SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 84

55th legislature - STATE OF NEW MEXICO - second session, 2022

 

 

 

 

 

 

 

AN ACT

RELATING TO PROCUREMENT; ENACTING THE TRANSPORTATION CONSTRUCTION MANAGER GENERAL CONTRACTOR ACT TO PROVIDE AN ALTERNATIVE PROJECT DELIVERY METHOD FOR CERTAIN DEPARTMENT OF TRANSPORTATION PROJECTS; PROVIDING ANOTHER EXCEPTION TO THE COMPETITIVE SEALED BID REQUIREMENT; ELIMINATING THE CAP FOR DESIGN AND BUILD PROCUREMENT FOR CERTAIN TRANSPORTATION PROJECTS; SPECIFYING ALTERNATIVES TO THE DESIGN-BID-BUILD PROJECT DELIVERY METHOD FOR TRANSPORTATION PROJECTS.

 

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

     SECTION 1. A new section of the Procurement Code, Section 13-1-122.1 NMSA 1978, is enacted to read:

     "13-1-122.1. [NEW MATERIAL] SHORT TITLE.--Sections 13-1-122.1 through 13-1-122.4 NMSA 1978 may be cited as the "Transportation Construction Manager General Contractor Act"."

     SECTION 2. A new section of the Procurement Code, Section 13-1-122.2 NMSA 1978, is enacted to read:

     "13-1-122.2. [NEW MATERIAL] DEFINITIONS.--As used in the Transportation Construction Manager General Contractor Act:

          A. "construction manager general contractor" means a person who, pursuant to a contract with the department, provides preconstruction services, construction management and construction services required for a project;

          B. "construction manager general contractor delivery method" means a project delivery method in which a contract for construction manager general contractor services is procured separately from a contract for project design services and a contract for independent cost estimate services;

          C. "department" means the department of transportation;

          D. "guaranteed maximum price" means the maximum amount to be paid by the department for the construction of the project;

          E. "preconstruction services" means consulting services related to construction management and construction provided during the transportation project design stage;

          F. "project" means a state public works project for highway construction or reconstruction;

          G. "project design services" means engineering services, surveying services or landscape architectural services; and

          H. "secretary" means the secretary of transportation."

     SECTION 3. A new section of the Procurement Code, Section 13-1-122.3 NMSA 1978, is enacted to read:

     "13-1-122.3. [NEW MATERIAL] CONSTRUCTION MANAGER GENERAL CONTRACTOR DELIVERY METHOD AUTHORIZED.--

          A. The secretary may use a construction manager general contractor delivery method on a project if the department makes a written determination that it is appropriate and in the best interest of the department to use this method of project delivery to procure an eligible project. The determination to use the construction manager general contractor delivery method shall be issued only after the department considers the following criteria, at a minimum:

                (1) the level of design and the extent to which the project requirements have been or can be adequately defined;

                (2) time constraints for project delivery;

                (3) project complexity;

                (4) the suitability of use of the construction manager general contractor delivery method; and

                (5) the capability of the department to manage the project, including experienced personnel or outside consultants.

          B. The secretary shall not make a determination to use a construction manager general contractor delivery method unless the project is posted with such determination on the department's website for at least ninety days.

          C. The secretary, in consultation with the professional associations and contractors from within the highway design and construction industry, shall promulgate rules for solicitation and award of construction manager general contractor contracts. The rules shall establish criteria for selecting, procuring and contracting a project using the construction manager general contractor delivery method. The rules shall define the scope of the construction manager general contractor contract to require the construction manager general contractor to:

                (1) provide a range of preconstruction services and participate in project design, cost control, scheduling and value engineering efforts for the project; and

                (2) if the second phase of the contract is entered into, provide the construction work for the project or work packages associated with the project at a guaranteed maximum price for which the construction manager general contractor is financially responsible."

     SECTION 4. A new section of the Procurement Code, Section 13-1-122.4 NMSA 1978, is enacted to read:

     "13-1-122.4. [NEW MATERIAL] CONSTRUCTION MANAGER GENERAL CONTRACTOR--MULTI-PHASED PROCEDURE.--

          A. The selection procedure shall use a competitive sealed qualifications-based proposal method that conforms with Sections 13-1-111 through 13-1-117 NMSA 1978 and results in a professional services contract. The contract scope of work shall be divided into two separate but related phases:

                (1) phase one for design consultation and preconstruction services; and

                (2) phase two for project construction.

          B. The department shall issue a separate request for proposals for each project that uses a construction manager general contractor delivery method.

