EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 758
101ST GENERAL ASSEMBLY
INTRODUCED BY SENATOR HOUGH.
3896S.02I ADRIANE D. CROUSE, Secretary
AN ACT
To repeal sections 8.250, 8.260, 8.675, 8.677, 8.679, 34.055, 34.057, 34.058, 34.100, 34.203,
34.206, 34.209, 34.212, 34.217, and 34.218, RSMo, and to enact in lieu thereof fifteen
new sections relating to public contracts.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 8.250, 8.260, 8.675, 8.677, 8.679, 1
34.055, 34.057, 34.058, 34.100, 34.203, 34.206, 34.209, 34.212, 2
34.217, and 34.218, RSMo, are repealed and fifteen new sections 3
enacted in lieu thereof, to be known as sections 8.250, 8.260, 4
8.675, 8.677, 8.679, 8.960, 8.962, 8.964, 8.966, 8.968, 8.970, 5
8.972, 8.974, 34.055, and 34.100, to read as follows:6
8.250. 1. "Project" for the purposes of this chapter 1
means the labor or material necessary for the construction, 2
renovation, or repair of improvements to real property so 3
that the work, when complete, s hall be ready for service for 4
its intended purpose and shall require no other work to be a 5
completed system or component. 6
2. All contracts for projects, the cost of which 7
exceeds twenty-five thousand dollars, entered into by any 8
city containing five hundred thousand inhabitants or more 9
shall be let to the lowest, responsive, responsible bidder 10
or bidders after notice and publication of an advertisement 11
for five days in a daily newspaper in the county where the 12
work is located, or at least twic e over a period of ten days 13
or more in a newspaper in the county where the work is 14 SB 758 2
located, and in two daily newspapers in the state which do 15
not have less than fifty thousand daily circulation, and by 16
such other means as are determined to be most like ly to 17
reach potential bidders. 18
3. All contracts for projects, the cost of which 19
exceeds one hundred thousand dollars, entered into by an 20
officer or agency of this state shall be let to the lowest, 21
responsive, responsible bidder or bidders based o n 22
preestablished criteria after [notice and] publication of an 23
[advertisement] invitation to bid for [five days in a daily 24
newspaper in the county where the work is located, or at 25
least twice over] a period of ten days or more [in a 26
newspaper in the county where the work is located and in one 27
daily newspaper in the state which does not have less than 28
fifty thousand daily circulation and by such other means as 29
determined to be most likely to reach potential bidders ] on 30
the website of the officer or agency or through an 31
electronic procurement system . For all contracts for 32
projects between twenty -five thousand dollars and one 33
hundred thousand dollars, a minimum of three contractors 34
shall be solicited with the award being made to the lowest 35
responsive, responsible bidder based on preestablished 36
criteria. 37
4. The number of such public bids shall not be 38
restricted or curtailed, but shall be open to all persons 39
complying with the terms upon which the bids are requested 40
or solicited unless deb arred for cause. No contract shall 41
be awarded when the amount appropriated for same is not 42
sufficient to complete the work ready for service. 43
5. Dividing a project into component labor or material 44
allocations for the purpose of avoiding bidding o r 45 SB 758 3
advertising provisions required by this section is 46
specifically prohibited. 47
8.260. All appropriations made by the general assembly 1
amounting to one hundred thousand dollars or more for the 2
construction, renovation, or repair of fa cilities shall be 3
expended in the following manner: 4
(1) The agency requesting payment shall provide the 5
commissioner of administration with satisfactory evidence 6
that a bona fide contract, procured in accordance with all 7
applicable procedures, ex ists for the work for which payment 8
is requested; 9
(2) All requests for payment shall be approved by the 10
architect or engineer registered to practice in the state of 11
Missouri who designed the project or who has been assigned 12
to oversee it; 13
(3) In order to guarantee completion of the contract, 14
the agency or officer shall retain a portion of the contract 15
value in accordance with the provisions of section [34.057] 16
8.960; 17
(4) A contractor may be paid for materials delivered 18
to the site or to a storage facility approved by the 19
director of the division of facilities management, design 20
and construction as having adequate safeguards against loss, 21
theft or conversion. 22
In no case shall the amount contracted for exceed the amount 23
appropriated by the general assembly for the purpose. 24
8.675. 1. As used in [sections 8.675 to 8.687 ] this 1
section, the following terms mean: 2
(1) "Construction [management] management-as-agent 3
services" includes: 4 SB 758 4
(a) Services provided in the planning and design 5
phases of the project including, but not limited to, 6
consulting with, advising, assisting and making 7
recommendations to the public owner and architect, engineer 8
or registered landscape architect on all aspects of planning 9
for project construction; reviewing all plans and 10
specifications as they are being developed and making 11
recommendations with respect to construction feasibility, 12
availability of material and labor, time requirements for 13
procurement and construction, a nd projected costs; making, 14
reviewing and refining budget estimates based on the public 15
owner's program and other available information; making 16
recommendations to the public owner and the architect or 17
engineer regarding the division of work in the plan s and 18
specifications to facilitate the bidding and awarding of 19
contracts; soliciting the interest of capable contractors 20
and assisting the owner in taking bids on the project; 21
analyzing the bids received and awarding contracts; and 22
preparing and monitoring a progress schedule during the 23
design phase of the project and preparation of a proposed 24
construction schedule; and 25
(b) Services provided in the construction phase of the 26
project including, but not limited to, maintaining competent 27
supervisory staff to coordinate and provide general 28
direction of the work and progress of the contractors on the 29
project; observing the work as it is being performed for 30
general conformance with working drawings and 31
specifications; establishing procedures for coordinating 32
among the public owner, architect or engineer, contractors 33
and construction [manager] manager-as-agent with respect to 34
all aspects of the project and implementing such procedures; 35
maintaining job site records and making appropriate progres s 36 SB 758 5
reports; implementing labor policy in conformance with the 37
requirements of the public owner; reviewing the safety and 38
equal opportunity programs of each contractor for 39
conformance with the public owner's policy and making 40
recommendations; reviewing and processing all applications 41
for payment by involved contractors and material suppliers 42
in accordance with the terms of the contract; making 43
recommendations for and processing requests for changes in 44
the work and maintaining records of change orders ; 45
scheduling and conducting job meetings to ensure orderly 46
progress of the work; developing and monitoring a project 47
progress schedule, coordinating and expediting the work of 48
all contractors and providing periodic status reports to the 49
owner and the architect or engineer; and, establishing and 50
maintaining a cost control system and conducting meetings to 51
review costs. "Construction management -as-agent services" 52
does not include services provided by a construction manager - 53
at-risk as defined in sect ion 8.677; 54
(2) "Construction [manager] manager-as-agent", any 55
person partnership, corporation, or other legal entity 56
providing construction [management] management-as-agent 57
services for a public owner . "Construction manager -as- 58
agent" does not include a construction manager -at-risk as 59
defined in section 8.677 ; 60
(3) "Public owner", any public body, as defined in 61
section 290.210, authorized by statute to contract for 62
design and construction services. This term shall not 63
include a public body that is subject to another applicable 64
statute regarding the procurement of a construction 65
management-as-agent contract outside of this section . 66
2. The appropriate officer, board, or agency of a 67
public owner may elect to engage the services of a 68 SB 758 6
