1. Utah K-12 Public School Construction Education and Training Wednesday, May 4, 2011 Utah Cultural Celebration Center, West Valley City, Utah

2. School Construction Procurement Requirements Session 3 (10:30 a.m. – 12:00 pm.)

3. NOTE: Individual school districts and charter schools may have more stringent criteria than is provided in this presentation. School District Policies and Procedures

4. Any person(s) or board [ including all employees, board member(s), volunteer(s), etc.] duly authorized [and involved in the school construction procurement process]… (63G-6-103 Utah Code). Procurement Officers

5. Bidder Qualifications Should: Be prequalified prior to submitting and being considered and for each project or on an annual basis.

6. SOIQs as Opposed to RFPs RFP (Request for Proposal): the process/method used to procure a contractor. School districts and charter schools are not allowed to use this method in procuring architectural and engineering services.

7. SOIQs as Opposed to RFPs Continued… SOIQ (Statement of Interest Qualifications): is the only process that must be used when selecting and architect or engineer (design professional).

8. Architect/Engineer Services Small Purchases of Services 53A-20-101 continued… If procurement of services is estimated to exceed $80,000*, then a Statement of Interest and Qualification [SOIQ] shall be used. \ *NOTE: Purchasing Administrative Rule R33-5-530 requirement of $100,000 is overridden by this more specific law for schools.

9. 53A‐20‐101…total estimated project cost exceeds $80,000…advertise…at least 10 days before the bid due date (Required in R23-1-5 as well). …newspaper having general circulation throughout the state…in appropriate construction trade publications that offer free listings…any city or county… affected by the proposed project. Required Bid Advertising

10. BidSync – This electronic process used by Utah State Purchasing is an acceptable additional method for advertising bids (including school construction procurement) but does not replace the requirements found in 53A-20 to advertise in the newspaper. Required Bid Advertising

11. A predetermined definition of criteria helps maintain consistency among members of the selection committee. Evaluation Criteria Source – NASPO – National Association of Procurement Officers Publishing the relative weight of evaluation criteria when issuing an RFP or SOIQ is required by State Purchasing Codes.

12. Firm, location of all offices, principal place of business; Age of the firm, average number of employees over the past five years; Names of five clients who may be contacted…; Education, training, and qualifications of firm members and key employees; R33-5-525 Annual Statement of Qualifications and Performance Data shall include:

13. continued… Experience of the firm…technical capabilities & project experience; Any other pertinent information… qualifications and performance data… Firms may amend statements…at any time by filing a new statement. R33-5-525 Annual Statement The same criteria outlined in the Books Act - federal procurement laws.

14. R33-5-560 Request for Statements of Interest: …(SOI) shall…describe…requirements…evaluation criteria…include notice of any conference…criteria to be used in evaluating…qualifications and performance data and selecting firms, including: Architect/Engineering Services SOIQ

15. R33-5-560 Request for continued… Requiring competence…technical training and education, general experience… competence of persons assigned to perform the services; Ability to perform the services as reflected by workload…adequate personnel, equipment, and facilities… expeditiously… Past performance…evaluations of private persons and…governmental entities… Architect/Engineering Services SOIQ

16. R33-5-570 Clearly Define Scope of Services: …definition shall be sufficient to define the work expected, as detailed as possible and the scope definition shall be the basis for the negotiation process. However, scope may be modified if necessary during final negotiations.

17. Selection of Firms for Discussion continued… R33-5-590 continued… Discussion phase may be waived if… statements of interest, qualifications and performance data indicate that one firm is clearly most qualified and if the scope and nature of the services are clearly defined.

18. SOIQ Process: Is a two step procurement process used to select design professionals. – Step One: The process of determining qualified design professionals to perform the work requested. FEE CANNOT BE PART OF SELECTION.

19. SOIQ Process: Two step procurement process continued… – Step Two: The negotiation process starting with the most qualified offeror to obtain design professionals. (Administrative Rule R33)

20. Selection of Firms for Discussion: R33-5-600 …purposes of these discussions… (a) determine each firm's general capabilities and qualifications for performing the contract; and… (b) explore the scope and nature of the required services and the relative utility of alternative methods of approach.

21. Committee Selections of Architects/Engineers R33-5-610 Selection…Most Qualified Firms: …committee… reevaluate and select, in order of preference…firms…most highly qualified to provide…services. …document…process indicating…criteria… applied to determine…ranking…most highly qualified firms…compiling a letter justifying why…firm chosen…most qualified, and filing the letter for review…

22. Notice of Award R33-5-640 Written notice of the award shall be sent to the firm with whom the contract is successfully negotiated. Each firm with whom discussions were held shall be notified of the award. Notice of the award shall be made available to the public.

23. Architect/Engineer Services Contract Negotiations Shall be directed toward: Making certain that the firm has a clear understanding of the scope of work… Determining that the firm will make available the necessary personnel and facilities to perform the services within the required time.

