AN ACT AUTHORIZING PUBLIC CONTRACTS TO UTILIZE THE DESIGN BUILD METHOD OR PUBLIC PRIVATE PARTNERSHIP CONSTRUCTION CONTRACTS. Enacted August 23, 2013. Effective thirty days after August 23, 2013.
Summary date: Sep 3 2013 - More information
Summary date: Jul 23 2013 - More information
House amendment makes the following changes to the 5th edition.
Amends GS 143-64.31, Declaration of public policy, providing in subsection (d) that in the event a public body fails (previously, willfully fails) to submit the required reports of this section, the same public body will be prohibited from utilizing certain delivery methods provided for in GS Chapter 143 until the reporting requirement is met. Further amends the subsection to add that contracts entered into in violation of this prohibition will not be deemed ultra vires, and remain valid and fully enforceable. Provides for injunctive relief by persons, corporations, or entities that have submitted bids or responses to a request for proposals by the public body that has not complied with the reporting requirement of this section. No monetary damages will be awarded and attorneys' fees for the plaintiff or the defendant will only be awarded as allowed pursuant to GS 1A-11 or GS 6-21.5. Actions seeking injunctive relief must be filed within four years from the date that the owner took beneficial occupancy of the project for which the report remains due.
Summary date: Jul 17 2013 - More information
Senate committee substitute to the 4th edition makes the following changes.
Amends a whereas clause.
Amends GS 143-64.31 to add to the information that public entities contracting with a construction-manager-at-risk, design builder, or private developer under a public-private partnership must report to include a detailed explanation of why the particular delivery method was used in lieu of separate prime bidding, single prime bidding, or dual bidding, and the anticipated benefits to the public entity from using the delivery method. Adds that a public body letting a contract pursuant to construction-management-at-risk contracts, design-build contracts, design-build bridging contracts, or public-private partnership construction contracts must submit the required report no later than 12 months from the date that the public body takes beneficial occupancy of the project.
Amends new GS 143-128.1A to add to the criteria that a governmental entity must establish for determining the circumstances under which the design build method is appropriate the criteria used by the governmental entity, including a comparison of the costs and benefits of using the design-build delivery method for a project instead of separate prime bidding, single prime bidding, or construction-management-at-risk contracts.
Amends GS 143-128.1B to define first tier subcontractor as one who contracts directly with the design builder, (was, design builder or general contractor). Defines design builder as an appropriately licensed person, corporation, or entity that, under a single contract, offers to provide or provides design services and general contracting services where services within the scope of the practice of professional engineering or architecture are performed respectively by a licensed engineer or licensed architect and where services within the scope of the practice of general contracting are performed by a licensed general contractor. Adds to the criteria that a governmental entity must establish for determining the circumstances under which engaging a design criteria design professional is appropriate for a project to include a comparison of the costs and benefits of using the design build delivery method for a project instead of separate prime bidding, single prime bidding, or construction-management-at-risk contracts.
Amends GS 115C-521 to allow a local board of education to use prototype designs from the clearinghouse in GS 115C-521(e) that is a previously approved and constructed project by the School Planning Division of the State Board of Education and other appropriate review agencies. Allows contracting with the architect of record to changes and upgrades necessary for regulatory approval.
Establishes a Purchase and Contract Study Committee to study the issue of pre-qualification on public non-transportation construction work for local and state government projects. Establishes four issues to be studied. Requires a report to the General Assembly on or before the convening of the 2014 Session of the 2013 General Assembly.
Changes the effective date of the act from October 1, 2013, to 30 days after the act becomes law. Clarifies that the act does not supersede any prior enacted local act of the General Assembly enacted on or before July 1, 2013.
Summary date: Jun 11 2013 - More information
Senate committee substitute makes the following changes to the 3rd edition.
Amends GS 143-128.1B (a)(2) to expand the definition of design-builder to include a limited liability company. Amends subsection (e) to direct the governmental entity, following an evaluation of the qualifications of the design-builders, to rank those who have made responses to the request for proposals, grouping the top three without ordinal ranking. Requires the governmental entity to make a selection from the grouping of the top three design-builders, selecting the lowest, responsive bidder based on the cumulative amount of fees provided under subdivision (d)(10) of this section, and taking into consideration (1) quality, (2) performance, and (3) the time specified in the proposals for the performance of the contract.
Amends GS 143-128.1C(g)(2)b to provide that a claimant's service on a private developerof a claim of lien on real property or a claim of lien on funds as allowed by Article 2 of GS Chapter 44A, is deemed to be adequate notice under this section.
Amends GS 143-128.1C(g)(3) to indicate that there is an applicable exception provided in GS 44A-16(c) to the provision prohibiting commencing an action on a payment bond after one year from the day on which the last of the labor was performed or material was furnished by the claimant.
Amends GS 143-128.1C(g)(9) to provide that the obligations and liens set out in Article 2 of GS Chapter 44A apply to a project awarded under this section to the extent that a private developer holds any property interests in the project. Also provides that the private developer is to be deemed to bethe owner to the extent of that private developer's ownership interest. Specifies that this subdivision is not to be construed to make the provisions of Article2 of GS Chapter 44A apply to governmental entities or public buildings to the extent of any property interest held by the governmental entity in the building (was, this section provided that the provisions of this subsection were not to be construed to limit rights given to claimants under subsection (g)).
Amends GS 44A-16 to provide criteria for the discharge by a private developer of a claim of lien on real property or a claim of lien on funds for improvements performed in conjunction with a development contract under GS 143-128.1C and the surety on a payment bond issued under GS 143-128.1C(g)(1) in accordance with this subsection. Specifies procedures for the discharge of a claim of lien.
