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Codified Laws

CHAPTER 5-18B

PROCUREMENT OF PUBLIC IMPROVEMENTS

5-18B-1    Plans and specifications--Advertisement--Availability.

5-18B-2    Certified check or cashier's check for percentage of bid or bid bond required.

5-18B-3    Check or bid bond requirement--Waiver.

5-18B-4    Surety bond or insurance contract required in bid, in contract, or by law.

5-18B-5    Negotiations if lowest responsive and responsible bid exceeds final estimated project cost.

5-18B-6    Certification regarding labor provided by nonresident subcontractors.

5-18B-7    Contractor's use tax liability.

5-18B-8    Forfeited funds accrue to funds provided for construction.

5-18B-9    Time limits--Return of checks--Return or destruction of bid bonds.

5-18B-10    Plans and specifications prepared by architect or engineer.

5-18B-11    Progress payments--Retention of funds from final payment--Interest.

5-18B-12    Bond or deposit of securities in lieu of retention of sums due for work performed.

5-18B-13    Occupancy before completion and acceptance.

5-18B-14    Project superintendent--Installment payments--Final payment.

5-18B-15    Architect or engineer may not be contractor or construction manager on project exceeding one hundred thousand dollars--Exemption.

5-18B-16    Unemployment compensation.

5-18B-17    Contractor's excise tax license.

5-18B-18    Contributions and interest due the Department of Labor and Regulation.

5-18B-19    Amendment or change order to existing contract.

5-18B-20    Design-build contracts.

5-18B-21    Design-builder to be authorized.

5-18B-22    Subletting of design services.

5-18B-23    Subletting construction or other services.

5-18B-24    Contracts with unlicensed or unqualified design-builder permitted if services sublet to licensed or qualified person.

5-18B-25    Request for proposals to contain performance criteria--Qualifications of developer.

5-18B-26    Performance criteria developer and design builder to perform separate roles.

5-18B-27    Performance criteria developer to be purchasing agency employee or engaged in accordance with statutorial procedures--Delegation.

5-18B-28    Development of performance criteria.

5-18B-29    Elements of design-build request for proposals--Time for mailing to pre-qualified design-builders.

5-18B-30     Design-build request not to be detailed--Drawings--Specifications--Standards.

5-18B-31    Pre-qualification of design-builders--Elements of request for qualifications.

5-18B-32    Deposit or bond submitted with proposal--Forfeiture.

5-18B-33    Proposals to be sealed--Contents.

5-18B-34    Confidentiality of proposals.

5-18B-35    Review and opinion of performance criteria developer--Submission to governing body.

5-18B-36    Acceptance of a proposal--Evaluation criteria scores.

5-18B-37    Rejection of design-build proposals--Solicitation of new proposals.

5-18B-38    Withdrawal of design-build proposal.

5-18B-39    Construction manager engagement.

5-18B-40    Services of construction manager.

5-18B-41    Manager-agent.

5-18B-42    Manager-at-risk.

5-18B-43    Criteria for construction manager engagement.

5-18B-44    Criteria for construction manager-at-risk engagement.

5-18B-45    Active involvement of licensed design professional required.

5-18B-46    Improvement projects that rely on federal funding from FAA.



5-18B-1Plans and specifications--Advertisement--Availability.

If a contract is for the construction of a public improvement, the required advertisement shall state where the plans and specifications may be examined. The plans and specifications for the construction of any public improvement shall be and remain on file in the office of the purchasing agency at all times from the beginning of the publication of the advertisement for bids until the completion of the public improvement. The purchasing agency shall, upon request, furnish at least one copy of the plans and specifications, without charge, to each contractor resident in South Dakota who intends, in good faith, to bid upon the public improvement. The copy shall be available at the date of the first publication of the advertisement for bids. The purchasing agency may require the return of the copy at the time of the opening of the bids.

Source: SL 2010, ch 31, § 40.



5-18B-2Certified check or cashier's check for percentage of bid or bid bond required.

If the invitation for bids is for the construction of a public improvement, each bid shall contain a certified check or a cashier's check, for five percent of the amount of the bid. Such check shall be certified or issued by either a state or a national bank and payable to the purchasing agency or to an officer of the purchasing agency letting the contract and inviting bids. In lieu of a check, a bid may contain a bid bond for ten percent of the amount of the bid. Such bond to be issued by a surety authorized to do business in this state payable to the purchasing agency, as a guaranty that the bidder will enter into a contract with the purchasing agency, its board or officers thereof, in accordance with the terms of the letting and bid in case the bidder be awarded the contract.

