Bill Text: NC S814 | 2013-2014 | Regular Session | Amended
Bill Title: Prequalification Update
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-05-21 - Ref To Com On Judiciary I [S814 Detail]
Download: North_Carolina-2013-S814-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
S 1
SENATE BILL 814*
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Short Title: Prequalification Update. |
(Public) |
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Sponsors: |
Senator Hunt (Primary Sponsor). |
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Referred to: |
Judiciary I. |
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May 21, 2014
A BILL TO BE ENTITLED
AN ACT to clarify the statutes related to the use of prequalification in public construction contracting, as recommended by the joint purchase and contract study committee.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 143‑135.8 reads as rewritten:
"§ 143‑135.8. Prequalification.
(a) Except as provided in this section, Biddersbidders
may not be prequalified for any public construction or repair
work project.
(b) A governmental entity may prequalify bidders for a particular construction or repair work project when all of the following apply:
(1) The governmental entity is using one of the construction methods authorized in G.S. 143‑128(a1)(1) through (3).
(2) The board or governing body of the governmental entity adopts an objective prequalification policy applicable to all construction or repair work prior to the advertisement of the contract for which the governmental entity intends to prequalify bidders.
(c) The objective prequalification policy adopted by a governmental entity pursuant to subdivision (b)(2) of this section shall meet all of the following criteria:
(1) Must be uniform, consistent, and transparent in its application to all bidders.
(2) Must allow all bidders who meet the prequalification criteria to be prequalified to bid on the construction or repair work project.
(3) Clearly state prequalification criteria, which must:
a. Be rationally related to construction or repair work;
b. Include prequalification scoring values and minimum required score for prequalification;
c. Not require that the bidder has previously been awarded a construction or repair project by the governmental entity; and
d. Permit bidders to submit history or experience with projects of similar size, scope, or complexity.
(4) Clearly state the assessment process of the criteria to be used.
(5) Establish a process for a denied bidder to protest to the governmental entity denial of prequalification, which process shall be completed prior to the opening of bids under G.S. 143‑129(b) and which allows sufficient time for a bidder subsequently prequalified pursuant to a protest to submit a bid on the contract for which the bidder is subsequently prequalified.
(6) Outline a process by which the basis for denial of prequalification will be communicated in writing, upon request, to a bidder who is denied prequalification.
(d) If the governmental entity opts to prequalify bidders, bids submitted by any bidder not prequalified shall be deemed nonresponsive. This subsection shall not apply to bidders initially denied prequalification that are subsequently prequalified pursuant to a protest under the governmental entity's prequalification policy.
(e) Prequalification may not be used for the selection of any qualification-based services under Article 3D of this Chapter, G.S. 143‑128.1A, G.S. 143‑128.1B, G.S. 143‑128.1C, or the selection of the construction manager at risk under G.S. 143‑128.1.
(f) For purposes of this section, the following definitions shall apply:
(1) Governmental entity – As defined in G.S. 143‑128.1B(a)(6).
(2) Prequalification – A process of evaluating and determining whether potential bidders have the skill, judgment, integrity, sufficient financial resources, and ability necessary to the faithful performance of a contract for construction or repair work."
SECTION 2. G.S. 143‑128.1 reads as rewritten:
"§ 143‑128.1. Construction management at risk contracts.
(a) For purposes of this section and G.S. 143‑64.31:
(1) "Construction management services" means services provided by a construction manager, which may include preparation and coordination of bid packages, scheduling, cost control, value engineering, evaluation, preconstruction services, and construction administration.
(2) "Construction management at risk services" means services provided by a person, corporation, or entity that (i) provides construction management services for a project throughout the preconstruction and construction phases, (ii) who is licensed as a general contractor, and (iii) who guarantees the cost of the project.
(3) "Construction manager at risk" means a person, corporation, or entity that provides construction management at risk services.
(4) "First‑tier subcontractor" means a subcontractor who contracts directly with the construction manager at risk.
(b) The construction manager at risk shall be selected in accordance with Article 3D of this Chapter. Design services for a project shall be performed by a licensed architect or engineer. The public owner shall contract directly with the architect or engineer. The public owner shall make a good‑faith effort to comply with G.S. 143‑128.2, G.S. 143‑128.4, and to recruit and select small business entities when selecting a construction manager at risk.
(c) The construction manager at risk shall contract
directly with the public entity for all construction; shall publicly advertise
as prescribed in G.S. 143‑129; and shall prequalify and accept bids
from first‑tier subcontractors for all construction work under this
section. The construction manager at risk shall use the prequalification
criteria process shall be determined by the public entity and
the construction manager at risk to address quality, performance, the time
specified in the bids for performance of the contract, the cost of construction
oversight, time for completion, capacity to perform, and other factors deemed
appropriate by the public entity.in accordance with G.S. 143‑135.8.
