SENATE BILL 103
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Steven P. Neville
AN ACT
RELATING TO PUBLIC PROCUREMENT; SETTING THE NUMBER OF MEMBERS OF SELECTION COMMITTEES FOR DESIGN AND BUILD PROJECTS AND FOR CERTAIN PROFESSIONAL SERVICES; ESTABLISHING HOW EVALUATION SCORES ARE HANDLED.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 13-1-119.1 NMSA 1978 (being Laws 1997, Chapter 171, Section 5, as amended) is amended to read:
"13-1-119.1. PUBLIC WORKS PROJECT DELIVERY SYSTEM--DESIGN AND BUILD PROJECTS AUTHORIZED.--
A. Except for road and highway construction or reconstruction projects, a design and build project delivery system may be authorized when the state purchasing agent or a central purchasing office makes a determination in writing that it is appropriate and in the best interest of the state or local public body to use the system on a specific project with a maximum allowable construction cost of more than ten million dollars ($10,000,000). The determination shall be issued only after the state purchasing agent or a central purchasing office has taken into consideration the following criteria, which shall be used as the minimum basis in determining when to use the design and build process:
(1) the extent to which the project requirements have been or can be adequately defined;
(2) time constraints for delivery of the project;
(3) the capability and experience of potential teams with the design and build process;
(4) the suitability of the project for use of the design and build process as concerns time, schedule, costs and quality; and
(5) the capability of the using agency to manage the project, including experienced personnel or outside consultants, and to oversee the project with persons who are familiar with the design and build process.
B. When a determination has been made by the state purchasing agent or a central purchasing office that it is appropriate to use a design and build project delivery system, the design and build team shall include, as needed, a New Mexico registered engineer or architect and a contractor properly licensed in New Mexico for the type of work required.
C. Except as provided in Subsections [F] G and [G] H of this section, for each proposed state or local public works design and build project, a two-phase procedure for awarding design and build contracts shall be adopted and shall include at a minimum the following:
(1) during phase one, and prior to solicitation, documents shall be prepared for a request for qualifications by a registered engineer or architect, either in-house or selected in accordance with Sections 13-1-120 through 13-1-124 NMSA 1978, and shall include minimum qualifications, a scope of work statement and schedule, documents defining the project requirements, the composition of the selection committee and a description of the phase-two requirements and subsequent management needed to bring the project to completion. Design and build qualifications of responding firms shall be evaluated and a maximum of five firms shall be short-listed in accordance with technical and qualifications-based criteria; and
(2) during phase two, the short-listed firms shall be invited to submit detailed specific technical concepts or solutions, costs and scheduling. Unsuccessful firms may be paid a stipend to cover proposal expenses. After evaluation of these submissions, selection shall be made and the contract awarded to the highest-ranked firm.
D. A selection committee described in Subsection C of this section shall consist of a minimum of four members. Prior to the selection of a short list of responding firms in phase one or the selection of the highest ranked firm in phase two, the highest and lowest total score given by all members of the selection committee for each firm shall be disregarded and the selection shall be made based on the average of the remaining selection committee total scores for each firm.
[D.] E. Except as provided in Subsections [F] G and [G] H of this section, to ensure fair, uniform, clear and effective procedures that will strive for the delivery of a quality project on time and within budget, the secretary, in conjunction with the appropriate and affected professional associations and contractors, shall promulgate rules applicable to all using agencies, which shall be followed by all using agencies when procuring a design and build project delivery system.
[E.] F. A state agency shall make the decision on a design and build project delivery system for a state public works project, and a local public body shall make that decision for a local public works project. A state agency shall not make the decision on a design and build project delivery system for a local public works project.
[F.] G. The requirements of Subsections C [and], D and E of this section and the minimum construction cost requirement of Subsection A of this section do not apply to a design and build project delivery system and the services procured for the project if:
(1) the maximum allowable construction cost of the project is four hundred thousand dollars ($400,000) or less; and
(2) the only requirement for architects, engineers, landscape architects, construction managers or surveyors is limited to either site improvements or adaption for a pre-engineered building or system.
[G.] H. The procurement of a design and build project delivery system qualifying for exemptions pursuant to Subsection [F] G of this section, including the services of any architect, engineer, landscape architect, construction manager or surveyor needed for the project, shall be accomplished by competitive sealed bids pursuant to Sections 13-1-102 through 13-1-110 NMSA 1978."
Section 2. Section 13-1-120 NMSA 1978 (being Laws 1984, Chapter 65, Section 93, as amended) is amended to read:
"13-1-120. COMPETITIVE SEALED QUALIFICATIONS-BASED PROPOSALS--ARCHITECTS--ENGINEERS--LANDSCAPE ARCHITECTS--CONSTRUCTION MANAGERS--SURVEYORS--SELECTION PROCESS.--
A. For each proposed state public works project, local public works project or construction management contract, the architect, engineer, landscape architect, construction management and surveyor selection committee, [state highway and] department of transportation [department] selection committee or local selection committee, as appropriate, shall evaluate statements of qualifications and performance data submitted by at least three businesses in regard to the particular project and may conduct interviews with and may require public presentation by all businesses applying for selection regarding their qualifications, their approach to the project and their ability to furnish the required services.
