Header:
CODE OF RHODE ISLAND RULES
AGENCY 33. PUBLIC BUILDING AUTHORITY
SUB-AGENCY 000. GENERAL
Date:
08/31/2009
Document:
33 000 003 SELECTION OF CONSTRUCTION MANAGERS
Table of Contents
Article I - General Provisions
§ 1.1 Introduction
§ 1.2 Definitions
§ 1.3 Application of Rules
§ 1.4 Responsibility of Authority
§ 1.5 Public Access to Procurement Records
§ 1.6 Decisions of the Authority
Article II - Selection of Construction Managers
§ 2.1 Finding of Authority
§ 2.2 Selection of Construction Managers
§ 2.3 Competitive Negotiations
§ 2.4 Sole Source and Emergency Contracts
§ 2.5 Small Contracts
§ 2.6 Waiver of Informalities in Offers
§ 2.7 Cancellation of Requests for Proposals
§ 2.8 Responsibility of Offerors
§ 2.9 Annual Statement of Qualifications
§ 2.10 Prequalification Data
§ 2.11 Cost or Pricing Data
§ 2.12 Types of Contracts
§ 2.13 Approval of Accounting System
§ 2.14 Partial and Progressive Awards
§ 2.15 Inspection of Facilities and Audits of Records
§ 2.16 Reporting of Anti-Competitive Practices
Article III - Modification and Termination of Construction Management Contracts
§ 3.1 Contract Clauses and Their Administration
Article IV - Cost Principles
§ 4.1 Cost and Pricing Principles
Article V - Bonds
§ 5.1 Construction Bonds
Article VI - Legal and Contractual Remedies
§ 6.1 Protests of Solicitations and Awards
§ 6.2 Debarment and Suspension
§ 6.3 Contract Disputes
Article VII - Additional Matters
§ 7.1 Small and Disadvantaged Businesses
§ 7.2 Firms Doing Business in South Africa
§ 7.3 Equal Employment Opportunity
§ 7.4 Conflict of Interest
Article VIII - Repeal of Rule
§ 8.1 Repeal of Prior Rule
Article IX - Effective Date
§ 9.1 Effective Date
§ 9.2 Contracts in Effect on Effective Date
Article I - General Provisions
Section 1.1. Introduction. The Rhode Island Public Buildings Authority (the "Authority") is authorized and empowered, among other things, to acquire and construct public facilities and for those purposes to enter into contracts necessary or incidental to the execution of its powers, including contracts for the procurement of supplies, services and construction.
The purpose of these rules is to comply with the requirements of Chapter 2 of Title 37 of the Rhode Island General Laws (State Purchases), by setting out procedures for the selection of construction managers by the Authority.
Section 1.2. Definitions.
(a) Except as provided in this Section 1.2, all capitalized terms used herein shall have the same meaning as set forth in the "Rules of the Public Buildings Authority Adopted Pursuant to the Administrative Procedures Act."
(b) The words defined in this subsection shall have the meanings set forth below wherever they appear in these Rules, unless the context in which they are used clearly requires a different meaning.
(1) "Business" shall mean any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity through which business is conducted.
(2) "Construction" shall mean the process of building, altering, repairing, improving or demolishing any Project. It does not include the routine maintenance or repair of existing structures, buildings, or real property performed by salaried employees of the State of Rhode Island in the usual course of their job.
(3) "Construction management contract" shall mean a contract for construction management services which provides a "Guaranteed Maximum Price" and which anticipates that a substantial portion of the construction which is the subject of the contract will be performed by trade contractors pursuant to trade contracts between the construction manager and trade contractors.
(4) "Construction management fee" shall mean the fee payable to the construction manager for the performance of construction management services. The Construction Management Fee may be fixed at a percentage of the Guaranteed Maximum Price with adjustments as appropriate for changes in the Guaranteed Maximum Price, or a reduction in the Cost of the Work.
(5) "Construction management services" shall mean business administration and superintendance of the Construction of a Project, including but not limited to consultation with the architect and consultants for the Project, preparing a Project Budget, and selection and control of Trade Contractors.
