” means as defined in section
2626.2.
277. “Self-perform” means work that is executed by
28the construction manager-at-risk without the use of a
29subcontractor. Electrical, mechanical, fire suppression, and
30plumbing work may not be self-performed.
31 Sec. 6. NEW SECTION. 26A.2 Authorization.
32Notwithstanding any other law to the contrary, a
33governmental entity shall be authorized to enter into a
34guaranteed maximum price contract for the construction of a
35public improvement pursuant to this chapter.
-2-1 Sec. 7. NEW SECTION. 26A.3 Guaranteed maximum price
2contract — process.
31. A governmental entity shall publicly disclose the
4governmental entity’s intent to enter into a guaranteed
5maximum price contract and the governmental entity’s selection
6criteria at least fourteen days prior to publishing a request
7for statements of qualifications. Public disclosure shall
8be in a relevant contractor plan room service with statewide
9circulation, a relevant construction lead generating service
10with statewide circulation, and on an internet site sponsored
11by either a governmental entity or a statewide association that
12represents the governmental entity.
132. The governmental entity shall select or designate an
14engineer licensed under chapter 542B, a landscape architect
15licensed under chapter 544B, or an architect licensed
16under chapter 544A by utilizing a quality-based selection
17process. Fee-based selection of the engineer, landscape
18architect, or architect shall be prohibited. The engineer,
19landscape architect, or architect selected or designated by
20the government entity under this subsection shall have the
21responsibility of preparing construction documents for the
22project and shall review the construction for conformance with
23design intent.
243. a. (1) The governmental entity shall prepare a request
25for statements of qualifications. The request shall include
26general information on the project site, project scope,
27schedule, selection criteria, and the time and place for
28receipt of statements of qualifications. Selection criteria
29and general information included in the request for statements
30of qualifications may be developed in coordination with
31the engineer, landscape architect, or architect selected or
32designated by the governmental entity as provided under this
33section.
34(2) Selection criteria may include the contractor’s
35experience undertaking projects of similar size and scope
-3-1in either the public or private sector, past performance,
2safety record, proposed personnel, and proposed methodology.
3Selection criteria shall include experience in both the public
4and the private sector. Selection criteria shall not include
5specific delivery methods, including guaranteed maximum price
6projects. In addition, selection criteria shall not include
7training, testing, or other certifications that may only
8be obtained through organized labor affiliations or other
9limited-membership organizations.
10(3) A request for statements of qualifications under this
11subsection shall be subject to the requirements of section
1273A.28. In addition, a governmental entity shall not by
13ordinance, rule, or any other action relating to the request
14for qualifications stipulate criteria that would directly
15or indirectly restrict the selection of a construction
16manager-at-risk to any predetermined class of providers based
17on labor organization affiliation or any other criteria other
18than that allowed pursuant to this paragraph.
19b. The request for statements of qualifications shall be
20posted not less than thirteen and not more than forty-five days
21before the date for response in a relevant contractor plan room
22service with statewide circulation, in a relevant construction
23lead generating service with statewide circulation, and on an
24internet site sponsored by either a governmental entity or a
25statewide association that represents the governmental entity.
26If circumstances beyond the control of the governmental
27entity require postponement and there are no changes to the
28project’s contract documents, a notice of the revised date
29shall be posted not less than four and not more than forty-five
30days before the revised date for answering the request for
31proposals and statements of qualifications in a relevant
32contractor plan room service with statewide circulation, in a
33relevant construction lead generating service with statewide
34circulation, and on an internet site sponsored by either a
35government entity or a statewide association that represents
-4-1the governmental entity.
2c. The governmental entity shall receive, publicly open, and
3read aloud the names of the contractors submitting statements
4of qualifications. Within forty-five days after the date of
5opening the statements of qualifications submissions, the
6governmental entity shall evaluate each proposal or statement
7of qualifications submission in relation to the criteria set
8forth in the request.
94. a. After considering the statements of qualifications,
10the governmental entity shall issue a request for proposals
11to each contractor who meets the qualifications which shall
12include selection and evaluation criteria. Each contractor
13issued a request for proposals shall be permitted to submit
14a proposal and each proposal submitted shall include the
15construction manager-at-risk’s proposed fees. The request
16for proposals shall be subject to the requirements of section
1773A.28 and the same limitations applied to selection criteria
18for the request for statements of qualifications in this
19chapter.
