Title 28 (Authorize ADOT to procure multiple Job Order Contracting contracts in a single procurement)

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1 Changes to Existing Law 2010 Proposal (SB 1406 and Proposed Committee Amendment) -- Alternative Project Delivery Methods (APDM) Legislation February 17, 2010 Title 15 (Repeal requirement for schools to make annual reports of APDM usage). The parallel reporting requirement for other public owners was repealed several years ago. Title 28 (ADOT heavy rail and commuter rail facilities) Add a new requirement for ADOT heavy rail and commuter rail projects that the contractor perform with its own organization not less than 30% of the work. Title 28 (Authorize ADOT to use one-step design build project delivery method) Title 28 (Authorize ADOT to procure multiple Job Order Contracting contracts in a single procurement) Titles 28, 34 and 41 Please note that 2009 ADOT Omnibus Senate Bill 1380, Section 62 (Laws 2009, Chapter 187) authorizes use of price competition as a selection criteria in a construction manager at risk request for qualifications procurement when three conditions are met: o All of the funding for the project is under the Federal American Recovery and Reinvestment Act of o Price competition is required by the funding Federal agency or by Federal law. o The request for qualifications is issued on or before December 31, NOTE: This provision is not codified in Arizona Revised Statutes. The only place it appears is in this law. So, if you may want to use this authority, please make a note of its location. Titles 34 and 41 (Reorganization and clearer wording of APDM provisions to be more user friendly) There have been major and minor changes to the APDM legislation since it was originally adopted in The reorganization and clearer wording make it easier to understand and use. Title 34 ("Horizontal construction") Horizontal construction has had special treatment since the original legislation in o In existing law, "horizontal construction" includes "highways, roads, streets, bridges, canals, floodways, earthen dams and landfills." 1

2 o The dual purposes in existing law provisions on "horizontal construction" are (A) to specify the APDM projects on which the contractor must perform with its own organization construction work that amounts to at least 45% of the contract price for construction, and (B) to specify that authority to use APDM to procure horizontal construction goes away at the sunset date, which is currently 2010 June 30, Please note that 2009 ADOT Omnibus Senate Bill 1320, Section 53 (Laws 2009, Chapter 187) extended APDM for horizontal construction to This provision is codified in A.R.S Section K. o The 2009/2010 bill adds light rail and airport runways, taxiways and aprons to the definition of horizontal construction. The bill specifies a self-performance requirement for light rail of at least 30%. Airport runways, taxiways and aprons fall within the general 45% self-performance requirement. o To assist users in determining when a project is horizontal construction, the 2009/2010 bill adds a provision that when a project includes "horizontal construction" elements and other elements, the project will be horizontal construction if more than 50% of the contract price for the construction is for "horizontal construction". Titles 34 and 41 (Specific authorization for contractor to self-perform part of the work) The intention of industry and public owners in creating the APDM legislation was to give public owners flexibility to make choices unless the law specifically covers a subject. Existing law does not deal with contractor self-performance. Public owners were left free to determine whether a contractor would be permitted to self-perform work and if so, how much and under what conditions. Some people have construed unrelated provisions of existing law to require a contractor to compete with outside subcontractors before the contractor can selfperform work. To correct this situation, the 2009 bill specifically authorizes contractor self-performed work, states that at the election of the public owner a competition with subcontractors is permitted but is not required and specifies some additional conditions on this subject. Titles 34 and 41 ( Bundling of projects in a single procurement) In order to promote competition, since 2000 the APDM legislation has contained a provision to limit how much work a public owner can " bundle into a single contract for construction manager at risk (CMAR) and design build (DB) construction services. The APDM legislation has permitted bundling of work at a single location, a common location or, if for a similar purpose, at multiple locations. Over the years, some public owners have construed the language relating to multiple locations very broadly, putting too much work together in a single contract and giving it to one contactor when it should have been split into separate contracts which other contractors might compete for and win. So, the 2009 bill will add two new requirements for bundling CMAR or DB work at multiple locations. 2

3 o When issuing the request for qualifications, the public owner must intend to start all construction at each location within 30 months. o The public owner must include certain specified information about the work at each location in its request for qualifications. Titles 34 and 41 (Eliminate authority for construction manager at risk and design build multiple contracts in a single procurement. Retain certain job order contracting and professional services multiple contracts in a single procurement.) This construction manager at risk and design build authority was used infrequently. Eliminating this authority removes a significant amount of complexity from the multiple contracts provisions, which are already very complex. Titles 34 and 41 (Strengthen no bid shopping ): When the APDM legislation was adopted in 2000 public owners and industry agreed that public owners would not engage in "bid shopping". The purpose of the two items in the bill is to strengthen the existing provision and prohibit a practice used by some public owners. o State with greater clarity the existing requirement that in a one-step competition once a public owner terminates negotiations with a person or firm on the final list and commences negotiations with another person or firm on the final list, the public owner may not go back to the previous person or firm. o Add a provision that in conducting a procurement when a public owner signs a contract with one person or firm, the procurement is over. Even if the arrangement with the first person or firm does not work out, the public owner is not permitted to go back to another person or firm on the final list in that procurement. Titles 34 and 41 (Adding language to eliminate questions about phasing projects): The original APDM legislation in 2000 authorized a public owner to do a construction project in phases, that is, complete design of part of the project, enter into a GMP for that part of the project and have the contractor construct that part of the project. During the same time the owner, design professional and contractor are working to complete the design on the remainder of the project. Someone questioned this practice. So, language is added to make authority to do phasing extremely clear. Titles 34 and 41 (Adding specificity to existing selection criteria requirements): The bill restates with more specificity the requirements in existing law that the public owner state in its RFQ its selection criteria and that the selection committee use the published criteria in making its selection. Titles 34 and 41 (Notification, record keeping and disclosure of procurement process documentation): The bill: o Adds a requirement that the public owner notify the losing competitors of the results of the competition. o Adds specific public owner record keeping requirements. 3