(6) "Construction manager" shall mean any person who performs construction management services.
(7) "Contract" shall mean all types of agreements for the purchase or disposal of supplies, services or construction, including construction management contracts.
(8) "Contract modifications" shall mean any written alteration in the provisions of any existing construction management contract, whether accomplished by unilateral action in accordance with a Contract provision, or by mutual action of the parties to the Contract.
(9) "Cost of the work" shall mean costs necessarily incurred by the Construction Manager during either the design or construction phase of a project.
(10) "Design development documents" shall include drawings, outline specifications, renderings, models and other documents which fix the size and character of an entire Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate.
(11) "Guaranteed maximum price" shall mean the Cost of a Project to the Authority under a Construction Management Contract. The Guaranteed Maximum Price shall include the Construction Management Fee and shall be fixed at a reasonable time following receipt by the Authority of completed Design Development Documents. The Guaranteed Maximum Price may be subject to modification for contract modifications.
(12) "May" shall mean permissive.
(13) "Offeror" shall mean any person who submits an offer in response to a request for proposals.
(14) "Person" shall mean any business, individual, organization or group of individuals.
(15) "Procurement" shall mean the purchasing buying, renting, leasing or otherwise obtaining of any supplies, services, or construction. It shall also include all functions that pertain to the obtaining of any supply, service, or construction item, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
(16) "Request for proposals" shall mean all documents, whether attached or incorporated by reference, utilized for soliciting proposals in accordance with the procedures set forth in Sections 2.1.3, 2.1.4, and 2.1.5 of these Rules.
(17) "Responsible offeror" shall mean a qualified offeror who has the capability in all respects including financial responsibility to perform fully the requirements of a contract management contract, and the integrity and reliability which will assure good faith performance.
(18) "Responsive offeror" shall mean a offerer who has submitted a proposal which conforms in all material respects to the request for proposal. An offeror who submits a bid based on alternative specifications to those contained in the invitation to bid will be responsive only if, in the judgment of the Authority, the alternative specifications meet the performance objectives of the Authority with respect to the project to be purchased and the invitation to bid states that alternative specifications will be considered.
(19) "Shall" shall mean imperative.
(20) "Small business" shall mean a person, partnership, corporation or other form of business entity independently owned and operated, not dominant in its field and which employs 500 or fewer employees and has its principal place of business in the State.
(21) "Trade contract" shall mean a contract between a trade contractor and the construction manager to perform construction work on a Project.
(22) "Trade contractor" shall mean a person who has a direct contract with the construction manager to perform construction work on a Project.
Section 1.3. Application of Rules.
(a) These Rules shall apply to the selection of construction managers by the Authority in connection with the construction of any Project.
(b) The provisions of this Rule shall be considered to be incorporated in all contracts of the Authority to which it applies.
Section 1.4. Responsibility of the Authority. For purposes of these Rules, the members of the Authority shall be the "chief purchasing officer" of the Authority under Chapter 2 of Title 37 of the General Laws of Rhode Island.
Section 1.5. Public Access to Procurement Records. Except as otherwise provided for herein, all procurement information shall be a matter of public record to the extent provided in the "Rules of the Public Buildings Authority Relating to Access To Its Public Records" and shall be available to the public as provided in such Rules.
Section 1.6. Decisions of the Authority. Every determination required by these Rules shall be in writing and based upon written findings of fact by the Authority. These determinations shall be retained in an official contract file in the offices of the Authority.
Article II - Selection of Construction Managers
Section 2.1. Finding of Authority. The Authority has determined for the following reasons that it is impractical to select construction managers on the basis of competitive sealed bidding:
(a) The Authority generally selects a construction manager prior to completion of design development documents in order to obtain its input during the design phase. Consequently, at the time offers are submitted, both offerors and the Authority have insufficient data to determine a Guaranteed Maximum Price.
