Senate Amendments to House Bill No. 1197
TO THE CLERK OF THE HOUSE:
THIS IS TO INFORM YOU THAT THE SENATE HAS ADOPTED THE AMENDMENTS SET OUT BELOW:
AMENDMENT NO. 1
Amend by striking all after the enacting clause and inserting in lieu thereof the following:
SECTION 1. Section 31-7-13.1, Mississippi Code of 1972, is amended as follows:
31-7-13.1. (1) The method
of contracting for construction described in this section shall be known as the
" * * *
design-build method" of construction contracting. This method of
construction contracting may be used * * * on residential buildings, residential
mixed-use developments, parking garages and other prescriptive type facilities.
The design-build method of construction contracting may only be used when the
Department of Finance and Administration or a governing authority has
determined that it satisfies the public interest better than traditional design-bid
or when the Legislature has specifically required or authorized the use of
this method in the legislation authorizing a project. At a minimum, the
determination must include a detailed explanation of why using the * * * design-build method for a
particular project satisfies the public need better than the traditional design-bid-build
method based on the following criteria:
(a) The project provides a savings in time or cost over traditional methods; and
(b) The size and type of the project is suitable for design-build.
(2) For each proposed * * *
design-build project, either
a * * * fixed firm price or guaranteed maximum
price contract must be adopted. * * * Before solicitation of * * * proposals, the agency or governing
authority shall develop * * * , with the assistance of an architectural or engineering firm,
a scope of work statement that provides prospective offerors with sufficient
information regarding the requirements of the agency or governing authority. The
scope of work statement must include, but is not limited to, the following
(a) * * *
Location and nature of
proposed site(s) that include preliminary geotechnical information from borings
as well as survey drawings that show topography, adjacent buildings and
(b) * * *
Any mandatory requirements
such as minimum number and types of spaces, any minimum or maximum building
area(s) or height(s), applicable energy codes and/or efficiency targets,
applicable zoning regulations and any aesthetic or character defining standards;
(c) * * *
Any mandatory material
and/or system performance requirements and/or specifications; and
(d) * * *
General budget parameters, schedule or delivery requirements, relevant criteria
for evaluation of proposals, and any other information necessary to enable the
design-builders to submit proposals that meet the needs of the agency or
(3) The agency or governing
authority shall cause to be published once a week, for at least two (2)
consecutive weeks in a regular newspaper published in the county in which the
project is to be located, or a newspaper with statewide circulation, a notice
inviting proposals for the * * *
project. On the same date that the notice is submitted to the newspaper for
publication, the agency or governing authority involved shall post the notice
on the Mississippi Procurement Portal or mail written notice to, or provide
electronic notification to, the main office of the Mississippi Procurement
Technical Assistance Program under the Mississippi Development Authority that
contains the same information as that in the published notice. The
proposals shall not be opened in less than fifteen (15) working days after the
last notice is published. The notice must inform potential offerors of how to
obtain the scope of work statement developed for the project, and the notice
must contain such other information to describe adequately the general nature
and scope of the project so as to promote full, equal and open competition.
(4) The agency or governing
authority shall accept initial proposals only from entities able to provide an
experienced and qualified design-build team that includes, at a minimum, an
architectural or engineering firm licensed and registered in Mississippi
and a contractor properly licensed and domiciled in Mississippi for the type of
work required. * * *
(5) * * *
Proposals that include
criteria other than cost only shall be evaluated by an evaluation committee
established by the procuring entity. The evaluation committee shall be composed
of not less than three (3) people, at least one (1) of which shall be an
architect or engineer licensed and registered in Mississippi. Selection
criteria of the evaluation committee shall be limited to the following:
(a) The bidder's knowledge and experience in executing projects of similar size and complexity;
(b) The experience and qualifications of the proposed office and construction management personnel;
(c) The experience and qualifications of the subcontractors proposed;
(d) The experience and qualifications of the architect or engineer and consultants;
(e) Schedule control; and
(f) Cost factors.
Cost as an evaluation factor shall be given the highest criteria weighting and at least thirty-five percent (35%) out of the one hundred percent (100%) total weight of all the other evaluation factors.
