DAR File No. 39101

Transportation, Operations, Construction

Rule R916-4

Construction Manager/General Contractor Contracts

Notice of Proposed Rule

(Amendment)

DAR File No.: 39101
Filed: 01/30/2015 11:53:07 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendment is needed to update citations to the Utah Procurement Code, which was recently amended, and to improve procedures the Department of Transportation follows when procuring construction projects using Construction Manager/General Contractor contracting.

Summary of the rule or change:

This amendment to Rule R916-4 updates citations to the amended Utah Procurement Code, clarifies text in certain subsections of the rule, and makes technical and stylistic changes.

State statutory or constitutional authorization for this rule:

• Subsection 63G-6a-106(3)(a)
• Section 72-2-206

Anticipated cost or savings to:

the state budget:

The Department of Transportation anticipates savings to the state budget through a reduction in the numbers of protests filed by disappointed prospective contractors due to confusion about the process the Department follows when using the Construction Manager/General Contractor contracting method.

local governments:

Because this amendment to Rule R916-4 does not require any action by, or provide any direct benefits for local government, the department does not anticipate the amendment will trigger any costs to or savings by local government.

small businesses:

Because this amendment to Rule R916-4 does not require any action by, or provide any direct benefits for small businesses, the department does not anticipate the amendment will trigger any costs to or savings by small businesses.

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

Because this amendment to Rule R916-4 does not require any action by, or provide any direct benefits for persons other than small businesses, businesses, or local government entities, the department does not anticipate the amendment will trigger any costs to or savings by persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Because the department is making this amendment to Rule R916-4 to update citations, clarify text, and improve contracting procedures, the department does not anticipate the amendment will trigger any additional costs for affected persons.

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

These changes to Rule R916-4 are needed to reflect changes caused by amendments to related Utah Procurement Code sections, and to align the rule with current industry practices. The changes should also reduce the likelihood that prospective contractors will protest contract awards due to confusion caused by an outdated rule.

Carlos Braceras, 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:

• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at jimpalmer@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:

03/18/2015

This rule may become effective on:

03/26/2015

Authorized by:

Carlos Braceras, Executive Director

R916. Transportation, Operations, Construction.

R916-4. Construction Manager/General Contractor Contracts.

R916-4-1. Purpose.

(1) Pursuant to Utah Code Section 63G[-6-207,]-6a-106(3)(a), this rule establishes the Department's procedures to procure transportation construction under the Construction Manager/General Contractor (CM/GC) approach authorized in Utah Code Section 63G-[6-501.]6a-1302. CM/GC contracting seeks to provide[: ] a collaborative project delivery method which may result in: A savings of time[,] and cost; improved quality expectations as to the end product, schedule, and budget; and risk management savings through lack of duplication of expenses, and through early, continuous and coordinated efforts.

 

R916-4-2. Authority.

(1) This rule is authorized by grants of rulemaking authority in [Title 63G, Chapter 6,]Sections 63G-6a-106(3)(a) and 63G-6a-1302 of the Utah Procurement Code; Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and Sections 72-1-201(h), 72-2-206, and 72-6-105 of the Utah Transportation Code.

 

R916-4-3. Policy.

(1) When the Executive Director or designee determines it appropriate, Department may use CM/GC method of project delivery. CM/GC is not recommended for every project, therefore, the decision to use the method must take into account the factors listed in Utah Code Subsection 63G-[6-501(1)(c)]6a-1302(3).

 

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]shall establish a team for evaluating the technical proposals consisting of [not more]no fewer than [7 people]5 members.

(2) One member of the team may be [a registered professional engineer]an employee of a consulting engineering firm, selected based on recommendation from the American Council of Engineering Companies of Utah (ACEC[;]); and

(3) One member may be [a senior management]an employee of a licensed contractor, selected based on recommendation from the Utah Chapter of the Association of General Contractors (AGC[.]).

 

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

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

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

(a) [c]Construction experience [in]with similar projects;

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

(c) experience [in]with other negotiated contracts; and

(d) preconstruction or design support experience.

(3) The Department may require [that ]potential contractors to 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]authority 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 Part 11 of the Utah Procurement 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 [Sections 63G-6-504 through 507]Part 11 of the Utah Procurement Code, 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 Rule R23-1-[7]60, 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[.];

(3) By the responsible proposer whose proposal is evaluated as representing the most qualified proposer; or

(4) Other approaches as determined by the Executive Director or designee, which satisfy the requirements of the Utah Procurement Code.

 

R916-4-10. Award of Contracts.

(1) The [Contract will be awarded in]CM/GC approach consists of the following two contract phases[. The first is for preconstruction]:

(a) 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](b) Construction services[. The second phase], which will be awarded after the plans have been sufficiently developed and a price for construction services has been successfully validated[.]and accepted. In the event that a price is not validated and accepted, the Department [will]shall not award the construction phase of the contract. Incremental construction contracts may be awarded after prices are validated and accepted for each contract.

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

] ([4]2) The Department [is]shall not be required to [ever ]award a contract[. Following award, however, a ] during either of the contract phases. However, following an award, the Department shall [be executed and]provide notice [given]of the award to the successful CM/GC proposer followed by a notice to proceed with the work.

 

KEY: transportation, highways, contracts, construction

Date of Enactment or Last Substantive Amendment: [October 11, 2011]2015

Notice of Continuation: March 11, 2010

Authorizing, and Implemented or Interpreted Law: 63G-[6-502]6a-1302; 63G-[6-207;]6a-106(3)(a); 72-1-201