B. The appropriate selection committee shall select, ranked in the order of their qualifications, no less than three businesses deemed to be the most highly qualified to perform the required services [after considering]. Businesses shall be ranked in order of their qualifications after the highest and lowest evaluation scores given by members of the selection committee for each business being evaluated are disregarded and the remaining scores for each business are averaged. In making a selection, the selection committee shall consider the following criteria, together with [any] criteria, except price, established by the using agency authorizing the project:
(1) specialized design and technical competence of the business, including a joint venture or association, regarding the type of services required;
(2) capacity and capability of the business, including any consultants, their representatives, qualifications and locations, to perform the work, including any specialized services, within the time limitations;
(3) past record of performance on contracts with government agencies or private industry with respect to such factors as control of costs, quality of work and ability to meet schedules;
(4) proximity to or familiarity with the area in which the project is located;
(5) the amount of design work that will be produced by a New Mexico business within this state;
(6) the volume of work previously done for the entity requesting proposals [which] that is not seventy-five percent complete with respect to basic professional design services, with the objective of effecting an equitable distribution of contracts among qualified businesses and of assuring that the interest of the public in having available a substantial number of qualified businesses is protected; provided, however, that the principle of selection of the most highly qualified businesses is not violated; and
(7) notwithstanding any other provisions of this subsection, price may be considered in connection with construction management contracts, unless the services are those of an architect, engineer, landscape architect or surveyor.
C. Notwithstanding the requirements of Subsections A and B of this section, if fewer than three businesses have submitted a statement of qualifications for a particular project, the appropriate committee may:
(1) rank in order of qualifications, after disregarding the committee's highest and lowest evaluation scores and averaging the remaining scores for each business being evaluated, and submit to the secretary or local governing authority of the public body for award those businesses [which] that have submitted a statement of qualifications; or
(2) recommend termination of the selection process pursuant to Section 13-1-131 NMSA 1978 and sending out [of] new notices of the resolicitation of the proposed procurement pursuant to Section 13-1-104 NMSA 1978. [Any] A proposal received in response to the terminated solicitation is not public information and shall not be made available to competing offerors.
D. The names of all businesses submitting proposals and the names of all businesses, if any, selected for interview shall be public information. After an award has been made, the appropriate selection committee's final ranking and evaluation scores for all proposals shall become public information. Businesses [which] that have not been selected for contract award shall be so notified in writing within fifteen days after an award is made."
Section 3. Section 13-1-121 NMSA 1978 (being Laws 1984, Chapter 65, Section 94, as amended) is amended to read:
"13-1-121. COMPETITIVE SEALED QUALIFICATIONS-BASED PROPOSALS--ARCHITECTS--ENGINEERS--LANDSCAPE ARCHITECTS--CONSTRUCTION MANAGERS--SURVEYORS--SELECTION COMMITTEE--STATE PUBLIC WORKS PROJECTS.--
A. The "architect, engineer, landscape architect, construction management and surveyor selection committee" is created. The committee, which shall serve as the selection committee for state public works projects, except for highway projects of the [state highway and transportation] department of transportation, is composed of a minimum of four members [as follows], including:
(1) one [member] or more members of the agency for which the project is being designed;
(2) the director of the property control division of the general services department, who shall be [chairman] chair;
(3) one [member] or more members designated by the [architect-engineer-landscape architect] joint practice committee; and
(4) one [member] or more members designated by the secretary.
B. The staff architect or [his] the staff architect's designee of the property control division shall serve as staff to the architect, engineer, landscape architect, construction management and surveyor selection committee.
C. The members of the architect, engineer, landscape architect, construction management and surveyor selection committee shall be reimbursed by the property control division for per diem and mileage in accordance with the provisions of the Per Diem and Mileage Act.
D. The [state highway and transportation] department of transportation shall create a selection committee composed of a minimum of four members by rule, after notice and hearing, [which] that shall serve as the selection committee for highway projects of the department."
Section 4. Section 13-1-122 NMSA 1978 (being Laws 1984, Chapter 65, Section 95, as amended) is amended to read:
"13-1-122. COMPETITIVE SEALED QUALIFICATIONS-BASED PROPOSALS--AWARD OF ARCHITECT, ENGINEERING, LANDSCAPE ARCHITECT, CONSTRUCTION MANAGEMENT AND SURVEYING CONTRACTS.--The secretary or [his] the secretary's designee or the secretary of [the highway and] transportation [department] or [his] the secretary of transportation's designee or a designee of a local public body shall negotiate a contract with the highest qualified business for the architectural, landscape architectural, engineering, construction management or surveying services at compensation determined in writing to be fair and reasonable. In making this decision, the appropriate secretary or [his] that secretary's designee or the designee of a local public body shall take into account the estimated value of the services to be rendered and the scope, complexity and professional nature of the services. Should the appropriate secretary or [his] that secretary's designee or the designee of a local public body be unable to negotiate a satisfactory contract with the business considered to be the most qualified at a price determined to be fair and reasonable, negotiations with that business shall be formally terminated. The appropriate secretary or [his] that secretary's designee or the designee of a local public body shall then undertake negotiations with the second most qualified business. Failing accord with the second most qualified business, the appropriate secretary or [his] that secretary's designee or a designee of a local public body shall formally terminate negotiations with that business. The appropriate secretary or [his] that secretary's designee or the designee of the local public body shall then undertake negotiations with the third most qualified business. Should the appropriate secretary or [his] that secretary's designee or a designee of a local public body be unable to negotiate a contract with any of the businesses selected by the committee, additional businesses shall be ranked in order of their qualifications and the appropriate secretary or [his] that secretary's designee or the designee of a local public body shall continue negotiations in accordance with this section until a contract is signed with a qualified business or the procurement process is terminated and a new request for proposals is initiated. The appropriate secretary or the representative of a local public body shall publicly announce the business selected for award."
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