MISSISSIPPI LEGISLATURE
2025 Regular Session
To: Accountability, Efficiency, Transparency
By: Representative Bell (21st)
AN ACT TO AMEND SECTION 31-7-13.2, MISSISSIPPI CODE OF 1972, TO REVISE THE CONSTRUCTION MANAGER AT RISK METHOD OF PROJECT DELIVERY TO PROVIDE THAT THE CONSTRUCTION MANAGER FOR PROJECTS FOR INSTITUTIONS OF HIGHER LEARNING AND INDIVIDUAL COMMUNITY AND JUNIOR COLLEGES SHALL NOT BE REQUIRED TO SOLICIT BIDS FOR CONSTRUCTION ON THE PROJECT USING THE PUBLIC PURCHASING LAW; TO PROVIDE HOW SUCH CONSTRUCTION MANAGER SHALL OBTAIN PROPOSALS FROM CONTRACTORS AND VENDORS AND ENTER INTO CONTRACTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 31-7-13.2, Mississippi Code of 1972, is amended as follows:
31-7-13.2 (1) When used in this section, "construction manager at risk" means a method of project delivery in which a construction manager guarantees a maximum price for the construction of a project and in which the governing authority or board, before using this method of project delivery, shall include a detailed explanation of why using the construction manager at risk method of project delivery for a particular project satisfies the public need better than that traditional design-bid-build method based on the following criteria:
(a) The use of construction manager at risk for the project provides a savings in time or cost over traditional methods; and
(b) The size and type of the project is suitable for use of the construction management at risk method of project delivery.
(2) When the construction manager at risk method of project delivery is used:
(a) There may be a separate contract for design services and a separate contract for construction services;
(b) The contract for construction services may be entered into at the same time as a contract for the design services or later;
(c) Design and construction of the project may be in sequential or concurrent phases; and
(d) Finance, maintenance, operation, reconstruction or other related services may be included for a guaranteed maximum price.
(3) When procuring design professional services under a construction manager at risk project delivery method, the agency or governing authority shall procure the services of a design professional pursuant to qualifications-based selection procedures.
(4) Before the substantial completion of the design documents, the agency or governing authority may elect to hire a construction manager.
(5)
When procuring construction management services under the "at
risk" model of this section, the agency or governing authority shall
follow the qualifications-based selection procedures as outlined in subsection
(10) of this section * * *
to identify and select the construction manager.
(6) The agency or governing authority may require the architect or engineer and the construction manager, by contract, to cooperate in the design, planning and scheduling, and construction process. The contract shall not make the primary designer or construction manager a subcontractor or joint-venture partner to the other or limit the primary designer's or construction manager's independent obligations to the agency or governing authority.
(7) Notwithstanding anything to the contrary in this chapter:
(a) Each project for construction under a construction manager at risk contract shall be a specific, single project with a minimum construction cost of Twenty-five Million Dollars ($25,000,000.00).
(b) Each project under a construction manager at risk contract shall be a specific, single project. For the purposes of this paragraph, "specific, single project" means a project that is constructed at a single location, at a common location or for a common purpose.
(8) Agencies shall retain an independent architectural or engineering firm to provide guidance and administration of the professional engineering or professional architecture aspects of the project throughout the development of the scope, design, and construction of the project.
(9) The state shall, on an annual basis, compile and make public all proceedings, records, contracts and other public records relating to procurement transactions authorized under this section.
(10) For purposes of this section, the "qualifications-based selection procedure" shall include:
(a) Publicly announcing all requirements for construction management at risk, architectural, engineering, and land surveying services, to procure these services on the basis of demonstrated competence and qualifications, and to negotiate contracts at fair and reasonable prices after the most qualified firm has been selected.
(b) Agencies or governing authorities shall establish procedures to prequalify firms seeking to provide construction management at risk, architectural, engineering, and land surveying services or may use prequalification lists from other state agencies or governing authorities to meet the requirements of this section.
(c) Whenever a project
requiring construction management at risk, architectural, engineering, or land
surveying services is proposed for an agency or governing authority, the agency
or governing authority shall provide advance notice published in a professional
services bulletin or advertised within the official state newspaper setting
forth the projects and services to be procured for not less than fourteen (14)
days. The professional services bulletin shall be mailed to each firm that has
requested the information or is prequalified * * *. The professional
services bulletin shall include a description of each project and shall state
the time and place for interested firms to submit a letter of interest and, if
required by the public notice, a statement of qualifications.