construction manager -as-agent when planning, designing, and 69
constructing a building or structure or when improving, 70
altering, or repairing a building or structure. 71
Construction management -as-agent services may be used by the 72
public owner in the prec onstruction phase or the 73
construction phase of a public works project or both. 74
3. When, in the discretion of the public owner, it is 75
determined that a public works project shall be performed 76
with a negotiated contract for construction management -as- 77
agent services, such public owner shall solicit proposals 78
from qualified construction managers -as-agent by publishing 79
a request for proposals for a period of ten or more days on 80
the website of the public owner or through an electronic 81
procurement system. The number of such proposals shall not 82
be restricted or curtailed but shall be open to all 83
construction managers -as-agent complying with the terms upon 84
which the proposals are requested. 85
4. When selecting a construction manager -as-agent for 86
a project, the public owner shall consider the following: 87
(1) Fees for overhead and profit; 88
(2) Costs for reimbursable items as defined in the 89
public owner's request for proposal; 90
(3) Qualifications; 91
(4) Demonstration of ability to perform projects 92
comparable in design, scope, and complexity; 93
(5) Demonstration of good faith efforts to achieve 94
compliance with federal, state, and local affirmative action 95
requirements; 96
(6) References from owners for whom construction 97
management has been performed; 98
(7) Financial strength; 99 SB 758 7
(8) Qualifications of in -house personnel who will 100
manage the project; and 101
(9) Demonstration of successful management systems 102
employed for the purposes of estimating, scheduling, and 103
cost controls. 104
5. The public owner may negotiate a contract for 105
construction management -as-agent services with any 106
construction manager -as-agent selected according to the 107
criteria of this section. If the public owner is unable to 108
negotiate a contract for the type of services required with 109
any of the construction managers -as-agent selected for a 110
project at a price determined by the public owner to be fair 111
and reasonable, the public owner shall reevaluate the 112
necessary construction management -as-agent services, 113
including the scope and reasonable fee requirements, and 114
again solicit proposals from construction managers -as-agent 115
complying with the terms of the revised requests for 116
proposal. 117
6. Upon award of a construction management -as-agent 118
services contract, the successful construction manager -as- 119
agent shall contract with the public owner to furnish his or 120
her skill and judgment in cooperation with, and reliance 121
upon, the services of the project architect or engineer. 122
The construction manager-as-agent shall furnish the business 123
administration, management of the construction process, and 124
other specified services to the public owner and shall 125
perform in an expeditious and economical manner consistent 126
with the interest of the pub lic owner. If the public owner 127
determines it to be in the public's best interest, the 128
construction manager -as-agent may provide or perform basic 129
services for which reimbursement is provided in the general 130
conditions to the construction management -as-agent services 131 SB 758 8
contract. The construction manager -as-agent shall not be 132
permitted to bid on or perform any of the actual 133
construction on a public works project in which he or she is 134
acting as construction manager -as-agent, nor shall any 135
construction firm that controls, is controlled by, or shares 136
common ownership or control with the construction manager -as- 137
agent be allowed to bid on or perform work on such project. 138
The actual construction work on the project shall be awarded 139
by competitive bidding as provided by law. All successful 140
bidders shall contract directly with the public owner but 141
shall perform at the direction of the construction manager - 142
as-agent unless otherwise provided in the contract between 143
the construction manager -as-agent and the public owner. All 144
successful bidders shall provide payment and performance 145
bonds to the public owner. All successful bidders shall 146
meet all obligations of a prime contractor to whom a 147
contract is awarded, pertaining to the payment of wages 148
under sections 290.210 to 290.340. In addition, all 149
nonresident employers shall meet the bonding and 150
registration requirements of sections 285.230 to 285.234. 151
7. No contract for construction management -as-agent 152
services shall be awarded by a public own er on a negotiated 153
basis, as provided in this section, if the construction 154
manager-as-agent or a firm that controls, is controlled by, 155
or shares common ownership or control with the construction 156
manager-as-agent guarantees, warrants, or otherwise assum es 157
financial responsibility for the work of others on the 158
project or furnishes or guarantees a performance or payment 159
bond for other contractors on the project. In any such 160
case, the contract shall be let by competitive bidding as in 161
the case of contract for construction work or as provided 162 SB 758 9
for construction management -at-risk services in section 163
8.677, if applicable. 164
8. (1) A construction manager -as-agent shall not be 165
deemed a contractor for the purposes of section 107.170. 166
(2) Nothing in this section shall apply to a public 167
body doing work if the construction is done by employees of 168
the public body. 169
8.677. [The appropriate officer, board or agency of a 1
public owner may elect to engage the construction management 2
services of a construction manager when planning, designing 3
and constructing a building or structure or when improving, 4
altering or repairing a building or structure. Construction 5
management services may be used by the public owner in the 6
preconstruction phase or the construction phase of public 7
works project or in both phases of the project. ] 1. As 8
used in this section, the following terms mean: 9
(1) "Construction manager -at-risk", a person, 10
partnership, corporation, or other legal entity t hat enters 11
into or proposes to enter into a construction management -at- 12
risk contract pursuant to this section; 13
(2) "Construction management -at-risk", a contractual 14
arrangement where the construction manager -at-risk assumes 15
the risk for the constr uction, rehabilitation, alteration, 16
or repair of a project at the contracted price as a general 17
contractor and provides consultation to a public owner 18
regarding construction during and after the design of the 19
project; 20
(3) "Public owner", any publ ic body, as defined in 21
section 290.210, authorized by statute to contract for 22
design and construction services. This term shall not 23
include a public body who is subject to another applicable 24 SB 758 10
statute regarding the procurement of a construction 25
management-at-risk contract outside of this section. 26
2. The public owner may use the construction manager - 27
at-risk method for any project within its authority in 28
excess of three hundred thousand dollars. In using that 29
method and in entering into a contra ct for the services of a 30
construction manager -at-risk, the public owner shall follow 31
the procedures prescribed by this section. 32
3. Before or concurrently with selecting a 33
construction manager -at-risk, the public owner shall select 34
or designate an engineer or architect who shall prepare the 35
construction documents for the project and who shall comply 36
with all state laws, as applicable. If the engineer or 37
architect is not a full -time employee of the public owner, 38
the public owner shall select th e engineer or architect on 39
the basis of demonstrated competence and qualifications as 40
provided by sections 8.285 to 8.291. The public owner's 41
engineer or architect for a project shall not serve, alone 42
or in combination with another, as the constructio n manager- 43
at-risk. This subsection does not prohibit the public 44
owner's engineer or architect from providing customary 45
construction phase services under the engineer's or 46
architect's original professional service agreement in 47
accordance with applicab le licensing laws. 48
4. The public owner may provide or contract for, 49
independently of the construction manager -at-risk, 50
inspection services, testing of construction materials, 51