Summary date: May 15 2013 - More information
House committee substitute makes the following changes to the 2nd edition:
Revises GS 143-128.1A(c)(3) to clarify that it is the "anticipated" project budget for which information must be provided, and makes grammatical and clarifying changes to subdivision (c)(5); identical changes made to GS 143-128.1B(d)(3) and (d)(5).
Revises GS 143-128.1C(i) to require a public body to conduct a public hearing on a proposed development contract prior to that body's consideration of the contract; notice of the public hearing must be published in the same notice as advertisement of the terms of the contract as required under subsection (i).
Revises GS 143-128.1C(k)(2) to clarify that the approval requirements of that subdivision apply only to capital leases.
Summary date: May 13 2013 - More information
House committee substitute makes the following changes to the 1st edition.
Changes the long title.
Amends GS 143-64.31, providing that, for purposes of this Article, the definitions in GS 143-138.1B and GS 143-128.1C apply. Makes an organizational change.
Amends GS 143-64.32, establishing that projects with an estimated professional fee of less than $50,000 (was $30,000) can be exempt from the provisions of this Article.
Amends GS 143-128(a1), adding a new subsection, expanding the list of authorized construction methods for which the state, a county, a municipality, or other public body must award contracts to erect, construct, alter, or repair buildings to include design-build bridging contracts pursuant to GS 143-128.1B. Makes a technical change.
Amends GS 143-128.1A, making technical and conforming changes. Provides that a governmental entity must establish in writing the criteria for determining when the design-build method is appropriate. Enumerates criteria for determining an appropriate design-build method, including a new criteria requiring a good faith effort to comply with specified provisions and to recruit and select small business entities. Makes a technical deletion. Deletes clause stating that the purpose of requiring a public notice of information for government projects is for fair and open competition. Makes organizational changes. Deletes the requirement that a government entity must provide the state construction office with a copy of the public notice before or when it is issued. Makes various changes to the design-build evaluation and selection process.
Enacts new GS 143-128.1B, entitled Design-Build bridging contracts, providing the definitions for use in the section, including design-build bridging, design-builder, design criteria, design professional, first tier subcontractor, and governmental entity. Requires a governmental entity to establish in writing the criteria used for determining when it is appropriate to use a design criteria design professional for certain projects. Sets outs the minimum requirements for what the criteria must address, including any time constraints for the delivery of the project and the ability to ensure that a quality project can be delivered. Requires a governmental entity to select a design professional, prior to entering into a contract for design-build services, to serve as its representative for the procurement process. Sets out the duties and responsibilities of the design criteria design professional, including preparing a design criteria package equal to 35% of the completed design documentation. Sets out the other required parts of the design criteria package. Requires a public notice of the request for proposals and sets out 10 items of general information that must be included in the notice, including the project site and the project scope. Sets out further design-build contractor selection requirements.
Enacts new GS 143-128.1C, Public-private partnership construction contracts, which was previously included in the 1st edition as GS 143-128.1B, with technical, clarifying, and conforming changes. Adds and defines the terms state entity and state supported financing arrangement. Provides that a governmental entity, that is a public body, must determine that it has a critical need for a capital improvement project (CIP) in an open meeting of that public body. Also requires development contracts to specify the responsibility to put forth a good faith effort to comply with specified provisions regarding minority and small business entities. Specifies bonding requirements, including requiring a payment bond in the amount of 100% (was 125%) of the total anticipated amount of the construction contracts to be entered into between the private developer and the contractors to design or contract the required improvements. Provides that if a payment bond is obtained for a development contract and maintained throughout the public-private project, then the provisions of Article 2 of Chapter 44A will not apply to that public-private project.
Provides new provisions requiring a governmental entity to make a summary of the development contract terms available, with directions on how to obtain or access the complete development contract. Also sets out requirements for the approval and requirements of capital and operating leases. Establishes exceptions to the applicability of this section.
Amends GS 143-128.1, Construction management at risk contracts, incorporating good faith effort requirements for minority business participation and small business solicitation requirements into the section.
Provides that this act is effective October 1, 2013, and applies to projects bid on or after that date, and public-private development contracts entered into on or after that date. This act expires on July 1, 2019.
Summary date: Apr 15 2013 - More information
Amends GS 143-64.31, expanding the types of services intended to be contracted out, as a matter of state public policy, to now also include design-build services and public-private partnership construction services. Makes conforming changes.
Amends GS 143-64.32, deleting subsection (b).
Amends GS 143-128(a1), adding subsections (6) and (7) expanding the list of authorized construction methods for which the state, a county, a municipality, or other public body must award contracts to erect, construct, or repair buildings to include design-build contracts and public-private partnerships construction contracts.
Enacts GS 143-128.1A authorizing design-build contracts, enumerating criteria for determining an appropriate design-build method, and requiring public notice of information about a government project for the purpose of fair and open competition. Sets out further design-build reqirements.
Enacts GS 143-128.1B regulating contracts for capital improvement projects undertaken by a government entity and a private developer. The contract may provide that the private developer must be responsible for (1) construction of the entire public-private project, (2) reconstruction or repair of the public-private project or any part thereof subsequent to construction, (3) construction of any addition to the project, (4) renovation of the project, and (5) purchase of equipment for the project. A private developer and its contractors are required to make a good faith effort to recruit and select minority businesses for participation in contracts. Specifies bonding requirements. A cause of action exists for any claimant who performed work under a contract, has not been paid for that work, and 90 days has expired since the last performance of labor. Any person entitled to bring an action or any defendant in an action on a payment bond shall have the right to require the governmental entity or the private developer to certify a copy of the payment bond, development contract, and construction contracts covered by the bond. The prevailing party to a suit brought under the provisions of this subsection may be granted attorneys' fees. Sets out further requirements for programming requirements and for selecting developers.
Effective when the act becomes law and expires July 1, 2019.
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