(b) Based on the experience of the Authority, proposals to provide construction management services should not be calculated solely on the basis of price but must weigh price and other evaluation criteria.
Section 2.2. Selection of Construction Managers. Except as otherwise provided by law, all construction management contracts shall be awarded by:
(1) Competitive negotiation pursuant to Section 2.3; or
(2) Emergency contracting procedures pursuant to Section 2.4; or
(3) Small contract procedures pursuant to Section 2.5.
Section 2.3. Competitive Negotiation. A contract shall be awarded by competitive negotiation pursuant to the following procedures.
(a) The Authority shall prepare a Request for Proposals. Adequate public notice of the request for proposal shall be given a sufficient time prior to the date set forth therein for the receipt of all proposals. Such notice may include publication in a newspaper of general circulation in the state as determined by the Authority not less than seven (7) days nor more than twenty-one (21) days before the date set for the opening of the bids. The Authority may make a written determination that the twenty-one (21) day limitation needs to be waived. The written determination shall state the reason why the twenty-one (21) day limitation is being waived and shall state the number of days, giving a minimum and maximum, before the date set for receipt of all proposals when public notice is to be given.
(b) Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the Authority taking into consideration price and the evaluation factors set forth in the request for proposals.
(c) Written or oral discussions shall be conducted with all responsible offerors who submit proposals determined in writing by the Authority to be reasonably susceptible of being selected for award. Discussions shall not disclose any information derived from proposals submitted by competing offerors. Discussions need not be conducted:
(i) Where time of performance will not permit discussions; or
(ii) Where it can be clearly demonstrated and documented from the existence of adequate competition or accurate prior cost experience that acceptance of an initial offer without discussion would result in a fair and reasonable price, and the request for proposals notifies all offerors of the possibility that award may be made on the basis of the initial offers.
Section 2.4. Sole Source Procurement and Emergency Contracts.
(a) A construction management contract may be awarded without competition when the Authority determines, in writing, that there is only one responsible person ready to perform the contract.
(b) Notwithstanding any other provision of these Rules, if there exists a threat to public health, welfare or safety under emergency conditions, the Authority may select a construction manager with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular construction manager shall be included in the contract file.
(c) A construction management contract may provide that in an emergency affecting the safety of persons or property, the construction manager, shall act, at his, her or its discretion to prevent threatened damage, injury or loss and may provide for adjustments in the Guaranteed Maximum Price or extension of time for performance under the construction management contract on account of such emergency.
Section 2.5. Small Contracts. Procurements not to exceed an aggregate amount of five thousand dollars ($ 5,000) for construction management services shall be made with as much competition as is practicable in the circumstances. Projects shall not be artificially divided so as to permit awards under this section.
Section 2.6. Waivers of Informality in Offers. The Authority may waive informalities in any offer.
Section 2.7. Cancellation of Requests for Proposals. The Authority may cancel a Request for Proposals, or negotiations in connection with the selection of a construction manager, or may reject all proposals if the Authority determines that such action is in the best interests of the Authority. No such cancellation or rejection shall prevent the Authority from resoliciting proposals for the same Project on the same or different terms.
Section 2.8. Responsibility of Offerors.
(a) A written determination of responsibility of an offeror shall be made by the Authority in connection with the award of any contract.
(b) The Authority may make reasonable inquiries to determine responsibility. The failure of any offeror to promptly supply information in connection with such inquiries may be grounds for determining that such person is not responsible.
(c) Except as otherwise provided by law, information furnished by any offerer pursuant to this section may not be disclosed by the Authority to any other person without the prior written consent of such person.
Section 2.9. Annual Statement of Qualifications.
(a) Persons interested in contracting with the Authority shall be encouraged by the Executive Director to submit to the Authority annually a statement of qualifications.
(b) Solicitation mailing lists of potential contractors, shall include but need not be limited to persons who have submitted an annual statement of qualifications.
Section 2.10. Prequalification Data. A person who bids on a construction management contract shall provide the following information, which information shall constitute the prequalifications for a construction management contract.
(1) Firm history.
