Bill Text: MS SB2300 | 2025 | Regular Session | Comm Sub
Bill Title: Construction contracts; bring forward code sections for possible amendment.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2025-02-03 - Title Suff Do Pass Comm Sub [SB2300 Detail]
Download: Mississippi-2025-SB2300-Comm_Sub.html
MISSISSIPPI LEGISLATURE
2025 Regular Session
To: Public Property
By: Senator(s) Williams
Senate Bill 2300
(COMMITTEE SUBSTITUTE)
AN ACT TO AMEND SECTION 31-7-13.1, MISSISSIPPI CODE OF 1972, TO REQUIRE PUBLIC AGENCIES OR GOVERNING AUTHORITIES TO SOLICIT PROPOSALS FROM QUALIFIED DESIGN-BUILDERS; TO REQUIRE A CONTRACT TO INCLUDE PAYMENT FOR BOTH THE DESIGN AND CONSTRUCTION PHASES OF THE PROJECT; TO ELIMINATE THE REQUIREMENT THAT AT LEAST ONE OF THE PEOPLE ON THE EVALUATION COMMITTEE BE AN ARCHITECT OR ENGINEER LICENSED AND REGISTERED IN MISSISSIPPI; TO BRING FORWARD SECTION 31-7-13.2, MISSISSIPPI CODE OF 1972, RELATING TO CONSTRUCTION CONTRACTS, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 31-7-13.1, Mississippi Code of 1972, is amended as follows:
31-7-13.1. (1) The method
of contracting for construction described in this section shall be known as the
" design-build method" of construction contracting. * * * The design-build method of
construction contracting may only be used when the Department of Finance and
Administration or a governing authority has determined that it satisfies the
public interest better than traditional design-bid-build or when the
Legislature has specifically required or authorized the use of this method in
the legislation authorizing a project. At a minimum, the determination must
include a detailed explanation of why using the design-build method for a
particular project satisfies the public need better than the traditional design-bid-build
method * * *
.
(2) For each proposed
design-build project, the public agency or governing authority shall solicit
proposals from qualified design-builders, with the final contract between the
public entity and the design-builder being either a fixed firm price or
guaranteed maximum price contract * * * that includes payment for
both the design and construction phases of the project. Before
solicitation of proposals, the agency or governing authority shall develop a
scope of work statement that provides prospective offerors with sufficient
information regarding the requirements of the agency or governing authority.
The scope of work statement must include, but is not limited to, the following
information:
(a) Location and nature of proposed site(s) that include preliminary geotechnical information from borings as well as survey drawings that show topography, adjacent buildings and utilities;
(b) Any mandatory requirements such as minimum number and types of spaces, any minimum or maximum building area(s) or height(s), applicable energy codes and/or efficiency targets, applicable zoning regulations and any aesthetic or character defining standards;
(c) Any mandatory material and/or system performance requirements and/or specifications; and
(d) General budget parameters, schedule or delivery requirements, relevant criteria for evaluation of proposals, and any other information necessary to enable the design-builders to submit proposals that meet the needs of the agency or governing authority.
(3) The agency or governing authority shall cause to be published once a week, for at least two (2) consecutive weeks in a regular newspaper published in the county in which the project is to be located, or a newspaper with statewide circulation, a notice inviting proposals for the design-build construction project. On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority involved shall post the notice on the Mississippi Procurement Portal or mail written notice to, or provide electronic notification to, the main office of the Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority that contains the same information as that in the published notice. The proposals shall not be opened in less than fifteen (15) working days after the last notice is published. The notice must inform potential offerors of how to obtain the scope of work statement developed for the project, and the notice must contain such other information to describe adequately the general nature and scope of the project so as to promote full, equal and open competition.
(4) The agency or governing authority shall accept initial proposals only from entities able to provide an experienced and qualified design-build team that includes, at a minimum, an architectural or engineering firm licensed and registered in Mississippi and a contractor properly licensed and domiciled in Mississippi for the type of work required.