engineering, and verification of testing services necessary 52
for acceptance of the project by the public owner. 53
5. The public owner shall select the construction 54
manager-at-risk using the following two -step process: 55 SB 758 11
(1) The public owner shall prepare a request for 56
qualifications that includes general information on the 57
project site, project scope, schedule, selection criteria, 58
the time and place for receipt of proposals or 59
qualifications, as applicable, and other information that 60
may assist the public owner in its selection of a 61
construction manager -at-risk. The public owner shall state 62
the selection criteria in the request for proposals or 63
qualifications, as applicable. The selection criteria may 64
include the construction manager's -at-risk experience, past 65
performance, safety record, proposed personnel a nd 66
methodology, and other appropriate factors that demonstrate 67
the capability of the construction manager -at-risk. The 68
public owner shall not request fees or prices in the first 69
step. The public owner may select no more than five nor 70
fewer than two construction managers -at-risk based on the 71
stated selection criteria; and 72
(2) The public owner may request from each selected 73
construction manager -at-risk its proposed fee, its price for 74
fulfilling the general conditions, and other prices, fees, 75
or costs deemed applicable by the public owner. 76
Qualifications shall account for a minimum of forty percent 77
of the evaluation. Cost shall account for a maximum of 78
sixty percent of the evaluation. 79
6. The public owner shall publish the request for 80
proposals or qualifications for a period of ten or more days 81
on the website of the public owner or through an electronic 82
procurement system. 83
7. For each step in subsection 5 of this section, the 84
public owner shall receive and open the names and proposals 85
or qualifications of the construction managers -at-risk at 86
the date and time specified in the request for proposals or 87 SB 758 12
qualifications. The names of the construction managers -at- 88
risk shall be made publicly available. Within forty-five 89
days after the date of opening the proposals or 90
qualification submissions, the public owner or its 91
representative shall evaluate and rank each proposal or 92
qualification submission submitted in relation to the 93
criteria set forth in the request for proposals o r request 94
for qualifications. The public owner shall interview at 95
least two of the top qualified offerors as part of the final 96
selection, provided there are two or more interested parties. 97
8. The public owner or its representative shall select 98
the construction manager -at-risk whose proposal offers the 99
best value for the public owner based on the published 100
selection criteria and on its ranking evaluation. The 101
public owner or its representative shall first attempt to 102
negotiate a contract with the selected construction manager - 103
at-risk. If the public owner or its representative is 104
unable to negotiate a satisfactory contract with the 105
selected construction manager -at-risk, the public owner or 106
its representative shall, formally and in writing, end 107
negotiations with that construction manager -at-risk and 108
proceed to negotiate with the next construction manager -at- 109
risk in the order of the selection ranking until a contract 110
is reached or negotiations with all ranked construction 111
managers-at-risk end. 112
9. The construction manager -at-risk may seek to 113
perform portions of the work itself if the construction 114
manager-at-risk submits its sealed bid or sealed proposal 115
for the portions of the work in the same manner as all other 116
trade contractors or subcontractors. A construction manager - 117
at-risk shall publicly solicit and receive bids or proposals 118
from trade contractors or subcontractors for the performance 119 SB 758 13
of all major elements of the work. The construction manager - 120
at-risk shall solicit bid s from potential contractors or 121
subcontractors by newspaper advertising, by posting a notice 122
on the website of at least one construction trade industry 123
association, or by other solicitation methods agreed to by 124
the public owner that are likely to reach a substantial 125
number of qualified contractors or subcontractors. All 126
sealed bids or proposals shall be submitted at the time and 127
location as specified in the solicitation for bids or 128
proposals and shall be opened and the identity of each 129
bidder and their bid amount shall be made publicly available 130
within fourteen days. 131
10. The construction manager -at-risk and the public 132
owner or its representative shall review all trade 133
contractor, subcontractor, or construction manager -at-risk 134
bids or proposals in a manner that does not disclose the 135
contents of the bid or proposal during the selection process 136
to a person not employed by the construction manager -at- 137
risk, engineer, architect, or public owner involved with the 138
project. After all proposals have been evaluated and 139
clarified, the award of all subcontracts shall be made 140
public. 141
11. If the construction manager -at-risk reviews, 142
evaluates, and recommends to the public owner a bid or 143
proposal from a trade contractor or subcontractor but the 144
public owner requires another bid or proposal to be 145
accepted, the public owner shall compensate the construction 146
manager-at-risk by a change in price, time, or guaranteed 147
maximum cost for any additional cost and risk that the 148
construction manager -at-risk may incur because of the public 149
owner's requirement that another bid or proposal be accepted. 150 SB 758 14
12. If a selected trade contractor or subcontractor 151
materially defaults in the performance of its work or fails 152
to execute a subcontract after be ing selected in accordance 153
with this section, the construction manager -at-risk may 154
itself, without soliciting bids, fulfill the contract 155
requirements or select a replacement trade contractor or 156
subcontractor to fulfill the contract requirements. The 157
penal sums of the performance and payment bonds delivered to 158
the public owner shall each be in an amount equal to the 159
fixed contract amount or guaranteed maximum price. The 160
construction manager -at-risk shall deliver the bonds not 161
later than the tenth day after the date the fixed contract 162
amount or guaranteed maximum price is established. 163
8.679. [When, in the discretion of the public owner, 1
it is determined that a public works project should be 2
performed with a negotiated contract for construction 3
management services, such public owner shall advertise and 4
solicit proposals from qualified construction managers in 5
the following manner: If the total cost for the erection or 6
construction of any building or structure or the 7
improvement, alteration or repair of a building or structure 8
exceeds five hundred thousand dollars, the public owner 9
shall request and solicit proposals by advertising for ten 10
days in one newspaper of general circulation in the county 11
where the work is locat ed. If the cost of the work 12
contemplated exceeds one million five hundred thousand 13
dollars, proposals shall be solicited by advertisement for 14
ten days in two daily newspapers in the state which have not 15
less than fifty thousand daily circulation in ad dition to 16
the advertisement in the county where the work is located. 17
The number of such proposals shall not be restricted or 18
curtailed, but shall be open to all construction managers 19 SB 758 15
complying with the terms upon which the proposals are 20
requested.] 1. As used in this section, the following 21
terms mean: 22
(1) "Design-build", a project delivery method subject 23
to a three-stage, qualifications -based selection for which 24
the design and construction services are furnished under one 25
contract; 26
(2) "Design-build contract", a contract that is 27
subject to a three-stage, qualifications -based selection 28
process between the public owner and a design -builder to 29
furnish the architectural, engineering, and related design 30
services and the labor, material s, supplies, equipment, and 31
other construction services required for a design -build 32
project; 33
(3) "Design-build project", the design, construction, 34
alteration, addition, remodeling, or improvement of any 35
buildings or facilities under contract with the public 36
owner. Such design-build projects include, but are not 37
