34-605

34-605. Requirements applicable to construction
services and professional services and to contracts for
construction services and professional services; definition

A. The requirements prescribed in this section apply to each contract entered into
as the result of a procurement under section 34-603, 34-604 or 34-606 and to the
professional services and construction services included in each procurement under
section 34-603, 34-604 or 34-606.

B. If a procurement under section 34-603 is for construction-manager-at-risk
construction services or design-build construction services to be contracted pursuant to
section 34-603, subsection E or if a procurement under section 34-606 is for
construction-manager-at-risk construction services or design-build construction services,
the agent shall enter into a written contract with the contractor for preconstruction
services under which the agent shall pay the contractor a fee for preconstruction
services in an amount agreed by the agent and the contractor, and the agent shall not
request or obtain a fixed price or a guaranteed maximum price for the construction from
the contractor or enter into a construction contract with the contractor until after the
agent has entered into the written contract for preconstruction services and a
preconstruction services fee.

C. If a contract for construction services is entered into as the result of a
procurement under section 34-603, 34-604 or 34-606, construction shall not commence until
the agent and contractor agree in writing on either a fixed price that the agent will pay
for the construction to be commenced or a guaranteed maximum price for the construction
to be commenced. The construction to be commenced may be the entire project or may be one
or more phased parts of the project.

D. A contract for professional services entered into as the result of a procurement
under section 34-603, 34-604 or 34-606 shall have a term not exceeding five years after
the date of contract award by the agent of the first contract under the procurement,
except that the contract may continue in effect after the five year term for professional
services on projects on which the rendering of professional services commences within the
five year term.

E. Notwithstanding any other law:

1. The contractor for design-build or job-order-contracting construction services
is not required to be registered to perform design services pursuant to title 32, chapter
1 if the person or firm actually performing the design services on behalf of the
contractor is appropriately registered.

2. The contractor for construction-manager-at-risk, design-build or
job-order-contracting construction services shall be licensed to perform construction
pursuant to title 32, chapter 10.

F. For job-order-contracting construction services only:

1. The maximum dollar amount of an individual job order shall be one million
dollars or such higher or lower amount prescribed by the agent in an action noticed
pursuant to title 38, chapter 3, article 3.1 or a rule adopted by the agent as the
maximum amount of an individual job order. Requirements shall not be artificially divided
or fragmented in order to constitute a job order that satisfies this requirement.

2. If the contractor subcontracts or intends to subcontract part or all of the work
under a job order and if the job-order-contracting construction services contract
includes descriptions of standard individual tasks, standard unit prices for standard
individual tasks and pricing of job orders based on the number of units of standard
individual tasks in the job order:

(a) The contractor has a duty to deliver promptly to each subcontractor invited to
bid a coefficient to the contractor to do all or part of the work under one or more job
orders:

(i) A copy of the descriptions of all standard individual tasks on which the
subcontractor is invited to bid.

(ii) A copy of the standard unit prices for the individual tasks on which the
subcontractor is invited to bid.

(b) If not previously delivered to the subcontractor, the contractor has a duty to
deliver promptly the following to each subcontractor invited to or that has agreed to do
any of the work included in any job order:

(i) A copy of the description of each standard individual task that is included in
the job order and that the subcontractor is invited to perform.

(ii) The number of units of each standard individual task that is included in the
job order and that the subcontractor is invited to perform.

(iii) The standard unit price for each standard individual task that is included in
the job order and that the subcontractor is invited to perform.

G. The following apply to horizontal construction:

1. Notwithstanding this chapter, an agent shall not procure any horizontal
construction using the construction-manager-at-risk, design-build or
job-order-contracting method of project delivery after June 30, 2020. For purposes of
this paragraph, an agent procures horizontal construction when the contract for the
construction services is executed by the agent and the contractor for the
construction-manager-at-risk, design-build or job-order-contracting construction
services. If a contract is executed for construction services on or before June 30, 2020,
construction services under the contract may be rendered in whole or in part after June
30, 2020.

