SF 1716

as introduced - 93rd Legislature (2023 - 2024) Posted on 06/07/2023 11:28am

A bill for an act
relating to Hennepin County; modifying contracting procedures; authorizing the
use of a construction manager at risk; amending Minnesota Statutes 2022, section
383B.145, by adding a subdivision; proposing coding for new law in Minnesota
Statutes, chapter 383B; repealing Minnesota Statutes 2022, section 383B.143,
subdivisions 2, 3.

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

Section 1.

Minnesota Statutes 2022, section 383B.145, is amended by adding a subdivision
to read:

new text begin Subd. 11. new text end

new text begin Solicitations to small business enterprises or veteran-owned small
businesses. new text end

new text begin Notwithstanding the contract threshold of section 471.345, subdivision 4, a
contract, as defined in section 471.345, subdivision 2, estimated not to exceed $500,000
may be made pursuant to the provisions of section 471.345, subdivision 4, provided that a
business that is directly solicited is certified as either: (1) a small business enterprise; or (2)
a small business that is majority-owned and operated by a veteran or a service-disabled
veteran.
new text end

Sec. 2.

new text begin [383B.1587] CONSTRUCTION MANAGER AT RISK.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the definitions in this
subdivision have the meanings given them.
new text end

new text begin (b) "Construction manager at risk" means a person who is selected by the county to act
as a construction manager to manage the construction process, including but not limited to
responsibility for the price, schedule, and workmanship of the construction performed
according to the procedures in this section.
new text end

new text begin (c) "Construction manager at risk contract" means a contract for construction of a project
between a construction manager at risk and the county, which shall include a guaranteed
maximum price, construction schedule, and workmanship of the construction performed.
new text end

new text begin (d) "Guaranteed maximum price" means the maximum amount that a construction
manager at risk is paid pursuant to a contract to perform a defined scope of work.
new text end

new text begin (e) "Guaranteed maximum price contract" means a contract under which a construction
manager or subcontractor is paid on the basis of the actual cost to perform the work specified
in the contract plus an amount for overhead and profit, the sum of which must not exceed
the guaranteed maximum price in the contract.
new text end

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

new text begin (g) "Person" means an individual, corporation, partnership, association, or other legal
entity.
new text end

new text begin (h) "Project" means an undertaking to construct, alter, or enlarge a building, structure,
or other improvement, except a highway or bridge, by or for the county.
new text end

new text begin (i) "Request for proposals" means the document or publication soliciting proposals for
a construction manager at risk contract as provided in this section.
new text end

new text begin (j) "Request for qualifications" means the document or publication soliciting qualifications
for a construction manager at risk contract as provided in this section.
new text end

new text begin (k) "Trade contract work" means labor, materials, or equipment furnished by contractors
or vendors that are incorporated into the completed project or are major components of the
means of construction. Work performed by trade contractors involves specific portions of
the project, but not the entire project.
new text end

new text begin Subd. 2. new text end

new text begin Authority. new text end

new text begin Notwithstanding any other law to the contrary, the county may use
a construction manager at risk method of project delivery and award a construction manager
at risk contract based on the selection criteria described in this section.
new text end

new text begin Subd. 3. new text end

new text begin Solicitation of qualifications. new text end

new text begin (a) A request for qualifications must be prepared
for each construction manager at risk contract as provided in this section. The request for
qualifications must contain, at a minimum, the following elements:
new text end

new text begin (1) procedures for submitting qualifications, the criteria and subcriteria for evaluating
the qualifications and the relative weight for each criteria and subcriteria, and the procedures
for making awards in an open, competitive, and objective manner, applying a scoring or
trade-off evaluation method, including a reference to the requirements of this section;
new text end

new text begin (2) the proposed terms and conditions for the contract;
new text end

new text begin (3) the desired qualifications of the construction manager at risk;
new text end

new text begin (4) the schedule for commencement and completion of the project;
new text end

new text begin (5) any applicable budget limits for the project;
new text end

new text begin (6) the requirements for insurance and statutorily required performance and payment
bonds; and
new text end

new text begin (7) the identification and location of any other information in the possession or control
of the county that the county determines is material, including surveys, soils reports, drawings
or models of existing structures, environmental studies, photographs, or references to public
records.
new text end

new text begin (b) The request for qualifications criteria must not impose unnecessary conditions beyond
reasonable requirements to ensure maximum participation of construction managers at risk.
The criteria must not consider the collective bargaining status of the construction manager
at risk.
new text end

