Bill Text: AZ HB2304 | 2018 | Fifty-third Legislature 2nd Regular | Chaptered
Bill Title: Public buildings; omnibus
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-04-10 - Chapter 155 [HB2304 Detail]
Download: Arizona-2018-HB2304-Chaptered.html
|
House Engrossed |
|
State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
|
|
CHAPTER 155
|
|
HOUSE BILL 2304 |
|
|
AN ACT
amending sections 34-103, 34-603, 34-605 and 34-613, Arizona Revised Statutes; relating to public buildings.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 34-103, Arizona Revised Statutes, is amended to read:
34-103. Employment of technical registrants for work on public buildings and structures; direct selection; final list selection; public competition
A. An agent shall procure professional services from a technical registrant in the manner prescribed in chapter 6 of this title if either of the following applies:
1. the contract is with a technical registrant other than an architect and is for an amount of more than five hundred thousand dollars.
2. The contract is with an architect and is for an amount of more than two hundred fifty thousand dollars.
B. An agent may procure professional services from a technical registrant in the manner prescribed in chapter 6 of this title or as prescribed in subsection D of this section if either of the following applies:
1. the contract is with a technical registrant other than an architect and is for an amount of five hundred thousand dollars or less.
2. The contract is with an architect and is for an amount of two hundred fifty thousand dollars or less.
C. If authority is given by law to an agent to construct a building or structure, or additions to or alterations of existing buildings, an the agent shall employ an architect or engineer, or both, as warranted by the type of construction, if the agent deems the work to be of a nature that requires such employment.
D. An agent may employ a technical registrant by direct selection, by public competition pursuant to subsection G of this section or pursuant to subsections E and F of this section if either of the following applies:
1. the contract is with a technical registrant other than an architect and is for an amount of five hundred thousand dollars or less.
2. The contract is with an architect and is for an amount of two hundred fifty thousand dollars or less.
E. The agent may elect to employ a technical registrant or technical registrants by encouraging persons or firms engaged in the lawful practice of the profession to submit annually a statement of qualifications and experience. If the agent elects to employ a technical registrant or technical registrants by this method, the agent shall initiate an appropriately qualified selection committee for each procurement, which may include one contract or multiple contracts, in accordance with rules adopted by the agent. The amount of each contract in a single procurement under this subsection and subsection F of this section shall not exceed the dollar amount limits in subsections B and D of this section. The selection committee shall evaluate current statements of qualifications and experience on file with the agent together with those that may be submitted by other persons or firms regarding the procurement. If possible and practicable, the selection committee shall conduct interviews regarding the procurement and the relative methods of furnishing the required services and, if possible, shall select, in order of preference and based on criteria established and published by the selection committee, one or more final lists of the persons or firms deemed to be the most qualified to provide the services required. The selection committee shall base the selection of each final list and the order of preference on each final list on demonstrated competence and qualifications only. The agent and the selection committee shall not request or consider fees, price, man‑hours or any other cost information at any point in the selection process under this subsection, including the selection of the persons or firms to be interviewed, the selection of the persons and firms to be on a final list, in determining the order of preference of persons and firms on a final list or for any other purpose in the selection process. If the procurement is for:
1. A single contract or if the procurement is for multiple contracts to be awarded to a single person or firm, there shall be one final list of at least three but no more than five persons or firms.
2. Multiple contracts for different technical registrant services to be awarded to separate persons or firms, there shall be a separate final list for each type of technical registrant services and the number of persons or firms on each final list shall be the number of contracts for each type of technical registrant service plus another number that is determined by the agent and that is not more than five.
3. Multiple contracts for similar technical registrant services to be awarded to separate persons or firms, there shall be one final list and the number of persons or firms on the final list shall be the number of contracts plus another number that is determined by the agent and that is not more than five.
F. After each final list is selected pursuant to subsection E of this section, the agent shall enter into negotiations with the highest qualified person or firm on each final list or, in the case of a final list for multiple contracts to be awarded to separate persons or firms, the agent shall enter into negotiations with a number of the highest qualified persons or firms on a final list equal to the number of contracts that may or will be awarded. The negotiations shall include consideration of compensation and other contract terms that the agent determines to be fair and reasonable to the agent. In making this determination, the agent shall take into account the estimated value, the scope, the complexity and the nature of the professional services to be rendered. If the agent is not able to negotiate a satisfactory contract with a person or firm with which the agent is negotiating at a price and on other contract terms the agent determines to be fair and reasonable, the agent shall formally terminate negotiations with that person or firm. The agent may enter into negotiations with the next most qualified person or firm on the final list in sequence until an agreement is reached or a determination is made to reject all persons or firms on the final list. If the agent terminates negotiations with a person or firm on a final list and commences negotiations with another person or firm on a final list, the agent shall not in that procurement recommence negotiations or enter into the single contract or multiple contracts for the technical registrant services covered by that final list with any person or firm on that final list with whom the agent has terminated negotiations.