(a) Name of firm.
(b) Location of principal and branch offices.
(c) Length of time in business.
(d) Firm ownership structure.
(e) Annual construction management volume for each of the past five (5) years including number of projects and total construction volume.
(2) Personnel.
(a) Total number of firm's personnel, other than secretarial/clerical, by professional or skill group.
(b) Outside firms which will be used to provide such services as estimating, value engineering analysis, scheduling or computer services.
(3) Experience.
(a) Projects which the firm has constructed during the past five (5) years, including, those where the firm has served as construction manager, including the project name and address, year completed, type of project, construction cost and reference.
(4) Project staffing.
(a) The firm's proposed management staff for the Project including an organizational chart identifying the firm's key staff members and showing how each staff member interacts with other staff members assigned to the Project.
(b) Detailed resume for each key staff member which summarizes education, professional registration, professional society membership, construction experience, and construction management project experience.
(5) Project Services.
(a) Scope of preconstruction phase services, including how such services are provided with specific attention to the first budget estimate, methods of cost control, scheduling, value engineering and the method of reporting project status and schedule position.
(b) Scope of construction phase services and how such services are to be provided.
(c) The firm's method of working with the project architects, engineers, consultants and other planning team members.
(d) The firm's method of coordinating the efforts of the various trade contractors.
Section 2.11. Cost or Pricing Data.
(a) A construction manager shall submit to the Authority cost or pricing data and shall certify that, to the best of his, her or its knowledge and belief, any cost or pricing data required to be submitted was accurate, complete, and current as of a mutually determined specified date prior to the date of:
(1) The pricing of any construction management contract where the total contract price is expected to exceed fifty thousand ($ 50,000); or
(2) The pricing of any contract modification which is expected to exceed twenty-five thousand dollars ($ 25,000).
(b) The Authority may require construction managers to certify cost or pricing data in connection with any proposal or contract without regard to the price ceilings set forth above if the Authority determines that such cost or price data is necessary to ensure a fair and reasonable contract price to the Authority.
(c) Where certified cost or pricing data is required to be submitted in connection with any contract or modification thereto, the price of any such contract, including profit or fee, shall be adjusted to exclude any significant sums by which the Authority finds that such price was increased because the construction manager furnished cost or pricing data, which, as of the date agreed upon between the parties, was inaccurate, incomplete, or not current.
(d) The Authority may elect not to require certified cost or pricing data where the price negotiated is based on adequate price competition or in exceptional cases where the Authority determines that the requirements of this section may be waived, and the reasons for such waiver are stated in writing.
Section 2.12. Types of Contracts. The Authority has determined that a construction management contract which provides for reimbursement of the Cost of the Work subject to a Guaranteed Maximum Price is the only practicable way to secure construction management services. Subject to the requirement of a Guaranteed Maximum Price, the Authority may enter into any type of construction management contract which will promote the best interests of the Authority subject to the following rules.
(a) Cost plus percentage of cost type construction management contracts shall not be awarded to any person. A construction management contract which provides for a Guaranteed Maximum Price is not a cost plus percentage of cost type contract, notwithstanding the fact that the construction manager's fee may be fixed at a percentage of the Guaranteed Maximum Price.
(b) Each construction manager under a construction management contract shall obtain the consent of the Authority, as provided for in the contract, before entering into:
(i) A cost reimbursement type trade contract; or
(ii) Any other type of trade contract involving more than ten thousand dollars ($ 10,000) or ten percent (10%) of the estimated cost of the prime contract.
(c) All construction management contracts shall all permit reimbursement only of allowable costs as determined in accordance with cost principles set forth in Section 4.1 of these Rules.
Section 2.13. Approval of Accounting System. No construction management contract shall be entered into by the Authority unless the Authority has determined that the proposed construction manager's accounting system will permit timely development of all necessary cost data in the form required by the specific contract and that the contractor's accounting system is adequate to allocate costs in accordance with generally accepted cost accounting principles.
Section 2.14. Partial and Progressive Awards.
