BUSINESS
AND OPERATIONS: [LAW]
CONSTRUCTION
MANAGER-AT-RISK CONTRACTS
The
following provisions apply only to a charter holder that has amended its
charter to adopt
The
school may award a contract for the construction, repair, or renovation, of a
structure, road, highway, or other improvement or addition to real property by
using a construction manager-at-risk.
1. Definition
A
construction manager-at-risk is a sole proprietorship, partnership,
corporation, or other legal entity that assumes the risk for construction,
rehabilitation, alteration, or repair of a facility at the contracted price as
a general contractor and provides consultation to the school regarding
construction during and after the design of the facility.
2. Use of Construction Manager-At-Risk
The school
may use construction manager-at-risk as a method of entering into a contract
for construction if it has determined that construction manager-at-risk
provides the best value for the school.
3. Delegation of Authority
The school board may not delegate to others the authority
to:
A. Select
the construction delivery method that provides the best value; or
B. Adopt
special rules and procedures for the selection process.
The board may choose to delegate its authority
regarding an action required under Texas Education Code, Chapter 44, subchapter
B, to a designated person, representative, or committee. In procuring construction services, the school
shall provide notice of the delegation and the limits of the delegation in the
request for bids. If the school fails to
timely provide notice of the delegation, a ranking, selection, or evaluation of
bids, proposals, or qualifications for construction services, other than by the
board, is advisory only.
4. Notice
of Bids and Selection Criteria
A. Notice
of the time by when and place where requests for proposals or qualifications,
as appropriate, will be received and opened shall be published in the county in
which the school’s central administrative office is located, once a week for at
least two (2) weeks before the deadline for receiving proposals or
qualifications. If there is not a
newspaper in that county, the advertising shall be published in a newspaper in
the county nearest the county seat of the county in which the school’s central
administrative office is located. In a
two-step procurement process, the time and place where the second-step bids
will be received are not required to be published separately. [See
also Selection Process, paragraph (7) below].
B. In the
published request for proposals or qualifications the school will identify the
criteria that will be used to evaluate the offerors and the relative weights
given to the criteria.
5. Designation of Engineer or Architect
Before or concurrently with selecting a construction
manager-at-risk, the school shall select or designate an engineer or architect
who shall prepare the construction documents for the project and who has full
responsibility to comply with Vernon’s Texas Civil Statutes 3271a (Texas
Engineering Practice Act) or Vernon’s Texas Civil Statutes Article 249a,
as applicable. If the engineer or
architect is not a full-time employee of the school, the school shall select
the engineer or architect on the basis of demonstrated competence and
qualifications as provided by § 2254.004, Tex. Gov’t Code. The school’s engineer, architect or
construction manager-agent for a project may not serve, alone or in combination
with another, as the construction manager-at-risk.
The school shall provide or contract for,
independently of the construction manager-at-risk, the inspection services, the
testing of construction materials engineering, and the verification testing
services necessary for acceptance of the facility by the charter holder. The school shall select those services for
which it contracts in accordance with § 2254.004, Tex. Gov’t Code.
The school
shall select the construction manager-at-risk in either a one-step or two-step
process.
A. Request
for Proposals or Qualifications
The school shall prepare a request for proposals, in
the case of a one-step process, or a request for qualifications, in the case of
a two-step process, that includes general information on the project site,
project scope, schedule, selection criteria, estimated budget, and the time and
place for receipt of proposals or qualifications, as applicable, a statement as
to whether the selection process is a one-step or two-step process, and other
information that may assist the charter holder in its selection of a
construction manager-at-risk.
B. Statement
of Selection Criteria
The school shall state the selection criteria in the
request for proposals or qualifications, as applicable. The selection criteria may include the
offeror’s experience, past performance, safety record, proposed personnel and
methodology, and other appropriate factors that demonstrate the capability of
the construction manager-at-risk.
(1) Request
for Fees and Prices
(a) If
a one-step process is used, the school may request, as part of the offeror’s
proposal, proposed fees and prices for fulfilling the general conditions.
(b) If
a two-step process is used, the charter holder may not request fees or prices
in step one. In step two, the school may
request that five or fewer offerors, selected solely on the basis of
qualifications, provide additional information, including the construction
manager-at-risk’s proposed fee and its price for fulfilling the general
conditions.
C. Opening
Proposals
At each step, the school shall receive, publicly open,
and read aloud the names of the offerors.
At the appropriate step, the school shall also read aloud the fees and
prices, if any, stated in each proposal as the proposal is opened. Within 45 days after the date of opening the
proposals, the school shall evaluate and rank each proposal submitted in
relation to the criteria set forth in the request for proposals.
Tex. Educ. Code § 44.038(e)-(f).
8. Selection
The school
shall select the offeror that submits the proposal that offers the best value
for the school based on the published selection criteria and on its ranking
evaluation . The school shall first
attempt to negotiate with the selected offeror a contract. If the school is unable to negotiate a
satisfactory contract with the selected offeror, the school shall, formally and
in writing, end negotiations with that offeror and proceed to negotiate with
the next offeror in the order of the selection ranking until a contract is
reached or negotiations with all ranked offerors end.
9. Contractors and Subcontractors
A. Advertisement
A
construction manager-at-risk shall publicly advertise, in accordance with the
notice publication requirements described above, and receive bids or proposals
from trade contractors or subcontractors for the performance of all major
elements of the work other than the minor work that may be included in the
general conditions. A construction
manager-at-risk may seek to perform portions of the work itself if the
construction manager-at-risk submits its bid or proposal for those portions of
the work in the same manner as all other trade contractors or subcontractors
and if the school determines that the construction manager-at-risk’s bid or
proposal provides the best value for the school.
B. The
construction manager-at-risk and the school or its representative shall review
all trade contractor or subcontractor bids or proposals in a manner that does
not disclose the contents of the bid or proposal during the selection process
to a person not employed by the construction manager-at-risk, engineer,
architect, or charter holder. All bids
or proposals shall be made public after the award of the contract or within
seven (7) days after the date of final selection of bids or proposals,
whichever is later.
C. If
the construction manager-at-risk reviews, evaluates, and recommends to the school
a bid or proposal from a trade contractor of subcontractor but the school
requires another bid or proposal to be accepted, the school shall compensate
the construction manager-at-risk by a change in price, time, or guaranteed
maximum cost for any additional cost and risk that the construction
manager-at-risk may incur because of the school’s requirement that another bid
or proposal be accepted.
D. If
a selected trade contractor or subcontractor defaults in the performance of its
work or fails to execute a subcontract after being selected in accordance with
this policy, the construction manager-at-risk may, without out advertising,
itself fulfill the contract requirements or select a replacement trade
contractor or subcontractor to fulfill the contract requirements.
10. Bonds
If a fixed contract amount or guaranteed maximum price
has not been determined at the time the contract is awarded, the penal sums of
the performance and payment bonds delivered to the school must each be in an
amount equal to the project budget, as specified in the request for
qualifications. The construction manager
shall deliver the bonds not later than the 10th day after the date the
construction manager executes the contract unless the construction manager
furnishes a bid bond or other financial security acceptable to the school to
ensure that the construction manager will furnish the required performance and
payment bonds when a guaranteed maximum price is established.
11. Making Evaluations Public
The school shall document the basis of its selection
and shall make the evaluations public not later than the seventh day after the
date the contract is awarded.