G. If competitive designs are solicited, the agent shall publish notice of the competition at least thirty days before the date set for closing the competition. The notice shall include the following:
1. The project title and description.
2. The design and construction budget.
3. The competitive process and criteria to be used to select the winning offeror.
4. The amount of the stipend to be paid to the unsuccessful offerors.
5. The offerors' response date.
6. The person to contact to obtain additional information regarding the competition.
7. Any other requirements established by the agent as appropriate.
Sec. 2. Section 34-603, Arizona Revised Statutes, is amended to read:
34-603. Procurement of professional services and construction‑manager‑at‑risk, design‑build and job‑order‑contracting construction services; definition
A. Except for services that are under a single contract and that an agent procures pursuant to section 34‑103 or 34‑606, an agent shall procure a single contract for the following services pursuant to this section:
1. Architect services.
2. Construction‑manager‑at‑risk construction services.
3. Design‑build construction services.
4. Engineer services.
5. Job‑order‑contracting construction services.
6. Landscape architect services.
7. Assayer services.
8. Geologist services.
9. Land surveying services.
B. An agent shall provide notice of each procurement of professional services or construction services specified in this section and shall award the single contract on the basis of demonstrated competence and qualifications for the type of professional services or construction services pursuant to the procedures prescribed in this section.
C. In a procurement of a single contract for professional services or construction services pursuant to this section:
1. The following requirements apply:
(a) The agent and the selection committee shall not request or consider fees, price, man-hours or any other cost information at any point in the selection process under this subsection or under subsection D of this section, including the selection of persons or firms to be interviewed, the selection of persons or firms to be on the final list, in determining the order of preference of persons or firms on the final list or for any other purpose in the selection process.
(b) In determining the persons or firms to participate in any interviews and in determining the persons and firms to be on the final list and their order on the final list, the selection committee shall use and shall consider only the criteria and weighting of criteria specified by the agent for that purpose as provided in this subsection. No other factors or criteria may be used in the evaluation, determinations and other actions.
(c) An agent is limited to one contract in each procurement under this section. Alternatively:
(i) For construction-manager-at-risk construction services, an agent may elect separate contracts for preconstruction services during the design phase, for construction during the construction phase and for any other construction services.
(ii) For design-build construction services, an agent may elect separate contracts for preconstruction services and design services during the design phase, for construction and design services during the construction phase and for any other construction services.
(iii) For professional services, an agent may enter into multiple contracts for different phases of a single project.
(d) All construction-manager-at-risk construction services or design‑build construction services included in a procurement under this section shall be limited to construction services to be performed at a single location, a common location or, if the construction services are all for a similar purpose, multiple locations. For construction‑manager‑at-risk construction services and design-build construction services to be performed at multiple locations:
(i) At the time the request for qualifications is issued, the agent must intend to commence all construction at each location within thirty months after execution of the first contract for preconstruction services or other construction services at any of the locations.
(ii) The request for qualifications must include the information described in paragraph 2, subdivision (g) of this subsection.
(e) If the agent enters into the first contract for preconstruction services, construction services or professional services as the result of the procurement, the procurement under this section ends. After execution of that first contract the agent may not use the procurement or the existing final list in the procurement as the basis for entering into a contract with any other person or firm that participated in the procurement.
(f) Notwithstanding any other provision of this section specifying the number of persons or firms to be interviewed, the number of persons or firms to be on a final list or any other numerical specification in this section:
(i) If a smaller number of persons or firms respond to the request for qualifications or if one or more persons or firms drop out of the procurement so that there is a smaller number of persons or firms participating in the procurement, the agent may elect to proceed with the procurement with the participating persons or firms if there are at least two participating responsive and responsible persons or firms. Alternatively, the agent may elect to terminate the procurement.
(ii) As to a request for qualifications for professional services or construction services to be negotiated pursuant to subsection E of this section only, if only one responsive and responsible person or firm responds to the request for qualifications or, if one or more persons or firms drop out of the procurement so that only one responsive and responsible person or firm remains in the procurement, the agent may elect to proceed with the procurement with only one person or firm if the agent determines in writing that the fee negotiated pursuant to subsection E of this section is fair and reasonable and that either other prospective persons or firms had reasonable opportunity to respond or there is not adequate time for a resolicitation.
(iii) If a person or firm on the final list withdraws or is removed from the procurement and the selection committee determines that it is in the best interest of the agent, the selection committee may replace that person or firm on the final list with another person or firm that submitted qualifications in the procurement and that is selected by the selection committee as the next most qualified.
2. An agent shall issue a request for qualifications for each procurement and publish notice of the request for qualifications. This notice shall be published by advertising in a newspaper of general circulation in the county in which the agent is located for two consecutive publications if it is a weekly newspaper or for two publications that are at least six but no more than ten days apart if it is a daily newspaper. The request for qualifications shall:
(a) State that one contract may or will be awarded, describe the services to be performed under the contract and state that one person or firm may or will be awarded the contract.
(b) In a procurement of a contract to be negotiated under subsection E of this section, state that there will be a single final list of at least three and not more than five persons or firms. In a procurement in which the contract will be awarded under subsection F of this section, the request for qualifications shall state that there will be a single final list and that the number of persons or firms on the final list will be three.