(6) If the agency or
governing authority accepts a proposal other than the * * *
proposal with the lowest costs
that was actually submitted, the agency or governing authority shall enter on
its minutes detailed calculations and a narrative summary showing why the
accepted proposal was determined to provide the best value, and the agency or
governing authority shall state specifically on its minutes the justification
for its award.
(7) All facilities that are governed by this section shall be designed and constructed to comply with standards equal to or exceeding the minimum building code standards employed by the state as required under Section 31-11-33 in force at the time of contracting. All private contractors or private entities contracting or performing under this section must comply at all times with all applicable laws, codes and other legal requirements pertaining to the project.
(8) * * *
An agency or governing
authority may not award a stipulated fee * * * to an offeror for preparation
costs to submit a response to the request for proposals.
(9) This section shall not authorize the awarding of construction contracts according to any contracting method that does not require the contractor to satisfactorily perform, at a minimum, both any balance of design, using an independent professional licensed in Mississippi, and construction of the project for which the contract is awarded.
(10) The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
(11) The provisions of this section shall not apply to procurement authorized in Section 59-5-37(3).
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, demolitions or improvements are to be made under the provisions of this chapter, subject to the regulations adopted by the Public Procurement Review Board.
(2) The department shall have full power to erect buildings, make repairs, additions or improvements, demolitions, to grant or acquire easements or rights-of-way, and to buy materials, supplies and equipment for any of the institutions or departments of the state subject to the regulations adopted by 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, 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.
(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 to ensure compliance with purchasing regulations and to confirm that the contracts are procured by a competitive qualification-based selection process except where such appointment is for an emergency project or for a continuation of a previous appointment for a directly related project. The provisions of this subsection (7) shall not apply to:
(a) Any architectural or engineering contract fully paid for by self-generated funds of any of the state institutions of higher learning;
(b) Any architectural or engineering contract that is self-administered at a state institution of higher learning as provided under Section 27-104-7(2)(b) or 37-101-15(m);
(c) Community college projects that are fully 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;
(d) Any construction or design projects of the State Military Department that are fully or partially funded from federal funds or other nonstate sources; and
(e) Any project of the State Department of Transportation.
(8) (a) The department shall have the authority to obtain annually from the state institutions of higher learning, the state community colleges and junior colleges, the Department of Mental Health, the Department of Corrections and the Department of Wildlife, Fisheries and Parks information on all renovation and repair expenditures for buildings under their operation and control, including duties, responsibilities and costs of any architect or engineer hired by any such institutions, and shall annually report the same to the Legislative Budget Office, the Chairman of the House Public Property Committee and the Chairman of the Senate Public Property Committee before September 1.
(b) All state agencies, departments and institutions are required to cooperate with the Department of Finance and Administration in carrying out the provisions of this subsection.
(c) Expenditures shall not include those amounts expended for janitorial, landscaping or administrative support, but shall include expenditures from both state and nonstate sources.
(d) Expenditures shall not include amounts expended by the department on behalf of state agencies, departments and institutions through the Department of Finance and Administration administered contracts, but shall include amounts transferred to the Department of Finance and Administration for support of such contracts.
(9) As an alternative to
other methods of awarding contracts as prescribed by law, the department may
elect to use the method of contracting for construction projects set out in
Sections 31-7-13.1 and 31-7-13.2; however, the * * *
design-build method of
construction contracting authorized under Section 31-7-13.1 may be used only
when the Legislature has specifically required or authorized the use of this
method in the legislation authorizing a project.
(10) The department shall have the authority, for the purposes of carrying out the provisions of this chapter, and in addition to all other rights and powers granted by law, to create and maintain a list of suspended and debarred contractors and subcontractors. Consistent with this authority, the department may adopt regulations governing the suspension or debarment of contractors and subcontractors, which regulations shall be subject to the approval of the Public Procurement Review Board. A suspended or debarred contractor or subcontractor shall be disqualified from consideration for contracts with the department during the suspension or debarment period in accordance with the department's regulations.
(11) This section shall not apply to the Mississippi State Port Authority.