4 o Adds specific requirements for public owner disclosure of the required records. NOTE: Please see Appendix A for a description of the last two requirements. Titles 34 and 41 (At least one public entity employee or public entity representative on each selection committee) Titles 34 and 41 (In a competition for a single contract, change the number of people on the final list to a number from 3 to 5. Previously the number on the final list was fixed at 3.) Titles 34 only (Definition of "construction"): A very technical change. Change the Title 34 definition of "construction" by deleting the existing carve-out of demolition projects costing less than $200,000. Title 34 only (Additional clarity to special taxing districts authority to use APDM). This addition is primarily for the benefit of the Title 48 special taxing districts that fit within the definition of agent in Title 34. We are advised that agent includes the vast majority of Title 48 special taxing districts. o Adding a phrase to the first sentence of A.R.S. Section This section authorizes an agent to use APDM. As changed, the beginning of this sentence would read NOTWITHSTANDING TITLE 48 OR ANY OTHER LAW, an agent may procure design services, construction and construction services * * * Timing of Public Owner Conformance With Changes The bill will require ADOT, cities counties and towns, the State of Arizona, school districts, Arizona Board of Regents and any other public owner which uses an APDM procurement process that is derived from the Title 28, 34 or 41 APDM provisions to comply with the new requirements in the bill for each procurement initiated after the effective date of the bill. Titles 28, 34, 41 and 48 (Changes to other sections to conform cross references to the new section numbers) 4

5 APPENDIX A SUMMARY OF NEW RECORD KEEPING AND DISCLOSURE REQUIREMENTS Summary of New Record Keeping Requirements At a minimum a public owner must keep the following documentation as to each construction services or professional services procurement: For a one-step competition or the first step in a two step competition, if interviews are NOT held: o The submittal of the winning person or firm and, if different, the submittal of the person or firm with which the public owner enters into a contract or in the case of a multiple contracts competition the submittals of all persons or firms with which the public entity contracts. o The final list. o A list the selection criteria and relative weights used in selecting persons or firms for the final list and in determining their priority on the final list. o A list that contains the name of each person or firm that submitted qualifications and shows the person s or firm s final overall rank or score. o A document showing for each person or firm that submitted qualifications its score or rank on each criteria for selection of the final list, which at the election of the agent may be a consolidated scoring sheet. For a one-step competition or the first step in a two step competition, if interviews are held: o All submittals of the winning person or firm and, if different, all submittals of the person or firm with which the public owner enters into a contract or in the case of a multiple contracts competition the submittals of all persons or firms with which the public entity contracts. o The final list. o A list of the selection criteria and relative weights used in selecting persons or firms for the final list and in determining their priority on the final list. o A list that contains the name of each person or firm interviewed and shows the person s or firm s final overall rank or score. o A document showing for each person or firm interviewed its final score or rank on each criteria for selection of the final list. o A list of the selection criteria and relative weights used in selecting persons or firms to be interviewed. o A list that contains the name of each person or firm that submitted qualifications and shows the person s or firm s final overall rank or score in the selection of persons or firms to be interviewed. 5

6 A document showing for each person or firm that submitted qualifications its final score or rank on each selection criteria in the selection of persons or firms to be interviewed, which at the election of the agent may be a consolidated scoring sheet. For step two in a two step competition: o The entire proposal submitted by the person or firm that receives the highest score in the scoring method in the request for proposals issued in the second step competition and, if different, the entire proposal submitted by the person or firm with which the public owner enters into a contract or in the case of a multiple contracts competition the entire proposals of all persons or firms with which the public entity contracts. o 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. o A list that contains the name of each person or firm submitting a proposal and shows the person s or firm s final overall score. o A document showing for each person or firm that submitted a proposal its final score for each factor in the scoring method included in the request for proposals, which at the election of the agent may be a consolidated scoring sheet.. Summary of the Disclosure Requirements (Existing and New are Integrated) Until contract award or termination of the procurement, only the name of each person or firm on the one-step or step-one final list is available to the public. After contract award or termination of the procurement, the public owner must make available to the public at a minimum all information required to be retained as described above, with two exceptions. The first exception is the proposals in a two-step competition. The second exception is the document committee member documents showing each person or firm and its final score or rank on each selection criteria, which at the election of the agent may be a consolidated scoring sheet.. In a two-step competition after a contract is entered into, the public owner must make available to the public the proposals it is required to retain as described above. The various documents showing each person or firm and its final score or rank on each selection criteria are available only available only by making a request under the Arizona public records law. 6