(c) As prescribed below, state the selection criteria and relative weight of the selection criteria to be used by the selection committee, except that for construction services one of the criteria shall be the person's or firm's subcontractor selection plan or procedures to implement the agent's subcontractor selection plan. All selection criteria under this subsection shall be factors that demonstrate competence and qualifications for the type of professional services or construction services included in the procurement. If:
(i) Interviews will be held, the request for qualifications shall state the selection criteria and relative weight of the selection criteria to be used in selecting the persons or firms to be interviewed and the request for qualifications may state the selection criteria and relative weight of the selection criteria to be used in selecting the persons or firms on the final list and in determining their order on the final list. The final list selection criteria and relative weights may be different than the selection criteria and relative weights used to determine the persons or firms to be interviewed. The request for qualifications shall also state whether the agent will select the persons or firms on the final list and their order on the final list solely through the results of the interview process or through the combined results of both the interview process and the evaluation of statements of qualifications and performance data submitted in response to the agent's request for qualifications.
(ii) Interviews will not be held, the request for qualifications shall state the selection criteria and relative weight of the selection criteria to be used in selecting the persons or firms on the final list and in determining their order on the final list.
(d) If the agent will hold interviews as part of the selection process, state that interviews will be held and that the interviews will be with at least three but not more than five persons or firms.
(e) For procurements of construction services, include either:
(i) A requirement that each person or firm submit a proposed subcontractor selection plan and a requirement that the proposed subcontractor selection plan must select subcontractors based on qualifications alone or on a combination of qualifications and price and shall not select subcontractors based on price alone.
(ii) A subcontractor selection plan adopted by the agent that applies to the person or firm that is selected to perform the construction services and that requires subcontractors to be selected based on qualifications alone or on a combination of qualifications and price and not based on price alone and a requirement that each person or firm must submit a description of the procedures it proposes to use to implement the agent's subcontractor selection plan.
(f) Include a description of the publicly available location of the agent's protest policy and procedures or, if the agent does not have a protest policy and procedures, a statement that the protest policy and procedures referred to in subsection J of this section apply to any protests in connection with the procurement.
(g) In a procurement of construction‑manager-at-risk construction services or design-build construction services to be performed at multiple locations, include:
(i) A brief description of the construction services to be performed at each location.
(ii) The estimated budget for the construction services to be performed at each location.
(iii) A schedule for the construction services to be performed at each location that shows the agent's intent to commence all construction at each location within thirty months after execution of the first contract for preconstruction services or other construction services at any of the locations.
3. An agent shall initiate an appropriately qualified selection committee for each request for qualifications. The agent shall ensure that the selection committee members are competent to serve on the selection committee. Each selection committee must include one employee of the agent or an agent representative who is appointed by the agent. If the agent is procuring professional services, the agent shall determine the number and qualifications of the selection committee members. A selection committee for the procurement of construction services shall not have more than seven members, except that, if the contract involves the agent and additional governmental or private participants, the number of members of the selection committee shall be increased by one for each additional participant, except that the maximum number of members of the selection committee is nine. The selection committee for construction services shall include at least one person who is a senior management employee of a licensed contractor and one person who is an architect or an engineer who is registered pursuant to section 32‑121. These members may be employees of the agent or outside consultants. Outside contractors, architects and engineers serving on a selection committee shall not receive compensation from the agent for performing this service, but the agent may elect to reimburse outside contractors, architects and engineers for travel, lodging and other expenses incurred in connection with service on a selection committee. A person who is a member of a selection committee shall not be a contractor under a contract awarded under the procurement or provide any professional services, construction, construction services, materials or other services under the contract. The selection committee and the agent shall do the following:
(a) If interviews are specified in the request for qualifications:
(i) The selection committee shall determine the persons or firms to be interviewed by evaluating the statements of qualifications and performance data that are submitted in response to the agent's request for qualifications based only on the selection criteria and relative weight of the selection criteria stated in the request for qualifications to be used to determine the persons or firms to be interviewed.
(ii) If the selection criteria and relative weight of the selection criteria to be used by the selection committee to select the persons or firms on the final list and to determine their order on the final list are not included in the request for qualifications, before the interviews are held the agent shall distribute to the persons or firms to be interviewed the selection criteria and relative weight of the selection criteria to be used to select the persons or firms on the final list and to determine their order on the final list. These selection criteria and relative weight may be different than the selection criteria and relative weight used to determine the persons or firms to be interviewed.
(iii) The selection committee shall conduct interviews with the number of persons or firms to be interviewed as stated in the request for qualifications regarding the professional services or construction services and the relative methods of approach for furnishing the required professional services or construction services.
(b) Based only on the selection criteria and relative weight of the selection criteria specified as provided in this subsection for selection of the persons or firms on the final list and their order on the final list, the selection committee shall select the persons or firms for the final list and, in the case of a final list for a contract that will be negotiated under subsection E of this section, rank the persons or firms on the final list in order of preference.
(c) If the contract will be negotiated under subsection E of this section, before or at the same time as the agent notifies the highest ranking person or firm on the final list that it is the highest ranking person or firm, the agent shall send actual notice to each of the following that it is not the highest person or firm on the final list or that another person or firm is the highest ranking person or firm on the final list:
(i) If interviews were held, the other persons and firms interviewed.
(ii) If interviews were not held, the other persons and firms that made submittals.
(d) If the contract will be awarded under subsection F of this section, before or at the same time as the agent notifies the persons or firms on the final list that they are on the final list, the agent shall send actual notice to each of the following persons or firms that they are not on the final list or that other persons or firms are on the final list:
(i) If interviews were held, the other persons or firms interviewed.
(ii) If interviews were not held, the other persons or firms that made submittals.