SECTION 3. Section 61-3-15, Mississippi Code of 1972, is amended as follows:
61-3-15. An authority shall have all the powers necessary or convenient to carry out the purposes of this chapter (excluding the power to levy and collect taxes or special assessments) including, but not limited to, the power:
(a) To sue and be sued, to have a seal and to have perpetual succession.
(b) To purchase general liability insurance coverage, including errors and omissions insurance, for its officials and employees.
(c) To employ an executive director, secretary, technical experts, and such other officers, agents and employees, permanent and temporary, as it may require, and to determine their qualifications and duties, and to establish compensation and other employment benefits as may be advisable to attract and retain proficient personnel.
(d) To execute such contracts and other instruments and take such other action as may be necessary or convenient to carry out the purposes of this chapter.
(e) To plan,
establish, develop, construct, enlarge, improve, maintain, equip, operate,
regulate and protect airports and air navigation facilities within this state
and within any adjoining state, including the acquisition, lease, lease-purchase,
construction, installation, equipment, maintenance and operation of such
airports or buildings, equipment and other facilities or other property for the
servicing of aircraft or for the comfort and accommodation of air travelers or
for any other purpose deemed by the authority to be necessary to carry out its
duties; to develop, operate, manage or own and maintain intermodal facilities
to serve air and surface cargo and multimodal facilities to serve highway and
rail passenger transportation needs to ensure interface and interaction between
modes for cargo and passengers; to construct, improve, and maintain means of
ingress and egress to airport properties from and over off-airport sites with
approval of the city or county in which the off-airport site is located; to market,
promote and advertise airport properties, goods and services; and to directly
purchase and sell supplies, goods and commodities incident to the operation of
its airport properties without having to make purchases thereof through the
municipal governing authorities, and with the authority to utilize * * *
design-build and construction
manager at-risk methods of construction in accordance with Sections 31-7-13.1
and 31-7-13.2. For all the previously stated purposes, an authority may, by
purchase, gift, devise, lease, eminent domain proceedings or otherwise, acquire
property, real or personal, or any interest therein, including easements in
airport hazards or land outside the boundaries of an airport or airport site,
as are necessary to permit the removal, elimination, obstruction-marking or
obstruction-lighting of airport hazards, to prevent the establishment of
airport hazards or to carry out its duties.
(f) To acquire, by purchase, gift, devise, lease, lease-purchase, eminent domain proceedings or otherwise, existing airports and air navigation facilities. However, an authority shall not acquire or take over any airport or air navigation facility owned or controlled by another authority, a municipality or public agency of this or any other state without the consent of such authority, municipality or public agency.
(g) To establish or acquire and maintain airports in, over and upon any public waters of this state, and any submerged lands under such public waters, and to construct and maintain terminal buildings, landing floats, causeways, roadways and bridges for approaches to or connecting with any such airport, and landing floats and breakwaters for the protection thereof.
(h) To establish, enact and enforce ordinances, rules, regulations and standards for public safety, aviation safety, airport operations and the preservation of good order and peace of the authority; to prevent injury to, destruction of or interference with public or private property; to protect property, health and lives and to enhance the general welfare of the authority by restricting the movements of citizens or any group thereof on the property of the authority when there is imminent danger to the public safety because of freedom of movement thereof; to regulate the entrances to property and buildings of the authority and the way of ingress and egress to and from the same; to establish fire limits and to hire firemen, including aircraft fire and rescue and similar personnel, and to establish and equip a fire department to provide fire and other emergency services on any property of the authority; to regulate, restrain or prohibit construction failing to meet standards established by the authority; to appoint and discharge police officers with jurisdiction limited to property of the airport authority and authorization to enforce the ordinances, rules and regulations of the authority, as well as the laws of the State of Mississippi, and to issue citations for infractions of all of such ordinances, rules, regulations, standards and laws of the State of Mississippi returnable to the court of appropriate jurisdiction.
(i) To develop and operate an industrial park or parks and exercise all authority provided for under Chapter 7, Title 57, Mississippi Code of 1972.
(j) To attach, pursuant to the power and procedure set forth in Chapter 33, Title 11, Mississippi Code of 1972, the equipment of debtors of the authority.
