HF 1988

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/08/2021 02:23pm

A bill for an act
relating to state government; changing state construction and sustainability
provisions; amending Minnesota Statutes 2020, sections 16A.15, subdivision 3;
16B.32, subdivisions 1, 1a; 16B.33, subdivisions 1, 3, 3a, by adding a subdivision;
16B.87, subdivision 2; 16C.10, subdivision 2; 16C.32, subdivision 1; repealing
Minnesota Statutes 2020, sections 16B.323; 16B.326.

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

Section 1.

Minnesota Statutes 2020, section 16A.15, subdivision 3, is amended to read:

Subd. 3.

Allotment and encumbrance.

(a) A payment may not be made without prior
obligation. An obligation may not be incurred against any fund, allotment, or appropriation
unless the commissioner has certified a sufficient unencumbered balance or the accounting
system shows sufficient allotment or encumbrance balance in the fund, allotment, or
appropriation to meet it. The commissioner shall determine when the accounting system
may be used to incur obligations without the commissioner's certification of a sufficient
unencumbered balance. An expenditure or obligation authorized or incurred in violation of
this chapter is invalid and ineligible for payment until made valid. A payment made in
violation of this chapter is illegal. An employee authorizing or making the payment, or
taking part in it, and a person receiving any part of the payment, are jointly and severally
liable to the state for the amount paid or received. If an employee knowingly incurs an
obligation or authorizes or makes an expenditure in violation of this chapter or takes part
in the violation, the violation is just cause for the employee's removal by the appointing
authority or by the governor if an appointing authority other than the governor fails to do
so. In the latter case, the governor shall give notice of the violation and an opportunity to
be heard on it to the employee and to the appointing authority. A claim presented against
an appropriation without prior allotment or encumbrance may be made valid on investigation,
review, and approval by the agency head in accordance with the commissioner's policy, if
the services, materials, or supplies to be paid for were actually furnished in good faith
without collusion and without intent to defraud. The commissioner may then pay the claim
just as properly allotted and encumbered claims are paid.

(b) The commissioner may approve payment for materials and supplies in excess of the
obligation amount when increases are authorized by section 16C.03, subdivision 3.

(c) To minimize potential construction delay claims, an agency with a project funded
by a building appropriation may allow a new text begin consultant or new text end contractor to proceed with
supplemental work within the limits of the appropriation before money is encumbered.
Under this circumstance, the agency may requisition funds and allow new text begin consultants or
new text end contractors to expeditiously proceed with new text begin services or new text end a construction sequence. While the
new text begin consultant or new text end contractor is proceeding, the agency shall immediately act to encumber the
required funds.

Sec. 2.

Minnesota Statutes 2020, section 16B.32, subdivision 1, is amended to read:

Subdivision 1.

Alternative energy sources.

deleted text begin Plans prepared by the commissioner for a
new building or for a renovation of 50 percent or more of an existing building or its energy
systems must include designs which use active and passive solar energy systems, earth
sheltered construction, and other alternative energy sources where feasible. deleted text end new text begin All new building
and major building renovation projects subject to section 16B.325 must use renewable
energy sources as defined in section 216B.1691, to the extent required to meet the Sustainable
Building 2030 performance standards under section 216B.241, subdivision 9. Geothermal
energy efficiency sources may also be considered.
new text end

Sec. 3.

Minnesota Statutes 2020, section 16B.32, subdivision 1a, is amended to read:

Subd. 1a.

deleted text begin Onsite deleted text end Energy generation from renewable sources.

deleted text begin A state agency that
prepares a predesign for a new building must consider meeting at least two percent of the
energy needs of the building from renewable sources located on the building site. For
purposes of this subdivision, "renewable sources" are limited to wind and the sun. The
predesign must include an explicit cost and price analysis of complying with the two-percent
requirement compared with the present and future costs of energy supplied by a public
utility from a location away from the building site and the present and future costs of
controlling carbon emissions. If the analysis concludes that the building should not meet at
least two percent of its energy needs from renewable sources located on the building site,
the analysis must provide explicit reasons why not. The building may not receive further
state appropriations for design or construction unless at least two percent of its energy needs
are designed to be met from renewable sources, unless the commissioner finds that the
reasons given by the agency for not meeting the two-percent requirement were supported
by evidence in the record. deleted text end new text begin The total aggregate nameplate capacity of all distributed
generations serving state-owned buildings or facilities, including any subscriptions to
community solar gardens under section 216B.1641, may not exceed 120 percent of the
average annual electric energy consumption of the state-owned building or facilities being
served.
new text end

Sec. 4.