D. An agent shall award the single contract under the procurement as provided in subsection E or F of this section.
E. The agent shall conduct negotiations with persons or firms on the final list as follows:
1. The procurement is for a single contract for construction services or professional services, and there is one final list.
2. The negotiations shall include consideration of compensation and other contract terms that the agent determines to be fair and reasonable to the agent. In making this decision, the agent shall take into account the estimated value, the scope, the complexity and the nature of the professional services or construction services to be rendered.
3. The agent shall enter into negotiations with the highest qualified person or firm on the final list.
4. If the agent is not able to negotiate a satisfactory contract with the highest qualified person or firm on the final list, at compensation and on other contract terms the agent determines to be fair and reasonable, the agent shall formally terminate negotiations with that person or firm. The agent shall then undertake negotiations with the next most qualified person or firm on the final list in sequence until an agreement is reached or a determination is made to reject all persons or firms on the final list.
5. If in a procurement under this section the agent terminates negotiations with a person or firm on the final list and commences negotiations with another person or firm on the final list, the agent shall not in that procurement recommence negotiations or enter into a contract for the construction services or professional services covered by the final list with any person or firm on the final list with whom the agent has terminated negotiations.
F. As an alternative to subsection E of this section, an agent may award a single contract for design‑build construction services or job‑order‑contracting construction services as follows:
1. The agent shall use the selection committee appointed for the request for qualifications pursuant to subsection C of this section.
2. The agent shall issue a request for proposals to the persons or firms on the final list developed pursuant to subsection C of this section.
3. The request for proposals shall include:
(a) The agent's project schedule and project final budget for design and construction or life cycle budget for a procurement that includes maintenance services or operations services.
(b) A statement that the contract will be awarded to the offeror whose proposal receives the highest number of points under a scoring method.
(c) A description of the scoring method, including a list of the factors in the scoring method and the number of points allocated to each factor. The factors in the scoring method may include:
(i) For design‑build construction services only, demonstrated compliance with the design requirements.
(ii) Offeror qualifications.
(iii) Offeror financial capacity.
(iv) Compliance with the agent's project schedule.
(v) For design‑build construction services only, if the request for proposals specifies that the agent will spend its project budget and not more than its project budget and is seeking the best proposal for the project budget, compliance of the offeror's price or life cycle price for procurements that include maintenance services, operations services or finance services with the agent's budget as prescribed in the request for proposals.
(vi) For design‑build construction services if the request for proposals does not contain the specifications prescribed in item (v) of this subdivision and for job‑order‑contracting construction services, the price or life cycle price for procurements that include maintenance services, operations services or finance services.
(vii) An offeror quality management plan.
(viii) Other evaluation factors that demonstrate competence and qualifications for the type of construction services in the request for proposals as determined by the agent, if any.
(d) For design‑build construction services only, the design requirements.
(e) A requirement that each offeror submit separately a technical proposal and a price proposal and that the offeror's entire proposal be responsive to the requirements in the request for proposals. For design‑build construction services, the price in the price proposal shall be a fixed price or a guaranteed maximum price.
(f) A statement that in applying the scoring method the selection committee will separately evaluate the technical proposal and the price proposal and will evaluate and score the technical proposal before opening the price proposal.
(g) If the agent conducts discussions pursuant to paragraph 5 of this subsection, a statement that discussions will be held and a requirement that each offeror submit a preliminary technical proposal before the discussions are held.
4. If the agent determines to conduct discussions pursuant to paragraph 5 of this subsection, each offeror shall submit a preliminary technical proposal to the agent before those discussions are held.
5. If determined by the agent and included by the agent in the request for proposals, the selection committee shall conduct discussions with all offerors that submit preliminary technical proposals. Discussions shall be for the purpose of clarification to ensure full understanding of, and responsiveness to, the solicitation requirements. Offerors shall be accorded fair treatment with respect to any opportunity for discussion and for clarification by the owner. Revision of preliminary technical proposals shall be permitted after submission of preliminary technical proposals and before award for the purpose of obtaining best and final proposals. In conducting any discussions, information derived from proposals submitted by competing offerors shall not be disclosed to other competing offerors.
6. After completion of any discussions pursuant to paragraph 5 of this subsection or if no discussions are held, each offeror shall submit separately the offeror's final technical proposal and its price proposal.
7. Before opening any price proposal, the selection committee shall open the final technical proposals, evaluate the final technical proposals and score the final technical proposals using the scoring method in the request for proposals. No other factors or criteria may be used in the evaluation and scoring.
8. After completion of the evaluation and scoring of all final technical proposals, the selection committee shall open the price proposals, evaluate the price proposals, score the price proposals and complete the scoring of the entire proposals using the scoring method in the request for proposals. No other factors or criteria may be used in the evaluation and scoring.
9. The agent shall award the contract or contracts to the responsive and responsible offeror whose proposal receives the highest score under the method of scoring in the request for proposals. No other factors or criteria may be used in the evaluation. Before or at the same time as the agent notifies the winning offeror that it has won, the agent shall send actual notice to each other offeror either that the offeror has not won or that another offeror has won.
10. The contract or contracts file shall contain the basis on which the award is made, including at a minimum the information and documents required under subsection G of this section.
