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Regular Session, 2014
SENATE BILL NO. 552
BY SENATORS ADLEY AND GARY SMI TH
PUBLIC CONTRACTS. Provide relative to early contractor involvement (ECI) method for
public contracts. (8/1/14)
AN ACT1
To enact R.S. 38:2225.2.4, relative to public contracts; to provide for public contracts by use2
of the early contractor involvement method; and to provide for related matters.3
Be it enacted by the Legislature of Louisiana:4
Section 1. R.S. 38:2225.2.4 is hereby enacted to read as follows:5
ยง2225.2.4. Early contractor involvement6
A.(1) Notwithstanding any other provision of law to the contrary, a7
public entity, may award a contract for public works for construction by the8
"early contractor involvement (ECI)" project delivery method as set forth in9
this Section.10
(2) Purpose. This Section creates an alternative project delivery method,11
known as "early contractor involvement (ECI)", for a public entity to award a12
contract for construction of public works when deemed in the public interest,13
beneficial to the owner, and in accordance with the procedures in this Section.14
The following are reasons to use the ECI delivery method: collaboration and15
cost control; concurrent execution of design and construction; a complex16
project with a tight timeframe; owner, designer, and contractor have mutual17 SB NO. 552
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project goals; owner controls risk identification; and, a collaborative project1
minimizes risk of construction and design disputes.2
(3) Definitions. When used in this Section, the following words and3
phrases have the meanings ascribed to them in this Section, unless the context4
indicates a different meaning:5
(a) "Design professional" means an engineer, architect, or landscape6
architect that has received a professional certification by an accredited7
registration board.8
(b) "Early contractor involvement (ECI)" means a delivery method by9
which the owner utilizes a design professional, who is engaged by the owner for10
professional predesign and design services. The owner contracts separately with11
a contractor to engage in the preconstruction phase as a consultant. As12
specified in this Section, the contractor may also provide construction services13
to build the project.14
(c) "ECI contractor" means a person, sole proprietorship, partnership,15
corporation or other legal entity, properly licensed, which:16
(i) Provides consultation to the owner during the preconstruction phase17
regarding the construction of the facility.18
(ii) May contract with the owner to assume the risk to construct the19
project at the fixed contracted price as a general contractor.20
(iii) Or both.21
(d) "Owner" means a public entity as provided for in R.S. 38:2211.22
(e) All other terms shall have the meanings provided for in R.S. 38:2211.23
(4) Roles. The roles applicable to the early contractor involvement24
method are described as follows:25
(a) The owner is a public entity who selects and contracts with a design26
professional in accordance with existing laws for the procurement of27
professional predesign and design services. The owner also selects and28
contracts with an ECI contractor to provide consultation during the29 SB NO. 552
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preconstruction phase or to perform construction services during the1
implementation phase, or both, in accordance with the procedures in this2
Section.3
(b) The design professional provides predesign and design services as4
contracted by the owner.5
(c) The ECI contractor provides preconstruction consultation or6
construction services, or both, to build the public works project in accordance7
with approved plans and specifications designated in the implementation phase.8
B.(1) An owner that decides to award a public works contract by the9
early contractor involvement method shall, prior to the advertisement of the10
RFQ soliciting ECI contractors to perform such services, prepare a written11
statement justifying why the early contractor involvement method is preferred12
to the design-bid-build, the design-build, or other public bid methods provided13
by law applicable to the particular project.14
(2) The written statement shall identify the specific benefits to the public,15
which the public entity determines will result from use of the early contractor16
involvement method.17
(3) The written statement shall be published by the public entity in the18
advertisement required by Subsection C of this Section.19
C. Early contractor involvement selection process.20
(1)(a) The owner shall select and contract with a design professional for21
predesign and design services in the manner provided for by law. The design22
professional shall submit to the owner his opinion of probable cost to construct23
the project when the final design of the project is not more than thirty percent24
complete.25
(b) An owner may utilize the ECI contractor method only if the owner26
selects an ECI contractor for the project utilizing the selection method provided27
for in this Subsection and selects the ECI contractor not later than the date the28
owner's design professional submits his opinion of probable cost to the owner29 SB NO. 552
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as provided in this Subsection. Final design efforts on the project shall not1
proceed until the owner selects the ECI contractor.2
(2) Request for qualifications (RFQ).3
(a) A request for qualifications (RFQ) to award a contract to an ECI4
contractor for preconstruction and construction services shall be advertised in5
the official journal of the owner and, if one exists, the Internet website of the6
owner. Additionally, the owner may select other publications deemed7
appropriate by the public entity for advertisement of the notice. The RFQ shall8
be advertised at least two times within a thirty-day period prior to the deadline9
for receipt of responses.10
(b) The RFQ shall include the following information as well as any other11
pertinent information that the owner determines a proposer may need in order12
to submit a response to the RFQ:13
(i) The project scope, including preconstruction services that shall be14
required of the contractor selected.15
(ii) Contractor submittal criteria for the project.16
(iii) Procurement grading criteria for responses to the RFQ.17
(iv) Scoring methodology for responses to the RFQ.18
(v) The identity of the members of the selection review committee.19
(vi) Total fees and compensation payable to the ECI contractor for20
preconstruction services.21
(vii) The deadline for responding to the RFQ.22
(viii) The written statement justifying the use of the early contractor23
selection method of project delivery required by Subsection B of this Section.24
(c) The RFQ may request that proposers include the following in25
response to the RFQ, as well as any other appropriate factors that would, in the26
opinion of the owner, demonstrate the capability of the proposer to perform the27
role of ECI contractor:28
(i) Competence of the proposer.29 SB NO. 552
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(ii) Construction methodology previously utilized by the proposer on1
other projects.2
(iii) Extent to which the proposer intends to self-perform portions of the3
work.4
(iv) Past performance by the proposer including timely completion of5
other public works projects.6
(v) Proposed management and staffing for the project.7