(5) Proposals that include
criteria other than cost only shall be evaluated by an evaluation committee
established by the procuring entity. The evaluation committee shall be
composed of not less than three (3) people * * *. Selection criteria
of the evaluation committee shall be limited to the following:
(a) The bidder's knowledge and experience in executing projects of similar size and complexity;
(b) The experience and qualifications of the proposed office and construction management personnel;
(c) The experience and qualifications of the subcontractors proposed;
(d) The experience and qualifications of the architect or engineer and consultants;
(e) Schedule control; and
(f) Cost factors.
Cost as an evaluation factor shall be given the highest criteria weighting and at least thirty-five percent (35%) out of the one hundred percent (100%) total weight of all the other evaluation factors.
(6) If the agency or governing authority accepts a proposal other than the proposal with the lowest costs that was actually submitted, the agency or governing authority shall enter on its minutes detailed calculations and a narrative summary showing why the accepted proposal was determined to provide the best value, and the agency or governing authority shall state specifically on its minutes the justification for its award.
(7) All facilities that are governed by this section shall be designed and constructed to comply with standards equal to or exceeding the minimum building code standards employed by the state as required under Section 31-11-33 in force at the time of contracting. All private contractors or private entities contracting or performing under this section must comply at all times with all applicable laws, codes and other legal requirements pertaining to the project.
(8) An agency or governing authority may not award a stipulated fee to an offeror for preparation costs to submit a response to the request for proposals.
(9) This section shall not
authorize the awarding of construction contracts according to any contracting
method that does not require the contractor to satisfactorily perform, at a
minimum, both any balance of design, using * * * a professional licensed
in Mississippi, and construction of the project for which the contract is
awarded.
(10) The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
(11) The provisions of this section shall not apply to procurement authorized in Section 59-5-37(3).
SECTION 2. Section 31-7-13.2, Mississippi Code of 1972, is brought forward as follows:
31-7-13.2 (1) When used in this section, "construction manager at risk" means a method of project delivery in which a construction manager guarantees a maximum price for the construction of a project and in which the governing authority or board, before using this method of project delivery, shall include a detailed explanation of why using the construction manager at risk method of project delivery for a particular project satisfies the public need better than that traditional design-bid-build method based on the following criteria:
(a) The use of construction manager at risk for the project provides a savings in time or cost over traditional methods; and
(b) The size and type of the project is suitable for use of the construction management at risk method of project delivery.
(2) When the construction manager at risk method of project delivery is used:
(a) There may be a separate contract for design services and a separate contract for construction services;
(b) The contract for construction services may be entered into at the same time as a contract for the design services or later;
(c) Design and construction of the project may be in sequential or concurrent phases; and
(d) Finance, maintenance, operation, reconstruction or other related services may be included for a guaranteed maximum price.
(3) When procuring design professional services under a construction manager at risk project delivery method, the agency or governing authority shall procure the services of a design professional pursuant to qualifications-based selection procedures.
(4) Before the substantial completion of the design documents, the agency or governing authority may elect to hire a construction manager.
(5) When procuring construction management services, the agency or governing authority shall follow the qualifications-based selection procedures as outlined in subsection (10) of this section or the competitive sealed proposal procedures as outlined in Section 31-17-13.
(6) The agency or governing authority may require the architect or engineer and the construction manager, by contract, to cooperate in the design, planning and scheduling, and construction process. The contract shall not make the primary designer or construction manager a subcontractor or joint-venture partner to the other or limit the primary designer's or construction manager's independent obligations to the agency or governing authority.
(7) Notwithstanding anything to the contrary in this chapter:
(a) Each project for construction under a construction manager at risk contract shall be a specific, single project with a minimum construction cost of Twenty-five Million Dollars ($25,000,000.00).
(b) Each project under a construction manager at risk contract shall be a specific, single project. For the purposes of this paragraph, "specific, single project" means a project that is constructed at a single location, at a common location or for a common purpose.
(8) Agencies shall retain an independent architectural or engineering firm to provide guidance and administration of the professional engineering or professional architecture aspects of the project throughout the development of the scope, design, and construction of the project.