The public entity shall require the construction manager at risk to submit its
plan for compliance with G.S. 143‑128.2 for approval by the public
entity prior to soliciting bids for the project's first‑tier
subcontractors. A construction manager at risk and first‑tier
subcontractors shall make a good faith effort to comply with G.S. 143‑128.2,
G.S. 143‑128.4, and to recruit and select small business entities. A
construction manager at risk may perform a portion of the work only if (i)
bidding produces no responsible, responsive bidder for that portion of the
work, the lowest responsible, responsive bidder will not execute a contract for
the bid portion of the work, or the subcontractor defaults and a prequalified
replacement cannot be obtained in a timely manner, and (ii) the public entity
approves of the construction manager at risk's performance of the work. All
bids shall be opened publicly, and once they are opened, shall be public
records under Chapter 132 of the General Statutes. The construction manager at
risk shall act as the fiduciary of the public entity in handling and opening
bids. The construction manager at risk shall award the contract to the lowest
responsible, responsive bidder, taking into consideration quality, performance,
the time specified in the bids for performance of the contract, the cost of
construction oversight, time for completion, compliance with G.S. 143‑128.2,
and other factors deemed appropriate by the public entity and advertised as
part of the bid solicitation. The public entity may require the selection of a
different first‑tier subcontractor for any portion of the work,
consistent with this section, provided that the construction manager at risk is
compensated for any additional cost incurred.
When contracts are awarded pursuant to this section, the public entity shall provide for a dispute resolution procedure as provided in G.S. 143‑128(f1).
(d) The construction manager at risk shall provide a performance and payment bond to the public entity in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes.
(e) Construction management at risk services may be used by the public entity only after the public entity has concluded that construction management at risk services is in the best interest of the project, and the public entity has compared the cost and benefit of using the construction management at risk method for a given project in lieu of the delivery methods identified in G.S. 143‑128(a1)(1) through (3). The public entity may not delegate this determination."
SECTION 3. G.S. 143‑64.31(b), (c), and (d) are recodified as G.S. 143‑133.1(a), (b), and (c).
SECTION 4. G.S. 143‑64.31, as amended by Section 3 of this act, is amended to add a new subsection to read:
"(f) Except as provided in this subsection, no work product or design may be solicited, submitted, or considered as part of the selection process under this Article; and no costs or fees, other than unit price information, may be solicited, submitted, or considered as part of the selection process under this Article. Examples of prior completed work may be solicited, submitted, and considered when determining demonstrated competence and qualification of professional services; and discussion of concepts or approaches to the project, including impact on project schedules, is encouraged."
SECTION 5. G.S. 143‑133.1, as created by Section 3 of this act, reads as rewritten:
"§ 143‑133.1. Reporting.
(a) Public Governmental entities that
contract with a construction manager at risk, design‑builder, or private
developer under a public‑private partnership under this section shall
report to the Secretary of Administration the following information on all
projects where a construction manager at risk, design‑builder, or private
developer under a public‑private partnership is utilized:
(1) A detailed explanation of the reason why the particular construction manager at risk, design‑builder, or private developer was selected.
(2) The terms of the contract with the construction manager at risk, design‑builder, or private developer.
(3) A list of all other firms considered but not
selected as the construction manager at risk, design‑builder, or private developer,
and the amount of their proposed fees for services.developer.
(4) A report on the form of bidding utilized by the construction manager at risk, design‑builder, or private developer on the project.
(5) A detailed explanation of why the particular delivery method was used in lieu of the delivery methods identified in G.S. 143‑128(a1) subdivisions (1) through (3) and the anticipated benefits to the public entity from using the particular delivery method.
(b) The Secretary of Administration shall adopt rules
to implement the provisions of this subsection section, including
the format and frequency of reporting.
(c) A public bodygovernmental entity
letting a contract pursuant to any of the delivery methods identified in
subdivisions (a1)(4), (a1)(6), (a1)(7), or (a1)(8) of G.S. 143‑128
shall submit the report required by G.S. 143‑64.31(b)this
section no later than 12 months from the date the public bodygovernmental
entity takes beneficial occupancy of the project. In the event that the public
bodygovernmental entity fails to do so, the public bodygovernmental
entity shall be prohibited from utilizing subdivisions (a1)(4), (a1)(6),
(a1)(7), or (a1)(8) of G.S. 143‑128 until such time as the public
bodygovernmental entity completes the reporting requirement under
this this section. Contracts entered into in violation of this prohibition
shall not be deemed ultra vires and shall remain valid and fully enforceable.
Any person, corporation or entity, however, which has submitted a bid or response
to a request for proposals on any construction project previously advertised by
the public bodygovernmental entity shall be entitled to obtain an
injunction against the public bodygovernmental entity compelling
the public bodygovernmental entity to comply with the reporting
requirements of this section and from commencing or continuing a project let in
violation of this subdivision until such time as the public bodygovernmental
entity has complied with the reporting requirements of this section. The
plaintiff in such cases shall not be entitled to recover monetary damages
caused by the public body'sgovernmental entity's failure to
comply with this reporting requirements section, and neither the plaintiff nor
the defendant shall be allowed to recover attorneys fees except as otherwise
allowed by G.S. 1A‑11 or G.S. 6‑21.5. An action seeking
the injunctive relief allowed by this subdivision must be filed within four
years from the date that the owner governmental entity took
beneficial occupancy of the project for which the report remains due.
(d) For purposes of this section, the governmental entity shall have the same meaning as in G.S. 143‑128.1B(a)(6)."
SECTION 6. This act becomes effective October 1, 2014, and applies to contracts awarded on or after that date.
