7020
Policy
Construction
New Construction and Improvements to Existing
Buildings
Construction Management at Risk under the Nebraska
1. Introduction: The Board of Education has determined that it
is in the best interests of the School District/Owner to take all necessary
action in order to authorize the School District/Owner to enter into a construction
management at risk (CMR) contract for purposes of allowing the School District/Owner
to avail itself of the construction management at risk construction delivery
method and process pursuant to Political Subdivisions Construction Alternatives
Act, Neb. Rev.
2. Terms Defined:
A. "Construction
management at risk contract" means a contract developed under the terms
and conditions of this policy by which a construction manager (a) provides services as a construction
consultant to the School District/Owner during the design phase of the project
when the School District/Owner's architect or engineer designs the project; (b)
assumes the legal responsibility to deliver a construction project for a contracted
price, also known as a "guaranteed maximum price" or "GMP";
and (c) is the builder during the construction phase of the project, subject to
the School District/Owner’s bidding requirements established by this policy and
other School District/Owner policies, and the construction management at risk
contract;
B. "Construction
Manager" or "CMR" means the legal entity which proposes to enter
into a construction management at risk contract under this policy;
C. "Proposal"
means an offer in response to a request for proposals by a construction manager
to enter into a construction management at risk contract for a project under this
policy;
D. “Request
for Proposals” means the documentation by which the School District/Owner
solicits proposals.
3. Board
4. Duties of Architect and/or Engineer for the
Project: Prior to proceeding
with any construction project under the PSCA Act exceeding a total anticipated
cost equal to or in excess of the amount established in Neb. Rev.
5. Procedures for the Preparation and Content
of Requests for Proposals: The
Administration, in consultation with School District/Owner legal counsel and
the project architect and engineer, shall prepare the request for proposals for
the position of construction manager at risk under the PSCA Act. The School District/Owner shall prepare a
request for proposals for each construction management at risk contract in
accordance with this section. At least thirty (30) days prior to the deadline
for receiving and opening proposals, notice of the request for proposals shall
be published in a newspaper of general circulation within the School District/Owner
and filed with the
A. Notice
to Construction Management firms of the School District/Owner's request for
proposals which shall establish (1) the day of any pre-proposal conference; (2)
the day upon which such proposals shall be returned, received, or opened, as
provided by other statutes; and, (3) the hour at which such proposals shall
close, or be received or opened, and they shall also provide that such proposals
shall be immediately and simultaneously opened in the presence of the proposers,
or representatives of the proposers, when the hour is reached for the proposals
to close;
B. Invitation
to submit proposals and instructions to prospective construction management at
risk firms, which shall include:
(1) An invitation to submit proposals with a
brief description of the project, instructions to proposers, and standard notices
and reservations of rights as follows:
"
NOTICE: By submitting a proposal, each proposer agrees to waive any claim it
has, or may have, against the School District/Owner and the Architects retained
by the School District/Owner, and their respective employees, arising out of,
or in connection with, the administration, evaluation, or recommendation of any
proposal; waiver of any requirements under the Proposal Documents; or the
Contract Documents; acceptance or rejection of any proposals; and award of the
Contract." And, "The School
District/Owner reserves the right (a) to terminate the proposal process at any
time; (b) to reject any or all proposals; and (c) to waive formalities and minor
irregularities in the proposals received.
The
School District/Owner further reserves the right to conduct a pre-award survey
of any firm under consideration to confirm any of the information furnished by
the firm or to require other evidence of managerial, financial, technical and
other capabilities, the positive establishment of which is determined by the School
District/Owner to be necessary for the successful performance of the
contract."
(2) A description of the scope and nature of
the project, the project site, the project schedule and estimated budget;
(3) Requirements for the proposal, including:
(a) A
description of the CMR's project team and organization of such team;
(b) Fee
proposal, if required by the School District/Owner as part of the RFP;
(c) A
description of the limitations, if any, on expenses to be reimbursed;
(d) Insurance
and surety bond requirements;
(e) Preliminary
project schedule;
(4) Description of the general scope of
services to be provided by the CMR, which may include:
(a) Project
financing phase informational services;
(b)
(c) Pre-construction
phase services including consultation of design, materials and systems, long
lead items, contractor availability and recruitment, preliminary project
schedule and preliminary cost estimation, and review of construction documents
and conduct value engineering assessments with respect to constructability, material
and construction techniques and building systems, sequencing of construction,
separation or combining of bid packages.
