34-604

34-604. Procurement of multiple contracts for
certain job-order-contracting construction services and certain
professional services; definition

A. Except for multiple contracts an agent procures pursuant to section 34-103,
section 34-606 or this section, an agent shall not procure in a single procurement
multiple contracts for construction services or professional services. In a procurement
under this section, there is a single procurement process for all of the multiple
contracts included in the procurement. An agent may procure under this section:

1. Multiple contracts for similar job-order-contracting construction services to be
awarded to separate persons or firms.

2. Multiple contracts for professional services to be awarded to separate persons
or firms or to be awarded to a single person or firm as specified in the request for
qualifications.

B. An agent shall provide notice of each procurement under this section and shall
award contracts 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 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 a final
list, in determining the order of preference of persons or firms on a 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 a final list and their order on a 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.

(c) If the agent enters into the number of multiple contracts being procured for
job-order-contracting construction services or professional services, a procurement under
this section ends. After that time the agent may not use the procurement or any existing
final list in the procurement as the basis for entering into a replacement contract with
any other person or firm that participated in the procurement.

(d) 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
job-order-contracting 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 a 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 publication shall include the fact that multiple contracts may or will be
awarded, shall state the number of contracts that may or will be awarded and shall
describe the professional services or job-order-contracting construction services to be
performed under each contract. The request for qualifications shall:

(a) State the following information about the contracts that may or will be
awarded:

(i) If the request for qualifications is for multiple contracts for similar
job-order-contracting construction services to be awarded to separate persons or firms,
that multiple contracts for similar job-order-contracting construction services may or
will be awarded, the number of contracts that may or will be awarded, the services to be
performed under each of the multiple contracts and that each of the multiple contracts
will be awarded to a separate person or firm.

(ii) If the request for qualifications is for multiple contracts for professional
services, that multiple contracts for professional services may or will be awarded, the
number of contracts that may or will be awarded, the services to be performed under each
of the multiple contracts and either that each of the multiple contracts will be awarded
to a separate person or firm or that all of the multiple contracts will be awarded to the
same person or firm.

(b) State as to final lists:

(i) In a procurement of multiple contracts for professional services to be awarded
to a single person or firm, that there will be a single final list of at least three but
no more than five persons or firms.

(ii) In a procurement for multiple contracts for similar job-order-contracting
construction services to be awarded to separate persons or firms or in a procurement for
multiple contracts for similar professional services to be awarded to separate persons or
firms, that there will be a single final list and the number of persons or firms on the
final list, which shall be the sum of the number of contracts that may or will be awarded
and a number that is determined by the agent and that is not more than five.

(iii) In a procurement for multiple contracts for different professional services
to be awarded to separate persons or firms, that there will be a separate final list for
each type of professional services and that the number of persons or firms on each final
list will be the number of contracts that may or will be awarded for each type of
professional services and a number that is determined by the agent and that is not more
than five.

(c) As prescribed below, state the selection criteria and relative weight of the
selection criteria to be used by the selection committee, except that in a procurement
for multiple contracts for job-order-contracting construction services to be awarded to
separate persons or firms 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 pursuant to this subsection shall be factors that
demonstrate competence and qualifications for the type of professional services or
job-order-contracting construction services included in the procurement. If:

(i) Interviews will be held, the request for qualifications shall state the
selection criteria and the 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 each final list and in determining their order on each
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 also shall 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 each final list and in determining their order on each final
list.

(d) If the agent will hold interviews as part of the selection process:

(i) In a procurement of multiple contracts for professional services to be awarded
to the same person or firm, state that interviews will be held and that the interviews
will be with at least three but not more than five persons or firms.

(ii) In a procurement of multiple contracts for similar job-order-contracting
construction services to be awarded to separate persons or firms or in a procurement of
multiple contracts for similar professional services to be awarded to separate persons or
firms, state that interviews will be held and that the interviews will be with a
specified number of persons or firms. The specified number shall be stated in the request
for qualifications, shall be determined by the agent, and shall be the sum of the number
of contracts that may or will be awarded and a number that is determined by the agent and
that is not more than five.

(iii) In a procurement of multiple contracts for different professional services to
be awarded to separate persons or firms, state that interviews will be held and that the
interviews will be with a specified number of persons or firms. The specified number
shall be stated in the request for qualifications, shall be determined by the agent,
shall be at least three times the number of contracts that may or will be awarded and
shall not be more than five times the number of contracts that may or will be awarded.

(e) For procurements of multiple contracts for job-order-contracting construction
services to be awarded to separate persons or firms, 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 job-order-contracting 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.