11. For design‑build construction services only, the agent shall award a stipulated fee equal to a percentage, as prescribed in the request for proposals, of the agent's project final budget for design and construction, as prescribed in the request for proposals, but not less than two‑tenths of one per cent percent of the project final budget for design and construction to each final list offeror who provides a responsive, but unsuccessful, proposal. If the agent does not award a contract, all responsive final list offerors shall receive the stipulated fee based on the owner's project final budget for design and construction as included in the request for proposals. The agent shall pay the stipulated fee to each offeror within ninety days after the award of the initial contract or the decision not to award a contract. In consideration for paying the stipulated fee, the agent may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the offerors. Notwithstanding the other provisions of this paragraph, an offeror may elect to waive the stipulated fee. If an offeror elects to waive the stipulated fee, the agent may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agent from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.
G. At a minimum, the agent shall retain the following for each procurement under this section:
1. For each request for qualifications procurement process under subsection C or pursuant to subsection K, paragraph 2 of this section:
(a) If interviews were not held:
(i) The submittal of the person or firm listed first on the final list and, if different, the submittal of the person or firm with which the agent enters into a contract.
(ii) The final list.
(iii) A list of the selection criteria and relative weight of selection criteria used to select the persons or firms for the final list and to determine their order on the final list.
(iv) A list that contains the name of each person or firm that submitted qualifications and that shows the person's or firm's final overall rank or score.
(v) A document or documents that show the final score or rank on each selection criteria criterion of each person or firm that submitted qualifications and that support the final overall rankings and scores of the persons or firms that submitted qualifications. At the election of the agent, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members or any other form as determined by the agent.
(b) If interviews were held:
(i) All submittals of the person or firm listed first on the final list and, if different, all submittals of the person or firm with which the agent enters into a contract.
(ii) The final list.
(iii) A list of the selection criteria and relative weight of selection criteria used to select the persons or firms for the final list and to determine their order on the final list.
(iv) A list that contains the name of each person or firm that was interviewed and that shows the person's or firm's final overall rank or score.
(v) A document or documents that show the final score or rank on each selection criteria criterion of each person or firm that was interviewed and that support the final overall rankings and scores of the persons or firms that were interviewed. At the election of the agent, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members or any other form as determined by the agent.
(vi) A list of the selection criteria and relative weight of the selection criteria used to select the persons or firms for the short list to be interviewed.
(vii) A list that contains the name of each person or firm that submitted qualifications and that shows the person's or firm's final overall rank or score in the selection of the persons or firms to be on the short list to be interviewed.
(viii) A document or documents that show the final score or rank on each selection criteria criterion of each person or firm that submitted qualifications and that support the final overall rankings and scores of the persons or firms that submitted qualifications in the selection of the persons or firms to be on the short list to be interviewed. At the election of the agent, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for the individual selection committee members or any other form as determined by the agent.
2. For each request for proposals procurement process under subsection F or subsection K, paragraph 3 of this section:
(a) The entire proposal submitted by the person or firm that received the highest score in the scoring method in the request for proposals and, if different, the entire proposal submitted by the person or firm with which the agent enters into a contract.
(b) The description of the scoring method, the list of factors in the scoring method and the number of points allocated to each factor, all as included in the request for proposals.
(c) A list that contains the name of each offeror that submitted a proposal and that shows the offeror's final overall score.
(d) A document or documents that show the final score on each factor in the scoring method in the request for proposals of each offeror that submitted a proposal and that support the final overall scores of the offerors that submitted proposals. At the election of the agent, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members or any other form as determined by the agent.
H. Information relating to each procurement under this section shall be made available to the public as follows:
1. Notwithstanding title 39, chapter 1, article 2, until the agent awards a contract or terminates the procurement, only the name of each person or firm on the final list developed pursuant to subsection C or subsection K, paragraph 2 of this section may be made available to the public. All other information received by the agent in response to the request for qualifications pursuant to subsection C or subsection K, paragraph 2 of this section or contained in proposals submitted pursuant to subsection F or subsection K, paragraph 3 of this section shall be confidential in order to avoid disclosure of the contents that may be prejudicial to competing submitters and offerors during the selection process.
2. After the agent awards the contract or terminates the procurement, the agent shall make available to the public pursuant to title 39, chapter 1, article 2 at a minimum all of the items that the agent is required to retain under subsection G of this section, except the proposals submitted in response to a request for proposals under subsection F or subsection K, paragraph 3 of this section and the document or documents prescribed in subsection G, paragraph 1, subdivision (a), item (v) and subdivision (b), items (v) and (viii) and paragraph 2, subdivision (d) of this section.
3. The proposals submitted under subsection F or subsection K, paragraph 3 of this section shall not be made available to the public until after the agent has entered into a contract or terminated the procurement. At a minimum the proposals submitted under subsection F or subsection K, paragraph 3 of this section that the agent is required to retain under subsection G of this section shall be made available to the public after the agent has entered into a contract or terminated the procurement.
4. To the extent that the offeror designates and the agent concurs, trade secrets and other proprietary data contained in a proposal remain confidential.
5. The document or documents prescribed in subsection G, paragraph 1, subdivision (a), item (v) and subdivision (b), items (v) and (viii) and paragraph 2, subdivision (d) of this section are available to the extent provided in title 39, chapter 1, article 2.