          C. The department's request for proposals for a construction manager general contractor contract shall contain, at a minimum, the following elements:

                (1) a statement of the minimum qualifications for the construction manager general contractor, including 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;

                     (c) minimum bond capacity;

                     (d) the ability to self-perform, with its own organization, a minimum percentage of construction work as required and defined in the department's standard specifications for highway and bridge construction, current edition; and

                     (e) current registration as a prequalified contractor pursuant to rule promulgated by the department;

                (2) the procedures for submitting proposals, the criteria for evaluation of qualifications and the relative weight of the criteria;

                (3) the form of contract to be awarded;

                (4) a listing or description of the types of preconstruction and construction services that will be required;

                (5) identification of requirements for liability insurance, a proposal bond pursuant to Section 13-1-146 NMSA 1978 and performance and payment bonds pursuant to Section 13-4-18 NMSA 1978;

                (6) a description of the method to be used for pricing or negotiation of construction manager general contractor fees for the scope of services; and

                (7) preferences as allowed by law in the Procurement Code for New-Mexico-based businesses and others.

          D. The department shall use a selection committee for the evaluation of the qualifications submitted by offerors and shall determine the offerors that qualify for award of the construction manager general contractor contract. The department shall establish a construction manager general contractor selection committee by rule. The selection committee shall rank the offerors and provide a recommendation to the department identifying the offeror most qualified based on the highest ranking score.

          E. Nothing in this section precludes the selection committee from recommending the termination of the selection procedure pursuant to Section 13-1-131 NMSA 1978.

          F. The department shall promulgate rules for the selection process and award of contract that include interviews with top-ranked offerors, price negotiations and the authority to terminate negotiations.

          G. The department rules shall address the processes applicable to the award of a contract for construction management and construction services, including the process for conducting contract negotiations with the construction manager general contractor for construction of the project or work packages associated with the project in accordance with contract documents and specifications.

          H. The department shall secure and use an independent cost estimate for the project or each work package associated with the project to validate the negotiated costs for the construction management and construction services contract. The independent cost estimate shall remain confidential until notice of award of the construction contract.

          I. The construction manager general contractor shall submit a guaranteed maximum price proposal for construction management and construction services for the project or work packages associated with the project.

          J. Negotiations may begin between the department and the construction manager general contractor for the construction services before completion of the design work. Upon successful negotiation, the department shall execute the contract with the construction manager general contractor for construction of the project or work packages associated with the project.

          K. Negotiations shall be terminated if the department is unable to reach a price agreement with the construction manager general contractor. In the event that negotiations are terminated, the department may competitively bid the construction phase of the project, in accordance with the department's procedures applicable to public works construction projects. The construction manager general contractor may be allowed to bid or provide subcontract services for the project, unless prohibited by Section 10-16-13 NMSA 1978.

          L. Data developed during the design services and the construction manager general contractor's preconstruction services, unless otherwise protected by law, shall be made available to all bidders.

          M. After a construction manager general contractor contract is awarded for the preconstruction services, the department shall make the names of each offeror and the ranking and evaluation scores for each available for public inspection."

     SECTION 5. 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 Construction Manager General Contractor Act."

     SECTION 6. Section 13-1-119.2 NMSA 1978 (being Laws 2009, Chapter 207, Section 1, as amended) is amended to read:

     "13-1-119.2. DESIGN AND BUILD PROCUREMENT FOR CERTAIN TRANSPORTATION PROJECTS.--Notwithstanding any prohibition on road and highway construction or reconstruction projects in Section 13-1-119.1 NMSA 1978, the department of transportation may use a design and build project delivery system pursuant to Section 13-1-119.1 NMSA 1978 [for projects with a maximum allowable construction cost of more than fifty million dollars ($50,000,000)]."

     SECTION 7. A new Section 67-3-8.4 NMSA 1978 is enacted to read:

     "67-3-8.4. [NEW MATERIAL] DEPARTMENT--POWERS.--

          A. The secretary may use an alternative to the design-bid-build project delivery method for project procurement to allow the department to use the services of a construction manager general contractor. No more than twenty-five percent of the projects placed on the department's letting schedule in any calendar year may be let pursuant to the design and build project delivery method pursuant to Section 13-1-119.2 NMSA 1978 or the construction manager general contractor delivery method pursuant to the Transportation Construction Manager General Contractor Act.

          B. As used in this section, "letting schedule" means the department's construction projects that are posted to give notice to the public prior to receiving bids on any project."

     SECTION 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2022.

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