Sec 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.