24. Why Use an RFP Process for Contractors, Instead of Low Bid? Specifications can’t be clearly defined; Several possible solutions; May meet agency needs; Cost is only one factor in determining award.

25. If You’re Considering Low Bid – Consider Restrictions: R33-3-1 Competitive Sealed Bidding (Low Bid) - Low Bid With Restrictions: 5-Years Experience Similar Type of Project; References; Qualifications/Certifications; Positive Past Performance Rating; Bonding Capability; Etc.

26. Low Bid for Subcontractors Recommendation: require contractor or CM/GC for construction projects to follow the same criteria in selecting subcontractor, as outlined in the RFP used in the selection of the contractor or CM/GC.

27. Evaluation of an RFP shall be based on: Technical Evaluation (predetermine weighting criteria and points posted in the RFP specifications); Cost Proposal Evaluation; Opportunity for Best and Final Offers (BAFO); Award to Offeror receiving the Highest Total Points.

28. Construction RFPs Fee Proposals and Criteria Fee proposals shall be evaluated objectively and independently from the qualitative proposal. Best Practice: Price = 40%, but shall not be less than 30%. Evaluation criteria shall be weighted to reflect the priority of the information asked for in an RFP... following State Purchasing’s RFP Manual & R33-3-201 to 217.

29. Specifications – Best Practice – Performance Based: Performance based specifications in which specific criteria is outline which places the burden of proof of a product, method, construction type on the bidder is considered a good way to obtain best quality and value and help reduce the risk of protests.

30. Competition in Procurement Under Competitive Sealed Bidding, Invitation for Bids used to initiate a competitive sealed bid procurement. R33-3-1 Competitive Sealed Bidding. Competitive sealed bidding is the preferred method of source selection because it promotes price competition.

31. Competitive Sealed Bidding The bids…opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids; …include...purchase description and all contractual terms and conditions applicable… …public notice of the invitation…shall be given a reasonable time before the date set forth in the invitation for the opening of bids, in accordance with rules; R33-3-2. Competitive Sealed Proposals

32. Competitive Sealed Bidding continued… …amount of each bid and any other relevant information specified by rules… name of each bidder, shall be recorded; The record and each bid shall be open to public inspection; Should only include criteria in the bid evaluation that was set forth in the invitation for bids; R33-3-2. Competitive Sealed Proposals

33. Competitive Sealed Bidding continued… Should include criteria that will affect the bid price and be considered in the evaluation for the award, and shall be objectively measurable; Should include criteria and may include discounts, transportation costs, and total or life cycle costs; R33-3-2. Competitive Sealed Proposals

34. Competitive Sealed Proposals (or RFPs—Request for Proposals) May be more appropriate after consideration of: Need for price and service negotiation; Need for negotiation during performance of the contract; Evaluation of relative skills or expertise; Whether cost is secondary; Unable to be sufficiently describe service, product or delivery.

35. Contracts for Construction Contracting Many organizations provide good starting points for form contracts, however, they are drafted with the private sector in mind (American Institute of Architects, Design Build Institute of America and 20 or more national construction-related associations called ConsensusDOCS); best practice suggests school districts and charter schools not adopt any of these contract forms verbatim.

36. Utah Code Bonding Requirements Utah Code 63G-6-504 and 505, and 53A-20-101 require certain bonding: Bid Security Bond in the amount of at least 5% of the amount of the bid; 53A-20-101-(2) (d)… (iii) require a certified check or bid bond of not less than 5% of the bid to accompany the bid.

37. Utah Code Bonding Requirements continued… Required Payment and Performance Bonds: 53A-20-101- (5) A local school board ….shall require payment and performance bonds… (a) a performance bond…equal to 100% of the price specified in the contract; (b) a payment bond…an amount equal to 100% of the price specified…

38. Retention: 53A-20-101 (6) (a) A local school board may require in the proposed contract that at least 10% of the contract price be withheld until the project is completed and accepted by the board. (This overrides 5% retention in R33).

39. Utah Code Construction Insurance Requirements Certain types of insurance be secured by vendors of construction services: Errors and omissions insurance coverage; Builders risk insurance and completed operations coverage to guarantee recovery of damages to the work in progress during construction.

40. Procurement Decisions Qualification and performance evaluations— where price is neither the sole, nor the most important element of the evaluation criteria—is made easier by using competitive sealed proposals (RFP) or by using Multi-Step competitive sealed bidding, rather than competitive sealed bidding.

41. Alternate Methods of C/M Considerations Utah Code 63G-6-501. Before choosing a construction contracting management method, the purchasing agency shall consider: When project must be ready to be occupied; The type of project; The location of the project; Size, scope, complexity, project economics; Availability, qualifications, and experience of consultants and contractors to complete project under various methods considered.

42. CM/GC – Construction Manager General Contractor Means any contractor who enters into a contract for the management of a construction project when that contract allows the contractor to subcontract for additional labor and materials that were not included in the contractor's cost proposal submitted at the time of the procurement of the Construction Manager/General Contractor's services.