limited to: 38
(a) Civil works projects such as roads, streets, 39
bridges, utilities, airport runways and taxiways, storm 40
drainage and flood control projects, or transit projects; and 41
(b) Noncivil works projects such as buildings, site 42
improvements, and other structures, habitable or not, 43
commonly designed by architects; 44
(4) "Design-builder", any individual, partnership, 45
joint venture, or corporation subject to a qualifi cation- 46
based selection that offers to provide or provides design 47
services and general contracting services through a design - 48
build contract in which services within the scope of the 49
practice of professional architecture or engineering are 50
performed respectively by a licensed architect or licensed 51 SB 758 16
engineer and in which services within the scope of general 52
contracting are performed by a general contractor or other 53
legal entity that furnishes architecture or engineering 54
services and construction servic es either directly or 55
through subcontracts or joint ventures; 56
(5) "Design criteria consultant", a person, 57
corporation, partnership, or other legal entity duly 58
licensed and authorized to practice architecture or 59
professional engineering in this st ate under chapter 327 who 60
is employed by or contracted by the public owner to assist 61
the public owner in the development of project design 62
criteria, requests for proposals, evaluation of proposals, 63
the evaluation of the construction under a design -build 64
contract to determine adherence to the design criteria, and 65
any additional services requested by the public owner to 66
represent its interests in relation to a project. The 67
design criteria consultant shall not submit a proposal or 68
furnish design or construction services for the design -build 69
contract for which its services were sought; 70
(6) "Design criteria package", a performance -oriented 71
program, scope, and specifications for the design -build 72
project sufficient to permit a design -builder to prepare a 73
response to the public owner's request for proposals for a 74
design-build project, which may include capacity, 75
durability, standards, ingress and egress requirements, 76
performance requirements, description of the site, surveys, 77
soil and environmental information concerning the site, 78
interior space requirements, material quality standards, 79
design and construction schedules, site development 80
requirements, provisions for utilities, storm water 81
retention and disposal, parking requirements, applic able 82
governmental code requirements, preliminary designs for the 83 SB 758 17
project or portions thereof, and other criteria for the 84
intended use of the project; 85
(7) "Design professional services", services that are: 86
(a) Within the practice of architect ure as defined in 87
section 327.091 or within the practice of professional 88
engineering as defined in section 327.181; or 89
(b) Performed by a licensed or authorized architect or 90
professional engineer in connection with the architect's or 91
professional engineer's employment or practice; 92
(8) "Proposal", an offer in response to a request for 93
proposals by a design -builder to enter into a design -build 94
contract for a design -build project under this section; 95
(9) "Public owner", any public body, as defined in 96
section 290.210, authorized by statute to contract for 97
design and construction services. This term shall not 98
include a public body that is subject to another applicable 99
statute regarding the procurement of a design -build contract 100
outside of this section; 101
(10) "Request for proposal", the document by which the 102
public owner solicits proposals for a design -build contract; 103
(11) "Stipend", an amount paid to the unsuccessful but 104
responsive, short-listed design-builders to defray t he cost 105
of participating in phase II of the selection process 106
described in this section. 107
2. A public owner may use the design -build method for 108
any project within its authority in excess of three hundred 109
thousand dollars. In using that method and in entering into 110
a design-build contract, the public owner shall follow the 111
procedures prescribed by this section. In using a design- 112
build contract, the public owner shall determine the scope 113
and level of detail required to permit qualified persons t o 114 SB 758 18
submit proposals in accordance with the request for 115
proposals given the nature of the project. 116
3. A design criteria consultant shall be employed or 117
retained by the public owner to assist in preparation of the 118
design criteria package and request for proposal, perform 119
periodic site visits to observe adherence to the design 120
criteria, prepare progress reports, review and approve 121
progress and final pay applications of the design -builder, 122
review shop drawings and submissions, provide input in 123
disputes, help interpret the construction documents, perform 124
inspections upon substantial and final completion, assist in 125
warranty inspections, and provide any other professional 126
service assisting with the project administration. The 127
design criteria cons ultant may also evaluate construction as 128
to the adherence to the design criteria. The design 129
criteria consultant shall be selected and its contract 130
negotiated in compliance with sections 8.285 to 8.291 unless 131
the consultant is a direct employee of the public owner. 132
4. The public owner shall publish the request for 133
proposals for a period of ten or more days on the website of 134
the public owner or through an electronic procurement system. 135
5. The public owner shall establish in the request for 136
proposal a time, place, and other specific instructions for 137
the receipt of proposals. Proposals not submitted in strict 138
accordance with the instructions shall be subject to 139
rejection. 140
6. A request for proposal shall be prepared for each 141
design-build contract and contain at minimum the following 142
elements: 143
(1) The procedures to be followed for submitting 144
proposals, the criteria for evaluating proposals and their 145
relative weight, and the procedures for making awards; 146 SB 758 19
(2) The proposed terms and conditions for the design - 147
build contract, if available; 148
(3) The design criteria package; 149
(4) A description of the drawings, specifications, or 150
other information to be submitted with the proposal, with 151
guidance as to the form and level of completeness of the 152
drawings, specifications, or other information that will be 153
acceptable; 154
(5) A schedule for planned commencement and completion 155
of the design-build contract, if any; 156
(6) Budget limits for the design -build contract, if 157
any; 158
(7) Requirements including any available ratings for 159
performance bonds, payment bonds, and insurance, if any; 160
(8) The amount of the stipend that will be available; 161
and 162
(9) Any other information that the public owner in its 163
discretion chooses to supply including, but not limited to, 164
surveys, soil reports, drawings of existing structures, 165
environmental studies, photographs, references to public 166
records, or affirmative action and minority business 167
enterprise requirements con sistent with state and federal 168
law. 169
7. The public owner shall solicit proposals in a three - 170
phase process. Phase I shall be the solicitation of 171
qualifications of the design -build team. Phase II shall be 172
the solicitation of a technical proposal, including a 173
conceptual design for the project. Phase III shall be the 174
proposal of the construction cost. 175
8. The public owner shall review the submissions of 176
the proposals and assign points to each proposal in 177 SB 758 20
accordance with this section and as set out in the 178
instructions of the request for proposal. 179
9. Phase I shall require all design -builders to submit 180
a statement of qualification that shall include, but not be 181
limited to: 182
(1) Demonstrated ability to perform projects 183
comparable in design, scope, and complexity; 184
(2) References of owners for whom design -build 185
projects, construction projects, or design projects have 186
been performed; 187
(3) Qualifications of personnel who will manage the 188
design and construction aspects of the project; and 189
(4) The names and qualifications of the primary design 190
consultants and the primary trade contractors with whom the 191
design-builder proposes to subcontract or joint venture. 192