20b. The governmental entity shall receive, publicly open, and
21read aloud the names of the contractors submitting proposals.
22Within forty-five days after the date of opening the proposals,
23the governmental entity shall evaluate and rank each proposal
24in relation to the criteria set forth in the applicable
25request.
26c. The governmental entity or its representative shall
27select the construction manager-at-risk that submits the
28proposal that offers the best value for the governmental
29entity based on the published selection criteria and on
30its ranking evaluation. The governmental entity shall
31first attempt to negotiate a contract with the selected
32construction manager-at-risk. If the governmental entity
33is unable to negotiate a satisfactory contract with the
34selected construction manager-at-risk, the governmental entity
35shall, formally and in writing, end negotiations with that
-5-1construction manager-at-risk and proceed to negotiate with the
2next construction manager-at-risk in the order of the selection
3ranking until a contract is reached or negotiations with all
4ranked construction managers-at-risk end.
5d. The governmental entity shall make available to the
6public the final scoring and ranking evaluation of the request
7for proposals received.
85. a. If the estimated total cost of trade contract work
9and materials packages is in excess of the adjusted competitive
10bid threshold established in section 314.1B, the construction
11manager-at-risk shall advertise for competitive bids, receive
12bids, prepare bid analyses, and award contracts to qualified
13firms on trade contract work and materials packages in
14accordance with all of the following:
15(1) The construction manager-at-risk shall prepare a
16request for statements of qualifications. The request shall
17include general information on the project site, project
18scope, schedule, selection criteria, and the time and place
19for receipt of statements of qualifications. The construction
20manager-at-risk shall provide public notice of the request for
21statements of qualifications in a relevant contractor plan room
22service with statewide circulation, a relevant construction
23lead generating service with statewide circulation, and on an
24internet site sponsored by either a governmental entity or a
25statewide association that represents the governmental entity.
26The request for statements of qualifications shall be posted
27not less than thirteen and not more than forty-five days before
28the date for response.
29(2) (a) The construction manager-at-risk shall utilize
30objective prequalification criteria in the request for
31statements of qualifications. All firms who meet the
32objective prequalification criteria as a qualified firm
33shall be allowed to submit a bid for the relevant trade
34contract work and materials package. Upon determining which
35firms meet the prequalification criteria, the construction
-6-1manager-at-risk shall notify all firms who responded to the
2request for qualifications whether they successfully meet the
3prequalification criteria. The notification shall include a
4list of all firms who were deemed to have successfully met the
5prequalification criteria. Notification shall be given no
6less than fifteen days prior to the subcontractor bids being
7due. Subcontractors who failed to meet the prequalification
8standards shall also be provided with information regarding
9which prequalification criteria were not met. In addition,
10a firm that is prequalified with the state department of
11transportation pursuant to section 314.1 shall be considered
12to meet the objective prequalification criteria as a qualified
13firm and shall be allowed to submit a bid for purposes of work
14related to parking lots, streets, site development, or bridge
15structure components.
16(b) Prequalification criteria shall be limited to a
17firm’s experience as a contractor, capacity of key personnel,
18technical competence, capability to perform, the past
19performance of the firm and the firm’s employees to include
20the firm’s safety record and compliance with state and federal
21law, and availability to and familiarity with the location of
22the project subject to bid. Prequalification criteria shall
23be reasonably and materially related to the relevant trade
24contract work and materials package. The prequalification
25criteria shall not include training, testing, or other
26certifications that may only be obtained through organized
27labor affiliated organizations or other limited-membership
28organizations.
29(3) The governmental entity and the construction
30manager-at-risk shall participate in the bid review and
31evaluation process. The governmental entity and the
32construction manager-at-risk shall open, announce the name
33of the contractor submitting a bid, and file all proposals
34received, at the time and place specified in the notice to
35bidders. After the bids have been opened, reviewed, and
-7-1tabulated, the contracts shall be awarded to the lowest
2responsive, responsible bidder. All awards and bids shall be
3made available to the public.