43. CM/GC – Construction Manager General Contractor Continued… The Construction Manager General Contractor CM/GC is also known as the construction manager-at-risk delivery method and involves the use of a construction manager to assist with design and construction.

44. CM/GC – Construction Manager General Contractor Continued… During design, the construction manager works with a designer—who is under a separate contract with the public entity—to ensure constructability and budget conformance. During construction, the construction manager may assist with the selection of construction contractors or act as the general contractor.

45. DB Design-Build Under the Design-Build project delivery method, a single contractor or joint- venture is responsible for both design and construction services. With a single source of responsibility for design and construction, a public entity is able to take advantage of the contractor’s expertise in the design, resulting in a better product.

46. DB Design-Build continued… Some believe that the Design-Build method also requires less time than the traditional method because the construction bidding process is eliminated and some construction work may be performed concurrent with design services.

47. DBB Design-Bid-Build Under the traditional method of Design-Bid- Build, procurement of design and construction services is carried out in sequential phases. First, the architect or engineer is contracted to perform design services. The completed design is used to solicit bids under an Invitation for Bid (competitive bidding process) for a contractor to build from that design.

48. DBB Design-Bid-Build Continued… Second, the construction contract is awarded to the responsive and responsible bidder who submits the lowest bid. During construction, the architect or engineer assists the owner with administration of the construction contract

49. DBB Design-Bid-Build Continued… Design-Bid-Build Construction Services may be procured through the following: Competitive Sealed Bid; Multi-Step Sealed Bidding; Request for Proposal (RFP) or Best Value Selection.

50. Multi-Step Sealed Bidding The Multi-Step Sealed Bidding process is designed to obtain the benefits of competitive sealed bidding—by awarding a contract to the lowest responsive, responsible bidder—and at the same time obtain the benefits of the competitive sealed proposals procedure…

51. Multi-Step Bid Process (MSB): Use: Obtain benefits of Competitive Sealed Proposal procedure through the solicitation of technical offers and Invitation for Bid procedure through pricing offered. Steps: The evaluation of qualifications and other performance data; The opening of price bids submitted by firms qualified, and; Review of best and final offers.

52. Multi-Step Bid Process (MSB): Method of Award: Two Phase/Step Process: First phase - Technical Proposal (any vendor meeting the technical requirements moves to step two); Second phase—bidders whose technical offers are determined to be acceptable during the first phase—have their price bids considered.

53. Repeat Design Maximum Fee: 4% to 4.3%. Use of repeat designs is: An effective strategy for reducing construction costs if the plans still work effectively. Bundled Projects Maximum Fee: 3.8% to 4.3%.

54. DO: Include funding for reimbursables in your construction budget, for items such as: Copying – Plans and Specifications Design Professionals Travel

55. Stipends to Provide Designs of Projects During SOIQ Process: Any School District requiring designs for the SOIQ process should pay a stipend to participating firms.

56. Sample SOIQ

57. Sample SOIQ Worksheet

58. Procurement Best Practices Project Management CM/GC Cost Control Firms on contract with the State of Utah are there to support school districts and charter schools, they should never take on responsibilities of business administrators or building officials.

65. Must School Districts and Charter Use State Contracted C/M Firms: No, this is something offered as an option for projects with a limited time to perform (reducing the time needed to procure C/M) and those who have limited construction projects. School districts and charter schools are encouraged to procure these services, particularly for large scale projects.

66. School Construction & Facilities Safety References: Administrative Rule R23 Facilities and Construction Management: http://www.rules.utah.gov/public/code/r023/r023.htm Administrative Rule R33 Purchasing and General Services: http:/www.rules.utah.gov/publicat/coe/r033/r033.htm Utah Code 53A-20 School Construction: http:/le.utah.gov/~code/TITLE53A.53A20.htm

67. Utah Code 63G-6 – Utah Procurement Code: http:/le.utah.gov/~code/TITLE63G06.htm Utah Code 76-10-912 - Offenses Against Public Health Safety Welfare and Morals: http://le.utah.gov/~code/TITLE76/76_10.htm Administrative Rule R277-471 Oversight of School Inspections: http://www.rules.utah.gov/public/code/r277/r277- 471.htm School Construction and Facility Safety Resources continued…

68. Administrative Rule R227-454 Construction Management of School Building Projects http://www.rules.utah.gov/publicat/code/r277/r277- 454.htm Administrative Rule R614-7 Construction Standards: http://www.dopl.utah.gov/laws/58-56.pdf Utah Uniform Building Standards Act http://www.dopl.utah.gov/laws/58-56.pdf

69. School Construction & Facilities Safety References continued… Utah State Purchasing – State of Utah RFP Manual: http://purchasing.utah.gov/forms/index.html School Construction Resource Manual: http://www.schools.utah.gov/finance/Facilities/Sc hool-Construction-Resource-Manual.aspx

70. School Construction & Facilities Safety References continued… NASPO Book – National Association of State Procurement Officers – State and Local Procurement – A Practical Guide