The design-builder shall not replace an identified 193
contractor, subcontractor, design consultant, or 194
subconsultant without the written approval of the public 195
owner. 196
10. The public owner shall evaluate the qualifications 197
of all the design-builders who submitted proposals in 198
accordance with the instructi ons of the request for 199
proposal. Architectural and engineering services on the 200
project shall be evaluated in accordance with the 201
requirements of sections 8.285 and 8.291. Qualified design- 202
builders selected by the evaluation team may proceed to 203
phase II of the selection process. Design-builders lacking 204
the necessary qualifications to perform the work shall be 205
disqualified and shall not proceed to phase II of the 206
process. This process of short listing shall narrow the 207
number of qualified design -builders to not more than five 208
and no fewer than two. Under no circumstances shall price 209 SB 758 21
or fees be a part of the prequalification criteria. Design- 210
builders may be interviewed in either phase I or phase II of 211
the process. Points assigned in phase I o f the evaluation 212
process shall not carry forward to phase II of the process. 213
All qualified design -builders shall be ranked on points 214
given in phases II and III only. 215
11. The public owner shall have discretion to 216
disqualify any design -builder who, in the public owner's 217
opinion, lacks the minimum qualifications required to 218
perform the work. 219
12. Once a sufficient number of no more than five and 220
no fewer than two qualified design -builders have been 221
selected, the design -builders shall have a specified amount 222
of time in which to assemble phase II and phase III 223
proposals. 224
13. Phase II of the process shall be conducted as 225
follows: 226
(1) The public owner shall invite the top qualified 227
design-builders to participate in phase II of th e process; 228
(2) A design-builder shall submit its design for the 229
project to the level of detail required in the request for 230
proposal. The design proposal shall demonstrate compliance 231
with the requirements set out in the request for proposal; 232
(3) The ability of the design -builder to meet the 233
schedule for completing a project as specified by the public 234
owner may be considered as an element of evaluation in phase 235
II; 236
(4) Up to twenty percent of the points awarded to each 237
design-builder in phase II may be based on each design - 238
builder's qualifications and ability to design, contract, 239
and deliver the project on time and within the budget of the 240
public owner; 241 SB 758 22
(5) Under no circumstances shall the design proposal 242
contain any reference to the cost of the proposal; and 243
(6) The submitted designs shall be evaluated and 244
assigned points in accordance with the requirements of the 245
request for proposal. Phase II shall account for not less 246
than forty percent of the total point score as specified in 247
the request for proposal. 248
14. Phase III shall be conducted as follows: 249
(1) The phase III proposal shall provide a firm, fixed 250
cost of design and construction. The proposal shall be 251
accompanied by bid security and any other i tems such as 252
statements of minority participation as required by the 253
request for proposal; 254
(2) Cost proposals shall be submitted in accordance 255
with the instructions of the request for proposal. The 256
public owner shall reject any proposal that is not submitted 257
on time. Phase III shall account for not less than forty 258
percent of the total point score as specified in the request 259
for proposal; 260
(3) Proposals for phase II and phase III shall be 261
submitted concurrently at the time and place spec ified in 262
the request for proposal but in separate envelopes or other 263
means of submission. The phase III cost proposals shall be 264
opened only after the phase II design proposals have been 265
evaluated and assigned points, ranked in order, and posted; 266
(4) Cost proposals shall be opened at the time and 267
place specified in the request for proposal and shall be 268
made publicly available. At the same time and place, the 269
evaluation team shall make public its scoring of phase II. 270
Cost proposals shall be ev aluated in accordance with the 271
requirements of the request for proposal. In evaluating the 272
cost proposals, the lowest responsive bidder shall be 273 SB 758 23
awarded the total number of points assigned to be awarded in 274
phase III. For all other bidders, cost point s shall be 275
calculated by reducing the maximum points available in phase 276
III by at least one percent for each percentage point by 277
which the bidder exceeds the lowest bid and the points 278
assigned shall be added to the points assigned for phase II 279
for each design-builder; 280
(5) If the public owner determines that it is not in 281
the best interest of the public owner to proceed with the 282
project pursuant to the proposal offered by the design - 283
builder with the highest total number of points, the public 284
owner shall reject all proposals. In this event, all 285
qualified and responsive design -builders with lower point 286
totals shall receive a stipend and the responsive design - 287
builder with the highest total number of points shall 288
receive an amount equal to two times the stipend. If the 289
public owner decides to award the project, the responsive 290
design-builder with the highest number of points shall be 291
awarded the contract; and 292
(6) If all proposals are rejected, the public owner 293
may solicit new proposals using different design criteria, 294
budget constraints, or qualifications. 295
15. As an inducement to qualified design -builders, the 296
public owner shall pay a reasonable stipend, the amount of 297
which shall be established in the request for proposal, to 298
each prequalified design -builder whose proposal is 299
responsive but not accepted. Such stipend shall be no less 300
than one-half of one percent of the total project budget. 301
Upon payment of the stipend to any unsuccessful design - 302
builder, the public owner s hall acquire a nonexclusive right 303
to use the design submitted by the design -builder, and the 304
design-builder shall have no further liability for the use 305 SB 758 24
of the design by the public owner in any manner. If the 306
design-builder desires to retain all rights and interest in 307
the design proposed, the design -builder shall forfeit the 308
stipend. 309
16. The payment bond requirements of section 107.170 310
shall apply to a design -build project. All persons 311
furnishing design services shall be deemed to be covered by 312
the payment bond the same as any person furnishing labor and 313
materials. The performance bond for the design -builder 314
shall not cover any damages of the type specified to be 315
covered by the professional liability insurance established 316
by the public owner in the request for proposals. 317
17. Any person or firm performing architectural, 318
engineering, landscape architecture, or land -surveying 319
services for the design -builder on the design -build project 320
shall be duly licensed or authorized in this sta te to 321
provide such services as required by chapter 327. 322
18. Under section 327.465, any design -builder that 323
enters into a design -build contract with the public owner is 324
exempt from the requirement that such person or entity hold 325
a license or that such corporation hold a certificate of 326
authority if the architectural, engineering, or land - 327
surveying services to be performed under the design -build 328
contract are performed through subcontracts or joint 329
ventures with properly licensed or authorized per sons or 330
entities and not performed by the design -builder or its own 331
employees. 332
[34.057.] 8.960. 1. Unless contrary to any federal 1
funding requirements or unless funds from a state grant are 2
not timely received by the contracting pu blic municipality 3
but notwithstanding any other law to the contrary, all 4
public works contracts made and awarded by the appropriate 5 SB 758 25
officer, board or agency of the state or of a political 6
subdivision of the state or of any district therein, 7
including any municipality, county and any board referred to 8
as the public owner, for construction, reconstruction or 9
alteration of any public works project, shall provide for 10
prompt payment by the public owner to the contractor, and 11
any professional engineer, a rchitect, landscape architect, 12