4(4) Notwithstanding any other provisions of this paragraph
5to the contrary, the construction manager-at-risk may
6self-perform work for a trade package that is below the
7adjusted competitive bid threshold established in section
8314.1B. If a trade package is in excess of the adjusted
9competitive bid threshold established in section 314.1B, the
10construction manager-at-risk shall notify the governmental
11entity in writing of its intent to submit a bid proposal for
12a trade package. In submission of a bid, the construction
13manager-at-risk shall comply with the requirements of this
14paragraph. The governmental entity shall receive the bids,
15participate in, and provide oversight of all bid analyses
16pertinent to the award of subcontracts or rejection of bids on
17any trade package for which the construction manager-at-risk
18submits a bid to self-perform. Where the construction
19manager-at-risk is not the apparent low bidder, the government
20shall be responsible for determining whether a recommendation
21of award to the construction manager-at-risk is in the best
22interests of the project. A construction manager-at-risk shall
23not be required to comply with bidding requirements for general
24conditions as provided in the contract with the governmental
25entity. If the construction manager-at-risk self-performs
26the construction work, it shall adhere to any agreement it
27may have with one or more labor organizations. However, the
28construction manager-at-risk shall not be obligated to adhere
29to any terms and conditions of any labor agreement with one or
30more labor organizations for those trade contracts that are
31not self-performed by the construction manager-at-risk for the
32public improvement, and such terms shall be deemed void and
33unenforceable.
34b. If a selected trade contractor materially defaults in
35the performance of its work or fails to execute a contract,
-8-1the construction manager-at-risk may, without advertising,
2fulfill the contract requirements or select a replacement trade
3contractor to fulfill the contract requirements.
4 Sec. 8. NEW SECTION. 26A.4 Prohibited contracts.
51. Notwithstanding any other provision of law to the
6contrary, a governmental entity shall not be authorized
7to enter into a design-build contract for the construction
8of a public improvement. For purposes of this subsection,
9“design-build contract” means a single contract providing for
10both design services and construction services that may include
11maintenance, operations, preconstruction, and other related
12services.
132. A governmental entity shall not be authorized to
14enter into a guaranteed maximum price contract for public
15improvements relating to highway, bridge, or culvert
16construction.
17EXPLANATION
18The inclusion of this explanation does not constitute agreement with
19the explanation’s substance by the members of the general assembly.
20This bill concerns public construction and improvement
21contracts.
22DIVISION I — PUBLIC CONSTRUCTION BIDDING REQUIREMENTS.
23 Code section 26.4, relating to architectural and engineering
24services, is amended to prohibit fee-based selection of an
25architect, landscape architect, or engineer for a public
26improvement.
27Code section 262.34 is amended to prohibit the state board
28of regents from entering into a design-build contract to
29construct, repair, or improve buildings or grounds. This
30provision takes effect upon enactment. However, the provision
31does not apply if an architect entered into a design-build
32contract with the state board of regents prior to the effective
33date of the provision.
34DIVISION II — GUARANTEED MAXIMUM PRICE CONTRACTS. This
35division allows a governmental entity to use a guaranteed
-9-1maximum price contract for purposes of public improvement
2contracts.
3New Code section 26A.1 defines, among other terms,
4“construction manager-at-risk”, “governmental entity”,
5“guaranteed maximum price contract” and “public improvement”.
6“Guaranteed maximum price contract” is defined to mean the
7agreed to fixed or guaranteed maximum price pursuant to a
8contract entered into by the construction manager-at-risk and
9the governmental entity. “Construction manager-at-risk” means
10a legal entity that assumes the risk for the construction,
11rehabilitation, alteration, or repair of a project and
12provides consultant services to the governmental entity in the
13development and design phases, working collaboratively with
14the design professionals involved. “Governmental entity” is
15defined to mean the state, political subdivisions of the state,
16and public school corporations, and is specifically defined to
17include the state board of regents. “Public improvement” is
18defined to mean the same as for purposes of Code chapter 26
19governing public construction bidding.