2. For each horizontal construction project under a design-build or
construction-manager-at-risk construction services contract, the licensed contractor
performing the contract shall perform, with the contractor's own organization,
construction work that amounts to not less than forty-five per cent of the total contract
price for the construction, except that for light rail the self-performance percentage
shall be not less than thirty per cent.

3. A project is horizontal construction if more than one-half of the total contract
price for the construction is for horizontal construction. Project elements shall not be
artificially added in order to make a project not horizontal construction and shall not
be artificially deleted in order to make a project horizontal construction.

4. The total contract price for the construction does not include the cost of
preconstruction services, design services or any other related services or the cost to
procure any right-of-way or other cost of condemnation.

H. Notwithstanding any contrary provision of this section or this title, an agent
shall not:

1. Enter into a contract as contractor to provide construction-manager-at-risk
construction services, design-build construction services or job-order-contracting
construction services.

2. Contract with itself, with another agent, with this state or with any other
governmental unit of this state or the federal government for the agent to provide
construction-manager-at-risk construction services, design-build construction services or
job-order-contracting construction services.

I. The prohibitions prescribed in subsection H of this section do not prohibit an
agent from providing construction for itself as provided by law.

J. The agent shall include in each contract for construction services the full
street or physical address of each separate location at which the construction will be
performed and a requirement that the contractor and each subcontractor at any level
include in each of its subcontracts the same address information. The contractor and
each subcontractor at any level shall include in each subcontract the full street or
physical address of each separate location at which construction work will be performed.

K. The following provisions apply to all construction services procured under this
chapter:

1. The contractor performing the construction services is permitted to self-perform
part of the construction work if and to the extent agreed in writing by the agent and the
contractor. The agent may use methods other than competitive bidding to assure itself
that the price the agent pays to the contractor for self-performed work is fair and
reasonable. Permitted methods to evaluate fairness and reasonableness of the price of
self-performed work include evaluation of the contractor's proposed scope of work and
price for self-performed work by an estimator who is hired and paid by the agent, who is
independent of the contractor and who may be an employee of the agent. Although the agent
may elect to so require, nothing in this chapter, this title or any other law shall be
construed or interpreted to require the agent to require a contractor desiring to
self-perform part of the construction work to competitively bid that part of the
construction work against other contractors in a bid competition.

2. The following requirements apply to the construction work to be performed by
subcontractors and do not apply to construction work that the agent and the contractor
agree in writing will be self-performed by the contractor:

(a) The person or firm selected to perform the construction services shall select
subcontractors based on qualifications alone or on a combination of qualifications and
price and shall not select subcontractors based on price alone. A qualifications and
price selection may be a single-step selection based on a combination of qualifications
and price or a two-step selection. In a two-step selection, the first step shall be
based on qualifications alone and the second step may be based on a combination of
qualifications and price or on price alone.

(b) The agent shall include in each contract:

(i) If the agent included its subcontractor selection plan in the request for
qualifications, the agent's subcontractor selection plan and the procedures to implement
the agent's subcontractor selection plan proposed by the selected person or firm in
submitting its qualifications with those modifications to the procedures as the agent and
the selected person or firm agree.

(ii) If the agent did not include its subcontractor selection plan in the request
for qualifications, the subcontractor selection plan proposed by the selected person or
firm in submitting its qualifications with those modifications as the agent and the
selected person or firm agree.

(c) In making the selection of subcontractors, the person or firm selected to
perform the construction services shall use the subcontractor selection plan and any
procedures included in its contract.

L. 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 chapter 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. If the agent does have a procurement protest policy and
procedures that have been formally adopted and published by the agent, the agent may
choose to make information relating to each procurement available earlier than required
under section 34-603, subsection H and section 34-604, subsection H if the agent
determines the release of the information is necessary to adequately follow and manage
its procurement protest policy and procedures.

M. 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.