Minnesota Statutes 2020, section 16B.33, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

(a) As used in this section, the following terms have the
meanings given them:

(b) "Agency" has the meaning given in section 16B.01.

(c) "Architect" means an architect or landscape architect registered to practice under
sections 326.02 to 326.15.

(d) "Board" means the state Designer Selection Board.

(e) "Design-build" means the process of entering into and managing a single contract
between the commissioner and the design-builder in which the design-builder agrees to
both design and construct a project as specified in the contract at a guaranteed maximum
or a fixed price.

(f) "Design-builder" means a person who proposes to design and construct a project in
accordance with the requirements of section 16C.33.

(g) "Designer" means an architect or engineer, or a partnership, association, or corporation
comprised primarily of architects or engineers or of both architects and engineers.

(h) "Engineer" means an engineer registered to practice under sections 326.02 to 326.15.

(i) "Person" includes an individual, corporation, partnership, association, or any other
legal entity.

(j) "Primary designer" means the designer who is to have primary design responsibility
for a project, and does not include designers who are merely consulted by the user agency
and do not have substantial design responsibility, or designers who will or may be employed
or consulted by the primary designer.

(k) "Project" means an undertaking to construct, erect, or remodel a building by or for
the state or an agency. new text begin Capital projects exempt from the requirements of this section include
demolition or decommissioning of state assets, hazardous materials abatement, repair and
replacement of utility infrastructure, parking lots, parking structures, security upgrades,
building systems replacement or repair including alterations to building interiors needed to
accommodate the systems, and other asset preservation work not involving remodeling of
occupied space.
new text end

(l) "User agency" means the agency undertaking a specific project. For projects
undertaken by the state of Minnesota, "user agency" means the Department of Administration
or a state agency with an appropriate delegation to act on behalf of the Department of
Administration.

Sec. 5.

Minnesota Statutes 2020, section 16B.33, subdivision 3, is amended to read:

Subd. 3.

Agencies must request designer.

(a) Application. Upon undertaking a project
with an estimated cost greater than deleted text begin $2,000,000 deleted text end new text begin $4,000,000 new text end or a planning project with
estimated fees greater than deleted text begin $200,000 deleted text end new text begin $400,000 new text end , every user agency, except the Capitol Area
Architectural and Planning Board, shall submit a written request for a primary designer for
its project to the commissioner, who shall forward the request to the board. The University
of Minnesota and the Minnesota State Colleges and Universities shall follow the process
in subdivision 3a to select designers for their projects. The written request must include a
description of the project, the estimated cost of completing the project, a description of any
special requirements or unique features of the proposed project, and other information which
will assist the board in carrying out its duties and responsibilities set forth in this section.

(b) Reactivated project. If a project for which a designer has been selected by the board
becomes inactive, lapses, or changes as a result of project phasing, insufficient appropriations,
or other reasons, the commissioner, the Minnesota State Colleges and Universities, or the
University of Minnesota may, if the project is reactivated, retain the same designer to
complete the project.

(c) Fee limit reached after designer selected. If a project initially estimated to be below
the cost and planning fee limits of this subdivision has its cost or planning fees revised so
that the limits are exceeded, the project must be referred to the board for designer selection
even if a primary designer has already been selected. In this event, the board may, without
conducting interviews, elect to retain the previously selected designer if it determines that
the interests of the state are best served by that decision and shall notify the commissioner
of its determination.

Sec. 6.

Minnesota Statutes 2020, section 16B.33, subdivision 3a, is amended to read:

Subd. 3a.

Higher education projects.

(a) When the University of Minnesota or the
Minnesota State Colleges and Universities undertakes a project involving construction or
major remodeling, as defined in section 16B.335, subdivision 1, with an estimated cost
greater than deleted text begin $2,000,000 deleted text end new text begin $4,000,000 new text end or a planning project with estimated fees greater than
deleted text begin $200,000 deleted text end new text begin $400,000 new text end , the system shall submit a written request for a primary designer to the
commissioner, as provided in subdivision 3.