(d) Cost
estimation and preliminary guaranteed maximum price submittals to the School
District/Owner;
(e) Construction
administration and supervision services including identification and
preparation of bid packages, recruitment and prequalification of prospective proposers
for such bid packages, conduct of bid process for each bid package, review of
and recommendations to the School District/Owner with regard to proposals
submitted, and administration of construction contracts, day-to-day supervision
of the work with a qualified site superintendent and project manager;
(f) Preparation
and submittal of Guaranteed Maximum Price (GMP) for the project(s).
(5) Information of pre-proposal conference,
if any required, and attendance requirements at such conference.
(6) Proposal procedure, including:
(a) Questions
and clarification or interpretations of the proposal documents;
(b) Method
of handling addenda to proposal documents;
(c) Procedure
for modification or withdrawal of proposals;
(d) Proposal
due date and opening including date, time, location and methods of submittal of
proposals;
(e)
(f)
(g) Interview
process;
(h) Contract
negotiation process;
(i) Contract
execution process.
C. Agreement
between Saunders County School District 78-0001, a/k/a Ashland-Greenwood Public
School District and the construction manager at risk under the Political
Subdivisions Construction Alternatives Act, Neb. Rev.
D. AIA
Document A201/CMa™ - 1992 - General Conditions of the Contract for Construction
where the Construction Manager is NOT a Constructor, 1992 Edition, A
E. Payment
and performance bond and guaranteed maximum price bond requirements for the construction
manager at risk;
F. Insurance
requirements which shall provide that the construction manager shall purchase
from and maintain in a company or companies lawfully authorized to do business
in the jurisdiction in which the Project is located such insurance as will
protect the construction manager from claims set forth below which may arise
out of or result from the construction manager's operations under the contract
and for which the construction manager may be legally liable, whether such
operations be by the construction manager or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable:
(1) Claims
under workers compensation, disability benefit and other similar employee
benefit acts which are applicable to the Work to be performed;
(2) Claims
for damages because of bodily injury, occupational sickness or disease, or
death of the Construction Manager's employees;
(3) Claims
for damages because of bodily injury, sickness or disease, or death of any
person other than the Construction Manager's employees;
(4) Claims
for damages insured by usual personal injury liability coverage which are
sustained (1) by a person as a result of an offense directly or indirectly
related to employment of such person by the Construction Manager, or (2) by
another person;
(5) Claims
for damages, other than to the Work itself, because of injury to or destruction
of tangible property, including loss of use resulting therefrom;
(6) Claims
for damages because of bodily injury, death of a person or property damage
arising out of School District ownership, maintenance or use of a motor
vehicle; and
(7) Claims
involving contractual liability insurance applicable to the construction manager's
obligations.
G. The
CMR organizational chart; and,
H. Policies
adopted by the School District/Owner governing the CMR construction process.
6. Procedure and
7. Procedures and
A. Notices: The prospective construction managers shall
be provided the following notices regarding the project and its legal
parameters:
(1) NOTICE:
THI
(2) NOTICE:
By submitting a proposal, each proposer agrees to waive any claim it has, or
may have, against the School District/Owner and the Architects retained by the School
District/Owner, and their respective employees, arising out of, or in
connection with, the administration, evaluation, or recommendation of any proposal;
waiver of any requirements under the Proposal Documents; or the Contract
Documents; acceptance or rejection of any proposals; and award of the Contract.
(3) Notice
of the following provisions related to the request for proposal process:
(a) Attendance
at pre-proposal conference (if required).
(b) A
process for answering pre-proposal questions or requiring clarification or
interpretation of the proposal documents.
(c) A
process to provide for interpretations, corrections, and changes of the request
for proposal documents to be made by addendum.
(d) A
notice providing that:
(i) A proposal may not be modified, withdrawn
or canceled by the proposer during the stipulated time period following the
time and date designated for the receipt of proposals, and each proposer so
agrees in submitting a proposal.
(ii) A submitted proposal may be modified
or withdrawn prior to the time and date designated for receipt of proposals by
notice to the party receiving proposals at the place designated for receipt of
proposals; such notice shall be in writing over the signature of the proposer.
(iii) A withdrawn proposal may be
resubmitted up to the date and time designated for the receipt of proposals
provided that they are then fully in conformance with the request for
proposals.
(iv) The proposing firm’s signature on the
proposal is the proposing firm’s guarantee that the content of the proposal has
been arrived at without collusion with other eligible prospering firm or firms
and without effort to preclude the School District/Owner from obtaining the
lowest competitive price.
(v) Proposals due at a specified date and
time must be received at School District/Owner's location by the date and time specified
to receive consideration. Proposals
received after the specified date and time are considered late, and shall not
opened.