(d) The agency or governing authority shall evaluate the firms submitting letters of interest and other prequalified firms, taking into account qualifications. The agency or governing authority may consider, but shall not be limited to, considering:
(i) Ability of professional personnel;
(ii) Past record and experience;
(iii) Performance data on file;
(iv) Willingness to meet time requirements;
(v) Location;
(vi) Workload of the firm; and
(vii) Any other qualifications-based factors as the agency or governing authority may determine in writing are applicable.
The agency or governing authority may conduct discussions with and require public presentations by firms deemed to be the most qualified regarding their qualifications, approach to the project and ability to furnish the required services.
(e) The agency or governing authority shall establish a committee to select firms to provide construction management at risk, architectural, engineering, and land surveying services. A selection committee may include at least one (1) public member nominated by a statewide association of the profession affected. The public member may not be employed or associated with any firm holding a contract with the agency or governing authority nor may the public member's firm be considered for a contract with that agency or governing authority while serving as a public member of the committee. In no case shall the agency or governing authority, before selecting a firm for negotiation under paragraph (f) of this subsection (10), seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.
(f) On the basis of evaluations, discussions, and any presentations, the agency or governing authority shall select no less than three (3) firms that it determines to be qualified to provide services for the project and rank them in order of qualifications to provide services regarding the specific project. The agency or governing authority shall then contact the firm ranked most preferred to negotiate a contract at a fair and reasonable compensation. If fewer than three (3) firms submit letters of interest and the agency or governing authority determines that one (1) or both of those firms are so qualified, the agency or governing authority may proceed to negotiate a contract under paragraph (g) of this subsection (10).
(g) The agency or
governing authority shall prepare a written description of the scope of the
proposed services to be used as a basis for negotiations and shall negotiate a
contract with the highest qualified firm at compensation that the agency or
governing authority determines in writing to be fair and reasonable. In making
this decision, the agency or governing authority shall take into account the estimated
value, scope, complexity, and professional nature of the services to be
rendered. In no case may the agency or governing authority establish a maximum
overhead rate or other payment formula designed to eliminate firms from
contention or restrict competition or negotiation of fees. If the agency or
governing authority is unable to negotiate a satisfactory contract with the
firm that is most preferred, negotiations with that firm shall be terminated.
The agency or governing authority shall then begin negotiations with the firm
that is next preferred. If the agency or governing authority is unable to
negotiate a satisfactory contract with that firm, negotiations with that firm
shall be terminated. The agency or governing authority shall then begin
negotiations with the firm that is next preferred. If the agency or governing
authority is unable to negotiate a satisfactory contract with any of the
selected firms, the agency or governing authority shall reevaluate the
construction management at risk, architectural, engineering, or land surveying
services requested, including the estimated value, scope, complexity, and fee
requirements. The agency or governing authority shall then compile a second
list of not less than three (3) qualified firms and proceed in accordance with
the provisions of this section. A firm negotiating a contract with an agency
or governing authority shall negotiate subcontracts * * * at compensation that the firm determines in writing to be
fair and reasonable based upon a written description of the scope of the
proposed services.
(11) (a) Except as otherwise provided in this section, the construction manager selected by the agency or governing authority to provide construction management at risk services shall solicit bids for construction on the project pursuant to Section 31-7-13. The construction manager shall be entitled to enter into contracts for construction with the lowest and best bidders, as determined in consultation with the agency or governing authority. Before soliciting bids or entering into any such contract, the construction manager, in consultation with the agency or governing authority, may prequalify any contractors or vendors seeking to submit a bid on the project, taking into account defined qualifications which may include, but not be limited to, the following:
(i) Past experience and performance record on projects of similar size and scope;
(ii) Current financial status and ability to provide acceptable payment and performance bonds and meet defined insurance requirements;
(iii) Current workload and backlog of committed work for the period scheduled for the project under consideration;
(iv) Safety record to include prior citations and fines if applicable;
(v) History of legal disputes or performance defaults;
(vi) Identification and experience of project personnel and required manpower;
(vii) Plan for and ability to meet the applicable project schedule; and
(viii) Any other qualification-based factors as the agency, governing authority or construction manager may determine are applicable.
(b) The construction manager, in consultation with the agency or governing authority, shall publish the defined qualifications that shall be considered in the prequalification process at least two (2) weeks in advance of any prequalification of contractors or vendors seeking to submit a bid on the project. Publication shall be in a regular newspaper published in the county or municipality in which the agency or governing authority is located. The agency or governing authority shall also post the defined prequalification requirements on its website.