20New Code section 26A.2 authorizes a governmental entity to
21enter into a guaranteed maximum price contract for a public
22improvement, notwithstanding any provision of law to the
23contrary.
24New Code section 26A.3 establishes the process for entering
25into a guaranteed maximum price contract. The new Code section
26provides procedures governing public disclosure of an intent to
27enter into a guaranteed maximum price contract, selection of
28an engineer, landscape architect, or architect, a request for
29qualifications process, a request for proposals and selection
30process, and selection of trade contractors and material
31packages.
32New Code section 26A.4 prohibits a governmental entity from
33entering into a design-build contract for the construction of a
34public improvement and entering into a guaranteed maximum price
35contract for public improvements relating to highway and bridge
-10-1construction.
-11-jda/rn
2construction alternative delivery method and prohibiting
3certain other alternative delivery methods in the public
4sector and including effective date and applicability
5provisions.
6BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1DIVISION I
2PUBLIC CONSTRUCTION BIDDING REQUIREMENTS
3 Section 1. Section 26.4, Code 2021, is amended to read as
4follows:
526.4 Exemptions from competitive bids and quotations
6 Architectural and engineering services — exemptions —
7prohibitions.
81. Architectural, landscape architectural, or engineering
9design services procured for a public improvement are not
10subject to sections 26.3 and 26.14.
112. Fee-based selection of an architect, landscape
12architect, or engineer for a public improvement shall be
13prohibited.
14 Sec. 2. Section 262.34, Code 2021, is amended by adding the
15following new subsection:
16 NEW SUBSECTION. 6. Notwithstanding any provision of this
17chapter to the contrary, the state board of regents shall
18not be authorized to enter into a design-build contract to
19construct, repair, or improve buildings or grounds. For
20purposes of this subsection, “design-build contract” means
21a single contract providing for both design services and
22construction services that may include maintenance, operations,
23preconstruction, and other related services.
24 Sec. 3. EFFECTIVE DATE. The following, being deemed of
25immediate importance, takes effect upon enactment:
26The section of this division of this Act amending section
27262.34.
28 Sec. 4. APPLICABILITY. The section of this division of
29this Act amending section 262.34 does not apply to projects
30using design-build if an architect has entered into a contract
31to work with the state board of regents on a project using
32design-build prior to the effective date of the section of this
33division of this Act amending section 262.34.
34DIVISION II
35GUARANTEED MAXIMUM PRICE CONTRACTS
-1-1 Sec. 5. NEW SECTION. 26A.1 Definitions.
2As used in this chapter, unless the context clearly
3indicates otherwise:
41. “Construction manager-at-risk” means a sole
5proprietorship, partnership, corporation, or other legal entity
6that assumes the risk for the construction, rehabilitation,
7alteration, or repair of a project and provides consultant
8services to the government entity in the development and design
9phases, working collaboratively with the design professionals
10involved.
112. “General conditions” means work which will not be
12incorporated into the completed project. This work includes
13but is not limited to job site cleaning and temporary
14structures.
153. “Governmental entity” means the state, political
16subdivisions of the state, public school corporations, and all
17officers, boards, or commissions empowered by law to enter
18into contracts for the construction of public improvements,
19including the state board of regents.
204. “Guaranteed maximum price contract” means the agreed
21to fixed or guaranteed maximum price pursuant to a contract
22entered into by the construction manager-at-risk and the
23governmental entity.
245. “Public improvement” means as defined in section 26.2.
256. “Repair or maintenance work” means as defined in section
2626.2.
277. “Self-perform” means work that is executed by
28the construction manager-at-risk without the use of a
29subcontractor. Electrical, mechanical, fire suppression, and
30plumbing work may not be self-performed.
31 Sec. 6. NEW SECTION. 26A.2 Authorization.
32Notwithstanding any other law to the contrary, a
33governmental entity shall be authorized to enter into a
34guaranteed maximum price contract for the construction of a
35public improvement pursuant to this chapter.
-2-1 Sec. 7. NEW SECTION. 26A.3 Guaranteed maximum price
2contract — process.
