SENATE BILL 345
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Phil A. Griego
AN ACT
RELATING TO PROCUREMENT; AMENDING THE PROCUREMENT CODE TO PROVIDE ALTERNATIVE PROJECT DELIVERY METHODS FOR CERTAIN DEPARTMENT OF TRANSPORTATION PROJECTS; ENACTING THE TRANSPORTATION PROCUREMENT ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 10 of this act may be cited as the "Transportation Procurement Act"."
Section 2. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--Notwithstanding any other definition in the Procurement Code, and as used in the Transportation Procurement Act:
A. "construction-manager-at-risk" means a project delivery method in which:
(1) there is a contract for construction services that is separate from the contract for design services;
(2) design services are performed under a separate procurement for professional design services, performed with department employees or performed with a combination of the two;
(3) the contractor assumes the risk for construction at a contracted guaranteed maximum price and provides consultation and collaboration regarding the construction during and after design of the project;
(4) a contract for construction services is entered into at the same time as the design services are commenced or at a later time;
(5) design and construction of the project is in sequential phases or concurrent phases; and
(6) finance services, maintenance services, warranty services, preconstruction services other than design services and other related services may be included;
B. "construction services" means:
(1) construction, excluding design services, through either the construction-manager-at-risk or job-order-contracting project delivery method; or
(2) a combination of construction and one or more related preconstruction and construction services, such as finance services, maintenance services, warranty services, construction management, third-party coordination, constructability reviews, cost engineering reviews, cost estimating, value engineering, scheduling, contract package development, planning and design services and preconstruction services, as those services are authorized by the construction-manager-at-risk or job-order-contracting project delivery method;
C. "contractor" means any individual, partnership, joint venture, corporation or other legal entity that is appropriately licensed in this state that has a contract with the department;
D. "department" means the department of transportation;
E. "design-build" means the process of entering into and managing a lump-sum contract between the department and a contractor in which the contractor agrees to both design and build a highway, a structure, a facility or any other project specified in the contract;
F. "design-build offeror" means a contractor that offers to furnish the necessary design services, in addition to construction of the work, whether by itself or through subcontracts, including subcontracts for architectural and engineering services;
G. "design services" means engineer services, survey services or landscape architect services;
H. "engineer services" means those professional engineer services that are within the scope of engineering practice as provided in Chapter 61, Article 23 NMSA 1978;
I. "finance services" means financing for a construction services project;
J. "job-order-contracting" means a project delivery method in which:
(1) the job-order contract is an indefinite quantity construction contract or price agreement that requires the contractor to furnish an indeterminate quantity of specified construction services and that may include a guaranteed minimum amount of work;
(2) the construction to be performed is specified in job orders issued during the contract;
(3) the job-order contract is excluded from the requirement of procurement through the state purchasing agent pursuant to Section 13-1-99 NMSA 1978 but not from the requirements of the Procurement Code; and
(4) finance services, maintenance services, warranty services, preconstruction services, design services and other related services may be included;
K. "landscape architect services" means those professional landscape architect services that are within the scope of landscape architectural practice as provided in Chapter 61, Article 24B NMSA 1978;
L. "maintenance services" means routine maintenance, repair and replacement of existing facilities, structures, buildings or real property;
M. "offeror" means any individual, partnership, joint venture, corporation or other legal entity that is appropriately licensed in this state that submits a response to a request for qualifications or request for proposal;
N. "preconstruction services" means services during the design phase;
O. "secretary" means the secretary of transportation;
P. "stipend" means a fee paid to design-build offerors that are selected by the department to submit a proposal and that submit a proposal that is responsive to the criteria set forth in the request for proposals but that are not awarded the design-build contract;
Q. "subcontractor" means a person that contracts to perform work or render service to a contractor or to another subcontractor as a part of a contract with the department;
R. "survey services" means those professional survey services that are within the scope of survey practice as provided in Chapter 61, Article 23 NMSA 1978; and
S. "warranty services" means a contract requirement for the contractor to fix or repair specific items of workmanship or material contained in the roadway prism that are detailed in the warranty terms."
Section 3. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] DESIGN-BUILD METHOD OF PROJECT DELIVERY.--
A. Notwithstanding any other law, the department may use the design-build method of project delivery on a project with a maximum allowable construction cost of more than fifty million dollars ($50,000,000) pursuant to the Transportation Procurement Act if the department makes a determination in writing that the method is appropriate and in the best interests of the state for that project, except that the department shall not utilize the design-build method of project delivery to operate any structure, facility or other item.
B. The estimated cost of the project shall not include the cost to procure any right of way or other cost of condemnation, which costs shall remain at all times the responsibility of the department. The department shall obtain all necessary rights of way but may utilize the design-build contractor to provide right-of-way support services to the department.
C. The department shall be responsible for preparation of all environmental studies, documentation and required clearances, including the scope of any environmental remediation. The department shall obtain all necessary environmental clearances but may utilize a design-build contractor to provide investigation and remediation support services to the department.
D. The secretary shall make and adopt rules for procuring a project using the design-build method of project delivery, which shall be designed to ensure fair, uniform, clear and effective delivery of a quality project on time and within budget. The department shall solicit input from industry stakeholders during the rulemaking process. The rules shall establish criteria for the amount of the stipend to be awarded, which criteria shall include the amount of information supplied by the department, the complexity of the project and the estimated cost of design and construction."
Section 4. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] DESIGN-BUILD METHOD CRITERIA.--The department shall use the following criteria as the minimum basis for determining when to use the design-build method of project delivery:
A. the extent to which the department can adequately define the project requirements;
B. the time constraints for delivery of the project;
C. the capability and experience of potential teams;
D. the suitability of the project for use of the design-build method of project delivery in the areas of time, schedule, costs and quality;
E. the capability of the department to manage and oversee the project, including the employment of experienced personnel or outside consultants; and
F. other criteria the department deems relevant."
Section 5. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] DESIGN-BUILD METHOD--TWO-PHASE PROCEDURE.--If the department determines that the design-build method of project delivery is appropriate, the department shall implement a two-phase procedure for awarding the design-build contract, which shall be as follows:
A. During phase one, and before solicitation:
(1) the secretary shall appoint a selection team of at least three members. At least one-half of the selection team shall be architects or engineers who are registered pursuant to Chapter 61, Article 23 NMSA 1978 or Chapter 61, Article 15 NMSA 1978, respectively. The selection team members may be either department employees, outside consultants or licensed contractors. A consultant or contractor who is serving on the selection team and who is not a department employee shall not be otherwise involved in the project as part of any offeror's team;
(2) the department shall prepare a request for qualifications, which shall include:
(a) the minimum qualifications of the design-build offeror;
(b) a scope-of-work statement and schedule;
(c) documents defining the project requirements;
(d) the form of contract to be awarded;
(e) the selection criteria for compiling a short list of no more than five offerors;
(f) the amount of the stipend;
(g) a description of the phase-two evaluation factors and selection process;
(h) the maximum time allowable for design and construction; and
(i) the department's estimated budget for design and construction; and
(3) the selection team in a design-build procurement shall evaluate the design-build qualifications of responding offerors and shall compile a short list of offerors in accordance with technical and qualifications-based criteria. B. During phase two:
(1) the department shall issue a request for proposals to the design-build offerors on the short list. The request for proposals shall include:
(a) the scope of work, including programmatic, performance and technical requirements, conceptual design, specifications and functional and operational elements for the delivery of the completed project, which shall all be prepared by an architect or engineer, as appropriate, who is registered pursuant to Chapter 61, Article 23 NMSA 1978 or Chapter 61, Article 15 NMSA 1978, respectively;
(b) a description of selection criteria;
(c) copies of the contract documents that the successful offeror will be expected to sign;
(d) the maximum time allowable for design and construction;
(e) the department's estimated budget for design and construction;
(f) the requirement that a proposal be segmented into two parts, a technical proposal and a price proposal, which shall each be in a separately sealed, clearly identified package and shall include the date and time of the submittal deadline;
(g) the amount of the stipend; and
(h) other information relevant to the project;
(2) if stated in the request for proposals, the department may enter into a separate confidential discussion with each offeror on the short list to discuss alternative technical concepts that the offeror may propose in order to inform each offeror whether the offeror's concept is responsive to the request for proposals;
(3) the department:
(a) shall award the contract to the responsive design-build offeror that represents the best value to the state. The best value shall be determined based on quality and price as defined in the request-for-proposals selection criteria; or
(b) may cancel the procurement or reject all proposals; and
(4) the department shall pay stipends within ninety days after the award of the contract or the decision not to award a contract."
Section 6. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] STIPEND.--In consideration for paying a stipend to a contractor under the Transportation Procurement Act, the department may use any ideas or information contained in a proposal provided by that contractor."
Section 7. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] CONSTRUCTION-MANAGER-AT-RISK CONSTRUCTION SERVICES.--Notwithstanding any other law, the department may procure construction-manager-at-risk construction services pursuant to this section. The department shall provide notice of each procurement of construction services prescribed in this section and shall award contracts on the basis of demonstrated competence and qualifications for the type of construction services pursuant to the procedures prescribed in this section. In the procurement of construction services pursuant to this section:
A. the department shall issue a request for qualifications for each contract and publish notice of the request for qualifications. The request for qualifications shall:
(1) state the criteria to be used by the selection team to select the offeror to perform the construction services; and
(2) state in a manner determined by the department the relative weight of the selection criteria; and
B. the secretary shall appoint a selection team of at least three members. At least one-half of the selection team shall be architects or engineers who are registered pursuant to Chapter 61, Article 23 NMSA 1978 or Chapter 61, Article 15 NMSA 1978, respectively. The selection team members may be either department employees, outside consultants or licensed contractors. A consultant or contractor who is serving on the selection team and who is not a department employee shall not be otherwise involved in the project as part of any offeror's team."
Section 8. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] CONSTRUCTION-MANAGER-AT-RISK--CONTRACTOR SELECTION--NEGOTIATION.--
A. The construction-manager-at-risk selection team appointed by the secretary shall:
(1) evaluate the statements of qualifications and performance data that are submitted in response to the department's request for qualifications;
(2) determine if interviews are required and, if required, conduct interviews with the final list of offerors; and
(3) select the final list and rank the offerors in order of preference.
B. The final list and order of preference shall be based on demonstrated competence and qualifications only. The department and the selection team shall not request or consider fees, price, man-hours or any other cost information at any point in the selection process, including the selection of the offerors to be interviewed, the selection of the offerors to be on the final list and the determination of the order of preference of offerors on the final list, or for any other purpose in the selection process.
C. If only one offeror responds to a solicitation for a contract to be negotiated pursuant to Subsection D of this section, the department may proceed with only one offeror in the selection process and may award the contract to a single offeror if the department determines in writing:
(1) that the fee negotiated pursuant to Subsection D of this section is fair and reasonable; and
(2) that other prospective persons or firms had reasonable opportunity to respond or that there is not adequate time for a resolicitation.
D. The department shall enter into negotiations for the contract with the highest qualified offeror on the final list for the construction services. The negotiations shall include consideration of compensation and other contract terms that the department determines to be fair and reasonable to the state. In making its decision to accept an offer, the department shall take into account the estimated value, scope, complexity and nature of the construction services to be rendered. If the department is not able to negotiate a satisfactory contract with the highest qualified offeror on the final list at compensation and on other contract terms that the department determines to be fair and reasonable, the department shall formally terminate negotiations with that offeror. The department may undertake negotiations with the next most qualified offeror on the final list in sequence until an agreement is reached or a determination is made to reject all offerors on the final list.
E. If a contract for construction services is entered into pursuant to this section:
(1) the department may enter into a preconstruction services contract under which the department shall pay the contractor a fee for preconstruction services in an amount agreed to by the department and the contractor. The department shall not request or obtain a fixed price or a guaranteed maximum price for the construction from the contractor or enter into a construction contract with the contractor until after the department has entered into the written contract for preconstruction services and a preconstruction services fee; and
(2) construction shall not commence until the department and the contractor agree in writing on a guaranteed maximum price for the construction.
F. The department may cancel a solicitation if it is in the best interest of the state.
G. The contractor for construction-manager-at-risk construction services shall be licensed to perform construction pursuant to Chapter 60, Article 13 NMSA 1978.
H. Notwithstanding any other law, for each project under a construction-manager-at-risk construction services contract, the licensed contractor performing the contract shall perform, with the contractor's own organization, construction work that amounts to not less than fifty percent of the total contract price for construction. For the purposes of this subsection, the total contract price for construction does not include the cost of preconstruction services, design services or any other related services or the cost to procure any right of way or other cost of condemnation."
