Bill Text For SB0698 - Senate Floor Version

 1|                        SENATE FLOOR VERSION                           |
  |                          February 28, 2019                            |
 2|                             AS AMENDED                                |
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 3|SENATE BILL NO. 698                  By: Dugger of the Senate          |
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 4|                                         and                           |
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 5|                                         West (Kevin) of the House     |
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 8|       [ public buildings and public works - Public                    |
  |       Facilities Act - at-risk construction management -              |
 9|       effective date ]                                                |
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12|BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:                  |
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13|    SECTION 1.     AMENDATORY     61 O.S. 2011, Section 202.1, as      |
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14|last amended by Section 8, Chapter 302, O.S.L. 2013 (61 O.S. Supp.     |
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15|2018, Section 202.1), is amended to read as follows:                   |
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16|    Section 202.1.  A.  The design-build and construction management   |
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17|project delivery methods shall not be used without the written         |
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18|approval of the Director of the Office of Management and Enterprise    |
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19|Services, or the Director's designee, when those projects are          |
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20|constructed for a state agency or by an act of the Legislature         |
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21|specifying design-build or at-risk construction management for a       |
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22|project.  In all instances where the design-build project or at-risk   |
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23|construction management delivery method is authorized, construction    |
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24|administration shall be performed by the State Facilities Director,    |
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arsid7151755 SENATE FLOOR VERSION - SB698 SFLR                     Page 1
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 1|the SFD's designee or designees, or otherwise by contract or           |
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 2|contract provision approved by the Director of the Office of           |
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 3|Management and Enterprise Services for construction administration     |
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 4|by another party.                                                      |
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 5|    B.  Municipalities, counties, public trusts, or any other          |
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 6|political subdivision in this state shall not be required to get       |
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 7|approval of any other state agency in order to use agency              |
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 8|construction management or at-risk construction management as a        |
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 9|construction delivery method.  However, municipalities, counties,      |
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10|public trusts, and any other political subdivision shall be subject    |
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11|to Section 220 of this title.                                          |
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12|    C.  The design-build and construction management project           |
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13|delivery methods shall not be used for any project unless the          |
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14|project meets the criteria established by the administrative rules     |
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15|promulgated as required by this act the Public Facilities Act.  Such   |
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16|methods shall not be used unless there is a need for compressed        |
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17|construction time as required to respond to a natural disaster or      |
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18|other emergency situation affecting public health and safety, or all   |
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19|of the following criteria for designation are met:                     |
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20|    1.  The project benefits the public; and                           |
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21|    2.  There is a need for cost control; and                          |
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22|    3.  The need exists for specialized or complex construction        |
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23|methods due to the unique nature of the project.                       |
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 1|    D.  The use of design-build and construction management project    |
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 2|delivery methods shall not interfere or inhibit the opportunity for    |
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 3|subcontractors to openly and freely compete for subcontracts           |
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 4|pursuant to the Public Competitive Bidding Act of 1974 with respect    |
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 5|to public notices.                                                     |
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 6|    E.  The provisions of subsections A and B of this section shall    |
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 7|not apply to projects by contract pursuant to an interagency           |
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 8|agreement under Section 581 of Title 74 of the Oklahoma Statutes or    |
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 9|to projects a state agency performs solely with the staff of the       |
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10|agency.                                                                |
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11|    F.  The Office of Management and Enterprise Services shall,        |
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12|pursuant to the Administrative Procedures Act, promulgate rules to     |
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13|effect procedures, processes and design-build/construction             |
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14|management fee guidelines necessary to the fulfillment of its          |
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15|responsibilities under this section.                                   |
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16|    G.  As used in the Public Facilities Act, public trusts shall      |
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17|not include state beneficiary public trusts.                           |
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18|    SECTION 2.     AMENDATORY     61 O.S. 2011, Section 220, as last   |
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19|amended by Section 18, Chapter 302, O.S.L. 2013 (61 O.S. Supp. 2018,   |
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20|Section 220), is amended to read as follows:                           |
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21|    Section 220.  A.  Any political subdivision or board of            |
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22|education of a school district may use construction management as a    |
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23|project delivery method for the building, altering, repairing,         |
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24|improving, maintaining or demolishing any structure or appurtenance    |
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arsid7151755 SENATE FLOOR VERSION - SB698 SFLR                     Page 3
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 1|thereto, or any other improvement to real property owned by that       |
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 2|political subdivision or school district.  For purposes of this        |
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 3|section "construction management" shall be defined as set forth in     |