Source: SL 2010, ch 31, § 41.



5-18B-3. Check or bid bond requirement--Waiver.

Notwithstanding the provisions of § 5-18B-2, the requirement of a bid bond, certified or cashier's check, cash, or other security may be waived by the purchasing agency if the bid submitted does not exceed the limit established pursuant to § 5-18A-14 for a public improvement.

Source: SL 2010, ch 31, § 42; SL 2021, ch 33, § 1.



5-18B-4Surety bond or insurance contract required in bid, in contract, or by law.

No purchasing agency may, directly or indirectly, require or direct a bidder on any public improvement contract that is about to be or has been competitively bid to obtain from a particular insurer or insurance producer any surety bond or contract of insurance required in the bid or contract or required by any law, ordinance, or rule. However, the surety insurer shall be an authorized insurer under Title 58. Nothing in this section prevents any purchasing agency from exercising the right to approve or reject a surety bond or contract of insurance as to its form or sufficiency.

Source: SL 2010, ch 31, § 43.



5-18B-5Negotiations if lowest responsive and responsible bid exceeds final estimated project cost.

If the lowest responsive and responsible bid for a public improvement project exceeds the final estimated project cost, the Bureau of Human Resources and Administration, acting on behalf of the state, or any other purchasing agency may negotiate with that low bidder for the construction of a public improvement at the most advantageous price.

Source: SL 2010, ch 31, § 44; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.



5-18B-6Certification regarding labor provided by nonresident subcontractors.

Prior to execution of a public improvement contract, a successful bidder shall certify:

(1)    That no more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors; or

(2)    That more then twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors because resident contractors are not available and at competitive prices.

The bidder shall also provide any information requested by the purchasing agency to verify the certification.

Source: SL 2010, ch 31, § 45.



5-18B-7Contractor's use tax liability.

If a purchasing agency is to supply tangible personal property to be used in performance of the contract and the personal property is taxable to the contractor under § 10-46-5, the specifications or notice to bidders shall state the purchase price or fair market value of the tangible personal property, whichever is the greater. The stated amount shall be the basis for determining the contractor's liability for tax.

Source: SL 2010, ch 31, § 46.



5-18B-8Forfeited funds accrue to funds provided for construction.

Any funds forfeited by a bidder or surety shall accrue to the funds provided for construction of the public improvement.

Source: SL 2010, ch 31, § 47.



5-18B-9Time limits--Return of checks--Return or destruction of bid bonds.

No bidder on a public improvement contract may be required, either in the invitation for bids or otherwise, to leave a certified check or cashier's check, or bid bond, posted for a longer period than allowed in § 5-18A-5 if the bid is not accepted. The check or bid bond of the successful bidder shall be returned upon the execution of the contract and surety hereafter provided for. The checks of all unsuccessful bidders shall be, by the purchasing agency, immediately returned to the respective makers thereof and the bid bonds of all unsuccessful bidders shall be, by the purchasing agency, immediately destroyed. No more than forty-five days may elapse between the opening of the bids and either the acceptance of the bid of the lowest responsible bidder or the rejection of all of the bids presented.

Source: SL 2010, ch 31, § 48; SL 2016, ch 39, § 3; SL 2019, ch 48, § 1.



5-18B-10. Plans and specifications prepared by architect or engineer.

If a contract is based upon plans and specifications prepared by an architect or engineer, the contract's terms and conditions shall comply with the provisions provided in the "AIA Document A201, General Conditions of the Contract for Construction," by the American Institute of Architects in effect on January 1, 2020, the "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," by ConsensusDOCS LLC in effect January 1, 2020, or the "Standard General Conditions of the Construction Contract," 1990 Edition, by the Engineer's Joint Contract Documents Committee, in effect January 1, 2020, except when in conflict with the laws of this state. However, the purchasing agency may modify or delete, on a contract by contract basis, any portion of the "AIA Document A201, General Conditions of the Contract for Construction," "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," or the "Standard General Conditions of the Construction Contract."

Source: SL 2010, ch 31, § 49; SL 2020, ch 23, § 1.



5-18B-11Progress payments--Retention of funds from final payment--Interest.

