SF 1147

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/22/2012 04:22pm

A bill for an act
relating to transportation; providing for construction manager/general contractor
contracts; requiring a report; amending Minnesota Statutes 2010, section 13.72,
subdivision 1, by adding a subdivision; proposing coding for new law in
Minnesota Statutes, chapter 161.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2010, section 13.72, subdivision 1, is amended to read:

Subdivision 1.

Estimates for construction projects.

An estimate of the cost
of a construction project of the Minnesota Department of Transportation prepared by
department employees is nonpublic data and is not available to the public from the time
of final design until the project is awarded new text begin , except that the department may share a cost
estimate with a construction manager/general contractor with whom the department is
negotiating a contract under sections 161.3207 to 161.3209 new text end .

Sec. 2.

Minnesota Statutes 2010, section 13.72, is amended by adding a subdivision to
read:

new text begin Subd. 17. new text end

new text begin Construction manager/general contractor data. new text end

new text begin (a) When the
commissioner of transportation undertakes a transportation project pursuant to a
construction manager/general contractor contract, as defined in section 161.3207,
subdivision 5, and:
new text end

new text begin (1) solicits a request for qualifications (RFQ), as defined in section 161.3207,
subdivision 11, then:
new text end

new text begin (i) the statement of qualifications scoring methodology, identifying information
concerning members of the technical review committee, and statement of qualifications
evaluations are classified as protected nonpublic data; and
new text end

new text begin (ii) the statement of qualifications submitted by a potential construction
manager/general contractor, as defined by section 161.3207, subdivision 4, are nonpublic
data;
new text end

new text begin (2) announces the short list of qualified construction managers/general contractors,
then the statement of qualifications scoring methodology and the statement of
qualifications evaluations become public;
new text end

new text begin (3) solicits a request for proposals (RFP), as defined in section 161.3207, subdivision
10, then:
new text end

new text begin (i) the proposals submitted by a potential construction manager/general contractor
are nonpublic data; and
new text end

new text begin (ii) the proposal scoring methodology, identifying information concerning members
of the technical review committee, and proposal evaluations are protected nonpublic
data; and
new text end

new text begin (4) ranks the proposals, as required by section 161.3209, subdivision 2, paragraph
(b), clause (3), then:
new text end

new text begin (i) the proposal evaluation score, or rank, becomes public;
new text end

new text begin (ii) the proposal evaluations, other than the score, or rank, that is made public in item
(i); the proposal scoring methodology; and identifying information concerning members
of the technical review committee remain protected nonpublic data until completion of the
evaluation process; and
new text end

new text begin (iii) the statement of qualifications and proposals submitted by a potential
construction manager/general contractor remains nonpublic data until completion of the
evaluation process.
new text end

new text begin (b) If all responses to a request for proposals are rejected before completing the
evaluation process, all data, other than that data made public under this subdivision,
retains its classification until a resolicitation of the request for proposals results in
completion of the evaluation process or a determination is made to abandon the project. If
a resolicitation of proposals does not occur within one year of the announcement of the
request for proposals, the remaining data become public.
new text end

new text begin (c) For purposes of this subdivision, "completion of the evaluation process" means
that the commissioner of transportation has completed negotiating the preconstruction
services contract with the selected construction manager/general contractor.
new text end

Sec. 3.

new text begin [161.3207] CONSTRUCTION MANAGER/GENERAL CONTRACTOR
CONTRACTS; DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin The terms used in sections 161.3207 to 161.3209 have the
meanings given them in this section.
new text end

new text begin Subd. 2. new text end

new text begin Acceptance. new text end

new text begin "Acceptance" means an action of the commissioner
authorizing the execution of a construction manager/general contractor contract.
new text end

new text begin Subd. 3. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of
transportation.
new text end

new text begin Subd. 4. new text end

new text begin Construction manager/general contractor. new text end

new text begin "Construction
manager/general contractor" means a proprietorship, partnership, limited liability
partnership, joint venture, corporation, any type of limited liability company, professional
corporation, or any legal entity selected by the commissioner to act as a construction
manager to manage the construction process, which includes, but is not limited to,
responsibility for the price, schedule, and workmanship of preconstruction services or the
construction performed according to section 161.3209, or both.
new text end

new text begin Subd. 5. new text end

new text begin Construction manager/general contractor contract. new text end

new text begin "Construction
manager/general contractor contract" means a contract for construction of a project
between a construction manager/general contractor and the commissioner, which
must include terms providing for a price, construction schedule, and workmanship of
the construction performed. The construction manager/general contractor contract
may include provisions for incremental price contracts for specific work packages,
additional work performed, contingencies, or other contract provisions that will allow the
commissioner to negotiate time and cost changes to the contract.
new text end