or land surveyor, as well as prompt payment by the 13
contractor to the subcontractor and material supplier in 14
accordance with the following: 15
(1) A public owner shall make progress payments to the 16
contractor and any pr ofessional engineer, architect, 17
landscape architect, or land surveyor on at least a monthly 18
basis as the work progresses, or, on a lump sum basis 19
according to the terms of the lump sum contract. Except in 20
the case of lump sum contracts, payments shall be based upon 21
estimates prepared at least monthly of work performed and 22
material delivered, as determined by the project architect 23
or engineer. Retainage withheld on any construction 24
contract or subcontract for public works projects shall not 25
exceed five percent of the value of the contract or 26
subcontract. If the contractor is not required to obtain a 27
bond under section 107.170 because the cost of the public 28
works contract is not estimated to exceed fifty thousand 29
dollars, the public owner may w ithhold retainage on the 30
public works project in an amount not to exceed ten percent 31
of the value of the contract or subcontract. The public 32
owner shall pay the contractor the amount due, less a 33
retainage, within thirty days following the latter of th e 34
following: 35
(a) The date of delivery of materials or construction 36
services purchased; 37 SB 758 26
(b) The date, as designated by the public owner, upon 38
which the invoice is duly delivered to the person or place 39
designated by the public owner; or 40
(c) In those instances in which the contractor 41
approves the public owner's estimate, the date upon which 42
such notice of approval is duly delivered to the person or 43
place designated by the public owner; 44
(2) Payments shall be considered received wi thin the 45
context of this section when they are duly posted with the 46
United States Postal Service or other agreed upon delivery 47
service or when they are hand -delivered to an authorized 48
person or place as agreed to by the contracting parties; 49
(3) If, in the discretion of the owner and the project 50
architect or engineer and the contractor, it is determined 51
that a subcontractor's performance has been completed and 52
the subcontractor can be released prior to substantial 53
completion of the public works contract without risk to the 54
public owner, the contractor shall request such adjustment 55
in retainage, if any, from the public owner as necessary to 56
enable the contractor to pay the subcontractor in full. The 57
public owner may reduce or eliminate retai nage on any 58
contract payment if, in the public owner's opinion, the work 59
is proceeding satisfactorily. If retainage is released and 60
there are any remaining minor items to be completed, an 61
amount equal to one hundred fifty percent of the value of 62
each item as determined by the public owner's duly 63
authorized representatives shall be withheld until such item 64
or items are completed; 65
(4) The public owner shall pay at least ninety -eight 66
percent of the retainage, less any offsets or deductions 67
authorized in the contract or otherwise authorized by law, 68
to the contractor. The contractor shall pay the 69 SB 758 27
subcontractor or supplier after substantial completion of 70
the contract work and acceptance by the public owner's 71
authorized contract representative, or as may otherwise be 72
provided by the contract specifications for state highway, 73
road or bridge projects administered by the state highways 74
and transportation commission. Such payment shall be made 75
within thirty days after acceptance, and the invoic e and all 76
other appropriate documentation and certifications in 77
complete and acceptable form are provided, as may be 78
required by the contract documents. If the public owner or 79
the owner's representative determines the work is not 80
substantially comple ted and accepted, then the owner or the 81
owner's representative shall provide a written explanation 82
of why the work is not considered substantially completed 83
and accepted within fourteen calendar days to the 84
contractor, who shall then provide such notic e to the 85
subcontractor or suppliers responsible for such work. If 86
such written explanation is not given by the public body, 87
the public body shall pay at least ninety -eight percent of 88
the retainage within thirty calendar days. If at that time 89
there are any remaining minor items to be completed, an 90
amount equal to one hundred fifty percent of the value of 91
each item as determined by the public owner's representative 92
shall be withheld until such items are completed; 93
(5) All estimates or invoices for supplies and 94
services purchased, approved and processed, or final 95
payments, shall be paid promptly and shall be subject to 96
late payment charges provided in this section. Except as 97
provided in subsection 4 of this section, if the contractor 98
has not been paid within thirty days as set forth in 99
subdivision (1) of subsection 1 of this section, the 100
contracting agency shall pay the contractor, in addition to 101 SB 758 28
the payment due him, interest at the rate of one and one - 102
half percent per month calculated from the expiration of the 103
thirty-day period until fully paid; 104
(6) When a contractor receives any payment, the 105
contractor shall pay each subcontractor and material 106
supplier in proportion to the work completed by each 107
subcontractor and material su pplier his application less any 108
retention not to exceed five percent. If the contractor 109
receives less than the full payment due under the public 110
construction contract, the contractor shall be obligated to 111
disburse on a pro rata basis those funds recei ved, with the 112
contractor, subcontractors and material suppliers each 113
receiving a prorated portion based on the amount of 114
payment. When, however, the public owner does not release 115
the full payment due under the contract because there are 116
specific areas of work or materials he is rejecting or 117
because he has otherwise determined such areas are not 118
suitable for payment then those specific subcontractors or 119
suppliers involved shall not be paid for that portion of the 120
work rejected or deemed not suitabl e for payment; provided 121
the public owner or the owner's representative gives a 122
written explanation to the contractor, subcontractor, or 123
supplier involved as to why the work or supplies were 124
rejected or deemed not suitable for payment, and all other 125
subcontractors and suppliers shall be paid in full; 126
(7) If the contractor, without reasonable cause, fails 127
to make any payment to his subcontractors and material 128
suppliers within fifteen days after receipt of payment under 129
the public construction co ntract, the contractor shall pay 130
to his subcontractors and material suppliers, in addition to 131
the payment due them, interest in the amount of one and one - 132
half percent per month, calculated from the expiration of 133 SB 758 29
the fifteen-day period until fully paid. This subdivision 134
shall also apply to any payments made by subcontractors and 135
material suppliers to their subcontractors and material 136
suppliers and to all payments made to lower tier 137
subcontractors and material suppliers throughout the 138
contracting chain; 139
(8) The public owner shall make final payment of all 140
moneys owed to the contractor, including any retainage 141
withheld under subdivision (4) of this subsection, less any 142
offsets or deductions authorized in the contract or 143
otherwise authorized by law, within thirty days of the due 144
date. Final payment shall be considered due upon the 145
earliest of the following events: 146
(a) Completion of the project and filing with the 147
owner of all required documentation and certifications, in 148
complete and acceptable form, in accordance with the terms 149
and conditions of the contract; 150
(b) The project is certified by the architect or 151
engineer authorized to make such certification on behalf of 152
the owner as having been completed, including the filing o f 153
all documentation and certifications required by the 154
contract, in complete and acceptable form; or 155
(c) The project is certified by the contracting 156
authority as having been completed, including the filing of 157
all documentation and certifications required by the 158
contract, in complete and acceptable form. 159
2. Nothing in this section shall prevent the 160
contractor or subcontractor, at the time of application or 161
