41-2579

41-2579. Procurement of multiple contacts for
certain job-order-contracting construction services and certain
professional services; definition

A. Except as authorized in this section and in sections 41-2535, 41-2536, 41-2537
and 41-2581, a purchasing agency 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. A purchasing agency 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. A purchasing agency 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 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 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 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.

(c) If the purchasing agency 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 purchasing agency 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
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
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 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 a final list withdraws or is removed from the
procurement and the selection committee determines that it is in the best interest of
this 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 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 and
not 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 purchasing agency 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 purchasing agency 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 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 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 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 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 each final list and in determining their order on each final
list.

(d) If the purchasing agency 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 purchasing agency and shall be the sum of
the number of contracts that may or will be awarded and a number that is determined by
the purchasing agency 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 purchasing
agency, 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 purchasing agency 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 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.

3. The director or head of the purchasing agency shall initiate an appropriately
qualified selection committee for each request for qualifications. The director or head
of the 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. The same selection committee shall function as to all of the multiple
contracts included in the procurement. If the purchasing agency is procuring multiple
contracts for professional services, the purchasing agency 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 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
engineer 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 are not entitled to 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 persons 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 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 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 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 awarded under subsection E of this section, before or
at the same time as the purchasing agency notifies the persons or firms on each final
list that they are on that final list, the purchasing agency 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 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 purchasing agency shall award multiple contracts specified in the request
for qualifications 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 or final lists. The negotiations shall include consideration of compensation
and other contract terms that the procurement officer determines to be fair and
reasonable to this state. 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 job-order-contracting construction services to be rendered. If
in a procurement under this section the procurement officer terminates negotiations with
a person or firm on a final list and commences negotiations with another person or firm
on that final list, the procurement officer 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 procurement officer 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 procurement officer shall enter into negotiations
with the highest qualified person or firm on the final list. 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, 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.

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
procurement officer 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 procurement officer is not able to negotiate a
satisfactory contract with a person or firm with whom the procurement officer has
commenced negotiations, the procurement officer shall formally terminate negotiations
with that person or firm. The procurement officer shall then undertake negotiations for
a contract with the next most qualified person or firm on the final list with whom the
procurement officer is not then negotiating and with whom the procurement officer 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 procurement officer 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 procurement officer is not able to negotiate a
satisfactory contract with a person or firm with whom the procurement officer has
commenced negotiations, the procurement officer shall formally terminate negotiations
with that person or firm. The procurement officer shall then undertake negotiations for a
contract with the next most qualified person or firm on the final list with whom the
procurement officer is not then negotiating and with whom the procurement officer 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, the purchasing agency may
award multiple contracts for similar job-order-contracting construction services to be
awarded to separate persons or firms as follows:

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

2. The purchasing agency 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 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 purchasing agency'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 purchasing agency, 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 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 purchasing agency. 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 separately submit 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 purchasing agency 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 purchasing agency notifies the winning
offerors that they have won, the purchasing agency shall give 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 purchasing
agency 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
purchasing agency 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 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 all
submittals of each 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 the entire proposal
submitted by each 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 contract award by a
purchasing agency of all of the multiple contracts in the procurement or termination of
the procurement by the purchasing agency, 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 purchasing agency 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 purchasing agency awards all of the multiple contracts in the
procurement 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 for
all of the multiple contracts in the procurement or the purchasing agency has 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
for all of the contracts in the procurement or the purchasing agency has 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. The purchasing agency 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 purchasing agency determines in its absolute and sole discretion that the action is
in the best interest of this state. The purchasing agency shall make the reasons for
cancellation, rejection or determination not to enter into contracts 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.