B. Reservation
of Rights:
(1) The School District/Owner reserves the
right (a) to terminate the proposal process at any time; (b) to reject any or
all proposals; and (c) to waive formalities and minor irregularities in the proposals
received.
(2) The School District/Owner further reserves
the right to conduct a pre-award survey of any firm under consideration to
confirm any of the information furnished by the firm or to require other
evidence of managerial, financial, technical and other capabilities, the
positive establishment of which is determined by the School District/Owner to
be necessary for the successful performance of the contract.
C. Requirements
For Proposal. The
(1) A
description of the CMR's project team and organization of such team;
(2) A fee
proposal, if required by the School District/Owner as part of the RFP;
(3) A
description of the CMR's approach to the submission, reporting and approval of expenses
to be reimbursed;
(4) A
certification of compliance with insurance and surety bond requirements.
(5) A preliminary
project schedule.
(6) A narrative
of firm's philosophy.
(7) Completion
and submission of the questionnaire included in the invitation for proposals.
8. Procedures for Evaluating Proposals in Accordance
with Neb. Rev. Stat. §§ 13-2910 and 13-2911:
The School District/Owner shall evaluate and rank each proposal
on the basis of best meeting the criteria in the request for proposals and
taking into consideration the recommendation of the selection committee
pursuant to Neb. Rev. Stat. § 13-2911.
A. Referral
to Selection Committee: In evaluating
proposals in accordance with Neb. Rev. Stat. § 13-2910, the School District/Owner
shall refer the proposals for recommendation to a selection committee.
B. Make-up
of Selection Committee: The selection
committee shall be a group of at least five (5) persons designated by the School
District/Owner. Members of the selection committee shall include (1) members of
the school board, (2) members of the school administration or staff, (3) the
school's architect or engineer when evaluating proposals from construction
managers under Neb. Rev. Stat. § 13-2910, (4) any person having special
expertise relevant to selection of a construction manager under the Political
Subdivisions Construction Alternatives Act, and (5) a resident of the School
District/Owner other than an individual included in subdivisions (1) through (4)
of this subsection.
C. Members
No Pecuniary Interest: A member of the
selection committee designated under subdivision (4) or (5) of this subsection
shall not be employed by or have a financial or other interest in a
construction manager who has a proposal being evaluated and shall not be
employed by the School District/Owner or the performance-criteria developer.
D. Evaluation
Criterion: The selection committee and the
School District/Owner shall evaluate proposals taking into consideration the
criteria enumerated in subdivisions (1) through (8) of this subsection with the
maximum percentage of total points for evaluation which may be assigned to each
criterion set forth following the criterion. The following criteria shall be
evaluated, when applicable:
(1) The
financial resources of the design-builder or construction manager to complete
the project, ten percent;
(2) The
ability of the proposed personnel of the design-builder or construction manager
to perform, thirty percent;
(3) The
character, integrity, reputation, judgment, experience, and efficiency of the
design-builder or construction manager, thirty percent;
(4) The
quality of performance on previous projects, thirty percent;
(5) The
ability of the design-builder or construction manager to perform within the time
specified, thirty percent;
(6) The
previous and existing compliance of the design-builder or construction manager
with laws relating to the contract, ten percent; and
(7) Such
other information as may be secured having a bearing on the selection, twenty
percent.
E. Examination
of Proposals: Following the opening of
the proposals, the Selection Committee will examine the proposals and
supporting documentation submitted by all candidates. The selection of the CMR for the Project
shall be based upon a careful and objective consideration of the proposals and
the ability of each firm submitting a proposal to perform the services
described in this Invitation for Proposals and the requirements of any federal,
state, local laws and regulations and School District/Owner policies and
regulations that are applicable to the Project.
F. Interviews
of Candidates: To further assist the
Selection Committee in evaluating each proposal to determine which candidate
best meets the criteria in the request for proposals, the Selection Committee
Board may at its election determine to interview such candidate(s).
G. Records
of Selection Committee: The selection
committee shall keep and maintain permanent records of the committee
proceedings including, but not limited to, records of the minutes of meetings,
and documentation received or disclosed in open session of the meetings. The committee shall appoint a board member or
district employee to keep the minutes of the committee meetings. The minutes of each meeting shall include as
a minimum the following items: a record of the date, time, place, members
present, action taken and the vote of each member. The records of the committee shall be placed
on public file with the central administration office. The records of the selection committee in
evaluating proposals and making recommendations shall be considered public
records for purposes of section 84-712.01.
H. Rejection
of Proposals: The School District/Owner
shall have the right to reject any and all proposals. The School District/Owner
may subsequently solicit new proposals using the same or different project
performance criteria.
