2007 Regular Session
To: Public Property; Ways and Means
By: Representative Dedeaux
AN ACT TO AMEND SECTION 31-11-30, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERMS "EMERGENCY" AND "CRITICAL NEED" FOR THE PURPOSES OF EXEMPTION FROM THE REQUIREMENT OF FUNDING CAPITAL IMPROVEMENTS PROJECTS INVOLVING STATE BUILDINGS IN TWO PHASES; TO REQUIRE THAT CONSTRUCTION PROJECTS FUNDED WITH STATE BOND FUNDS OR OTHER STATE FUNDS AUTHORIZED FOR COMMUNITY AND JUNIOR COLLEGES BE ADMINISTERED THROUGH THE TWO-PHASE PLANNING PROCESS; TO AMEND SECTION 31-11-3, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO USE THE DESIGN-BUILD METHOD OF CONTRACTING FOR CERTAIN CONSTRUCTION PROJECTS; TO AUTHORIZE THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO ALLOW STATE INSTITUTIONS OF HIGHER LEARNING AND OTHER STATE AGENCIES TO MANAGE CONSTRUCTION PROJECTS WITH A VALUE OF $250,000.00 OR LESS PROVIDED THAT EACH AGENCY MEETS DEPARTMENTALLY DEVELOPED CRITERIA AND MANAGEMENT REQUIREMENTS; TO REMOVE THE REQUIREMENT THAT THE DEPARTMENT OF FINANCE AND ADMINISTRATION ADOPT BUILDING CODE STANDARDS FOR NEW CONSTRUCTION OF PUBLIC FACILITIES; TO PROHIBIT CONSTRUCTION PROGRAM MANAGERS AND/OR CONSTRUCTION MANAGERS AND BUILDING COMMISSIONING AGENTS AND THEIR SUBSIDIARIES OR PARENTS FROM BIDDING ON ANY PUBLIC CONSTRUCTION PROJECT FOR WHICH THEY ARE PROVIDING CONSTRUCTION PROGRAM MANAGEMENT SERVICES AND/OR CONSTRUCTION MANAGEMENT SERVICES OR BUILDING COMMISSIONING SERVICES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 31-11-30, Mississippi Code of 1972, is amended as follows:
31-11-30. (1) Every capital improvements project, costing One Million Dollars ($1,000,000.00) or more, which is developed to repair, renovate, construct, remodel, add to or improve a state-owned public building shall be funded by the Legislature in two (2) phases. The two-phase funding requirement shall not apply to capital improvements projects for a state-owned port or where the Legislature finds that an emergency or critical need must be met or a court order complied with. The two (2) phases shall not be funded in the same regular session of the Legislature. Each phase shall be funded in a separate session of the Legislature. Phase 1 shall be a preplanned capital improvements project budget projection for the project and shall be funded first. Phase 2 shall be the actual repair, renovation, construction, remodeling, addition to or improvement of the state-owned public building and the acquisition of furniture and equipment for the capital improvements project and shall be funded second.
(2) For the purposes of this section:
(a) "Preplanned" or "preplanning" means the preliminary planning that establishes the program, scope, design and budget for a capital improvements project.
(b) "Emergency" has the meaning as defined in Section 31-7-1.
(c) "Critical need" means necessary to meet accreditation standards or necessary to respond to failures in planning.
(3) Every state agency that plans to repair, renovate, construct, remodel, add to or improve a state-owned public building shall submit a preplanned capital improvements project budget projection to the Bureau of Building, Grounds and Real Property Management for evaluation. The bureau shall assess the need for all preplanned projects submitted and shall compile a report on its findings. Any capital improvements project costing less than One Million Dollars ($1,000,000.00) shall not be required to be preplanned.
(4) Upon the completion of any preplanning for a capital improvements project, if such preplanning is funded with self-generated funds by a state agency, the plan shall be submitted to the bureau for evaluation.
(5) This section shall not apply to capital improvements projects authorized by the Legislature before the 2001 Regular Session of the Legislature.
(6) The provisions of this section also shall apply to any community or junior college project funded in whole or in part by either state bonds or funds appropriated for that construction by the Legislature.
SECTION 2. Section 31-11-3, Mississippi Code of 1972, is amended as follows:
31-11-3. (1) The Department of Finance and Administration, for the purposes of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the Department of Finance and Administration to be necessary, pursuant to the rules and regulations of the State Personnel Board. The department shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs or improvements are to be made under the provisions of this chapter, subject to the approval of the Public Procurement Review Board.