(a) A construction management contract may provide for payments as work progresses under the contract, upon the basis of costs incurred, percentage of completion accomplished or of a particular stage of completion.
(b) A construction management contract may provide for payments upon submission of proper invoices or vouchers for supplies delivered and accepted or services rendered and accepted where such supplies and services are only part of total contract requirements.
Section 2.15. Inspection of Facilities and Audits of Records.
(a) The Authority may inspect the site of any Project or place of business of any construction manager or any trade contractor under any construction management or trade contract awarded or to be awarded by the Authority or by any construction manager.
(b) The Authority may audit the books and records of any person who has submitted cost or pricing data under Section 2.3.3 of this Rule at any time until the period of record retention as set forth in subparagraph (c) of this section shall have expired. The right to audit hereunder shall only extend to those books and records reasonably connected with cost or pricing data submitted under Section 2.3.3 of this Rule.
(c) All construction managers or trade contractors shall maintain all books and records in connection with such contract for a period of three (3) years from the date of final payment under the construction management contract or in the case of a trade contractor for a period of three (3) years from the date of final payment under the trade contract.
Section 2.16. Reporting of Anti-Competitive Practices.
(a) If for any reason the Authority suspects any collusion among offerors, the Authority shall transmit a written notice of the facts giving rise to such suspicion to the Attorney General of the State (the "Attorney General").
(b) All documents involved in any procurement in which collusion is expected shall be retained by the Authority until the Attorney General notifies the Authority that they may be released. All such documents shall be made available to the Attorney General or his other designee upon request, notwithstanding any other provision of this Rule.
Article III - Contract Clauses and Their Administration
Section 3.1. Contract Clauses and their Administration.
(a) All construction management contracts expected to exceed Fifty Thousand Dollars ($ 50,000) in price, shall provide for adjustments to contract terms and conditions where there has been:
(1) A unilaterally ordered change by the Authority or
(2) A site condition differing from that indicated in the contract when appropriate written findings of fact have been made; or
(3) Variation in the estimated quantities in a contract providing for estimated quantities; or
(4) A unilateral suspension of work by the Authority.
(b) All construction management contracts expected to exceed Fifty Thousand Dollars ($ 50,000) in price shall also provide that a contract may be terminated for default, or upon written determination which sets forth the excuses for non-performance. Further, such contracts shall provide for liquidated damages when appropriate and as specified in the contract schedule, with excuses for non-performance specifically provided for therein.
(c) The above specified conditions required for inclusion in all construction contracts expected to exceed Fifty Thousand Dollars ($ 50,000) in price shall be available for optional use by the Authority in other construction management contracts.
(d) In addition, all construction management contracts which are expected to exceed Fifty Thousand Dollars ($ 50,000), shall provide for the termination of said contract because of unreasonable delay in the performance thereof and shall further provide for liquidated damages and for reimbursement for any monies expended by the Authority for the completion of work specified by the terms of such contract.
Article IV - Cost and Pricing Principles
Section 4.1. Cost and Pricing Principles.
(a) The Cost of the Work shall include only those costs necessarily incurred by the Construction Manager during the design and construction phases of a Project and paid or incurred by the Construction Manager. Such costs shall be at rates not higher than those amounts currently paid in Rhode Island except with the prior consent of the Authority and shall include those items set forth as allowable cost items in the construction management contract.
(b) The aggregate of the Cost of the Work and the Construction Manager's fee shall not exceed the Guaranteed Maximum Price.
Article V - Bonds
Section 5.1. Contractor's Bonds. The provisions of chapter 37-12 of the General Laws (Contractor's Bonds) shall apply to all construction management contracts.
Article VI - Protest of Solicitation and Award
Section 6.1. Protest of Solicitation and Award.
(a) Any actual or prospective offeror who is aggrieved in connection with the solicitation or award of any construction management contract may file a protest with Authority. A protest or notice of other controversy must be filed promptly and in any event within two (2) calendar weeks after such aggrieved person knows or should have known of the facts giving rise thereto. All protests or notices of other controversies must be in writing.