The contract may permit progress payments, but an amount necessary to complete the improvement shall be retained from the final payment until the contract is executed in full and the public improvement completed to the satisfaction and acceptance of the purchasing agency. However, if the contractor has furnished the purchasing agency all required records and reports and a final inspection has been made, the purchasing agency shall pay to the contractor interest as set by the governing body at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amounts retained and on the final payment due the contractor beginning thirty days after the work under the contract has been completed, as evidenced either by the completion date established by the architect's or engineer's letter of acceptance or by the use and occupancy of the public improvement. The interest shall continue until the date when payment is tendered to the contractor unless delay in payment has been the result of federal participation in the contract in which event interest may not begin until thirty days after payment by the federal authority involved. If a portion of a progress payment is retained, other than the final payment, the purchasing agency shall pay to the contractor interest as set by the purchasing agency at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amount retained beginning thirty days after the contractor has furnished the purchasing agency with all required records and reports and a progress inspection.

Source: SL 2010, ch 31, § 50.



5-18B-12Bond or deposit of securities in lieu of retention of sums due for work performed.

The purchasing agency may include in any contract for a public improvement provisions for a bond or the deposit of securities in lieu of sums retained from payments due a contractor for work performed pursuant to the terms of the contract. The contract document shall state the types of bond or securities to be accepted and the procedural requirements for the deposits.

Source: SL 2010, ch 31, § 51.



5-18B-13Occupancy before completion and acceptance.

If a purchasing agency elects to use and occupy the public improvement before acceptance, the purchasing agency shall pay all amounts due under the contract except double the amount that the architect or engineer estimates to be necessary to complete the improvement in accordance with the plans and specifications or one percent of the contract price, or in any event not less than three hundred dollars. No interest may commence until thirty days after the work has been fully completed.

Source: SL 2010, ch 31, § 52.



5-18B-14Project superintendent--Installment payments--Final payment.

The purchasing agency may appoint a competent superintendent who may be the architect or engineer furnishing the plans and specifications for the public improvement. The superintendent shall report to the purchasing agency or board every thirty days as to the progress and character of the work done by the contractor. Upon the reports of the superintendent, the purchasing agency shall make payments promptly to the contractor during the process of construction to the extent provided by the contract based on the value of the work done and materials furnished. The payments shall be divided into such installments as the board and the contractor may agree upon at the time of entering into the contract, and which shall be included in and be a part of the terms of the contract. No payment, however, constitutes an acceptance, in whole or in part, by the purchasing agency prior to making of the final payment and acceptance in full completion of the contract. Final payment of any sums due to the contractor shall be made within thirty days after the completion and acceptance of the public improvement by the purchasing agency.

Source: SL 2010, ch 31, § 53.



5-18B-15Architect or engineer may not be contractor or construction manager on project exceeding one hundred thousand dollars--Exemption.

No person, firm, or corporation may act as architect or engineer and also as contractor or construction manager on any public improvement project if the amount to be expended exceeds one hundred thousand dollars. Any public improvement of an emergency nature that affects the public health and safety of the state and is funded through the use of an emergency appropriation or special appropriation, and any full-service firm that specializes in the design, fabrication, or installation of cultural or educational exhibits is exempt from this section.

Source: SL 2010, ch 31, § 54; SL 2017, ch 45, § 1.



5-18B-16Unemployment compensation.

Each purchasing agency, on entering into a contract for a public improvement, shall provide in the contract that the contractor is required to pay the Department of Labor and Regulation of South Dakota all contributions and interest due under the provisions of chapter 61-5, on wages paid to individuals employed in performance of the contract.

Source: SL 2010, ch 31, § 55; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.



5-18B-17Contractor's excise tax license.

No purchasing agency may award any contract for the construction of any public improvement unless the purchasing agency has verified with the Department of Revenue that the contractor has a contractor's excise tax license pursuant to chapter 10-46A or 10-46B.

Source: SL 2010, ch 31, § 56; SL 2011, ch 1 (Ex. Ord. 11-1), § 35, eff. Apr. 12, 2011.



5-18B-18Contributions and interest due the Department of Labor and Regulation.

Before final payment may be made on any contract for public improvement, the purchasing agency awarding the contract shall require the contractor to furnish a certificate from the Department of Labor and Regulation that all contributions and interest due to the Department of Labor and Regulation in the performance of the contract have been paid.

Source: SL 2010, ch 31, § 57; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.



5-18B-19Amendment or change order to existing contract.