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 4|Section 202 of this title and shall include both agency construction   |
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 5|management and at-risk construction management.                        |
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 6|    B.  A political subdivision or school district shall select a      |
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 7|construction manager based on the professional qualifications and      |
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 8|technical experience of the construction manager.  Selection           |
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 9|criteria shall include the experience of the candidate, past           |
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10|performance, and certification of the company or individuals within    |
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11|the company of their knowledge of recognized standards of              |
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12|construction, construction management and project management           |
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13|Following the Request for Qualifications in accordance with the        |
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14|Public Competitive Bidding Act of 1974, those firms determined to be   |
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15|qualified as a political subdivision or school district shall          |
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16|establish a final selection process for the construction manager,      |
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17|which shall require the qualified prospective construction managers    |
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18|to develop a more detailed qualified-based proposal response.  The     |
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19|information to be contained in the detailed response in determining    |
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20|the final selection of the construction manager shall include, but     |
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21|not be limited to, the following criteria:                             |
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22|    1.  Technical experience;                                          |
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23|    2.  References;                                                    |
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24|    3.  Proposed project schedule;                                     |
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 1|    4.  Proposed personnel;                                            |
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 2|    5.  Proposed form of contract;                                     |
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 3|    6.  Proposed fees;                                                 |
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 4|    7.  Proposed mark up; and                                          |
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 5|    8.  Proposed methodology for savings or contingency returned to    |
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 6|the political subdivision or school district upon completion of the    |
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 7|project.                                                               |
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 8|    Only firms recognized as qualified construction managers by the    |
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 9|Department of Real Estate Services of the Office of Management and     |
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10|Enterprise Services pursuant to Section 62 of this title, may be       |
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11|considered for selection as a construction manager by a political      |
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12|subdivision or school district.                                        |
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13|    C.  The construction management project delivery method may only   |
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14|be used for public construction contracts when the construction        |
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15|project meets the criteria established by Section 202.1 of this        |
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16|title, except that a political subdivision or school district shall    |
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17|not be required to obtain permission from the Director of the Office   |
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18|of Management and Enterprise Services.                                 |
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19|    D.  When bids for a public construction project have been          |
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20|received from general contractors pursuant to the Public Competitive   |
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21|Bidding Act of 1974 and the lowest responsible bid is within the       |
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22|awarding agency's available funding, the awarding agency shall not     |
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23|reject all bids and award the project to a construction manager.       |
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arsid7151755 SENATE FLOOR VERSION - SB698 SFLR                     Page 5
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 1|    E.  Construction management contracts, for both agency             |
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 2|construction management and at-risk construction management, entered   |
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 3|into by a political subdivision or school district pursuant to this    |
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 4|section shall not be considered a public construction contract         |
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 5|pursuant to Section 102 of Title 61 of the Oklahoma Statutes this      |
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 6|title and shall not be subject to competitive bidding requirements     |
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 7|as set forth in the Public Competitive Bidding Act of 1974.  All       |
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 8|contracts for at-risk construction management shall be subject to      |
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 9|the competitive bidding requirements as set forth in the Public        |
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10|Competitive Bidding Act of 1974.                                       |
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11|    F.  All construction contracts or subcontracts for work to be      |
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12|performed for any political subdivision or school district pursuant    |
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13|to a construction management project delivery method shall be          |
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14|awarded in accordance with the provisions of the Public Competitive    |
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15|Bidding Act of 1974.  If a construction manager at-risk wishes to      |
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16|self-perform portions of the construction work to be performed, the    |
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17|construction manager at-risk may self-perform portions of the work     |
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18|provided the construction manager at-risk competitively bids the       |
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19|work under the same terms and conditions as the other bidders and      |
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20|the construction manager at-risk is the lowest responsible bidder      |
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21|for the construction subcontract.  No work shall commence until the    |
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22|school district executes a written contract and the contractor and     |
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23|subcontractors submit bonds and proofs of insurance as required by     |
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24|the appropriate contract.                                              |
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arsid7151755 SENATE FLOOR VERSION - SB698 SFLR                     Page 6
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 1|    SECTION 3.  This act shall become effective November 1, 2019.      |
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 2|COMMITTEE REPORT BY: COMMITTEE ON GENERAL GOVERNMENT                   |
  |February 28, 2019 - DO PASS AS AMENDED                                 |
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