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Regular Session, 2014 ENROLLED
SENATE BILL NO. 680 (Substitute of Senate Bill No. 552 by Senator Adley)
BY SENATORS ADLEY AND GARY SMI TH
AN ACT1
To enact R.S. 38:2225.2.4, relative to public contracts; to authorize use of the construction2
management at risk method for public contracts; 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. Construction management at risk6
A.(1) Notwithstanding any other provision of law to the contrary, a7
public entity may use the construction management at risk project delivery8
method to contract for a project to construct public works as set forth in this9
Section.10
(2) Purpose. This Section creates an alternative project delivery method,11
known as "construction management at risk", or "CMAR", for use by a public12
entity to award a contract to construct public works when deemed in the public13
interest, beneficial to the owner, and in accordance with the procedures in this14
Section. The following are reasons to use the CMAR delivery method:15
collaboration and cost control; concurrent execution of design and construction;16
a complex project with a tight time frame; owner, designer, and contractor with17
mutual project goals; risk identification controlled by owner; and minimization18
of the risk of construction and design disputes by using a collaborative process.19
(3) CMAR shall not be used for any project that is estimated to cost less20
than twenty-five million dollars.21
B. Definitions. When used in this Section, the following words and22
phrases have the meanings ascribed to them in this Section, unless the context23
ACT No. 782 SB NO. 680 ENROLLED
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words in boldface type and underscored are additions.
indicates a different meaning:1
(1) "Construction management at risk" or "CMAR" means a delivery2
method by which the owner uses a design professional, who is engaged by the3
owner for professional predesign or design services, or both. The owner4
contracts separately with a CMAR contractor to engage in the preconstruction5
phase. As specified in this Section, the same CMAR contractor may also provide6
construction services to build the project.7
(2) "Construction management at risk contractor" or "CMAR8
contractor" means a person, sole proprietorship, partnership, corporation, or9
other legal entity, properly licensed, bonded, and insured, who does one or both10
of the following:11
(a) Provides construction experience to the owner or its design12
professional during the preconstruction phase regarding the constructability of13
the project.14
(b) May contract with the owner to assume the risk to construct the15
project for a guaranteed maximum price, without re-procurement.16
(3) "Design professional" means an engineer, architect, or landscape17
architect who has secured a professional license from a Louisiana registration18
board as required by state law and who is selected by an owner in accordance19
with state law.20
(4) "Owner" means a "public entity" as defined in R.S. 38:2211.21
(5) "Selection review committee" means the committee appointed by the22
owner to review the request for qualifications, score the proposers, and23
recommend award to a construction management at risk contractor. The24
committee shall consist of no more than five individuals as follows:25
(a) One design professional in the discipline of but not involved in the26
project.27
(b) One licensed contractor in the discipline of but not involved in the28
project.29
(c) One representative of the owner.30 SB NO. 680 ENROLLED
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(d) Two members at large.1
(6) All other terms shall have the meanings as provided for in R.S.2
38:2211.3
C. Any owner who determines to use the construction management at4
risk method shall indicate such intent in the request for qualifications to5
procure a CMAR contractor and the reasons it deems such method to be in the6
public interest and beneficial to the owner.7
D. There shall be no challenge by any legal process to the choice of the8
successful construction manager at risk contractor except for fraud, bias for9
pecuniary or personal reasons not related to the taxpayers' interest, or10
arbitrary and capricious selection by the owner.11
E. The owner shall select and contract with a design professional for12
design services in the manner provided for by law.13
F. Request for qualifications, or RFQ, for construction management at14
risk contractor.15
(1) A request for qualifications, or RFQ, to award a contract for a16
construction management at risk contractor for preconstruction and17
construction services shall be advertised in the official journal of the owner and,18
if one exists, on the Internet website of the owner. The RFQ shall be advertised19
at least two times within the thirty-day period prior to the deadline for receipt20
of responses.21
(2) The RFQ shall include the following as well as any other pertinent22
information limited to the qualifications of a proposer that the owner23
determines a proposer may need to submit in a response to an RFQ:24
(a) The preconstruction scope of services.25
(b) Submittal criteria for the project.26
(c) Procurement grading criteria.27
(d) Scoring methodology.28
(e) Total fees and compensation payable to the CMAR contractor for29
preconstruction services.30 SB NO. 680 ENROLLED
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(3) The RFQ may request that proposers include the following in1
response to the RFQ, as well as any other appropriate factors that would, in the2
opinion of the owner, demonstrate the capability of the proposer to perform the3
role of CMAR contractor:4
(a) The proposer's surety.5
(b) Construction methodologies previously used by the proposer on other6
projects.7
(c) Extent to which the proposer intends to self-perform portions of the8
work, if applicable.9
(d) Past performance of the proposer including timely completion of10
other public works projects of similar complexity and size.11
(e) Proposed management and staffing for the project.12
(f) The proposer's last safety record to include current experience13
modification rate, or EMR, recordable incident rate, or RIR, lost work time14
incident rate, or other data as required by the owner.15
(g) The proposer's standard safety plan.16
(4) Within ninety days after the deadline for responses to the RFQ, a17
selection review committee chosen by the owner and identified in the RFQ shall18
make a written recommendation to the owner as to which proposer should be19
awarded the contract. The results of the selection review committee, inclusive20
of its findings, grading, score sheets, and recommendations, shall be available21
for review by all proposers and shall be deemed public records.22
(5) If the benefits of using the CMAR method reduce as the design23
process progresses, the owner shall select the CMAR contractor either before,24
but not later than, when the design professional's design is not more than thirty25
percent complete.26
G. After award and execution of the contract with the CMAR contractor,27
the following actions shall proceed:28
(1) The design professional, in consultation with the CMAR contractor,29
shall proceed with design services.30 SB NO. 680 ENROLLED
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(2) The owner shall obtain an opinion of probable cost of the project1
from both the CMAR contractor and the design professional when final design2
of the project is not more than sixty percent complete, and again when final3
design of the project is not more than ninety percent complete.4
(3) The CMAR contractor shall provide to the owner a guaranteed5
maximum price for construction of the project, before or upon completion of6
the final design.7
(4) If the owner and CMAR contractor are able to negotiate, and to8
establish and agree upon a guaranteed maximum price, or GMP, to render9
construction services for the project, and additionally, to agree upon10
constructability, construction phasing and sequencing, and the maximum11
number of contract days to complete the project, the owner may then award the12
contract for construction services to the CMAR contractor for the construction13
phase of the contract.14
(5) Once a guaranteed maximum price is agreed upon, the owner may15
authorize the CMAR contractor to undertake construction services.16
Additionally, the owner may determine and authorize the CMAR contractor to17
undertake specific items of construction services prior to agreement upon a18
GMP for such items, provided such undertaking is for the benefit of the project19
and a GMP for the undertaking can be agreed upon between the owner and20
CMAR contractor. Such items may benefit the project, including but not21
limited to items that require a long lead time, may further the understanding22
of unknown site conditions, or other items.23
(6) If the owner and the CMAR contractor are not able to agree upon24
constructability, construction phasing and sequencing, the GMP for the project,25
the maximum number of contract days to complete the project, and to reach a26
negotiated agreement, then the project shall be readvertised and publicly bid27
utilizing the design-bid-build delivery method.28
H. The provisions of this Section shall supersede any conflicting29
provisions of any law, including but not limited to the requirements of Chapter30 SB NO. 680 ENROLLED
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10 of this Title, but the provisions of such Chapter shall otherwise be applicable1
to such contracts.2
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: