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AN ACT

RELATING TO PROCUREMENT; AMENDING THE PROCUREMENT CODE TO

PROVIDE FOR CONSTRUCTION MANAGER AT RISK CONTRACTS IN THE

CONSTRUCTION OF EDUCATIONAL FACILITIES; ENACTING THE

EDUCATIONAL FACILITY CONSTRUCTION MANAGER AT RISK ACT;

PROVIDING PROCEDURES FOR SELECTING A CONSTRUCTION MANAGER AT

RISK; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 13-1-102 NMSA 1978 (being Laws 1984,

Chapter 65, Section 75) 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

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antipoverty program businesses; and

G. the Educational Facility Construction Manager

At Risk Act."

Section 2. Section 13-1-111 NMSA 1978 (being Laws 1984,

Chapter 65, Section 84, as amended) is amended to read:

"13-1-111. COMPETITIVE SEALED PROPOSALS--CONDITIONS FOR

USE.--

A. Except as provided in Subsection G of Section

13-1-119.1 NMSA 1978, when a state agency or a local public

body is procuring professional services or a design and build

project delivery system, or when the state purchasing agent, a

central purchasing office or a designee of either officer

makes a written determination that the use of competitive

sealed bidding for items of tangible personal property or

services is either not practicable or not advantageous to the

state agency or a local public body, a procurement shall be

effected by competitive sealed proposals.

B. Competitive sealed proposals may also be used

for contracts for construction and facility maintenance,

service and repairs.

C. Competitive sealed proposals may also be used

for construction manager at risk contracts if a three-step

selection procedure is used pursuant to the Educational

Facility Construction Manager At Risk Act.

D. Competitive qualifications-based proposals

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shall be used for procurement of professional services of

architects, engineers, landscape architects, construction

managers and surveyors who submit proposals pursuant to

Sections 13-1-120 through 13-1-124 NMSA 1978.

E. Competitive sealed proposals shall also be used

for contracts for the design and installation of measures the

primary purpose of which is to conserve natural resources,

including guaranteed utility savings contracts entered into

pursuant to the Public Facility Energy Efficiency and Water

Conservation Act."

Section 3. A new section of the Procurement Code,

Section 13-1-124.1 NMSA 1978, is enacted to read:

"13-1-124.1. SHORT TITLE.--Sections 13-1-124.1 through

13-1-124.5 NMSA 1978 may be cited as the "Educational Facility

Construction Manager At Risk Act"."

Section 4. A new section of the Procurement Code,

Section 13-1-124.2 NMSA 1978, is enacted to read:

"13-1-124.2. APPLICABILITY.--The provisions of the

Educational Facility Construction Manager At Risk Act apply to

contracts for the construction of educational facilities if

the governing body chooses, pursuant to the provisions of that

act, to use the services of a construction manager at risk."

Section 5. A new section of the Procurement Code,

Section 13-1-124.3 NMSA 1978, is enacted to read:

"13-1-124.3. DEFINITIONS.--As used in the Educational

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Facility Construction Manager At Risk Act:

A. "construction manager at risk" means a person

who, pursuant to a contract with a governing body, provides

the preconstruction services and construction management

required in a construction manager at risk delivery method;

B. "construction manager at risk delivery method"

means a construction method for an educational facility

wherein a construction manager at risk provides a range of

preconstruction services and construction management,

including cost estimation and consultation regarding the

design of the building project, preparation and coordination

of bid packages, scheduling, cost control, value engineering

and, while acting as the general contractor during

construction, detailing the trade contractor scope of work,

holding the trade contracts and other subcontracts,

prequalifying and evaluating trade contractors and

subcontractors and providing management and construction

services, all at a guaranteed maximum price for which the

construction manager at risk is financially responsible;

C. "educational facility" means a public school,

including a locally chartered or state-chartered charter

school or a facility of a state educational institution listed

in Section 6-17-1.1 NMSA 1978;

D. "governing body" means:

(1) the public school facilities authority

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if the authority is the using agency that requires the

construction of an educational facility;

(2) a local school board if the board is the

using agency that requires the construction of an educational

facility;

(3) the governing body of a charter school

if the governing body is the using agency that requires the

construction of an educational facility; or

(4) the governing body of a state

educational institution if the governing body is the using

agency that requires the construction of an educational

facility; and

E. "guaranteed maximum price" means the maximum

amount to be paid by the governing body for the construction

of the educational facility, including the cost of the work,

the general conditions and the fees charged by the

construction manager at risk."

Section 6. A new section of the Procurement Code,

Section 13-1-124.4 NMSA 1978, is enacted to read:

"13-1-124.4. CONSTRUCTION MANAGER AT RISK DELIVERY

METHOD AUTHORIZED--MULTIPHASE SELECTION PROCEDURE.--

A. A construction manager at risk delivery method

may be used when a governing body determines that it is in its

interest to use that method on a specific educational facility

construction project, provided that the construction manager

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at risk shall be selected pursuant to the provisions of this

section.

B. The governing body shall form a selection

committee of at least three members with at least one member

being an architect or engineer. The selection committee shall

develop an evaluation process, including a multiphase

procedure consisting of two or three steps. A two-step

procedure may be used when the total amount of money available

for the project is less than five hundred thousand dollars

($500,000) and shall include a request for qualifications and

an interview. A three-step procedure shall consist of a

request for qualifications, a request for proposals and an

interview.

C. A request for qualifications shall be published

in accordance with Section 13-1-104 NMSA 1978 and shall

include at a minimum the following:

(1) a statement of the minimum

qualifications for the construction manager at risk, including

the requirements for:

(a) a contractor's license for the type

of work to be performed, issued pursuant to the Construction

Industries Licensing Act;

(b) registration pursuant to Section

13-4-13.1 NMSA 1978; and

(c) a minimum bond capacity;

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(2) a statement of the scope of work to be

performed, including:

(a) the location of the project and the

total amount of money available for the project;

(b) a proposed schedule, including a

deadline for submission of the statements of qualification;

(c) specific project requirements and

deliverables;

(d) the composition of the selection

committee;

(e) a description of the process the

selection committee shall use to evaluate qualifications;

(f) a proposed contract; and

(g) a detailed statement of the

relationships and obligations of all parties, including the

construction manager at risk, agents of the governing body,

such as an architect or engineer, and the governing body;

(3) a verification of the maximum allowable

construction cost; and

(4) a request for a proposal bond as

required by Section 13-1-146 NMSA 1978.

D. The selection committee shall evaluate the

statements of qualifications submitted and determine the

offerors that qualify for the construction manager at risk.

If the selection committee has chosen a three-step procedure,

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the committee shall issue a request for proposals to the

offerors that qualify.

E. If the selection committee has chosen a two-

step procedure, the committee shall rank the persons that

qualify based upon the statements of qualification and

interview up to three of the highest-ranked offerors.

F. In a three-step procedure, the selection

committee shall issue a request for proposals and evaluate the

proposals pursuant to Sections 13-1-112 through 13-1-117 NMSA

1978 except that:

(1) the request for proposals shall be sent

only to those determined to be qualified pursuant to

Subsection D of this section;

(2) the selection committee shall evaluate

the proposals and conduct interviews with up to three of the

highest-ranked offerors instead of negotiating with

responsible offerors found to be reasonably likely to be

selected; and

(3) pursuant to Subsection G of this

section, the contract award may be made after the interviews.

G. After conducting interviews with the highest-

ranked offerors and after considering the factors listed in

Subsection H of this section, the selection committee shall

recommend to the governing body the offeror that will be most

advantageous to the governing body. Should the governing body

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or designee be unable to negotiate a satisfactory contract

with the offeror considered to be the most qualified at a

price determined to be fair and reasonable, negotiations with

that offeror shall be formally terminated. The governing body

or designee shall then undertake negotiations with the second

most qualified offeror. Failing accord with the second most

qualified offeror, the governing body or designee shall

formally terminate negotiations with the offeror. The

governing body or designee shall then undertake negotiations

with the third most qualified offeror. Should the governing

body or designee be unable to negotiate a contract with any of

the offerors selected by the committee, additional offerors

shall be ranked in order of their qualifications and the

governing body or designee shall continue negotiations in

accordance with this section until a contract is signed with a

qualified offeror or the procurement process is terminated and

a new request for proposals is initiated.