(2) The department shall have full power to erect buildings, make repairs, additions or improvements, and buy materials, supplies and equipment for any of the institutions or departments of the state subject to the approval of the Public Procurement Review Board. In addition to other powers conferred, the department shall have full power and authority as directed by the Legislature, or when funds have been appropriated for its use for these purposes, to:
(a) Build a state office building;
(b) Build suitable plants or buildings for the use and housing of any state schools or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the Legislature;
(c) Provide state aid for the construction of school buildings;
(d) Promote and develop the training of returned veterans of the United States in all sorts of educational and vocational learning to be supplied by the proper educational institution of the State of Mississippi, and in so doing allocate monies appropriated to it for these purposes to the Governor for use by him in setting up, maintaining and operating an office and employing a state director of on-the-job training for veterans and the personnel necessary in carrying out Public Law No. 346 of the United States;
(e) Build and equip a hospital and administration building at the Mississippi State Penitentiary;
(f) Build and equip additional buildings and wards at the Boswell Retardation Center;
(g) Construct a sewage disposal and treatment plant at the Mississippi State Hospital at Whitfield, and in so doing acquire additional land as may be necessary, and to exercise the right of eminent domain in the acquisition of this land;
(h) Build and equip the Mississippi central market and purchase or acquire by eminent domain, if necessary, any lands needed for this purpose;
(i) Build and equip suitable facilities for a training and employing center for the blind;
(j) Build and equip a gymnasium at Columbia Training School;
(k) Approve or disapprove the expenditure of any money appropriated by the Legislature when authorized by the bill making the appropriation;
(l) Expend monies appropriated to it in paying the state's part of the cost of any street paving;
(m) Sell and convey state lands when authorized by the Legislature, cause said lands to be properly surveyed and platted, execute all deeds or other legal instruments, and do any and all other things required to effectively carry out the purpose and intent of the Legislature. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
(n) Collect and receive from educational institutions of the State of Mississippi monies required to be paid by these institutions to the state in carrying out any veterans' educational programs;
(o) Purchase lands for building sites, or as additions to building sites, for the erection of buildings and other facilities which the department is authorized to erect, and demolish and dispose of old buildings, when necessary for the proper construction of new buildings. Any transaction which involves state lands under the provisions of this paragraph shall be done in a manner consistent with the provisions of Section 29-1-1;
(p) Obtain business property insurance with a deductible of not less than One Hundred Thousand Dollars ($100,000.00) on state-owned buildings under the management and control of the department; and
(q) In consultation with and approval by the Chairmen of the Public Property Committees of the Senate and the House of Representatives, enter into contracts for the purpose of providing parking spaces for state employees who work in the Woolfolk Building, the Carroll Gartin Justice Building or the Walter Sillers Office Building. The provisions of this paragraph (q) shall stand repealed on July 1, 2010.
(3) The department shall survey state-owned and state-utilized buildings to establish an estimate of the costs of architectural alterations, pursuant to the Americans With Disabilities Act of 1990, 42 USCS, Section 12111 et seq. The department shall establish priorities for making the identified architectural alterations and shall make known to the Legislative Budget Office and to the Legislature the required cost to effectuate such alterations. To meet the requirements of this section, the department shall use standards of accessibility that are at least as stringent as any applicable federal requirements and may consider:
(a) Federal minimum guidelines and requirements issued by the United States Architectural and Transportation Barriers Compliance Board and standards issued by other federal agencies;
(b) The criteria contained in the American Standard Specifications for Making Buildings Accessible and Usable by the Physically Handicapped and any amendments thereto as approved by the American Standards Association, Incorporated (ANSI Standards);
(c) Design manuals;
(d) Applicable federal guidelines;
(e) Current literature in the field;
(f) Applicable safety standards; and
(g) Any applicable environmental impact statements.
(4) The department shall observe the provisions of Section 31-5-23, in letting contracts and shall use Mississippi products, including paint, varnish and lacquer which contain as vehicles tung oil and either ester gum or modified resin (with rosin as the principal base of constituents), and turpentine shall be used as a solvent or thinner, where these products are available at a cost not to exceed the cost of products grown, produced, prepared, made or manufactured outside of the State of Mississippi.
(5) The department shall have authority to accept grants, loans or donations from the United States government or from any other sources for the purpose of matching funds in carrying out the provisions of this chapter.
(6) The department shall build a wheelchair ramp at the War Memorial Building which complies with all applicable federal laws, regulations and specifications regarding wheelchair ramps.
(7) The department shall review and preapprove all architectural or engineering service contracts entered into by any state agency, institution, commission, board or authority regardless of the source of funding used to defray the costs of the construction or renovation project for which services are to be obtained. The provisions of this subsection (7) shall not apply to any architectural or engineering contract paid for by self-generated funds of any of the state institutions of higher learning, nor shall they apply to community college projects that are funded from local funds or other nonstate sources which are outside the Department of Finance and Administration's appropriations or as directed by the Legislature. The provisions of this subsection (7) shall not apply to any construction or design projects of the State Military Department that are funded from federal funds or other nonstate sources.
(8) The department shall have the authority to obtain annually from the state institutions of higher learning information on all building, construction and renovation projects including duties, responsibilities and costs of any architect or engineer hired by any such institutions.