(c) The failure of a bidder to provide information in a timely and complete manner in response to any prequalification process may result in the disqualification of such bidder in the discretion of the agency, governing authority, and construction manager.
(d) Except as otherwise provided in Section 25-61-9, confidential and proprietary information furnished by a bidder pursuant to this section shall not be disclosed outside of the agency, governing authority, or construction manager without the prior written consent of the bidder. The bidder shall identify and label any information considered to be confidential and proprietary at the time of submission of the same to the agency, governing authority, or construction manager.
(12) The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
(13) The provisions of subsection (11) of this section shall not apply to procurements by existing or future Mississippi Institutions of Higher Learning ("IHL") or their related entities, joint ventures, or subsidiaries governed by or in connection with the named institutions. The provisions of this subsection (13) shall apply to procurements by existing or future Mississippi Institutions of Higher Learning ("IHL") or their related entities, joint ventures or subsidiaries governed by or in connection with the named institutions.
(a) The construction manager shall be permitted to obtain proposals from contractors or vendors, with such proposals being based on the qualifications and criteria set forth in paragraph (b) of this subsection, for contracts for the various scopes of work for the project, and the construction manager shall not be required to follow the public bid process of Section 31-7-13 for such contracts.
(b) The construction manager selected by the agency or governing authority to provide construction management at risk services shall obtain proposals from contractors or vendors for construction of the project on terms that the construction management firm, in consultation with the agency or governing authority, deems to be fair and reasonable based upon a written description of the scope of the proposed work or services. The construction manager shall then be entitled to enter into contracts for construction with contractors or vendors that the construction manager deems to be the preferred contractor or vendor, taking into account various qualifications and criteria which may include, but not be limited to, the following:
(i) Cost of the work or services to be performed or supplied by the contractor or vendor to the construction manager;
(ii) Past experience and performance record on projects of similar size and scope;
(iii) Current financial status and ability to provide acceptable payment and performance bonds and meet defined insurance requirements;
(iv) Current workload and backlog of committed work for the period scheduled for the project under consideration;
(v) Safety record to include prior citations and fines if applicable;
(vi) History of legal disputes or performance defaults;
(vii) Identification and experience of project personnel and required manpower;
(viii) Plan for and ability to meet the applicable project schedule; and
(ix) Any other factors as the agency, governing authority or construction manager may determine are applicable.
(c) The construction manager, in consultation with the agency or governing authority, shall publish the above defined qualifications and criteria that shall be considered in the process for selecting contractors and vendors that will contract with the construction manager to construct the project at least four (4) weeks in advance of any award of contract to such contractors or vendors. Publication shall be in a regular newspaper published in the county or municipality in which the agency or governing authority is located. The agency or governing authority shall also post the defined prequalification requirements on its website.
(d) The failure of a contractor or vendor to provide information requested by the construction manager or the agency or governing authority in a timely and complete manner in connection with the selection process may result in the disqualification of such contractor or vendor from being considered for a contract, as determined in the discretion of the agency, governing authority, and construction manager.
(e) Except as otherwise provided in Section 25-61-9, confidential and proprietary information furnished by construction manager or a contractor or vendor pursuant to this section shall not be disclosed outside of the agency, governing authority or construction manager without the prior written consent of all parties. The construction manager, contractor, or vendor shall identify and label any information considered to be confidential and proprietary at the time of submission of the same to the agency, governing authority, or construction manager.
(f) The construction manager selected by the agency or governing authority shall not be required to submit a proposed guaranteed maximum price for the construction of a project, or for a phase or component of the project, until after the construction manager obtains the contemplated proposals from potential contractors and/or vendors for that project, phase, or component, and the agency or governing authority has issued a completed set of construction drawings and specifications for the project, phase, or component.
(g) Nothing in this section prevents a construction manager or its affiliates from self-performing construction work on a project so long as the construction manager or affiliate submits a proposal for a specific scope of work, as would other contractors or vendors, and the proposals are reviewed by the agency or governing authority, deemed to be fair and reasonable as compared to other proposals for the same or similar scope of work, and an award to the construction manager or its affiliate is determined to be in the overall best interests of the project as a whole. However, a construction manager or its affiliates shall only be allowed to self-perform construction work on not more than fifteen percent (15%) of the project.
SECTION 2. This act shall take effect and be in force from and after its passage.