new text begin Subd. 6. new text end

new text begin Past performance; experience. new text end

new text begin "Past performance" or "experience" does
not include the exercise or assertion of a person's legal rights.
new text end

new text begin Subd. 7. new text end

new text begin Preconstruction services. new text end

new text begin "Preconstruction services" means all
non-construction-related services that a construction manager/general contractor is
allowed to perform before execution of a construction manager/general contractor contract
or work package.
new text end

new text begin Subd. 8. new text end

new text begin Preconstruction services contract. new text end

new text begin "Preconstruction services contract"
means a contract under which a construction manager/general contractor is paid on the
basis of the actual cost to perform the work specified in the contract plus an amount for
overhead and profit for all preconstruction services.
new text end

new text begin Subd. 9. new text end

new text begin Project. new text end

new text begin "Project" means any project selected by the commissioner as a
construction manager/general contractor project under section 161.3208.
new text end

new text begin Subd. 10. new text end

new text begin Request for proposals; RFP. new text end

new text begin "Request for proposals" or "RFP" means
the document or publication soliciting proposals for a construction manager/general
contractor contract.
new text end

new text begin Subd. 11. new text end

new text begin Request for qualifications; RFQ. new text end

new text begin "Request for qualifications" or "RFQ"
means a document or publication used to prequalify and short-list potential construction
managers/general contractors.
new text end

new text begin Subd. 12. new text end

new text begin Work package. new text end

new text begin "Work package" means the scope of work for a defined
portion of a project. A defined portion includes construction services on any project
aspect, including procuring materials or services.
new text end

Sec. 4.

new text begin [161.3208] CONSTRUCTION MANAGER/GENERAL CONTRACTOR
AUTHORITY.
new text end

new text begin Subdivision 1. new text end

new text begin Selection authority; limitation. new text end

new text begin Notwithstanding sections 16C.25,
161.32, and 161.321, or any other law to the contrary, the commissioner may select a
construction manager/general contractor as provided in section 161.3209, and award a
construction manager/general contractor contract.
new text end

new text begin Subd. 2. new text end

new text begin Determination. new text end

new text begin Final determination to use a construction manager/general
contractor contracting procedure may be made only by the commissioner.
new text end

new text begin Subd. 3. new text end

new text begin Cancellation. new text end

new text begin The solicitation of construction manager/general contractor
requests for qualifications or proposals does not obligate the commissioner to enter into a
construction manager/general contractor contract. In accordance with the stated criteria
and subcriteria for evaluating qualifications or proposals, the commissioner may accept
or reject any or all responses received as a result of the request. The solicitation of
proposals may be canceled at any time at the commissioner's sole discretion if cancellation
is considered to be in the public's best interest. If the commissioner rejects all responses
or cancels the solicitation for proposals, the commissioner may resolicit a request for
proposals using the same or different requirements.
new text end

new text begin Subd. 4. new text end

new text begin Reporting. new text end

new text begin The commissioner shall notify the chairs and ranking minority
members of the senate and house of representatives committees with jurisdiction over
transportation policy and transportation finance each time the commissioner decides to
use the construction manager/general contractor method of procurement and explain why
that method was chosen.
new text end

Sec. 5.

new text begin [161.3209] CONSTRUCTION MANAGER/GENERAL CONTRACTOR;
PROCEDURES.
new text end

new text begin Subdivision 1. new text end

new text begin Solicitation of proposals. new text end

new text begin If the commissioner determines that
a construction manager/general contractor method of procurement is appropriate for
a project, the commissioner shall establish a two-phase procedure for awarding the
construction manager/general contractor contract, as described in subdivisions 2 and 3.
new text end

new text begin Subd. 2. new text end

new text begin Phase 1 - request for proposals. new text end

new text begin (a) The commissioner shall prepare
of have prepared an RFP for each construction manager/general contractor contract as
provided in this section. The RFP must contain, at a minimum, the following elements:
new text end

new text begin (1) the minimum qualifications of the construction manager/general contractor;
new text end

new text begin (2) the procedures for submitting proposals and the criteria for evaluation of
qualifications and the relative weight for each criteria;
new text end

new text begin (3) the form of the contract to be awarded;
new text end

new text begin (4) the scope of intended construction work;
new text end

new text begin (5) a listing of the types of preconstruction services that will be required;
new text end

new text begin (6) an anticipated schedule for commencing and completing the project;
new text end

new text begin (7) any applicable budget limits for the project;
new text end

new text begin (8) the requirements for insurance, statutorily required performance, and payment
bonds;
new text end