(b) When the University of Minnesota or the Minnesota State Colleges and Universities
undertakes a project involving renovation, repair, replacement, or rehabilitation, the system
office may submit a written request for a primary designer to the commissioner as provided
in subdivision 3.

(c) For projects at the University of Minnesota or the State Colleges and Universities,
the board shall select at least two primary designers under subdivision 4 for recommendation
to the Board of Regents or the Board of Trustees. Meeting records or written evaluations
that document the final selection are public records. The Board of Regents or the Board of
Trustees shall notify the commissioner of the designer selected from the recommendations.

Sec. 7.

Minnesota Statutes 2020, section 16B.33, is amended by adding a subdivision to
read:

new text begin Subd. 6. new text end

new text begin Rate of inflation. new text end

new text begin No later than December 31 of every fifth year starting in
2025, the commissioner shall determine the percentage increase in the rate of inflation, as
measured by the Means Quarterly Construction Cost Index, during the four-year period
preceding that year. The thresholds in subdivisions 3, paragraph (a); and 3a, paragraph (a),
shall be increased by the percentage calculated by the commissioner to the nearest
ten-thousandth dollar.
new text end

Sec. 8.

Minnesota Statutes 2020, section 16B.87, subdivision 2, is amended to read:

Subd. 2.

Award and terms of loans.

An agency shall apply for a loan on a form provided
by the commissioner of administration. The committee shall review applications for loans
and shall award a loan based upon criteria adopted by the committee. The committee shall
determine the amount, interest, and other terms of the loan. The time for repayment of a
loan may not exceed deleted text begin five deleted text end new text begin seven new text end years.

Sec. 9.

Minnesota Statutes 2020, section 16C.10, subdivision 2, is amended to read:

Subd. 2.

Emergency acquisition.

The solicitation process described in this chapter new text begin and
chapter 16B new text end is not required in emergencies. In emergencies, the commissioner may make
new text begin or authorize new text end any purchases necessary for the new text begin design, construction, new text end repair, rehabilitation, and
improvement of a deleted text begin state-owned deleted text end new text begin publicly owned new text end structure or may new text begin make or new text end authorize an agency
to do so and may purchase, or may authorize an agency to purchase, new text begin any new text end goods, services,
or utility services directly for immediate use. new text begin This provision applies to projects conducted
by Minnesota State Colleges and Universities.
new text end

Sec. 10.

Minnesota Statutes 2020, section 16C.32, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

As used in sections 16C.32 to 16C.35, the following terms
have the meanings given them, unless the context clearly indicates otherwise:

(1) "acceptance" means a formal resolution of the commissioner authorizing the execution
of a design-build, construction manager at risk, or job order contracting contract;

(2) "agency" means any state officer, employee, board, commission, authority,
department, or other agency of the executive branch of state government. Unless specifically
indicated otherwise, as used in sections 16C.32 to 16C.35, agency also includes the Minnesota
State Colleges and Universities;

(3) "architect" means an architect or landscape architect registered to practice under
sections 326.02 to 326.15;

(4) "board" means the state Designer Selection Board, unless the estimated cost of the
project is less than deleted text begin $2,000,000 deleted text end new text begin the amount specified in section 16B.33, subdivision 3 new text end , in
which case the commissioner may act as the board;

(5) "Capitol Area Architectural and Planning Board" means the board established to
govern the Capitol area under chapter 15B;

(6) "commissioner" means the commissioner of administration or the Board of Trustees
of the Minnesota State Colleges and Universities, whichever controls a project;

(7) "construction manager at risk" means a person who is 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 the construction
performed in accordance with the procedures of section 16C.34;

(8) "construction manager at risk contract" means a contract for construction of a project
between a construction manager at risk and the commissioner, which contract shall include
a guaranteed maximum price, construction schedule, and workmanship of the construction
performed;

(9) "design-build contract" means a contract between the commissioner and a
design-builder to furnish the architectural, engineering, and related design services as well
as the labor, materials, supplies, equipment, and construction services for a project;

(10) "design and price-based proposal" means the proposal to be submitted by a
design-builder in the design and price-based selection process, as described in section
16C.33, which proposal meets the requirements of section 16C.33, subdivision 7, paragraph
(c), in such detail as required in the request for proposals;

(11) "design and price-based selection" means the selection of a design-builder as
described in section 16C.33, subdivision 8;