31. A governmental entity shall publicly disclose the
4governmental entity’s intent to enter into a guaranteed
5maximum price contract and the governmental entity’s selection
6criteria at least fourteen days prior to publishing a request
7for statements of qualifications. Public disclosure shall
8be in a relevant contractor plan room service with statewide
9circulation, a relevant construction lead generating service
10with statewide circulation, and on an internet site sponsored
11by either a governmental entity or a statewide association that
12represents the governmental entity.
132. The governmental entity shall select or designate an
14engineer licensed under chapter 542B, a landscape architect
15licensed under chapter 544B, or an architect licensed
16under chapter 544A by utilizing a quality-based selection
17process. Fee-based selection of the engineer, landscape
18architect, or architect shall be prohibited. The engineer,
19landscape architect, or architect selected or designated by
20the government entity under this subsection shall have the
21responsibility of preparing construction documents for the
22project and shall review the construction for conformance with
23design intent.
243. a. (1) The governmental entity shall prepare a request
25for statements of qualifications. The request shall include
26general information on the project site, project scope,
27schedule, selection criteria, and the time and place for
28receipt of statements of qualifications. Selection criteria
29and general information included in the request for statements
30of qualifications may be developed in coordination with
31the engineer, landscape architect, or architect selected or
32designated by the governmental entity as provided under this
33section.
34(2) Selection criteria may include the contractor’s
35experience undertaking projects of similar size and scope
-3-1in either the public or private sector, past performance,
2safety record, proposed personnel, and proposed methodology.
3Selection criteria shall include experience in both the public
4and the private sector. Selection criteria shall not include
5specific delivery methods, including guaranteed maximum price
6projects. In addition, selection criteria shall not include
7training, testing, or other certifications that may only
8be obtained through organized labor affiliations or other
9limited-membership organizations.
10(3) A request for statements of qualifications under this
11subsection shall be subject to the requirements of section
1273A.28. In addition, a governmental entity shall not by
13ordinance, rule, or any other action relating to the request
14for qualifications stipulate criteria that would directly
15or indirectly restrict the selection of a construction
16manager-at-risk to any predetermined class of providers based
17on labor organization affiliation or any other criteria other
18than that allowed pursuant to this paragraph.
19b. The request for statements of qualifications shall be
20posted not less than thirteen and not more than forty-five days
21before the date for response in a relevant contractor plan room
22service with statewide circulation, in a relevant construction
23lead generating service with statewide circulation, and on an
24internet site sponsored by either a governmental entity or a
25statewide association that represents the governmental entity.
26If circumstances beyond the control of the governmental
27entity require postponement and there are no changes to the
28project’s contract documents, a notice of the revised date
29shall be posted not less than four and not more than forty-five
30days before the revised date for answering the request for
31proposals and statements of qualifications in a relevant
32contractor plan room service with statewide circulation, in a
33relevant construction lead generating service with statewide
34circulation, and on an internet site sponsored by either a
35government entity or a statewide association that represents
-4-1the governmental entity.
2c. The governmental entity shall receive, publicly open, and
3read aloud the names of the contractors submitting statements
4of qualifications. Within forty-five days after the date of
5opening the statements of qualifications submissions, the
6governmental entity shall evaluate each proposal or statement
7of qualifications submission in relation to the criteria set
8forth in the request.
94. a. After considering the statements of qualifications,
10the governmental entity shall issue a request for proposals
11to each contractor who meets the qualifications which shall
12include selection and evaluation criteria. Each contractor
13issued a request for proposals shall be permitted to submit
14a proposal and each proposal submitted shall include the
15construction manager-at-risk’s proposed fees. The request
16for proposals shall be subject to the requirements of section
1773A.28 and the same limitations applied to selection criteria
18for the request for statements of qualifications in this
19chapter.
20b. The governmental entity shall receive, publicly open, and
21read aloud the names of the contractors submitting proposals.
22Within forty-five days after the date of opening the proposals,
23the governmental entity shall evaluate and rank each proposal
24in relation to the criteria set forth in the applicable
25request.