H. In evaluating and ranking statements of

qualifications, proposals and results of interviews, and in

the final recommendation of a construction manager at risk,

the selection committee shall consider:

(1) the offeror

<

s experience with

construction of similar types of projects;

(2) the qualifications and experience of the

offeror's personnel and consultants and the role of each in

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the project;

(3) the plan for management actions to be

undertaken on the project, including services to be rendered

in connection with safety and the safety plan for the project;

(4) the offeror

<

s experience with the

construction manager at risk method; and

(5) all other selection criteria, as stated

in the request for qualifications and the request for

proposals.

I. Nothing in this section precludes the selection

committee from recommending the termination of the selection

procedure pursuant to Section 13-1-131 NMSA 1978 and repeating

the selection process pursuant to this section. Any material

received by the selection committee in response to a

solicitation that is terminated shall not be disclosed so as

to be available to competing offerors.

J. After a contract is awarded, the selection

committee shall make the names of all offerors and the names

of all offerors selected for interview available for public

inspection along with the selection committee's final ranking

and evaluation scores. Offerors who were interviewed but not

selected for contract award shall be notified in writing

within fifteen days of the award."

Section 7. A new section of the Procurement Code,

Section 13-1-124.5 NMSA 1978, is enacted to read:

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"13-1-124.5. RESPONSIBILITIES OF CONSTRUCTION MANAGER

AT RISK FOLLOWING AWARD OF PROJECT.--

A. The contract with the construction manager at

risk shall specify:

(1) the guaranteed maximum price; and

(2) the percentage of the guaranteed price

that the construction manager at risk will perform with its

own work force.

B. The construction manager at risk, in

cooperation with the governing body, shall seek to develop

subcontractor interest in the project and shall furnish to the

governing body and any architect or engineer representing the

governing body a list of subcontractors who state in writing

that they are a responsible bidder or a responsible offeror,

including suppliers who are to furnish materials or equipment

fabricated to a special design and from whom proposals or bids

will be requested for each principal portion of the project.

The governing body and its architect or engineer shall

promptly reply in writing to the construction manager at risk

if the governing body, architect or engineer knows of any

objection to a listed subcontractor or supplier, provided that

the receipt of the list shall not require the governing body,

architect or engineer to investigate the qualifications of

proposed subcontractors or suppliers, nor shall it waive the

right of the governing body, architect or engineer later to

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object to or reject any proposed subcontractor or supplier.

C. The construction manager at risk shall:

(1) conduct pre-bid or pre-proposal

meetings;

(2) advise the governing body about bidding

or proposals;

(3) enter into contracts; and

(4) assist the governing body in evaluating

submissions by responsible bidders and offerors."

Section 8. A new section of Chapter 13, Article 4 NMSA

1978 is enacted to read:

"DEFINITIONS--CONSTRUCTION CONTRACT--CONTRACTOR.--As

used in Chapter 13, Article 4 NMSA 1978:

A. "contract" or "construction contract" includes

a construction manager at risk contract entered into pursuant

to the Educational Facility Construction Manager At Risk Act;

and

B. "contractor" includes a construction manager at

risk selected pursuant to the Educational Facility

Construction Manager At Risk Act."

Section 9. Section 13-1-146 NMSA 1978 (being Laws 1984,

Chapter 65, Section 119) is amended to read:

"13-1-146. REQUIREMENT FOR BID SECURITY.--Bid security

shall be required of bidders or offerors for construction

contracts when the price is estimated by the procurement

officer to exceed twenty-five thousand dollars ($25,000). Bid

security in an amount equal to at least five percent of the

amount of the bid shall be a bond provided by a surety company

authorized to do business in this state, or the equivalent in

cash, or otherwise supplied in a form satisfactory to the

state agency or a local public body."

Section 10. EMERGENCY.--It is necessary for the public

peace, health and safety that this act take effect

immediately.

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