34-603

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.

(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, 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) 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 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 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 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 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 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 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 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 of this section or contained in proposals
submitted pursuant to subsection F 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 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 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 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. 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.