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. The
same selection committee shall function as to all of the multiple contracts included in
the procurement. If the agent is procuring multiple contracts for professional services,
the agent shall determine the number and qualifications of the selection committee
members. A selection committee for the procurement of multiple contracts for
job-order-contracting construction services shall have not 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 multiple contracts for
job-order-contracting 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
engineer 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 a final list and to
determine their order on a 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 each final list and to determine their order on
each 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 job-order-contracting construction services and the relative
methods of approach for furnishing the required professional services or
job-order-contracting 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 each final list and their order on each final list, the selection committee shall
select the persons or firms for each final list and in the case of a final list or final
lists for multiple contracts that will be negotiated under subsection E of this section,
rank the persons or firms on each final list in order of preference. If the procurement
is for multiple contracts for different professional services to be awarded to separate
persons or firms, there is a separate final list for each type of professional services,
and if a person or firm submitted qualifications for more than one type of professional
services, the person or firm may be on more than one final list.

(c) If the contract will be negotiated under subsection E of this section, before
or at the same time as the agent notifies the persons or firms on each final list that
they are on that final list, the agent shall send actual notice to the following persons
or firms that they are not on that final list:

(i) If interviews were held, the other persons and firms interviewed for that final
list.

(ii) If interviews were not held, the other persons and firms that made submittals
for that final list.

(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 multiple contracts specified in the request for
qualifications as provided in subsection E or F of this section.

E. The agent shall conduct negotiations with persons or firms on the final list or
final lists. 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 job-order-contracting
construction services to be rendered. If in a procurement under this section the agent
terminates negotiations with a person or firm on a final list and commences negotiations
with another person or firm on that final list, the agent shall not in that procurement
recommence negotiations or enter into a contract for the job-order-contracting
construction services or professional services covered by that final list with any person
or firm on that final list with whom the agent has terminated negotiations. If the
procurement is for:

1. Multiple contracts for professional services to be awarded to a single person or
firm, there is one final list and the agent shall enter into negotiations with the
highest qualified person or firm on the final list. 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 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.

2. Multiple contracts for similar job-order-contracting construction services to be
awarded to separate persons or firms or for multiple contracts for similar professional
services to be awarded to separate persons or firms, there is one final list and the
agent shall enter into separate negotiations for contracts with the number of the highest
qualified persons or firms on the final list equal to the number of contracts to be
awarded. If the agent is not able to negotiate a satisfactory contract with a person or
firm with whom the agent has commenced negotiations, the agent shall formally terminate
negotiations with that person or firm. The agent shall then undertake negotiations for a
contract with the next most qualified person or firm on the final list with whom the
agent is not then negotiating and with whom the agent has not previously negotiated in
sequence until an agreement is reached for some or all of the multiple contracts included
in the request for qualifications or a determination is made to reject all persons or
firms on the final list.

3. Multiple contracts for different professional services to be awarded to separate
persons or firms, there is a separate final list for each type of professional services
and the agent shall enter into separate negotiations for contracts with the number of the
highest qualified persons or firms on the final list equal to the number of contracts to
be awarded. If the agent is not able to negotiate a satisfactory contract with a person
or firm with whom the agent has commenced negotiations, the agent shall formally
terminate negotiations with that person or firm. The agent shall then undertake
negotiations for a contract with the next most qualified person or firm on the final list
with whom the agent is not then negotiating and with whom the agent has not previously
negotiated in sequence until an agreement is reached for some or all of the multiple
contracts included in the request for qualifications or a determination is made to reject
all persons or firms on the final list.

F. As an alternative to subsection E of this section, an agent may award multiple
contracts for similar job-order-contracting construction services to be awarded to
separate persons or firms 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 multiple contracts will be awarded to a specified number
of offerors whose proposals receive the highest number of points under a scoring method.
The specified number of offerors will be the number of contracts included in the
procurement.

(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) Offeror qualifications.

(ii) Offeror financial capacity.

(iii) Compliance with the agent's project schedule.

(iv) The price or life cycle price for procurements that include maintenance
services, operations services or finance services.

(v) An offeror quality management plan.

(vi) Other evaluation factors that demonstrate competence and qualifications for
the job-order-contracting construction services in the request for proposals as
determined by the agent, if any.

(d) 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.

(e) 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.

(f) 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 multiple contracts to the responsive and responsible
offerors whose proposals receive the highest scores 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 offerors that they have won,
the agent shall send actual notice to each other offeror either that the offeror has not
won or that other offerors have won.

10. The 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.

G. If the procurement has multiple final lists under subsection C of this section
or multiple requests for proposals under subsection F of this section, the agent shall
retain the items in paragraphs 1 and 2 of this subsection, as applicable, for each final
list and each request for proposals procurement process. At a minimum, the agent shall
retain the following for each procurement under this section:

1. As to each final list under 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 all
submittals of each 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 all
submittals of each 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 the entire proposal
submitted by each 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 contract award by an agent
of all of the multiple contracts in the procurement or termination of the procurement by
the agent, 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 and all other
information received by the agent in response to the request for qualifications under
subsection C of this section or contained in proposals submitted under 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 all of the multiple contracts in the procurement 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 for all of the
multiple contracts in the procurement or the agent has 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 for all of the contracts in the
procurement or the agent has 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 shall 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 one or more of the multiple contracts as specified in the solicitation if the agent
determines in its absolute and sole discretion that such action is in the best interest
of the agent. The agent shall make the reasons for cancellation, rejection or
determination not to enter into contracts 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.