26c. The governmental entity or its representative shall
27select the construction manager-at-risk that submits the
28proposal that offers the best value for the governmental
29entity based on the published selection criteria and on
30its ranking evaluation. The governmental entity shall
31first attempt to negotiate a contract with the selected
32construction manager-at-risk. If the governmental entity
33is unable to negotiate a satisfactory contract with the
34selected construction manager-at-risk, the governmental entity
35shall, formally and in writing, end negotiations with that
-5-1construction manager-at-risk and proceed to negotiate with the
2next construction manager-at-risk in the order of the selection
3ranking until a contract is reached or negotiations with all
4ranked construction managers-at-risk end.
5d. The governmental entity shall make available to the
6public the final scoring and ranking evaluation of the request
7for proposals received.
85. a. If the estimated total cost of trade contract work
9and materials packages is in excess of the adjusted competitive
10bid threshold established in section 314.1B, the construction
11manager-at-risk shall advertise for competitive bids, receive
12bids, prepare bid analyses, and award contracts to qualified
13firms on trade contract work and materials packages in
14accordance with all of the following:
15(1) The construction manager-at-risk shall prepare a
16request for statements of qualifications. The request shall
17include general information on the project site, project
18scope, schedule, selection criteria, and the time and place
19for receipt of statements of qualifications. The construction
20manager-at-risk shall provide public notice of the request for
21statements of qualifications in a relevant contractor plan room
22service with statewide circulation, a relevant construction
23lead generating service with statewide circulation, and on an
24internet site sponsored by either a governmental entity or a
25statewide association that represents the governmental entity.
26The request for statements of qualifications shall be posted
27not less than thirteen and not more than forty-five days before
28the date for response.
29(2) (a) The construction manager-at-risk shall utilize
30objective prequalification criteria in the request for
31statements of qualifications. All firms who meet the
32objective prequalification criteria as a qualified firm
33shall be allowed to submit a bid for the relevant trade
34contract work and materials package. Upon determining which
35firms meet the prequalification criteria, the construction
-6-1manager-at-risk shall notify all firms who responded to the
2request for qualifications whether they successfully meet the
3prequalification criteria. The notification shall include a
4list of all firms who were deemed to have successfully met the
5prequalification criteria. Notification shall be given no
6less than fifteen days prior to the subcontractor bids being
7due. Subcontractors who failed to meet the prequalification
8standards shall also be provided with information regarding
9which prequalification criteria were not met. In addition,
10a firm that is prequalified with the state department of
11transportation pursuant to section 314.1 shall be considered
12to meet the objective prequalification criteria as a qualified
13firm and shall be allowed to submit a bid for purposes of work
14related to parking lots, streets, site development, or bridge
15structure components.
16(b) Prequalification criteria shall be limited to a
17firm’s experience as a contractor, capacity of key personnel,
18technical competence, capability to perform, the past
19performance of the firm and the firm’s employees to include
20the firm’s safety record and compliance with state and federal
21law, and availability to and familiarity with the location of
22the project subject to bid. Prequalification criteria shall
23be reasonably and materially related to the relevant trade
24contract work and materials package. The prequalification
25criteria shall not include training, testing, or other
26certifications that may only be obtained through organized
27labor affiliated organizations or other limited-membership
28organizations.
29(3) The governmental entity and the construction
30manager-at-risk shall participate in the bid review and
31evaluation process. The governmental entity and the
32construction manager-at-risk shall open, announce the name
33of the contractor submitting a bid, and file all proposals
34received, at the time and place specified in the notice to
35bidders. After the bids have been opened, reviewed, and
-7-1tabulated, the contracts shall be awarded to the lowest
2responsive, responsible bidder. All awards and bids shall be
3made available to the public.