I. An agent may cancel a request for qualifications or a request for proposals, reject in whole or in part any or all submittals or proposals, or determine not to enter into a contract as specified in the solicitation if the agent determines in the agent's absolute and sole discretion that the action is in the best interest of the agent. The agent shall make the reasons for cancellation, rejection or determination not to enter into a contract part of the contract file.
J. If the agent does not have a procurement protest policy and procedures that have been formally adopted and published by the agent, for protests relating to procurements under this section the agent shall follow the procurement protest policy and procedures of the department of administration. The agent shall process all protests relating to procurements under this section.
K. Notwithstanding any other law, in a procurement of a single contract for construction-manager-at-risk construction services for horizontal construction under this section when the United States federal aviation administration or the United States federal transit administration is a source of monies for the project and price competition is required by the funding federal agency or applicable federal law, rules or regulations, an agent that is a city with a population in excess of one million persons or an agent that is a separate legal entity formed under section 11‑952 by a city with a population in excess of one million persons and that is designated as a subgrantee by a city with a population in excess of one million persons, may do a two-step competition in accordance with the following:
1. Except as provided in paragraphs 2 and 3 of this subsection, all provisions of law applicable to construction-manager-at-risk construction services apply to construction-manager-at-risk construction services for horizontal construction procured under this subsection, including the provisions applicable to horizontal construction. The requirements in subsection B of section 34‑605, subsection B apply only if the contractor provides preconstruction services. Bid security is not required under section 34‑608 for construction-manager-at-risk construction services for horizontal construction procured under this subsection, but an agent may elect to require bid security in which event the bid security process and requirements shall be as set forth in section 34‑608.
2. In the first step of the two-step competition for procurement of construction-manager-at-risk construction services for horizontal construction, the agent shall follow the request for qualifications process and the requirements in subsection C of this section. For purposes of applying the requirements in subsection C, paragraph 1, subdivision (f), item (ii), subsection C, paragraph 2, subdivision (b) and subsection C, paragraph 3, subdivisions (b), (c) and (d) of this section only, a procurement under this subsection shall be deemed to be procurement of a contract to be awarded under subsection F of this section and not of a contract to be negotiated under subsection E of this section.
3. In the second step of the two-step competition:
(a) The agent shall use the selection committee appointed for the request for qualifications pursuant to subsection C of this section.
(b) The agent shall issue a request for proposals to the offerors on the final list developed pursuant to subsection C of this section.
(c) The request for proposals shall include:
(i) A statement that one contract may or will be awarded and that one offeror may or will be awarded the contract.
(ii) A description of the construction-manager-at-risk construction services for horizontal construction to be performed under the contract.
(iii) A requirement that each offeror submit separately a qualitative and technical proposal and a price proposal and that the offeror's entire proposal be responsive to the requirements in the request for proposals.
(iv) The required contents of the qualitative and technical proposals and the price proposals.
(v) Information to be used by offerors to prepare the qualitative and technical proposals and the price proposals.
(vi) A statement that in applying the scoring method the selection committee will evaluate and score the qualitative and technical proposals before opening the price proposals.
(vii) A statement that the agent will use the scoring method described in the request for proposals to determine the winning offeror and that the winning offeror will be the offeror whose proposal receives the highest number of points under the scoring method.
(viii) A description of the scoring method. The scoring method shall be a best-value method in which the agent establishes criteria to score the qualitative and technical proposal and separate criteria to score the price proposal and the number of points assigned to each criteria. The number of points assigned to price criteria shall not exceed ten per cent percent of the total number of points in the scoring method.
(ix) If the agent elects to conduct discussions pursuant to paragraph 3, subdivision (e) of this subsection paragraph, a statement that discussions will be held and a requirement that each offeror submit a preliminary qualitative and technical proposal before the discussions are held.
(d) If the agent determines to conduct discussions pursuant to paragraph 3, subdivision (e) of this subsection paragraph, each offeror shall submit a preliminary qualitative and technical proposal to the agent before those discussions are held.
(e) If determined by the agent and included by the agent in the request for proposals, the selection committee shall conduct discussions with all offerors solely about their preliminary qualitative and technical proposals. Discussions shall be for the purpose of clarification to ensure full understanding of, and responsiveness to, the solicitation requirements, other than price. Offerors shall be accorded fair treatment with respect to any opportunity for discussion and for clarification by the selection committee. Revision of preliminary qualitative and technical proposals shall be permitted after submission of preliminary qualitative and technical proposals and before scoring of proposals for the purpose of obtaining best and final proposals. In conducting any discussions, information derived from the preliminary qualitative and technical proposals submitted by competing offerors shall not be disclosed to other competing offerors. Price shall not be part of the discussions.
(f) After completion of any discussions pursuant to paragraph 3, subdivision (e) of this subsection paragraph or if no discussions are held, each offeror shall submit separately the offeror's final qualitative and technical proposal and its price proposal.
(g) In evaluating and scoring the offerors' proposals the selection committee shall use the scoring method specified in the request for proposals.
(h) Before opening any price proposal, the selection committee shall open the final qualitative and technical proposals, evaluate the final qualitative and technical proposals and score the final qualitative and technical proposals using the qualitative and technical criteria and assigned points in the scoring method in the request for proposals. No other factors or criteria may be used in the evaluation and scoring.