9. Contract Negotiations:
A. Negotiations
with Highest Ranked CMR: The School District/Owner shall attempt
to negotiate a construction management at risk contract with the highest ranked
construction manager and may enter into a construction management at risk
contract after negotiations. The negotiations shall include a final
determination of the manner by which the construction manager selects a
subcontractor.
B. Negotiations
with Second Highest Ranked CMR, etc. If
the School District/Owner is unable to negotiate a satisfactory contract with
the highest ranked construction manager, the School District/Owner may
terminate negotiations with that construction manager. The School District/Owner
may then undertake negotiations with the second highest ranked construction
manager and may enter into a construction management at risk contract after
negotiations. If the School District/Owner is unable to negotiate a
satisfactory contract with the second highest ranked construction manager, the School
District/Owner may undertake negotiations with the third highest ranked
construction manager, if any, and may enter into a construction management at
risk contract after negotiations.
C. Requirement
of Execution of Written Contract: No
contractual rights shall be created between the construction manager at risk
and the School District/Owner until a written contract has been negotiated,
agreed upon, approved by the Board of Education of the School District/Owner,
and executed by all parties thereto.
D. Insurance
and Bonding: The contract shall
provide that the CMR shall provide insurance coverage for the Project which
shall not be less than the amounts listed in the contract as set forth in the
Request for Proposal; such insurance coverage shall include general liability
(Project specific), automobile liability, and workers' compensation. Further,
the CMR shall provide the School District/Owner with a payment and performance bond
for the cost of the services of the CMR and estimated expenses to be
reimbursed, and a guarantee bond in the amount of ten percent (10%) of the
guaranteed maximum price for the project.
E. Filing
of CMR Contract: The School
District/Owner shall file a copy of all construction management at risk
contract documents with the State Department of
F. Unsuccessful
Negotiations with CMR Candidates:
If the School District/Owner is unable to negotiate a satisfactory contract
with any of the ranked construction managers, the School District/Owner may
either revise the request for proposals and solicit new proposals or cancel the
construction management at risk process.
G. Modification
of CMR Contract: A construction management at risk contract may be
conditioned upon later refinements in scope and price and may permit the School
District/Owner in agreement with the construction manager to make changes in
the project without invalidating the contract. Later refinements shall not
exceed the scope of the project statement contained in the request for
proposals.
10. Procedures for Filing and Acting on Formal
Protests Relating to the Solicitation or Execution of the CMR Contract:
A. Protest
Relation to Solicitation:
(1) Request for Proposals, Notice, and Pre-Proposal
Process and Procedures: A CMR candidate
seeking to protest the policies adopted by the Board of Education pursuant to
the Political Subdivisions Construction Alternatives Act, Neb. Rev.
(2) Proposal Opening, Evaluation and Ranking
of CMR Candidates: A CMR candidate
seeking to protest the proposal opening process used by the School District/Owner
must file such protest within seven (7) calendar days from the date of the proposal
opening.
(3) Evaluation and Ranking of CMR Candidates: A CMR candidate seeking to protest the process
and procedures used by the Selection Committee in evaluating and/or ranking the
CMR candidates must file such protest within seven (7) calendar days from the
date the Selection Committee makes its recommendation to the Board of Education
or the Board of Education's acceptance of the recommendation of the Selection
Committee.
B. Negotiation
or Execution of CMR Contract: A CMR
candidate seeking to protest the process and procedures used by the School
District/Owner in the negotiation or execution of the construction management
at risk contract must file such protest within seven (7) calendar days from the
date the Board of Education takes action to approve the construction management
at risk contract.
C. Form
and Filing of Protests: All
protests under this subparagraph shall be filed with the Office of the
Superintendent of Schools during normal business hours. Such protest must be in writing and received
at or before the close of business on the last day provided for the receipt of
such proposals. For purposes of this
paragraph the term "received" shall mean the actual in hand receipt
of all protests and attendant documents. Facsimile transmittals, e-mail or other
electronic or telephonic transmittals shall not be accepted and receipt of
protest documents, or change in protest documents, in such manner will not be
accepted. Protests shall be public
records, and shall not be considered proprietary and confidential.
D. Action
on Protests: The Board of Education
shall take action on any protest filed pursuant to subparagraph A and B above
within forty-five (45) days of receipt of such protest, and shall provide the
decision of the Board of Education in writing to the protesting party.
Legal
Reference: Political Subdivisions Construction Alternatives Act, Neb. Rev.
Adopted:
March 17, 2008
Revised: January 19, 2009