Transportation, Operations, Construction

Rule R916-4

Construction Manager/General Contractor Contracts

Notice of Proposed Rule

(Amendment)

DAR File No.: 35135
Filed: 08/11/2011 11:59:18 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to make various stylistic and grammatical changes, to clarify selection of the evaluation team, and to remove reference to "guaranteed maximum price" so contractors will not have to include the price of the risk associated with a "guaranteed maximum price" in their bids.

Summary of the rule or change:

This amendment makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price" so contractors will not have to include the price of the risk associated with a "guaranteed maximum price" in their bids.

State statutory or constitutional authorization for this rule:

• Section 72-1-201
• Section 63G-6-207
• Section 63G-6-501
• Section 72-6-105
• Section 72-2-206

Anticipated cost or savings to:

the state budget:

Removing the requirement of a "guaranteed maximum price" will result in savings in the costs of transportation projects because contractors will not have to include the costs of that risk in their bids.

local governments:

There is no anticipated cost or savings to local government because the amendment only makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price."

small businesses:

There is no anticipated cost or savings to small businesses because the amendment only makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price."

persons other than small businesses, businesses, or local governmental entities:

There is no anticipated cost or savings to persons other than small businesses, businesses, or local government entities because the amendment only makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price."

Compliance costs for affected persons:

There are no anticipated compliance costs for affected persons because the amendment only makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price."

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact on businesses because the amendment only makes various stylistic and grammatical changes, clarifies selection of the evaluation team, and removes reference to "guaranteed maximum price."

John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Operations, Construction
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Linda Barrow at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at lindabarrow@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/03/2011

This rule may become effective on:

10/10/2011

Authorized by:

John Njord, Executive Director

R916. Transportation, Operations, Construction.

R916-4. Construction Manager/General Contractor Contracts.

R916-4-1. Purpose.

(1) Pursuant to [Utah Code Ann.] Section 63G-6-207, this rule establishes the Department's [ability]procedures to procure transportation construction under the Construction Manager/General Contractor (CM/GC) approach authorized in [Utah Code Ann.] Section 63G-6-50[2]1. CM/GC seeks to provide: a savings of time, and cost; improved quality expectations as to the end product, schedule, and budget; and risk management savings [due to]through lack of duplication of expenses, and through early ,[and] continuous and coordinat[ion]ed [of] efforts.

 

R916-4-2. Authority.

(1) T[he provisions of t]his rule [are]is authorized by [the following] grants of rulemaking authority [and provisions of Utah Code:]in Title 63G, Chapter 6 , Utah Procurement Code; Title 63G, Chapter 3 , Utah Administrative Rulemaking Act; and Sections 72-1-201, 72-[5-114]2-206, and 72-6-105.

 

R916-4-3. Policy.

(1) When the Executive Director or designee determines it appropriate, Department may use CM/G[A]C method of project delivery. CM/GC is not recommended for every project[;], therefore, the decision to use the method must take into account the [individual specific needs of the project]factors listed in Subsection 63G-6-501(1)(c).

 

R916-4-4. Request for Proposals (RFP).

(1) The Department will issue a request for proposals (RFP) from interested contractors.

(2) The RFP may require separate technical and price proposals, meeting requirements as stated in the RFP.

(3) The RFP may require a minimum mandatory technical level.

 

R916-4-5. Evaluation Team.

(1) The Department may establish a team for evaluating the technical proposals consisting of not more than 7 people.

(2) [At least o]One member of the team may be a registered professional engineer , selected based on recommendation from the ACEC; and

(3) [At least o]One member may be a senior management employee of a licensed contractor , selected based on recommendation from the AGC.

 

R916-4-6. Evaluation of Proposals and Discussions with Proposers.

(1) The Department shall evaluate proposals, in accordance with the evaluation factors set forth in the RFP.

(2) As part of the qualifications specified in the RFP, the Department may require that potential contractors at least demonstrate their:

(a) construction experience in similar projects;

(b) financial, manpower and equipment resources available for the project;

(c) experience in other negotiated contracts; and

(d) preconstruction or design support experience.

(3) The Department may require that potential contractors participate in formal interviews as part of the selection process.

 

R916-4-7. Acceptable Bid Security; Performance and Payment Bonds.

(1) The Executive Director or designee shall have the right to waive the requirement to provide bid security, or may reduce the amount of such security, if he or she determines that the bid security otherwise required by Utah Code Ann. Sections 63G-6-504 through 507 to be unnecessary to protect the State.

(2) The Executive Director or designee may reduce the amount of the payment and performance bonds below the 100% level required by [Utah Code Ann.] Sections 63G-6-50[1]4 through 507, if he or she determines that a 100% bond is unnecessary to protect the State.

(3) Bid security, payment bonds and performance bonds must be provided on the forms included in the RFP.

 

R916-4-8. Required Contract Clauses.

The CM/GC contract documents shall include the contract clauses set forth in Utah Administrative Code R23-1-7, subject to such modifications as the Executive Director or designee believes appropriate. Any modifications shall be supported by a written determination of the Executive Director or designee that describes the circumstances justifying the variations, and notice of any material variation shall be included in the RFP.

 

R916-4-9. Selection.

The basis for selection shall be stated in the RFP. Selection may be based on any of the following approaches.

(1) By the responsible proposer offering the lowest priced responsive proposal. If the RFP includes a mandatory technical level, no proposal shall be considered responsive unless it meets that level; or

(2) By the responsible proposer whose proposal is evaluated as providing the best value to Department.

 

R916-4-10. Award of Contract.

(1) The Contract will be awarded in two phases. The first is for preconstruction or design services, which may include value engineering, cost estimating, conceptual estimating, constructability reviews, scheduling, and Maintenance of Traffic plans.

(2) The second phase is for construction services. The second phase will be awarded after the plans have been sufficiently developed and a [Guaranteed Maximum P]price for construction services has been successfully [negotiated]validated. In the event that a [Guaranteed Maximum P]price is not [negotiated]validated, the Department will not award construction phase of the contract.

(3) In order to accelerate completion, incremental construction phases may be awarded after [Guaranteed Maximum P]prices are [negotiated]validated for each phase.

(4) The Department is not required to ever award a contract. Following award, however, a contract shall be executed and notice given to the successful CM/GC proposer to proceed with the work.

 

KEY: transportation, highways, contracts, construction

Date of Enactment or Last Substantive Amendment: [June 27, 2005]2011

Notice of Continuation: March 11, 2010

Authorizing, and Implemented or Interpreted Law: 63G-6-502; 63G-6-207; 72-1-201