(i) After completion of the evaluation and scoring of all final qualitative and technical proposals, the selection committee shall open the price proposals and score the price proposals using the price criteria and assigned points in the scoring method in the request for proposals. No other factors or criteria may be used in the evaluation and scoring.
(j) After evaluating and scoring the price proposals, the selection committee shall add the qualitative and technical proposal score and the price proposal score of each offeror together for a total score. The responsive and responsible offeror with the highest total score is the winning offeror.
(k) The agent shall promptly notify the winning offeror that it is the winner. Before or at the same time as the agent notifies the winning offeror that it is the winner, the agent shall send actual notice to each other offeror either that the offeror is not the winner or that another offeror is the winner.
(l) The contract or contracts file shall contain the basis on which the award is made, including at a minimum the information and documents required under subsection G of this section.
4. Notwithstanding this subsection, an agent shall not procure any construction-manager-at-risk construction services for horizontal construction pursuant to this subsection after June 30, 2018 2025. For the purposes of this paragraph, an agent procures construction‑manager‑at‑risk construction services for horizontal construction pursuant to this subsection when the contract for the construction-manager-at-risk construction services for horizontal construction is executed by the agent and the contractor. If a contract is executed for construction-manager-at-risk construction services for horizontal construction procured pursuant to this subsection on or before June 30, 2018 2025, construction services under the contract may be rendered in whole or in part after June 30, 2018 2025.
L. For the purposes of this section, "professional services" includes architect services, engineer services, landscape architect services, assayer services, geologist services and land surveying services and any combination of those services.
Sec. 3. Section 34-605, Arizona Revised Statutes, is amended to read:
34-605. Requirements applicable to construction services and professional services and to contracts for construction services and professional services; definition
A. The requirements prescribed in this section apply to each contract entered into as the result of a procurement under section 34‑603, 34‑604 or 34-606 and to the professional services and construction services included in each procurement under section 34‑603, 34‑604 or 34‑606.
B. If a procurement under section 34‑603 is for construction‑manager‑at-risk construction services or design-build construction services to be contracted pursuant to section 34‑603, subsection E or if a procurement under section 34‑606 is for construction‑manager‑at‑risk construction services or design-build construction services, the agent shall enter into a written contract with the contractor for preconstruction services under which the agent shall pay the contractor a fee for preconstruction services in an amount agreed by the agent and the contractor, and the agent shall not request or obtain a fixed price or a guaranteed maximum price for the construction from the contractor or enter into a construction contract with the contractor until after the agent has entered into the written contract for preconstruction services and a preconstruction services fee.
C. If a contract for construction services is entered into as the result of a procurement under section 34‑603, 34‑604 or 34‑606, construction shall not commence until the agent and contractor agree in writing on either a fixed price that the agent will pay for the construction to be commenced or a guaranteed maximum price for the construction to be commenced. The construction to be commenced may be the entire project or may be one or more phased parts of the project.
D. A contract for professional services entered into as the result of a procurement under section 34‑603, 34‑604 or 34‑606 shall have a term not exceeding five years after the date of contract award by the agent of the first contract under the procurement, except that the contract may continue in effect after the five year term for professional services on projects on which the rendering of professional services commences within the five year term.
E. Notwithstanding any other law:
1. The contractor for design-build or job-order-contracting construction services is not required to be registered to perform design services pursuant to title 32, chapter 1 if the person or firm actually performing the design services on behalf of the contractor is appropriately registered.
2. The contractor for construction-manager-at-risk, design-build or job‑order‑contracting construction services shall be licensed to perform construction pursuant to title 32, chapter 10.
F. For job-order-contracting construction services only:
1. The maximum dollar amount of an individual job order shall be one million dollars or such higher or lower amount prescribed by the agent in an action noticed pursuant to title 38, chapter 3, article 3.1 or a rule adopted by the agent as the maximum amount of an individual job order. Requirements shall not be artificially divided or fragmented in order to constitute a job order that satisfies this requirement.
2. If the contractor subcontracts or intends to subcontract part or all of the work under a job order and if the job-order-contracting construction services contract includes descriptions of standard individual tasks, standard unit prices for standard individual tasks and pricing of job orders based on the number of units of standard individual tasks in the job order:
(a) The contractor has a duty to deliver promptly to each subcontractor invited to bid a coefficient to the contractor to do all or part of the work under one or more job orders:
(i) A copy of the descriptions of all standard individual tasks on which the subcontractor is invited to bid.
(ii) A copy of the standard unit prices for the individual tasks on which the subcontractor is invited to bid.
(b) If not previously delivered to the subcontractor, the contractor has a duty to deliver promptly the following to each subcontractor invited to or that has agreed to do any of the work included in any job order:
(i) A copy of the description of each standard individual task that is included in the job order and that the subcontractor is invited to perform.
(ii) The number of units of each standard individual task that is included in the job order and that the subcontractor is invited to perform.
(iii) The standard unit price for each standard individual task that is included in the job order and that the subcontractor is invited to perform.
G. The following apply to horizontal construction:
1. Notwithstanding this chapter, an agent shall not procure any horizontal construction using the construction-manager-at-risk, design‑build or job-order-contracting method of project delivery after June 30, 2020 2025. For purposes of this paragraph, an agent procures horizontal construction when the contract for the construction services is executed by the agent and the contractor for the construction‑manager‑at‑risk, design-build or job‑order‑contracting construction services. If a contract is executed for construction services on or before June 30, 2020 2025, construction services under the contract may be rendered in whole or in part after June 30, 2020 2025.