Any amendment or change order to an existing contract for construction, reconstruction, or remodeling of a public improvement does not need to be bid if:

(1)    The contract contains unit prices for the same type or class of work;

(2)    The change or extra work is necessitated by circumstances related to soils, utilities, or unknown conditions directly affecting the performance of the work that were not reasonably foreseeable at the time the underlying contract was let and the change or extra work is necessary to the completion of the public improvement; or

(3)    The sum of the proposed amendment or change order plus the sum of all other prior unbid amendments or change orders, exclusive of change orders issued under subdivisions (1) and (2) of this section, does not exceed the following:

(a)    For contracts not more than five hundred thousand dollars, the greater of twenty-five thousand dollars or fifteen percent of the base contract;

(b)    For contracts exceeding five hundred thousand dollars but not more than two million five hundred thousand dollars, the greater of seventy-five thousand dollars or ten percent of the base contract; and

(c)    For contracts exceeding two million five hundred thousand dollars, the greater of two hundred fifty thousand dollars or five percent of the base contract.

Source: SL 2010, ch 31, § 58.



5-18B-20Design-build contracts.

A purchasing agency may enter into design-build contracts for public improvements, if the following conditions are met:

(1)    The purchasing agency shall, prior to issuing any design-build request for proposals, establish and publish procedures for the solicitation and award of design-build contracts. The Bureau of Human Resources and Administration shall establish the procedures for the state. The procedures shall include the following:

(a)    The procedure to select or designate a performance criteria developer utilizing a qualification based process and the procedure to prepare performance criteria;

(b)    The procedures for the preparation and contents of a design-build request for proposals;

(c)    The procedure and standards to be used to qualify or pre-qualify design-builders;

(d)    The procedures for preparing and submitting proposals;

(e)    The procedures for evaluating proposals;

(f)    The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve confidential information and proprietary information supplied by those submitting proposals, consistent with § 5-18B-34;

(g)    The procedures for awarding and executing design-build contracts;

(h)    The procedures for awarding design-build contracts in the event of public emergencies as defined in § 5-18A-9; and

(i)    The procedures for acting on formal protests relating to the solicitation or award of design-build contracts;

(2)    The purchasing agency shall, for each public improvement under this section, make a determination that it is in the best interest of the public to enter into a design-build contract to complete the public improvement. The determination to utilize design-build and the basis for the determination shall be recorded in the project file or the minutes of the meeting of the governing board of the purchasing agency. In making this determination, design-build projects shall meet one or more of the following criteria:

(a)    The purchasing agency requires a project design and construction time line that is faster than the traditional design/bid/build process would allow;

(b)    The complexity of the project requires close coordination of design and construction expertise or an extreme amount of coordination;

(c)    The purchasing agency requires early cost commitments; or

(d)    The project can be defined at an early stage and the purchasing agency is able to specify all requirements; and

(3)    The purchasing agency shall follow the procedures of other laws governing public improvement construction contracts to the extent such laws are compatible with the use of design-build contracts.

Source: SL 2010, ch 31, § 59; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.



5-18B-21Design-builder to be authorized.

No design-builder may do business in this state unless authorized as either an architect, engineer, or general contractor.

Source: SL 2010, ch 31, § 60.



5-18B-22Subletting of design services.

A design-builder may sublet responsibility for professional design services to any person licensed and registered to provide professional design services in this state. Nothing in this section limits or eliminates the responsibility or liability of any person registered pursuant to chapter 36-18A, on a design-build project to the purchasing agency or other third parties under existing law.

Source: SL 2010, ch 31, § 61.



5-18B-23Subletting construction or other services.

A design-builder may sublet responsibility for construction or other services to persons registered, licensed, or otherwise qualified to provide those services in this state.

Source: SL 2010, ch 31, § 62.



5-18B-24Contracts with unlicensed or unqualified design-builder permitted if services sublet to licensed or qualified person.

A design-builder may contract with the purchasing agency to provide professional services or construction services for which the design-builder is not licensed, registered, or qualified to perform, as long as the design-builder sublets all such services required under the design-build contract to a licensed, registered, or otherwise qualified person.

Source: SL 2010, ch 31, § 63.



5-18B-25Request for proposals to contain performance criteria--Qualifications of developer.

Any request for proposals shall contain performance criteria developed by a performance criteria developer and approved by the purchasing agency. For projects not exempted under chapter 36-18A from using a registered design professional, the performance criteria developer shall be a design professional registered under chapter 36-18A. For projects exempt under chapter 36-18A from using a registered design professional, the performance criteria developer shall be hired on the basis of qualifications related to projects of similar scope.