(b) The Authority shall promptly issue a decision in writing on the protest. A copy of that decision shall be mailed or otherwise furnished to the aggrieved party and shall state the reasons for the action taken.
(c) In the event a protest is filed in a timely manner under this Section, the Authority shall not proceed further with the solicitation or award which is the subject of the protest until it has issued a decision on the protest, or determined that continuation of the procurement is necessary to protect a substantial interest of the Authority.
Section 6.2. Debarment and Suspension.
(a) After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the Authority may debar a person for cause from consideration for award of construction management contracts. The debarment shall not be for a period of more than three years. The Authority may suspend a person from consideration for award of such contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three months.
(b) The causes for debarment or suspension include the following:
(i) conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
(ii) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction or records, stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a construction manager for the Authority;
(iii) conviction under State or federal antitrust statutes arising out of the submission of bids or proposals;
(iv) violation of contract provisions, as set forth below, of a character which is regarded by the Authority to be so serious as to justify debarment action:
(v) deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in a contract; or
(vi) a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;
(vii) any other cause the Authority determines to be so serious and compelling as to affect responsibility as a construction manager, including debarment by a governmental entity.
(c) The Authority shall issue a written decision to debar or suspend. The decision shall:
(i) state the reasons for the action taken; and
(ii) inform the debarred or suspended person involved of its rights to judicial review.
(d) A copy of the decision under Subsection (3) of this Section shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening.
Section 6.3. Contract Disputes.
(a) Prior to the institution of arbitration concerning any claim or controversy between the Authority and a construction manager, the Authority will endeavor to settle or compromise such claim.
(b) If any claim or controversy under construction management contracts between the Authority and its construction managers is not resolved by mutual agreement, the Authority shall promptly issue a decision in writing regarding the subject matter of such claim or controversy. A copy of that decision shall be mailed or otherwise furnished to the construction manager. If the Authority does not issue a written decision within thirty (3) days after written request for a final decision, or within such longer period as might be established by the parties to the contract in writing, then the construction manager may proceed as if an adverse decision had been received from the Authority.
VII - Additional Matters
Section 7.1. Small and Disadvantageous Businesses. The Authority shall work with the Permanent Joint Committee on Small Business of the General Assembly of the State and with the Small Business Advocacy Council of the State to (1) disseminate information to the small business community about opportunities to contract with the Authority and (2) to encourage small businesses to bid for contracts to be awarded by the Authority. Special efforts shall be made to solicit interest from small disadvantaged businesses.
Section 7.2. Firms Doing Business in the Republic of South Africa. In conformity with the policy of divestment established in section 35-10-12 of the General Laws of the State of Rhode Island, the Authority shall give preference in its the selection of construction managers to persons not doing business in, or with, the Republic of South Africa.
Section 7.3. Equal Employment Opportunity. For all contracts for supplies and services exceeding Ten Thousand Dollars ($ 10,000), vendors must comply with the requirements of federal executive order 11246, as amended, and Section 28-5.1-10 of the General Laws of the State of Rhode Island. Failure to comply will be considered a substantial breach of the contract subject to penalties prescribed on regulations administered by the Department of Administration of the State.
Section 7.4. Conflict of Interest. No member or employee of the Authority shall have any interest, financial or otherwise, direct or indirect, or engage in any activity which is in substantial conflict with the proper discharge of his or her duties as a member or employee of the Authority.
Article VIII - Repeal of Rule
Section 8.1. Repeal of Prior Rule. The Rules of the Authority entitled "Rules of the Public Building Authority for Selecting Architects, Engineers and Construction Managers" are repealed.
Article IX - Effective Date
Section 9.1. Effective Date. These Rules shall become effective twenty days following the date it is filed with the Secretary of State of the State.
Section 9.2. Contracts in Effect on Effective Date. These Rules shall not change in any way a contract commitment by the Authority nor of a vendor to the Authority which was in existence on the effective date of these Rules.
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