certification to the public owner or contractor, from 162
withholding such applications or certifications to the owner 163
or contractor for payment to the subcontractor or material 164
supplier. Amounts intended to be withheld shall not be 165 SB 758 30
included in such applications or certifications to the 166
public owner or contractor. Reasons for withholdi ng such 167
applications or certifications shall include, but not be 168
limited to, the following: unsatisfactory job progress; 169
defective construction work or material not remedied; 170
disputed work; failure to comply with other material 171
provisions of the cont ract; third-party claims filed or 172
reasonable evidence that a claim will be filed; failure of 173
the subcontractor to make timely payments for labor, 174
equipment and materials; damage to a contractor or another 175
subcontractor or material supplier; reasonable evidence that 176
the contract cannot be completed for the unpaid balance of 177
the subcontract sum or a reasonable amount for retention, 178
not to exceed the initial percentage retained by the owner. 179
3. Should the contractor determine, after application 180
or certification has been made and after payment has been 181
received from the public owner, or after payment has been 182
received by a contractor based upon the public owner's 183
estimate of materials in place and work performed as 184
provided by contract, that al l or a portion of the moneys 185
needs to be withheld from a specific subcontractor or 186
material supplier for any of the reasons enumerated in this 187
section, and such moneys are withheld from such 188
subcontractor or material supplier, then such undistributed 189
amounts shall be specifically identified in writing and 190
deducted from the next application or certification made to 191
the public owner or from the next estimate by the public 192
owner of payment due the contractor, until a resolution of 193
the matter has been achieved. Disputes shall be resolved in 194
accordance with the terms of the contract documents. Upon 195
such resolution the amounts withheld by the contractor from 196
the subcontractor or material supplier shall be included in 197 SB 758 31
the next application or certific ation made to the public 198
owner or the next estimate by the public owner and shall be 199
paid promptly in accordance with the provisions of this 200
section. This subsection shall also apply to applications 201
or certifications made by subcontractors or material 202
suppliers to the contractor and throughout the various tiers 203
of the contracting chain. 204
4. The contracts which provide for payments to the 205
contractor based upon the public owner's estimate of 206
materials in place and work performed rather than 207
applications or certifications submitted by the contractor, 208
the public owner shall pay the contractor within thirty days 209
following the date upon which the estimate is required by 210
contract to be completed by the public owner, the amount due 211
less a retainage not to exceed five percent. All such 212
estimates by the public owner shall be paid promptly and 213
shall be subject to late payment charges as provided in this 214
subsection. After the thirtieth day following the date upon 215
which the estimate is required by contract to be completed 216
by the public owner, the contracting agency shall pay the 217
contractor, in addition to the payment due him, interest at 218
a rate of one and one -half percent per month calculated from 219
the expiration of the thirty -day period until fully paid. 220
5. The public owner shall pay or cause to be paid to 221
any professional engineer, architect, landscape architect, 222
or land surveyor the amount due within thirty days following 223
the receipt of an invoice prepared and submitted in 224
accordance with the contract terms. In addition to the 225
payment due, the contracting agency shall pay interest at 226
the rate of one and one -half percent per month calculated 227
from the expiration of the thirty -day period until fully 228
paid. 229 SB 758 32
6. Nothing in this section shall prevent the owner 230
from withholding payment or final payment from the 231
contractor, or a subcontractor or material supplier. 232
Reasons for withholding payment or final payment shall 233
include, but not be limited to, the following: liquidated 234
damages; unsatisfactory job progress; defective construction 235
work or material not remedied; disputed work; failure to 236
comply with any material provision of the contract; third 237
party claims filed or reasonable evidence that a claim will 238
be filed; failure to make timely payments for labor, 239
equipment or materials; damage to a contractor, 240
subcontractor or material supplier; reasonable evidence that 241
a subcontractor or material supplier cannot be fully 242
compensated under its contract with the contractor for the 243
unpaid balance of the contract sum; or citation by the 244
enforcing authority for acts of the contractor or 245
subcontractor which do not comply with any material 246
provision of the contract and which result in a violation of 247
any federal, state or local l aw, regulation or ordinance 248
applicable to that project causing additional costs or 249
damages to the owner. 250
7. Nothing in this section shall be construed to 251
require direct payment by a public owner to a subcontractor 252
or supplier, except in the case of the default, as 253
determined by a court, of the contractor on the contract 254
with the public owner where no performance or payment bond 255
is required or where the surety fails to execute its duties, 256
as determined by a court. 257
8. Notwithstanding any o ther provisions in this 258
section to the contrary, no late payment interest shall be 259
due and owing for payments which are withheld in good faith 260
for reasonable cause pursuant to subsections 2, 5, and 6 of 261 SB 758 33
this section. If it is determined by a court of competent 262
jurisdiction that a payment which was withheld pursuant to 263
subsections 2, 5, and 6 of this section was not withheld in 264
good faith for reasonable cause, the court may impose 265
interest at the rate of one and one -half percent per month 266
calculated from the date of the invoice and may, in its 267
discretion, award reasonable attorney fees to the prevailing 268
party. In any civil action or part of a civil action 269
brought pursuant to this section, if a court determines 270
after a hearing for such purpose t hat the cause was 271
initiated, or a defense was asserted, or a motion was filed, 272
or any proceeding therein was done frivolously and in bad 273
faith, the court shall require the party who initiated such 274
cause, asserted such defense, filed such motion, or cau sed 275
such proceeding to be had to pay the other party named in 276
such action the amount of the costs attributable thereto and 277
reasonable expenses incurred by such party, including 278
reasonable attorney fees. 279
[34.058.] 8.962. 1. As used in this section, the term 1
"public works contract" means a contract of the state, 2
county, city and other political subdivisions of the state, 3
except the Missouri transportation department, for the 4
construction, alteration, repair, or maintenance of any 5
building, structure, highway, bridge, viaduct, pipeline, 6
public works, or any other works dealing with construction, 7
which shall include, but need not be limited to, moving, 8
demolition, or excavation performed in conjunction with such 9
work. 10
2. Any clause in a public works contract that purports 11
to waive, release, or extinguish the rights of a contractor 12
to recover costs or damages, or obtain an equitable 13
adjustment, for delays in performing such contract, if such 14 SB 758 34
delay is caused in whole, or in part, by acts or omissions 15
within the control of the contracting public entity or 16
persons acting on behalf thereof, is against public policy 17
and is void and unenforceable. 18
3. Subsection 2 of this section is not intended to 19
render void any cont ract provision of a public works 20
contract that: 21
(1) Precludes a contractor from recovering that 22
portion of delay costs caused by the acts or omissions of 23
the contractor or its agents; 24
(2) Requires notice of any delay by the party 25
responsible for such delay; 26
(3) Provides for reasonable liquidated damages; or 27
(4) Provides for arbitration or any other procedure 28
designed to settle contract disputes. 29
[34.203.] 8.964. The provisions of sections [34.203 to 1