new text begin (9) the requirements that the construction manager/general contractor provide a
letter from a surety or insurance company stating that the construction manager/general
contractor is capable of obtaining a performance bond and payment bond covering the
estimated contract cost;
new text end

new text begin (10) the method for how construction manager/general contractor fees for the
preconstruction services contract will be negotiated;
new text end

new text begin (11) a statement that past performance or experience does not include the exercise
or assertion of a person's legal rights; and
new text end

new text begin (12) any other information desired by the commissioner.
new text end

new text begin (b) Before receiving any responses to the RFP:
new text end

new text begin (1) The commissioner shall appoint a technical review committee of at least five
individuals, of which one is a Department of Transportation manager who is also a
licensed professional engineer in Minnesota.
new text end

new text begin (2) The technical review committee shall evaluate the construction manager/general
contractor proposals according to criteria and subcriteria published in the RFP and
procedures established by the commissioner. If the commissioner does not receive at least
two proposals from construction managers, the commissioner may:
new text end

new text begin (i) solicit new proposals;
new text end

new text begin (ii) revise the RFP and thereafter solicit new proposals using the revised RFP;
new text end

new text begin (iii) select another allowed procurement method; or
new text end

new text begin (iv) reject all proposals.
new text end

new text begin (3) The technical review committee shall evaluate the responses to the request
for proposals and rank the construction manager/general contractor using the elements
described in paragraph (a).
new text end

new text begin (c) Unless all proposals are rejected, the commissioner shall conduct contract
negotiations for a preconstruction services contract with the construction manager/general
contractor with the highest ranking. If the construction manager/general contractor with
the highest ranking declines or is unable to reach an agreement, the commissioner may
begin contract negotiations with the next highest ranked construction manager/general
contractor.
new text end

new text begin (d) Before issuing the RFP, the commissioner may elect to issue a request for
qualifications (RFQ) and short-list the most highly qualified construction managers/general
contractors. The RFQ must include the procedures for submitting statements of
qualification, the criteria for evaluation of qualifications, and the relative weight for each
criterion. The statements of qualifications must be evaluated by the technical review
committee.
new text end

new text begin Subd. 3. new text end

new text begin Phase 2 - construction manager/general contractor contract. new text end

new text begin (a) Before
conducting any construction-related services, the commissioner shall:
new text end

new text begin (1) conduct an independent cost estimate for the project or each work package; and
new text end

new text begin (2) conduct contract negotiations with the construction manager/general contractor
to develop a construction manager/general contractor contract. This contract must include
a minimum construction manager/general contractor self-performing requirement of 30
percent of the negotiated cost. Items designated in the construction manager/general
contractor contract as specialty items may be subcontracted and the cost of any specialty
item performed under the subcontract will be deducted from the cost before computing the
amount of work required to be performed by the contractor.
new text end

new text begin (b) If the construction manager/general contractor and the commissioner are unable
to negotiate a contract, the commissioner may use other contract procurement processes or
may readvertise the construction manager/general contractor contract. The construction
manager/general contractor may not (1) bid on the project if advertised under section
161.32 or (2) join a design-build team if advertised under sections 161.3410 to 161.3428.
new text end

Sec. 6. new text begin REPORT.
new text end

new text begin Subdivision 1. new text end

new text begin Submission of report. new text end

new text begin The commissioner shall report on experience
with and evaluation of the construction manager/general contractor method of contracting
authorized in Minnesota Statutes, sections 161.3207 to 161.3209. The report must be
submitted to the chairs and ranking minority members of the legislative committees
with jurisdiction over transportation policy or transportation finance and in compliance
with Minnesota Statutes, sections 3.195 and 3.197. The report must be submitted no
later than three months following completion of five projects in which the construction
manager/general contractor method was utilized.
new text end

new text begin Subd. 2. new text end

new text begin Content of report. new text end

new text begin The report must include: (1) a description of
circumstances of any projects as to which construction manager/general contractor
requests for qualifications or requests for proposals were solicited, followed by a
cancellation of the solicitation; (2) a description of projects as to which construction
manager/general contractor method was utilized; (3) a comparison of project cost estimates
with final project costs; (4) evaluation of the construction manager/general contractor
method of procurement with respect to implications for project cost, use of innovative
techniques, completion time, and obtaining maximum value; (5) recommendations as
to continued use of the program and desired modifications to the program; and (6)
recommended legislation to continue, discontinue, or modify the program.
new text end

Sec. 7. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 6 are effective the day following final enactment and expire one year
following submission of the report under section 6.
new text end