41-2578

41-2578. Procurement of specified professional
and construction services; definition

A. Except as authorized by sections 41-2535, 41-2536, 41-2537 and 41-2581, a single
contract for architect services, assayer services, construction-manager-at-risk
construction services, design-build construction services, engineer services,
job-order-contracting construction services, geologist services, landscape architect
services and land surveying services shall be procured as provided in this section.

B. This state shall provide notice, in accordance with rules, of each procurement
of a single contract for 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
procedures prescribed in this section.

C. In the procurement of a single contract for professional services or
construction services pursuant to this section:

1. The following requirements apply:

(a) The purchasing agency 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 purchasing agency 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, a purchasing agency 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, a purchasing agency 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, a purchasing agency 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 purchasing agency
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 purchasing agency 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 purchasing agency 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
purchasing agency, as the purchasing agency determines necessary or appropriate, 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 purchasing agency 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 director may elect to
proceed with the procurement with only one person or firm if the director 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
state, 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. The purchasing agency shall issue a request for qualifications for each
procurement and give adequate public notice of the request for qualifications in the same
manner as provided in section 41-2533. 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 purchasing agency'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 also shall state whether the purchasing
agency 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 purchasing agency'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 purchasing agency 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
and no 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 purchasing agency 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 purchasing agency's subcontractor selection plan.

(f) Include a description of the publicly available location of the purchasing
agency's protest policy and procedures or, if the purchasing agency 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 purchasing agency'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. The director or head of a purchasing agency shall initiate an appropriately
qualified selection committee for each request for qualifications in accordance with
rules adopted by the director. The director or head of a purchasing agency shall ensure
that the selection committee members are competent to serve on the selection committee.
Each selection committee must include one employee of the purchasing agency or a
purchasing agency representative appointed by the purchasing agency. If procuring
professional services, the purchasing agency 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 and 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 purchasing agency or outside consultants.
Outside contractors, architects and engineers serving on a selection committee shall not
receive compensation from the purchasing agency for performing this service, but the
purchasing agency 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 purchasing agency shall do the following:

(a) If interviews are specified in the request for qualifications:

(i) The selection committee shall determine the person or firms to be interviewed
by evaluating the statements of qualifications and performance data that are submitted in
response to the purchasing agency'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 purchasing agency 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 at least three but not
more than five persons or firms as specified 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 three 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 purchasing agency notifies the highest ranking person or firm
on the final list that it is the highest ranking person or firm, the purchasing agency
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 purchasing agency notifies the persons or firms on the final list
that they are on the final list, the purchasing agency 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. The director shall award the single contract under the procurement as provided
in subsection E or F of this section.

E. The procurement officer 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 procurement officer determines to be fair and reasonable to the
procurement officer. In making this decision, the procurement officer 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 procurement officer shall enter into negotiations with the highest qualified
person or firm on the final list.

4. If the procurement officer 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 procurement officer determines to be fair and reasonable to this
state, the procurement officer shall formally terminate negotiations with that person or
firm. The procurement officer 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 procurement officer terminates
negotiations with a person or firm on the final list and commences negotiations with
another person or firm on the final list, the procurement officer 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 procurement officer has terminated negotiations.

F. As an alternative to subsection E of this section, the procurement officer may
award a single contract for design-build construction services or job-order-contracting
construction services as follows:

1. The procurement officer shall use the selection committee appointed for the
request for qualifications pursuant to subsection C of this section.

2. The procurement officer 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 purchasing agency'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 person or firm 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 purchasing agency's project schedule.

(v) For design-build construction services only, if the request for proposals
specifies that the purchasing agency 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 purchasing agency'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
purchasing agency, 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 purchasing agency 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 purchasing agency determines to conduct discussions pursuant to paragraph
5 of this subsection, each offeror shall submit a preliminary technical proposal to the
purchasing agency before those discussions are held.

5. If determined by the purchasing agency and included by the purchasing agency 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 its 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 procurement officer 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 purchasing agency notifies the winning
offeror that it has won, the purchasing agency 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 procurement officer shall award
a stipulated fee equal to a percentage, as prescribed in the request for proposals, of
the purchasing agency'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 procurement officer does not award a
contract, all responsive final list offerors shall receive the stipulated fee based on
the purchasing agency's project final budget for design and construction as included in
the request for proposals. The procurement officer 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 procurement
officer 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 purchasing agency
may not use ideas and information contained in the offeror's proposal, except that this
restriction does not prevent the purchasing agency 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 purchasing agency 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 purchasing agency 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 purchasing agency, 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 purchasing agency.

(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 purchasing agency 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 purchasing agency, 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 purchasing
agency.

(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 purchasing agency, 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 purchasing agency.

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 purchasing agency 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 purchasing agency, 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 purchasing agency.

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 purchasing agency
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 purchasing agency 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 purchasing agency awards the contract or terminates the procurement,
the purchasing agency shall make available to the public pursuant to title 39, chapter 1,
article 2 at a minimum all of the items that the purchasing agency 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 purchasing agency has entered into a contract or
terminated the procurement. At a minimum the proposals submitted under subsection F of
this section that the purchasing agency is required to retain under subsection G of this
section shall be made available to the public after the purchasing agency has entered
into a contract or terminated the procurement.

4. To the extent that the offeror designates and the purchasing agency 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. A purchasing agency may cancel a request for qualifications or a request for
proposals, reject in whole or in part any or all submissions of qualifications or
proposals or determine not to enter into a contract as specified in the solicitation if
it is in the best interest of the purchasing agency. The purchasing agency shall make the
reasons for cancellation, rejection or determination not to enter into a contract part of
the contract file.

J. If the purchasing agency does not have a procurement protest policy and
procedures that have been formally adopted and published by the purchasing agency, for
protests relating to procurements under this section the purchasing agency shall follow
the procurement protest policy and procedures of the department. The purchasing agency
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.