Source: SL 2010, ch 31, § 64.



5-18B-26Performance criteria developer and design builder to perform separate roles.

The performance criteria developer may not submit a proposal to enter into the design-build contract and the design-builder may not delegate or contract services under the design-build contract to the performance criteria developer.

Source: SL 2010, ch 31, § 65.



5-18B-27Performance criteria developer to be purchasing agency employee or engaged in accordance with statutorial procedures--Delegation.

The performance criteria developer shall be either an employee of the purchasing agency or shall be engaged in accordance with statutorial procedures for contracting with professional services. With the approval of the purchasing agency, the developer may delegate or contract for the development of specific aspects of the design criteria to other consultants. The performance criteria developer may be retained at the purchasing agency's option through to the completion of the design-build contract.

Source: SL 2010, ch 31, § 66.



5-18B-28Development of performance criteria.

The purchasing agency, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit a person to submit a proposal in accordance with the design-build request for proposals, given the nature of the public project and the level of design to be provided in the proposal.

Source: SL 2010, ch 31, § 67.



5-18B-29Elements of design-build request for proposals--Time for mailing to pre-qualified design-builders.

After a minimum of three design-builders have been pre- qualified in accordance with § 5-18B-31, a design-build request for proposals shall be mailed to each pre-qualified design-builder. The minimum number of pre-qualified design-builders is not required for any improvement project that is complex in nature, requires close coordination of design and construction expertise, and does not require significant structural changes, additions, reconstruction, or new construction. The design-build request for proposals shall be prepared for each design-build contract containing the following elements:

(1)    The identity of the purchasing agency which will award the design-build contract and the identity of the performance criteria developer;

(2)    The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and the procedures for making awards;

(3)    The proposed terms and conditions for the design-build contract;

(4)    The performance criteria, which shall include the following:

(a)    The owners preliminary program of space needs and special requirements;

(b)    Performance standards for materials and equipment; and

(c)    Minimum system requirements and efficiencies;

(5)    A description of the drawings, specifications, or other submittals to be submitted with the proposal, with guidance as to the form and level of completeness of the drawings, specifications, or submittals that is acceptable;

(6)    A schedule for planned commencement and completion of the design-build contract;

(7)    Budget limits for the design-build contract;

(8)    Affirmative action, disadvantaged business, or set-aside goals or requirements for the design-build contract, if any;

(9)    Requirements for performance and payment bonds, and insurance. These requirements shall meet the requirements of § 5-21-1;

(10)    The compensation, if any, to be given to design-builders submitting proposals who are not awarded the project;

(11)    Whether project financing is in place;

(12)    A schedule for payments to the design-builder;

(13)    Site identification and geotechnical information if the site is owner-provided;

(14)    Location of existing utilities and their capacity if the site is owner-provided; and

(15)    Warranty and guarantee requirements.

Source: SL 2010, ch 31, § 68.



5-18B-30 Design-build request not to be detailed--Drawings--Specifications--Standards.

No design-build request for proposals may include detailed designs or detailed drawings prepared by the criteria developer. The request may, however, include drawings of existing conditions and any preliminary conceptual sketches necessary to illustrate the information required by subdivision 5-18B-29(4). Each conceptual drawing shall contain the minimum information necessary to convey the requirements. No design-build request for proposals may include detailed construction specifications. Any design and construction standards in the request for proposals shall be performance standards only.

Source: SL 2010, ch 31, § 69.



5-18B-31Pre-qualification of design-builders--Elements of request for qualifications.

A purchasing agency shall pre-qualify design-builders for design-build contracts by advertising its request for qualifications in accordance with § 5-18A-14. A request for qualifications shall contain the following elements:

(1)    The identity of the purchasing agency;

(2)    A description of the proposed public improvement;

(3)    Budget limits for the proposed public improvement;

(4)    The requirements the design-builder will be required to have; and

(5)    The criteria and their relative weight for prequalification.

Source: SL 2010, ch 31, § 70.



5-18B-32Deposit or bond submitted with proposal--Forfeiture.

Any proposal, submitted pursuant to this section, shall be accompanied by a deposit or bond meeting the requirements of § 5-18B-2. The deposit or security may be forfeited if the proposal is accepted but the design-builder fails to execute the design-build contract.