34.216] 8.964 to 8.974 shall be known and may be cited as 2
the "Fairness in Public Construction Act". 3
[34.206.] 8.966. The purpose of sections [34.203 to 1
34.216*] 8.964 to 8.974 is to fulfill the state's 2
proprietary objectives in maintaining and promoting the 3
economical, nondiscriminatory, and efficient expenditures of 4
public funds in connection with publicly funded or assisted 5
construction projects. Nothing in sections [34.203 to 6
34.216*] 8.964 to 8.974 shall prohibit employers or other 7
parties covered by the National Labor Relations Act from 8
entering into agreements or engaging in any other activity 9
arguably protected by law, nor shall any aspect of sections 10
[34.203 to 34.216*] 8.964 to 8.974 be interpreted in such a 11
way as to interfere with the labor relations of parties 12
covered by the National Labor Relations Act. 13 SB 758 35
[34.209.] 8.968. 1. The state, any agency of the 1
state, any political subdivision of the state, or any 2
instrumentality thereof, when engaged in pr ocuring or 3
letting contracts for construction, repair, remodeling, or 4
demolition of a facility shall ensure that bid 5
specification, project agreements, and other controlling 6
documents entered into, required, or subject to approval by 7
the state, agency, political subdivision, or instrumentality 8
do not: 9
(1) Require or prohibit bidders, offerors, 10
contractors, or subcontractors to enter into or adhere to 11
agreements with one or more labor organizations on the same 12
or related projects; or 13
(2) Discriminate against, encourage, or give 14
preferential treatment to bidders, offerors, contractors, or 15
subcontractors for: 16
(a) Entering or refusing to enter agreements with one 17
or more labor organizations on the same or related 18
construction projects; or 19
(b) Remaining or refusing to remain signatory with one 20
or more labor organizations on the same or related 21
construction projects. 22
2. Nothing in this section shall be construed to 23
prohibit the state, any agency of the state, any politi cal 24
subdivision of the state, or any instrumentality thereof 25
from requiring bidders, offerors, contractors, or 26
subcontractors, as a condition of receiving work or 27
submitting a bid, to test its workers and employees for the 28
presence of illegal drugs. 29
[34.212.] 8.970. 1. The state, any agency of the 1
state, any political subdivision of the state, or any 2
instrumentality thereof shall not issue or award grants, tax 3 SB 758 36
abatements, or tax credits or enter into cooperative 4
agreements for construction projects or for the improvement, 5
maintenance, or renovation of real property or fixtures, a 6
condition of which requires that bid specifications, project 7
agreements, or other controlling documents pertaining to the 8
grant, tax abatement, t ax credit, or cooperative agreement 9
contain any of the elements specified in section [34.209] 10
8.968. 11
2. The state, any agency of the state, any political 12
subdivision, or any instrumentality thereof shall exercise 13
such authority as may be required to preclude a grant, tax 14
abatement, or tax credit recipient or party to a cooperative 15
agreement from imposing any of the elements specified in 16
section [34.209] 8.968 in connection with any grant or 17
cooperative agreement awarded or entered into. Nothing in 18
sections [34.203 to 34.217] 8.964 to 8.974 shall prohibit 19
contractors or subcontractors from voluntarily entering into 20
agreements described in section [34.209] 8.968. 21
[34.217.] 8.972. Notwithstanding the provisions of 1
section 1.140, the provisions of sections 290.095 and 2
290.250 and sections [34.203 to 34.216*] 8.964 to 8.974 3
shall not be severable. In the event a court of competent 4
jurisdiction rules that any part of this act is 5
unenforceable, the entire act shall be rend ered null and 6
void. 7
[34.218.] 8.974. 1. Any entity which violates the 1
provisions of sections [34.203 to 34.217] 8.964 to 8.974 2
shall be liable to the person affected for such equitable 3
relief as may be appropriate, including reason able 4
attorney's fees. 5
2. Any entity which violates the provisions of 6
sections [34.203 to 34.217] 8.964 to 8.974 shall not be 7 SB 758 37
eligible for any state funding or tax credits issued by the 8
state for two years. 9
3. The prosecuting attorney or cir cuit attorney with 10
jurisdiction over the location where a violation of sections 11
[34.203 to 34.217] 8.964 to 8.974 occurs, or the attorney 12
general of this state, shall investigate complaints of 13
violation of such sections, and use all means at their 14
command to ensure the effective enforcement of this section. 15
34.055. 1. Except as otherwise provided in section 1
[34.057] 8.960, all invoices for supplies and services 2
purchased by the state, duly approved and processed, shall 3
be subject to interest charges or late payment charges as 4
provided in this section. 5
2. After the forty-fifth day following the later of 6
the date of delivery of the supplies and services or the 7
date upon which the invoice is duly approved and processed, 8
interest retroactive to the thirtieth day shall be paid on 9
any unpaid balance, except balances for services provided by 10
a gas corporation, electrical corporation, water 11
corporation, or sewer corporation which has received 12
authorization from the public se rvice commission to impose 13
late payment charges on delinquent utility bills, upon 14
application of the vendor thereof. The rate of such 15
interest shall be three percentage points above the average 16
predominant prime rate quoted by commercial banks to larg e 17
businesses, as determined by the Board of Governors of the 18
Federal Reserve System. 19
3. The state shall be liable for late payment charges 20
on any delinquent bill for services purchased by the state 21
from a gas corporation, electrical corporation, water 22
corporation, or sewer corporation which has received 23
authorization from the public service commission to impose 24 SB 758 38
late payment charges on delinquent utility bills. The rate 25
of such late payment charges shall be as established for 26
each such corporation by order of the public service 27
commission, but bills rendered to the state shall not be 28
considered delinquent until thirty days after rendition of 29
the bill by the corporation. 30
4. Any such interest charges or late payment charges 31
shall be paid from appropriations which were made for the 32
fiscal year in which the supplies or services were delivered 33
to the respective departments purchasing such supplies or 34
services. The commissioner of administration shall be 35
responsible for the timely impl ementation of this section 36
and all officers, departments, institutions and agencies of 37
state government shall fully cooperate with the commissioner 38
of administration in the implementation of this section. No 39
late payment penalty shall be assessed agai nst, nor payable 40
by, the state unless pursuant to the provisions of this 41
section. 42
5. Notwithstanding any other provision of this 43
section, recipients of funds from the low -income energy 44
assistance program shall be exempt from interest charges 45
imposed by such section for the duration of the recipient's 46
participation in the program. 47
34.100. The commissioner of administration may, when 1
in the commissioner's best judgment it is in the best 2
interests of the state, delegate the co mmissioner's 3
procurement authority pursuant to this chapter to an 4
individual department; provided, however, that each instance 5
of single feasible source purchasing authority in excess of 6
[five] ten thousand dollars under section 34.044 must be 7
specifically delegated by the commissioner. The delegation 8
may allow departments to negotiate in accordance with 9 SB 758 39
section 34.042 the purchase of services for patients, 10
residents or clients with funds appropriated for this 11
purpose. In accepting this delegated authority the 12
department acknowledges its ability to, and agrees to, 13
fulfill all of the requirements of this chapter in making 14
purchases and entering into contracts and keeping records. 15
No claim for payment based upon any purchase under this 16
section shall be certified by the commissioner unless 17
accompanied by such documentation of compliance with the 18
provisions of this chapter as the commissioner may require. 19
Any department that fails to fulfill all such requirements 20
may have its delegated autho rity rescinded by the 21
commissioner of administration. 22
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