HF 1333

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/13/2012 12:11pm

A bill for an act
relating to transportation; contracts; providing for construction manager
contracting authority and related regulations; requiring a legislative report on
contracting; amending Minnesota Statutes 2010, section 13.72, 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, 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
Department of Transportation undertakes a construction manager/general contractor
contract, as defined and authorized in sections 161.3207 to 161.3209, the provisions
of this subdivision apply.
new text end

new text begin (b) When the commissioner of transportation solicits a request for qualifications:
new text end

new text begin (1) the following data are classified as protected nonpublic data:
new text end

new text begin (i) the statement of qualifications scoring evaluation manual; and
new text end

new text begin (ii) the statement of qualifications evaluations;
new text end

new text begin (2) the following data are classified as nonpublic data: the statement of qualifications
submitted by a potential construction manager/general contractor; and
new text end

new text begin (3) the following data are classified as private data on individuals: identifying
information concerning the members of the technical review committee.
new text end

new text begin (c) When the commissioner of transportation announces the short list of qualified
construction managers/general contractors, the following data become public:
new text end

new text begin (1) the statement of qualifications scoring evaluation manual; and
new text end

new text begin (2) the statement of qualifications evaluations.
new text end

new text begin (d) When the commissioner of transportation solicits a request for proposals:
new text end

new text begin (1) the following data are classified as protected nonpublic data: the proposal
scoring manual; and
new text end

new text begin (2) the following data are classified as nonpublic data:
new text end

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

new text begin (ii) the proposal evaluations.
new text end

new text begin (e) When the commissioner of transportation has completed the ranking of proposals
and announces the selected construction manager/general contractor, the proposal
evaluation score or rank and proposal evaluations become public.
new text end

new text begin (f) When the commissioner of transportation conducts contract negotiations
with a construction manager/general contractor, government data created, collected,
stored, and maintained during those negotiations are nonpublic data until a construction
manager/general contractor contract is fully executed.
new text end

new text begin (g) When the construction manager/general contractor contract is fully executed or
when the commissioner of transportation decides to use another contract procurement
process other than construction manager/general contractor authority authorized under
section 161.3209, subdivision 3, paragraph (b), all remaining data not already made public
under this subdivision become public.
new text end

new text begin (h) If the commissioner of transportation rejects all responses to a request for
proposals before a construction manager/general contractor contract is fully executed,
all data other than that data made public under this subdivision retains its classification
until a resolicitation of the request for proposals results in a fully executed construction
manager/general contractor contract, 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 EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires following the acceptance of ten construction manager/general contractor contracts.
new text end

Sec. 2.

new text begin [161.3207] CONSTRUCTION MANAGER/GENERAL CONTRACTOR;
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 execution of preconstruction services or the
workmanship of 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

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires following the acceptance of ten construction manager/general contractor contracts.
new text end

Sec. 3.

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. The number of awarded contracts
shall not exceed four in any calendar year.
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. 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 state'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 legislative 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

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires following the acceptance of ten construction manager/general contractor contracts.
new text end

Sec. 4.

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
or 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. The commissioner shall, as designated in
the RFP, evaluate construction manager/general contractor proposals on the basis of best
value as defined in section 16C.05, or using the qualifications-based selection process set
forth in section 16C.095, except that section 16C.095, subdivision 1, shall not apply. 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 the proposals; and
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 based on the predefined
criteria set forth in the RFP in accordance with paragraph (a), clause (2).
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 bid or propose on the project if advertised under section
161.32 or 161.3206, or join a design-build team if advertised under sections 161.3410 to
161.3428.
new text end

new text begin (c) The commissioner shall provide to all bidders or design-build teams all data
shared between the commissioner and the construction manager/general contractor during
the contract negotiations under this subdivision.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires following the acceptance of ten construction manager/general contractor contracts.
new text end

Sec. 5. new text begin LEGISLATIVE REPORTS ON CONTRACTING.
new text end

new text begin Subdivision 1. new text end

new text begin Submission of reports. 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 reports 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. An interim report must be submitted
no later than 12 months following the commissioner's acceptance of five construction
manager/general contractor contracts. A final report must be submitted no later than 12
months following the commissioner's acceptance of ten construction manager/general
contractor contracts.
new text end

new text begin Subd. 2. new text end

new text begin Content of reports. new text end

new text begin The reports 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, if available; and (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. The final report must also include recommendations as to continued use of the
program and desired modifications to the program, and recommended legislation to
continue, discontinue, or modify the program.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment and
expires following the acceptance of ten construction manager/general contractor contracts.
new text end