Source: SL 2010, ch 31, § 71.



5-18B-33Proposals to be sealed--Contents.

Any proposal shall be sealed and may not be opened until expiration of the time established for making proposals as set forth in the design-build request for proposals. To the extent required by the request for proposals, any proposal shall identify each person to whom the design-builder proposes to sublet obligations under the design-build contract. At a minimum, any proposal shall identify each person to whom the design-builder proposes to sublet any design obligations or general construction obligations. Any person so identified may not be replaced without the approval of the purchasing agency. Any proposal shall establish a cost of the design-build contract that may not be exceeded if the proposal is accepted without change. The maximum cost in the proposal may be converted to fixed prices by negotiated agreement between the purchasing agency and the selected design-builder.

Source: SL 2010, ch 31, § 72.



5-18B-34Confidentiality of proposals.

Until a proposal is accepted, the drawings, specifications, and other information in the proposal remain the property of the person making the proposal. The purchasing agency shall make reasonable efforts to maintain the secrecy and confidentiality of any proposal and all information contained in any proposal and may not disclose any proposal or the information contained in a proposal to the design-builder's competitors. The purchasing agency may not disclose, except as may be permitted pursuant to chapter 1-27, confidential and proprietary information contained in any proposal to the public until such time as the purchasing agency takes final action to accept a proposal.

Source: SL 2010, ch 31, § 73.



5-18B-35Review and opinion of performance criteria developer--Submission to governing body.

Once received, any proposal shall be submitted to the performance criteria developer for review. Clarifications may be required to ensure conformance of any proposal with the performance criteria. In seeking clarifications, the performance criteria developer may not reveal any aspect of any design-builder's proposal to any other design-builder. No proposal may be considered until the performance criteria developer issues a written opinion that the proposal is consistent with the performance criteria. Once the performance criteria developer has issued such an opinion, the proposal shall be submitted to the governing body of the purchasing agency for review and evaluation. No proposal or design-build contract may be accepted unless the purchasing agency determines there was adequate competition for such contract.

Source: SL 2010, ch 31, § 74.



5-18B-36Acceptance of a proposal--Evaluation criteria scores.

After obtaining and evaluating proposals according to the criteria and procedures set forth in the design-build request for proposals, a purchasing agency may accept the proposal it considers most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the design-builder which submitted the accepted proposal. At the same time notice of acceptance is delivered, the purchasing agency shall also inform, in writing, the other design-builders that their proposals were not accepted. Unless all proposals are rejected, a detailed breakdown of the evaluation criteria scores for each proposal received shall be made available to the public after signature execution of the design-build contract. The contract for development of performance criteria shall terminate if a contract is awarded to the design-builder.

Source: SL 2010, ch 31, § 75.



5-18B-37Rejection of design-build proposals--Solicitation of new proposals.

The purchasing agency may reject any and all design-build proposals. The purchasing agency may solicit new proposals using the same or different performance criteria, budget constraints, or qualifications.

Source: SL 2010, ch 31, § 76.



5-18B-38Withdrawal of design-build proposal.

Any design-build proposal may be withdrawn by the proposer for any reason at any time prior to acceptance.

Source: SL 2010, ch 31, § 77.



5-18B-39Construction manager engagement.

Any purchasing agency may engage a construction manager if planning, designing, or constructing a public improvement, or if improving, altering, or repairing a public improvement. However, no purchasing agency is required to engage a construction manager.

Source: SL 2010, ch 31, § 78.



5-18B-40Services of construction manager.

Construction management services provided in the planning and design phases of a public improvement project may include:

(1)    Services provided in the planning and design phases of a public improvement project including the following:

(a)    Consulting with, advising, assisting, and making recommendations to the public corporation and architect or engineer on all aspects of planning for project construction;

(b)    Reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs;

(c)    Making, reviewing, and refining budget estimates based on the public corporation's program and other available information;

(d)    Making recommendations to the public corporation and the architect or engineer regarding the division of work in the plans and specifications to facilitate bidding and awarding of contracts;

(e)    Soliciting the interest of capable contractors and assisting the public corporation in taking bids on the project;

(f)    Analyzing the bids received and awarding contracts; and

(g)    Preparing and monitoring a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and

(2)    Services provided in the construction phase of the public improvement project including the following:

(a)    Maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project;

(b)    Observing the work as it is being performed for general conformance with working drawings and specifications;

(c)    Establishing procedures for coordinating among the public corporation, architect or engineer, contractors, and construction manager with respect to all aspects of the project and implementing labor policy in conformance with the requirements of the public corporation's policy and making recommendations;

(d)    Reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract;

(e)    Making recommendations for and processing requests for changes in the work and maintaining records of change orders;

(f)    Scheduling and conducting job meetings to ensure orderly progress of the work;

(g)    Developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors, and providing periodic status reports to the owner and the architect and engineer; and

(h)    Establishing and maintaining a cost control system and conducting meetings to review costs.