2. For each horizontal construction project under a design-build or construction-manager-at-risk construction services contract, the licensed contractor performing the contract shall perform, with the contractor's own organization, construction work that amounts to not less than forty‑five per cent percent of the total contract price for the construction, except that for light rail the self-performance percentage shall be not less than thirty per cent percent.
3. A project is horizontal construction if more than one-half of the total contract price for the construction is for horizontal construction. Project elements shall not be artificially added in order to make a project not horizontal construction and shall not be artificially deleted in order to make a project horizontal construction.
4. The total contract price for the construction does not include the cost of preconstruction services, design services or any other related services or the cost to procure any right-of-way or other cost of condemnation.
H. Notwithstanding any contrary provision of this section or this title, an agent shall not:
1. Enter into a contract as contractor to provide construction‑manager-at-risk construction services, design-build construction services or job-order-contracting construction services.
2. Contract with itself, with another agent, with this state or with any other governmental unit of this state or the federal government for the agent to provide construction-manager-at-risk construction services, design‑build construction services or job-order-contracting construction services.
I. The prohibitions prescribed in subsection H of this section do not prohibit an agent from providing construction for itself as provided by law.
J. The agent shall include in each contract for construction services the full street or physical address of each separate location at which the construction will be performed and a requirement that the contractor and each subcontractor at any level include in each of its subcontracts the same address information. The contractor and each subcontractor at any level shall include in each subcontract the full street or physical address of each separate location at which construction work will be performed.
K. The following provisions apply to all construction services procured under this chapter:
1. The contractor performing the construction services is permitted to self-perform part of the construction work if and to the extent agreed in writing by the agent and the contractor. The agent may use methods other than competitive bidding to assure itself that the price the agent pays to the contractor for self-performed work is fair and reasonable. Permitted methods to evaluate fairness and reasonableness of the price of self‑performed work include evaluation of the contractor's proposed scope of work and price for self-performed work by an estimator who is hired and paid by the agent, who is independent of the contractor and who may be an employee of the agent. Although the agent may elect to so require, nothing in this chapter, this title or any other law shall be construed or interpreted to require the agent to require a contractor desiring to self-perform part of the construction work to competitively bid that part of the construction work against other contractors in a bid competition.
2. The following requirements apply to the construction work to be performed by subcontractors and do not apply to construction work that the agent and the contractor agree in writing will be self-performed by the contractor:
(a) The person or firm selected to perform the construction services shall select subcontractors based on qualifications alone or on a combination of qualifications and price and shall not select subcontractors based on price alone. A qualifications and price selection may be a single-step selection based on a combination of qualifications and price or a two-step selection. In a two-step selection, the first step shall be based on qualifications alone and the second step may be based on a combination of qualifications and price or on price alone.
(b) The agent shall include in each contract:
(i) If the agent included its subcontractor selection plan in the request for qualifications, the agent's subcontractor selection plan and the procedures to implement the agent's subcontractor selection plan proposed by the selected person or firm in submitting its qualifications with those modifications to the procedures as the agent and the selected person or firm agree.
(ii) If the agent did not include its subcontractor selection plan in the request for qualifications, the subcontractor selection plan proposed by the selected person or firm in submitting its qualifications with those modifications as the agent and the selected person or firm agree.
(c) In making the selection of subcontractors, the person or firm selected to perform the construction services shall use the subcontractor selection plan and any procedures included in its contract.
L. If the agent does not have a procurement protest policy and procedures that have been formally adopted and published by the agent, for protests relating to procurements under this chapter the agent shall follow the procurement protest policy and procedures of the department of administration. The agent shall process all protests relating to procurements under this section. If the agent does have a procurement protest policy and procedures that have been formally adopted and published by the agent, the agent may choose to make information relating to each procurement available earlier than required under section 34‑603, subsection H and section 34‑604, subsection H if the agent determines the release of the information is necessary to adequately follow and manage its procurement protest policy and procedures.
M. For the purposes of this section, "professional services" includes architect services, engineer services, landscape architect services, assayer services, geologist services and land surveying services and any combination of those services.
Sec. 4. Section 34-613, Arizona Revised Statutes, is amended to read:
34-613. Failure to comply; civil penalty
A. An agent who knowingly and intentionally violates this chapter is liable for a civil penalty:
1. Except as provided in paragraph 2, of not more than five thousand dollars for each violation.
2. On the effective date of this amendment to this section until July 1, 2009, of not more than:
(a) 1. Ten thousand dollars for a first violation.
(b) 2. Twenty-five thousand dollars for a second violation.
(c) 3. Seventy-five thousand dollars for a third violation.
B. All monies collected from the civil penalty shall be deposited, pursuant to sections 35‑146 and 35‑147, in the state general fund. The attorney general shall bring an action to recover the penalty in the name of this state in the superior court in the county in which the violation occurred. The attorney general shall bring any appropriate civil action to enjoin a threatened or pending violation of this chapter.
Sec. 5. Retroactivity
Section 34-603, Arizona Revised Statutes, as amended by this act, applies retroactively to from and after June 29, 2018.
APPROVED BY THE GOVERNOR APRIL 10, 2018.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 10, 2018.