4(4) Notwithstanding any other provisions of this paragraph
5to the contrary, the construction manager-at-risk may
6self-perform work for a trade package that is below the
7adjusted competitive bid threshold established in section
8314.1B. If a trade package is in excess of the adjusted
9competitive bid threshold established in section 314.1B, the
10construction manager-at-risk shall notify the governmental
11entity in writing of its intent to submit a bid proposal for
12a trade package. In submission of a bid, the construction
13manager-at-risk shall comply with the requirements of this
14paragraph. The governmental entity shall receive the bids,
15participate in, and provide oversight of all bid analyses
16pertinent to the award of subcontracts or rejection of bids on
17any trade package for which the construction manager-at-risk
18submits a bid to self-perform. Where the construction
19manager-at-risk is not the apparent low bidder, the government
20shall be responsible for determining whether a recommendation
21of award to the construction manager-at-risk is in the best
22interests of the project. A construction manager-at-risk shall
23not be required to comply with bidding requirements for general
24conditions as provided in the contract with the governmental
25entity. If the construction manager-at-risk self-performs
26the construction work, it shall adhere to any agreement it
27may have with one or more labor organizations. However, the
28construction manager-at-risk shall not be obligated to adhere
29to any terms and conditions of any labor agreement with one or
30more labor organizations for those trade contracts that are
31not self-performed by the construction manager-at-risk for the
32public improvement, and such terms shall be deemed void and
33unenforceable.
34b. If a selected trade contractor materially defaults in
35the performance of its work or fails to execute a contract,
-8-1the construction manager-at-risk may, without advertising,
2fulfill the contract requirements or select a replacement trade
3contractor to fulfill the contract requirements.
4 Sec. 8. NEW SECTION. 26A.4 Prohibited contracts.
51. Notwithstanding any other provision of law to the
6contrary, a governmental entity shall not be authorized
7to enter into a design-build contract for the construction
8of a public improvement. For purposes of this subsection,
9“design-build contract” means a single contract providing for
10both design services and construction services that may include
11maintenance, operations, preconstruction, and other related
12services.
132. A governmental entity shall not be authorized to
14enter into a guaranteed maximum price contract for public
15improvements relating to highway, bridge, or culvert
16construction.
17EXPLANATION
18The inclusion of this explanation does not constitute agreement with
19the explanation’s substance by the members of the general assembly.
20This bill concerns public construction and improvement
21contracts.
22DIVISION I — PUBLIC CONSTRUCTION BIDDING REQUIREMENTS.
23 Code section 26.4, relating to architectural and engineering
24services, is amended to prohibit fee-based selection of an
25architect, landscape architect, or engineer for a public
26improvement.
27Code section 262.34 is amended to prohibit the state board
28of regents from entering into a design-build contract to
29construct, repair, or improve buildings or grounds. This
30provision takes effect upon enactment. However, the provision
31does not apply if an architect entered into a design-build
32contract with the state board of regents prior to the effective
33date of the provision.
34DIVISION II — GUARANTEED MAXIMUM PRICE CONTRACTS. This
35division allows a governmental entity to use a guaranteed
-9-1maximum price contract for purposes of public improvement
2contracts.
3New Code section 26A.1 defines, among other terms,
4“construction manager-at-risk”, “governmental entity”,
5“guaranteed maximum price contract” and “public improvement”.
6“Guaranteed maximum price contract” is defined to mean the
7agreed to fixed or guaranteed maximum price pursuant to a
8contract entered into by the construction manager-at-risk and
9the governmental entity. “Construction manager-at-risk” means
10a legal entity that assumes the risk for the construction,
11rehabilitation, alteration, or repair of a project and
12provides consultant services to the governmental entity in the
13development and design phases, working collaboratively with
14the design professionals involved. “Governmental entity” is
15defined to mean the state, political subdivisions of the state,
16and public school corporations, and is specifically defined to
17include the state board of regents. “Public improvement” is
18defined to mean the same as for purposes of Code chapter 26
19governing public construction bidding.
20New Code section 26A.2 authorizes a governmental entity to
21enter into a guaranteed maximum price contract for a public
22improvement, notwithstanding any provision of law to the
23contrary.
24New Code section 26A.3 establishes the process for entering
25into a guaranteed maximum price contract. The new Code section
26provides procedures governing public disclosure of an intent to
27enter into a guaranteed maximum price contract, selection of
28an engineer, landscape architect, or architect, a request for
29qualifications process, a request for proposals and selection
30process, and selection of trade contractors and material
31packages.
32New Code section 26A.4 prohibits a governmental entity from
33entering into a design-build contract for the construction of a
34public improvement and entering into a guaranteed maximum price
35contract for public improvements relating to highway and bridge
-10-1construction.
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