Source: SL 2010, ch 31, § 79.



5-18B-41Manager-agent.

No construction manager-agent may contract directly with any contractor or supplier for the project.

Source: SL 2010, ch 31, § 80.



5-18B-42Manager-at-risk.

The construction manager-at-risk shall directly contract with subcontractors and suppliers for the project.

Source: SL 2010, ch 31, § 81.



5-18B-43Criteria for construction manager engagement.

Unless the construction manager-agent is an employee of the purchasing agency and provides the construction management services pursuant to such employment, no purchasing agency may engage the services of a construction manager except as follows:

(1)    The purchasing agency shall first make the following determinations:

(a)    That it is in the public interest to utilize the services of a construction manager; and

(b)    That the construction management services would not unreasonably duplicate and would be in addition to the normal scope of separate architect or engineer contracts;

(2)    Notwithstanding any other provisions of this chapter, no construction manager may contract to perform actual construction on the project, except as follows:

(a)    The construction manager may perform general conditions of the construction contract as required by the owner;

(b)    The construction manager is a construction manager-at-risk and was solicited through a qualification-based request for proposals method of procurement as provided in § 5-18B-44 and the construction manager-at-risk, for any actual construction contracted by the construction manager-at-risk to be performed on the project, provides payment and performance bonds and competitively bids the work as required by any statute governing bidding and bonding for public improvement projects;

(c)    Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or

(d)    Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9); and

(3)    No person, firm, or corporation may act as a construction manager-agent and also as a contractor on any public improvement, except as follows:

(a)    Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or

(b)    Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9).

Source: SL 2010, ch 31, § 82.



5-18B-44Criteria for construction manager-at-risk engagement.

Each qualification based request for proposals required by subsection 5-18B-43(2)(b) to enter into a construction manager-at-risk services contract where the construction manager-at-risk intends to actually perform construction on the project, shall meet the following criteria:

(1)    The purchasing agency shall, prior to issuing any request for proposals to enter in a construction management services contract, establish and publish procedures for the solicitation and award of such contracts, which procedures shall include the following:

(a)    The procedures and standards to be used to qualify construction managers;

(b)    The procedures for preparing and submitting proposals;

(c)    The procedures for evaluating proposals;

(d)    The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve the confidential information and proprietary information supplied by those submitting proposals; and

(e)    The procedures for awarding construction management services contracts;

(2)    A request for proposals to enter into a construction management services contract shall contain the following elements:

(a)    The identity of the purchasing agency;

(b)    A description of the proposed public improvement;

(c)    A description of the qualifications the construction manager will be required to have;

(d)    The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and procedures for making awards;

(e)    The proposed terms and conditions for the construction management services contract, including a description of the scope of services to be provided;

(3)    Notice of any request for proposals shall be advertised in accordance with the provisions of § 5-18A-14;

(4)    After obtaining and evaluating proposals, a purchasing agency may accept the proposal it considers the most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the construction manager submitting the accepted proposal, and by simultaneously notifying in writing the other construction managers that their proposals were not accepted; and

(5)    The purchasing agency shall reserve the right to reject any or all proposals submitted.

Source: SL 2010, ch 31, § 83.



5-18B-45Active involvement of licensed design professional required.

Each contract for a public improvement shall have a licensed design professional actively involved in the project from the start of design through final completion as required by chapter 36-18A.

Source: SL 2010, ch 31, § 84.



5-18B-46Improvement projects that rely on federal funding from FAA.

If an invitation for a bid for airport improvements states that the requirement the bid be awarded within thirty days has been waived, the provisions of subdivision 5-18A-5(7) and § 5-18B-9 do not apply. If the bid award time exceeds thirty days, any bid may be withdrawn by the bidder without jeopardizing the bid bond. This section only applies to any improvement project that relies on federal funding from the federal aviation administration.

Source: SL 2015, ch 51, § 1.