new text begin (c) The request for qualifications criteria may include a requirement that the proposer
include the cost for the proposer's services.
new text end

new text begin (d) Notice of requests for qualifications must be advertised in a manner designated by
the county.
new text end

new text begin Subd. 4. new text end

new text begin Construction manager at risk selection process. new text end

new text begin (a) In a construction manager
at risk selection process, the following applies:
new text end

new text begin (1) upon determining to utilize a construction manager at risk for a project, the county
shall create a selection committee composed of a minimum of three persons, at least one of
whom has construction industry expertise; and
new text end

new text begin (2) the county shall establish procedures for determining the appropriate content of a
request for qualifications, as provided in subdivision 3.
new text end

new text begin (b) In accordance with the criteria and procedures set forth in the request for
qualifications, the selection committee shall evaluate the experience of a proposer as a
construction manager at risk, including but not limited to capacity of key personnel, technical
competence, capability to perform, past performance of the firm and its employees, safety
record and compliance with state and federal law, availability to and familiarity with the
project locale, and other appropriate facts submitted by the proposer in response to the
request for qualifications.
new text end

new text begin (c) If the county receives fewer than three proposals from construction managers, the
county may:
new text end

new text begin (1) proceed as described in paragraph (d);
new text end

new text begin (2) solicit new proposals;
new text end

new text begin (3) revise the request for qualifications and then solicit new proposals using the revised
request for qualifications;
new text end

new text begin (4) select another allowed procurement method;
new text end

new text begin (5) proceed with a sole proposer if the county determines the construction manager at
risk marketplace is limited and the benefit of issuing a new solicitation is not practicable;
or
new text end

new text begin (6) reject all proposals.
new text end

new text begin (d) The selection committee shall review the qualification of each proposer. If there is
more than one proposer, the selection committee shall create a short list of two to five
proposers.
new text end

new text begin (e) The county shall issue a request for proposals requiring cost and other information
as desired from the short-listed proposers.
new text end

new text begin (f) The selection committee may conduct formal interviews with the short-listed proposers
but shall not disclose any proprietary or confidential information contained in one proposal
to another proposer, and shall rank the proposers by applying a scoring or trade-off evaluation
method. The scoring or trade-off evaluation method must be described in the request for
proposals.
new text end

new text begin Subd. 5. new text end

new text begin Construction manager at risk contract. new text end

new text begin (a) The county shall conduct contract
negotiations with the highest ranked proposer to reach agreement on the cost and terms of
the contract. If an agreement cannot be reached with the highest ranked proposer, the county
may begin negotiations with the next highest ranked proposer. The negotiation process
continues until an agreement is reached with a proposer or the county rejects all proposals.
new text end

new text begin (b) The construction manager at risk shall competitively bid all trade contract work for
the project from a list of qualified firms. The list of qualified firms may be limited to qualified
Small Business Enterprise and/or Disadvantaged Business Enterprise (SBE/DBE) firms,
subject to availability of such qualified SBE/DBE firms for the specific work. The list of
qualified firms must be based on an open, competitive, and objective prequalification process
in which the selection criteria, approved by the county, may include but is not limited to
the firm's experience as a constructor, including capacity of key personnel, technical
competence, capability to perform, past performance of the firm and its employees, safety
record and compliance with state and federal law, availability to and familiarity with the
project locale, SBE/DBE certification, and other considerations as defined by the construction
manager at risk and the county. The construction manager at risk and the county shall jointly
determine the composition of the list of qualified firms. With the county's approval, upon
request, the construction manager at risk may also submit bids for trade contract work if
the construction manager at risk does not participate in the county's review of the bids or
selection decision.
new text end

new text begin (c) The construction manager at risk and the county shall enter into a guaranteed
maximum price contract for the project.
new text end

Sec. 3. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2022, section 383B.143, subdivisions 2 and 3, new text end new text begin are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: 23-02582

383B.143 CONTRACTS FOR PURCHASES.

Subd. 2.

Installment purchases.

The board may enter into agreements for installment purchases or lease purchases of equipment for periods not to exceed seven years. Authority therefor shall not be delegated. When the agreements have been entered into, the board shall make annual appropriations sufficient to pay the annual amount due under the agreements.

Subd. 3.

Agreement duration.

Agreements, other than installment purchase agreements or lease purchases, may be entered into by the board for a duration not to exceed seven years where performance thereunder so requires.