(k) To enter into agreements with local governments pursuant to Section 17-13-1 et seq.
(l) To render emergency assistance to other airports within the United States at an aggregate cost of less than Twenty Thousand Dollars ($20,000.00) per emergency. The assistance authorized in this paragraph must be rendered within ninety (90) days after a state of emergency has been declared by the federal government, or by the local or state government that has jurisdiction over the area where the airport needing assistance is located.
(m) To enter into joint use or similar agreements with any department or agency of the United States of America or the State of Mississippi, including any military department of the United States of America or the State of Mississippi, with respect to the use and operation of, or services provided at, any airport or other property of the authority on the terms and conditions as the authority may deem appropriate, including provisions limiting the liability of the United States of America or the State of Mississippi for loss or damage to the authority if the authority determines that the limitation of liability is reasonable, necessary and appropriate under the circumstances.
(n) To enter into mutual aid agreements with counties and municipalities for reciprocal emergency aid and assistance in case of emergencies too extensive to be dealt with unassisted; to participate in the Statewide Mutual Aid Compact (SMAC) in accordance with Section 33-15-19.
SECTION 4. This act shall take effect and be in force from and after July 1, 2021.
Further, amend by striking the title in its entirety and inserting in lieu thereof the following:
AN ACT TO AMEND SECTION 31-7-13.1, MISSISSIPPI CODE OF 1972, TO REVISE THE DUAL-PHASE DESIGN-BUILD METHOD OF CONSTRUCTION CONTRACTING; TO REMOVE THE REQUIREMENT FOR TWO PHASES OF DESIGN-BUILD CONSTRUCTION CONTRACTING; TO PROVIDE THAT DESIGN-BUILD CONSTRUCTION CONTRACTING MAY BE USED FOR RESIDENTIAL BUILDINGS, RESIDENTIAL MIXED-USE DEVELOPMENTS, PARKING GARAGES AND OTHER PRESCRIPTIVE TYPE FACILITIES; TO PROVIDE THAT THE DESIGN-BUILD METHOD OF CONSTRUCTION CONTRACTING MAY ONLY BE USED WHEN THE DEPARTMENT OF FINANCE AND ADMINISTRATION OR A GOVERNING AUTHORITY HAS DETERMINED THAT USING THE DESIGN-BUILD METHOD OF CONSTRUCTION CONTRACTING SATISFIES THE PUBLIC INTEREST BETTER THAN TRADITIONAL DESIGN BID OR WHEN THE LEGISLATURE HAS SPECIFICALLY REQUIRED OR AUTHORIZED THE USE OF THIS METHOD IN THE LEGISLATION AUTHORIZING A PROJECT; TO PROVIDE THAT INSTEAD OF THE DUAL-PHASE PROCEDURE FOR AWARDING A CONTRACT, FOR EACH PROPOSED DESIGN-BUILD PROJECT, EITHER A FIXED FIRM PRICE OR GUARANTEED MAXIMUM PRICE CONTRACT MUST BE ADOPTED; TO REVISE WHAT MUST BE INCLUDED IN THE WORK STATEMENT; TO PROVIDE THAT NOTICE SHALL ALSO BE POSTED ON THE MISSISSIPPI PROCUREMENT PORTAL; TO PROVIDE THAT PROPOSALS WHICH INCLUDE CRITERIA OTHER THAN COST ONLY SHALL BE EVALUATED BY AN EVALUATION COMMITTEE ESTABLISHED BY THE PROCURING ENTITY; TO PROVIDE THE MAKEUP OF THE EVALUATION COMMITTEE AND THE SELECTION CRITERIA THAT THE EVALUATION COMMITTEE SHALL CONSIDER WHEN EVALUATING SUBMITTED PROPOSALS; TO PROVIDE THAT AN AGENCY OR GOVERNING AUTHORITY MAY NOT AWARD A STIPULATED FEE TO AN OFFEROR FOR PREPARATION COSTS TO SUBMIT A RESPONSE TO THE REQUEST FOR PROPOSALS; TO AMEND SECTIONS 31-11-3 AND 61-3-15, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.
Eugene S. Clarke
Secretary of the Senate