(9) (a) As an alternative to other methods of awarding contracts as prescribed by law, the department may use the design-build method or the design-build bridging method of contracting for new capital construction projects to be used as a pilot program for the following projects:
(i) Projects for the Mississippi Development Authority pursuant to agreements between both governmental entities;
(ii) Any project with an estimated cost of not more than Ten Million Dollars ($10,000,000.00), not to exceed two (2) projects per fiscal year; and
(iii) Any project which has an estimated cost of more than Fifty Million Dollars ($50,000,000.00), not to exceed one (1) project per fiscal year.
(b) As used in this subsection:
(i) "Design-build method of contracting" means a contract that combines the design and construction phases of a project into a single contract and the contractor is required to satisfactorily perform, at a minimum, both the design and construction of the project.
(ii) "Design-build bridging method of contracting" means a contract that requires design through the design development phase by a professional designer, after which a request for qualifications for design completion and construction is required for the completion of the project from a single contractor that combines the balance of design and construction phases of a project into a single contract. The contractor is required to satisfactorily perform, at a minimum, both the balance of design and construction of the project.
(c) The department shall establish detailed criteria for the selection of the successful design-build/design-build bridging contractor in each request for design-build/design-build bridging proposals. The request for qualifications evaluation of the selection committee is a public record and shall be maintained for a minimum of three (3) years after project completion.
(d) The department shall maintain detailed records on projects separate and apart from its regular record keeping. The department shall file a report to the Legislature evaluating the design-build/design-build bridging method of contracting by comparing it to the low-bid method of contracting. At a minimum, the report must include:
(i) The management goals and objectives for the design-build/design-build bridging system of management;
(ii) A complete description of the components of the design-build/design-build bridging management system, including a description of the system the department put into place on all projects managed under the system to insure that it has the complete information on building segment costs and to insure proper analysis of any proposal the department receives from a contractor;
(iii) The accountability systems the department established to monitor any design-build/design-build bridging project's compliance with specific goals and objectives for the project;
(iv) The outcome of any project or any interim report on an ongoing project let under a design-build/design-build bridging management system showing compliance with the goals, objectives, policies and procedures the department set for the project; and
(v) The method used by the department to select projects to be let under the design-build/design-build bridging system of management and all other systems, policies and procedures that the department considered as necessary components to a design-build/design-build bridging management system.
(e) All contracts let under the provisions of this subsection shall be subject to oversight and review by the State Auditor.
(10) * * * The department may authorize the state institutions of higher learning, community and junior colleges, and other state agencies to manage any construction or renovation project with a value not exceeding Two Hundred Fifty Thousand Dollars ($250,000.00). The department shall develop criteria for management of such projects that each agency must follow in order to manage the projects. Only agencies that the department deems capable of managing by the criteria may manage their own projects. Additionally, the department shall require agencies managing these projects to do the following:
(a) Use standard departmentally approved contracts and project management procedures; and
(b) Conduct projects on a reimbursable basis and require documentation that the department deems appropriate for payment of claims. Reimbursement shall be on a one-time basis at completion and approval of project documentation submittals.
The department shall revoke the authority of any agency to perform * * * management functions if, in its opinion, an agency has not followed the department's requirements for managing projects. * * *
* * *
SECTION 3. (1) For the purposes of this section:
(a) "Building commissioning agent" means a person or entity who renders building commissioning services.
(b) "Building commissioning services" includes any services rendered by an independent contractor to the state or a local governing authority associated with the construction of buildings that are intended to assist the state or local governing authority in reducing construction costs or enhancing the long-term value of the construction project.
(c) "Construction program management services and/or construction management services" means a set of management and technical services rendered by a person or firm to a public sector building owner during the predesign, design, construction, or post construction phases of new construction, demolition, alteration, repair, or renovation projects. These services shall include any one or more of the following: project planning, budgeting, scheduling, coordination, design management, construction administration, or facility occupancy actions, but shall not include any component of the actual construction work. The term shall not include general contractors who are engaged to actually perform the construction work. The term also shall not include services customarily performed by licensed architects or registered engineers.
(d) "Construction program manager and/or construction manager" means a person or entity who performs construction program management services and/or construction management services.
(e) "Public construction project" means any project for the construction of buildings for the state or for any local governing authority of the state.
(2) No construction program manager and/or construction manager, or any subsidiary owned in whole or in part by the construction program manager and/or construction manager, or any parent corporation or firm of the construction program manager and/or construction manager, shall be eligible to bid or otherwise participate in the construction, contracting, or subcontracting on any public construction project or part thereof for which the construction program manager and/or construction manager has been hired to perform construction program management services and/or construction management services. Any contract for public construction that violates this provision shall be void against the public policy of the state.
(3) No building commissioning agent, or any subsidiary owned in whole or in part by the building commissioning agent, or any parent corporation or firm of the building commissioning agent, shall be eligible to bid or otherwise participate in the construction, contracting or subcontracting on any public construction project or part thereof for which the building commissioning agent has been hired to perform construction building commissioning services. Any contract for public construction that violates this provision shall be void against the public policy of the state.
SECTION 4. This act shall take effect and be in force from and after July 1, 2007.