(12) "design criteria package" means performance criteria prepared by a design criteria
professional who shall be either an employee of the commissioner or shall be selected in
compliance with section 16B.33, 16C.08, or 16C.087;

(13) "design criteria professional" means a person licensed under chapter 326, or a person
who employs an individual or individuals licensed under chapter 326, required to design a
project, and who is employed by or under contract to the commissioner to provide
professional, architectural, or engineering services in connection with the preparation of
the design criteria package;

(14) "guaranteed maximum price" means the maximum amount that a design-builder,
construction manager at risk, or subcontractor will be paid pursuant to a contract to perform
a defined scope of work;

(15) "guaranteed maximum price contract" means a contract under which a design-builder,
construction manager, or subcontractor is paid on the basis of their 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 set forth in the contract;

(16) "job order contracting" means a project delivery method that requests a limited
number of bids from a list of qualified contractors, selected from a registry of qualified
contractors who have been prescreened and who have entered into master contracts with
the commissioner, as provided in section 16C.35;

(17) "past performance" or "experience" does not include the exercise or assertion of a
person's legal rights;

(18) "person" includes an individual, corporation, partnership, association, or any other
legal entity;

(19) "project" means an undertaking to construct, alter, or enlarge a building, structure,
or other improvements, except highways and bridges, by or for the state or an agency;

(20) "qualifications-based selection" means the selection of a design-builder as provided
in section 16C.33;

(21) "request for qualifications" means the document or publication soliciting
qualifications for a design-build, construction manager at risk, or job order contracting
contract as provided in sections 16C.33 to 16C.35;

(22) "request for proposals" means the document or publication soliciting proposals for
a design-build or construction manager at risk contract as provided in sections 16C.33 and
16C.34; and

(23) "trade contract work" means the furnishing of labor, materials, or equipment 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.

Sec. 11. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2020, sections 16B.323; and 16B.326, new text end new text begin are repealed effective August
1, 2021.
new text end

APPENDIX

Repealed Minnesota Statutes: 21-00036

16B.323 SOLAR ENERGY IN STATE BUILDINGS.

Subdivision 1.

Definitions.

(a) For purposes of this section, the following terms have the meanings given.

(b) "Major renovation" means a substantial addition to an existing building, or a substantial change to the interior configuration or the energy system of an existing building.

(c) "Solar energy system" means photovoltaic devices alone or installed in conjunction with a solar thermal system.

(d) "Photovoltaic device " has the meaning given in section 216C.06, subdivision 16.

(e) "Solar thermal system" has the meaning given "qualifying solar thermal project" in section 216B.2411, subdivision 2, paragraph (e).

(f) "State building" means a building whose construction or renovation is paid wholly or in part by the state from the bond proceeds fund.

Subd. 2.

Solar energy system.

(a) As provided in paragraphs (b) and (c), a project for the construction or major renovation of a state building, after the completion of a cost-benefit analysis, may include installation of solar energy systems of up to 300 kilowatts capacity on, adjacent, or in proximity to the state building.

(b) The capacity of a solar energy system must be less than 300 kilowatts to the extent necessary to match the electrical load of the building, or the capacity must be no more than necessary to keep the costs for the installation below the five percent maximum set by paragraph (c).

(c) The cost of the solar energy system must not exceed five percent of the appropriations from the bond proceeds fund for the construction or renovation of the state building. Purchase and installation of a solar thermal system may account for no more than 25 percent of the cost of a solar energy system installation.

(d) A project subject to this section is ineligible to receive a rebate for the installation of a solar energy system under section 116C.7791 or from any utility.

16B.326 HEATING AND COOLING SYSTEMS; STATE-FUNDED BUILDINGS.

The commissioner must review project proposer's study for geothermal and solar thermal applications as possible uses for heating or cooling for all building projects subject to a predesign review under section 16B.335 that receive any state funding for replacement of heating or cooling systems. When practicable, geothermal and solar thermal heating and cooling systems must be considered when designing, planning, or letting bids for necessary replacement or initial installation of cooling or heating systems in new or existing buildings that are constructed or maintained with state funds. The predesign review must include a written plan for compliance with this section from a project proposer.

For the purposes of this section, "solar thermal" means a flat plate or evacuated tube with a fixed orientation that collects the sun's radiant energy and transfers it to a storage medium for distribution as energy for heating and cooling.