Section 9. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] JOB-ORDER-CONTRACTING CONSTRUCTION SERVICES--PROCEDURE.--Notwithstanding any other law, the department may procure job-order-contracting construction services pursuant to the Transportation Procurement Act. The department shall provide notice of each procurement of construction services prescribed in this section and shall award contracts on the basis of demonstrated competence and qualifications for the type of construction services pursuant to the procedures prescribed in this section. In the procurement of job-order-contracting construction services, the department shall establish a two-phase procedure for awarding the job-order-contracting construction services contract. The procedure shall be as follows:
A. during phase one:
(1) the department shall issue a request for qualifications for each contract and publish notice of the request for qualifications. The request for qualifications shall:
(a) include the number of offerors to be included on the final list;
(b) state the criteria to be used by the selection team to select the offeror to perform the construction services; and
(c) state the relative weight of the selection criteria in a manner determined by the department;
(2) the secretary shall appoint a selection team of at least three members. At least one-half of the selection team shall be architects or engineers who are registered pursuant to Chapter 61, Article 23 NMSA 1978 or Chapter 61, Article 15 NMSA 1978, respectively. The selection team members may be either department employees, outside consultants or licensed contractors. A consultant or contractor who is serving on the selection team and who is not a department employee shall not be otherwise involved in the project as part of any offeror's team;
(3) the selection team shall:
(a) evaluate the statements of qualifications and performance data that are submitted in response to the department's request for qualifications;
(b) select a final list and rank the offerors in order of preference. The final list and order of preference shall be based on demonstrated competence and qualifications only. The department and the selection team shall not request or consider fees, price, man-hours or any other cost information at any point in the selection process pursuant to this section, including the selection of the offerors to be interviewed, the selection of the offerors to be on the final list and the determination of the order of preference of offerors on the final list, or for any other purpose in the selection process; and
(c) determine if interviews are required and, if required, conduct interviews with the final list of offerors; and
(4) if only one offeror responds to a solicitation, the department may award the contract to a single offeror if the department determines in writing:
(a) that the fee negotiated pursuant to this section is fair and reasonable; and
(b) that other prospective offerors had reasonable opportunity to respond or that there is not adequate time for a resolicitation; and
B. during phase two:
(1) the department shall issue a request for proposals to the final list of offerors. The request for proposals shall include:
(a) scope-of-work and bid items;
(b) a description of selection criteria; and
(c) other information relevant to the contract; and
(2) the department may award the contract to one or more responsive offerors. The best value is determined based on quality and price as defined in the request-for-proposals selection criteria; or
(3) the department may reject all proposals."
Section 10. A new section of the Procurement Code is enacted to read:
"[NEW MATERIAL] JOB-ORDER-CONTRACTING CONSTRUCTION SERVICES--REQUIREMENTS FOR CONTRACTORS.--Notwithstanding any other law:
A. for each project under a job-order-contracting construction services contract, the licensed contractor performing the contract shall perform, with the contractor's own organization, construction work that amounts to not less than fifty percent of the total contract price for construction. For the purposes of this subsection, the total contract price for construction does not include the cost of preconstruction services, design services or any other related services or the cost to procure any right of way or other cost of condemnation;
B. the contractor for job-order-contracting construction services is not required to be registered to perform design services pursuant to Chapter 61, Article 23 NMSA 1978 or Chapter 61, Article 24B NMSA 1978 if the offeror actually performing the design services on behalf of the contractor is appropriately registered;
C. a contract for construction services using the job-order-contracting project delivery method may be entered into for a period of up to four years, as deemed to be in the best interest of the state, if the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal year at the time of contracting. Payment and performance obligations for succeeding fiscal years are subject to the availability and appropriation of funds;
D. before the use of a multi-term job-order contract, the department shall determine in writing that:
(1) estimated requirements cover the period of the contract and are reasonable and continuing; and
(2) the contract serves the best interests of the state by encouraging effective competition or otherwise promoting economies in the department's procurement; and
E. if money is not appropriated or otherwise made available to support the continuation of performance in a subsequent fiscal year, the contract shall be canceled and the contractor may only be reimbursed for the reasonable value of any nonrecurring costs that are incurred but not amortized in the price of the construction services delivered under the contract or that are otherwise not recoverable. The cost of cancellation may be paid from any appropriations available for these purposes. Contractors are not entitled to compensation for a decision to not renew or extend a contract."
Section 11. Section 13-1-102 NMSA 1978 (being Laws 1984, Chapter 65, Section 75, as amended) is amended to read:
"13-1-102. COMPETITIVE SEALED BIDS REQUIRED.--All procurement shall be achieved by competitive sealed bid pursuant to Sections 13-1-103 through 13-1-110 NMSA 1978, except procurement achieved pursuant to the following sections of the Procurement Code:
A. Sections 13-1-111 through 13-1-122 NMSA 1978, competitive sealed proposals;
B. Section 13-1-125 NMSA 1978, small purchases;
C. Section 13-1-126 NMSA 1978, sole source procurement;
D. Section 13-1-127 NMSA 1978, emergency procurements;
E. Section 13-1-129 NMSA 1978, existing contracts;
F. Section 13-1-130 NMSA 1978, purchases from antipoverty program businesses; [and]
G. the Educational Facility Construction Manager At Risk Act; and
H. the Transportation Procurement Act."
Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.
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