(vi) The proposer's last safety record to include current experience,8
modification rate (EMR), recordable incident rate (RIR), lost work time9
incident rate, or other data as required by the owner.10
(vii) The proposer's standard safety plan.11
D. Request for qualifications reviews and award. Within ninety days12
after the deadline for responses to the RFQ, a selection review committee13
chosen by the owner and identified in the RFQ shall make a written14
recommendation to the owner as to which proposer should be awarded the15
contract. The results of the selection review committee, inclusive of its findings,16
grading, score sheets, and recommendations shall be available for review by all17
proposers and shall be deemed public records.18
E. After selection of the ECI contractor for the project, the design19
professional in consultation with the ECI contractor shall proceed to design the20
project. The owner shall obtain an opinion of probable cost of the project from21
both the ECI contractor and the design professional when final design of the22
project is not more than fifty percent complete and again when final design of23
the project is not more than ninety percent complete.24
F. Early contractor involvement fixed price.25
(1) The ECI contractor shall provide to the owner a fixed price for26
construction of the project, before or upon completion of the final design.27
(2) If the owner and ECI contractor are able to negotiate, establish, and28
agree upon such guarantee maximum price for rendering construction services29 SB NO. 552
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for constructing the project, and, in addition, constructability, construction1
phasing and sequencing, and the maximum number of construction days for2
completion of the project, the owner shall then authorize and contract with the3
ECI contractor for the construction phase of the contract.4
(3) If the owner and the ECI contractor are not able to agree upon5
constructability, construction phasing and sequencing, a guaranteed maximum6
price for the project, and the maximum number of construction days for7
completion of the project to reach a negotiated agreement, then the project shall8
be re-advertised and publicly bid utilizing the design-bid-build delivery method.9
G. The provisions of this Section shall supersede any conflicting10
provisions of any law, including but not limited to the requirements of Chapter11
10 of this Title, but the provisions of such Chapter shall otherwise be applicable12
to such contracts.13
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Sharon F. Lyles.
DIGEST
Adley (SB 552)
Prior law prohibits a construction manager or any other third-party consultant employed by
a public entity from managing a construction project as a general contractor or acting in the
role of the general contractor to oversee, direct, or coordinate individual trade contractors
on behalf of the public entity, or accepting bids or itself bid on the public work or
components of the public work with respect to which the manager or consultant is employed
or contracted to manage or consult.
Proposed law permits an owner who is a public entity to award a public works contract by
the early contractor involvement (ECI) project delivery method.
Proposed law defines the "early contractor involvement (ECI) method" to mean a delivery
method by which the owner utilizes a design professional, who is engaged by the owner for
professional pre-design and design services. The owner contracts separately with a
contractor to engage in the pre-construction phase as a consultant. The contractor may also
provide construction services to build the project. Defines a "design professional" to be an
engineer, architect, or landscape architect that has received a professional certification by
an accredited registration board. Defines an "ECI contractor" to be a person, sole
proprietorship, partnership, corporation or other legal entity, properly licensed, that assumes
the risk for the construction at the contracted price as a general contractor, or provides
consultation to the owner during the pre-construction phase of the facility, or both.
Proposed law requires the owner, prior to using the ECI method, to give written justification
why such method is preferred to the design-bid-build, the design-build, or public bid
methods provided by law for the particular project, and how its use benefits the public.
Requires its inclusion in the advertisement of owner's request for qualifications (RFQ). SB NO. 552
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Proposed law requires the owner's design professional to submit its opinion of probable cost
to construct the project when the project's final design is not more than 30% complete.
Requires the owner to select the ECI contractor before the design professional proceeds to
further design the project. Prohibits the project to proceed to final design until the owner
selects the ECI contractor in order to use the ECI method.
Proposed law requires advertisement of the RFQ to award a contract for ECI services in the
owner's official journal, and on the owner's Internet website, if available. Authorizes the
owner to select other appropriate publications in which to also advertise the notice.
Proposed law lists specific items the owner shall include in the RFQ. Allows the owner to
include other listed items in the RFQ. Requires review and grading of proposals by a review
committee identified in the RFQ. Provides that the review committee results, inclusive of
its findings, grading, score sheets and recommendations are available for review by all
proposers and shall be deemed public records.
Proposed law requires the review committee to make its recommendations to the owner
within 90 days after the deadline for submission of responses to the RFQ. Requires the
proposer recommended by the committee as the ECI contractor to work with the owner's
design professional for the project on constructability and construction phasing and
sequencing prior to the owner's award to construct the project.
Proposed law requires the owner to obtain an opinion of probable cost from the design
professional and the ECI contractor when final project design is not more than 50% and 90%
complete.
Proposed law requires the ECI contractor to provide the owner a fixed price before or upon
completion of design, before or upon completion of the final design.
Proposed law provides that, if the owner and ECI contractor are able to negotiate, establish,
and agree upon such fixed price for rendering construction services for portions of the
project, or, with respect to constructing the entire project, such fixed price for constructing
the entire project, and, in addition, constructability, construction phasing and sequencing,
and the maximum number of construction days for completion of the project, the owner may
then authorize and contract with the ECI contractor to render construction services for the
construction phase of the project.
Proposed law provides that, if the owner and the ECI contractor are not able to reach a
negotiated agreement on such matters, then the project must re-advertised and publicly bid
utilizing the design-bid-build delivery method.
Proposed law provides that its provision do not supersede any conflicting provisions of any
law, including but not limited to the requirements of Chapter 10 of Title 38, but that the
provisions of that Chapter shall otherwise be applicable to such contracts.
Effective August 1, 2014.
(Adds R.S. 38:2225.2.4)