(9) The state shall, on an annual basis, compile and make public all proceedings, records, contracts and other public records relating to procurement transactions authorized under this section.
(10) For purposes of this section, the "qualifications-based selection procedure" shall include:
(a) Publicly announcing all requirements for construction management at risk, architectural, engineering, and land surveying services, to procure these services on the basis of demonstrated competence and qualifications, and to negotiate contracts at fair and reasonable prices after the most qualified firm has been selected.
(b) Agencies or governing authorities shall establish procedures to prequalify firms seeking to provide construction management at risk, architectural, engineering, and land surveying services or may use prequalification lists from other state agencies or governing authorities to meet the requirements of this section.
(c) Whenever a project requiring construction management at risk, architectural, engineering, or land surveying services is proposed for an agency or governing authority, the agency or governing authority shall provide advance notice published in a professional services bulletin or advertised within the official state newspaper setting forth the projects and services to be procured for not less than fourteen (14) days. The professional services bulletin shall be mailed to each firm that has requested the information or is prequalified under Section 31-7-13. The professional services bulletin shall include a description of each project and shall state the time and place for interested firms to submit a letter of interest and, if required by the public notice, a statement of qualifications.
(d) The agency or governing authority shall evaluate the firms submitting letters of interest and other prequalified firms, taking into account qualifications. The agency or governing authority may consider, but shall not be limited to, considering:
(i) Ability of professional personnel;
(ii) Past record and experience;
(iii) Performance data on file;
(iv) Willingness to meet time requirements;
(v) Location;
(vi) Workload of the firm; and
(vii) Any other qualifications-based factors as the agency or governing authority may determine in writing are applicable.
The agency or governing authority may conduct discussions with and require public presentations by firms deemed to be the most qualified regarding their qualifications, approach to the project and ability to furnish the required services.
(e) The agency or governing authority shall establish a committee to select firms to provide construction management at risk, architectural, engineering, and land surveying services. A selection committee may include at least one (1) public member nominated by a statewide association of the profession affected. The public member may not be employed or associated with any firm holding a contract with the agency or governing authority nor may the public member's firm be considered for a contract with that agency or governing authority while serving as a public member of the committee. In no case shall the agency or governing authority, before selecting a firm for negotiation under paragraph (f) of this subsection (10), seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.
(f) On the basis of evaluations, discussions, and any presentations, the agency or governing authority shall select no less than three (3) firms that it determines to be qualified to provide services for the project and rank them in order of qualifications to provide services regarding the specific project. The agency or governing authority shall then contact the firm ranked most preferred to negotiate a contract at a fair and reasonable compensation. If fewer than three (3) firms submit letters of interest and the agency or governing authority determines that one (1) or both of those firms are so qualified, the agency or governing authority may proceed to negotiate a contract under paragraph (g) of this subsection (10).
(g) The agency or governing authority shall prepare a written description of the scope of the proposed services to be used as a basis for negotiations and shall negotiate a contract with the highest qualified firm at compensation that the agency or governing authority determines in writing to be fair and reasonable. In making this decision, the agency or governing authority shall take into account the estimated value, scope, complexity, and professional nature of the services to be rendered. In no case may the agency or governing authority establish a maximum overhead rate or other payment formula designed to eliminate firms from contention or restrict competition or negotiation of fees. If the agency or governing authority is unable to negotiate a satisfactory contract with the firm that is most preferred, negotiations with that firm shall be terminated. The agency or governing authority shall then begin negotiations with the firm that is next preferred. If the agency or governing authority is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be terminated. The agency or governing authority shall then begin negotiations with the firm that is next preferred. If the agency or governing authority is unable to negotiate a satisfactory contract with any of the selected firms, the agency or governing authority shall reevaluate the construction management at risk, architectural, engineering, or land surveying services requested, including the estimated value, scope, complexity, and fee requirements. The agency or governing authority shall then compile a second list of not less than three (3) qualified firms and proceed in accordance with the provisions of this section. A firm negotiating a contract with an agency or governing authority shall negotiate subcontracts for architectural, engineering, and land surveying services at compensation that the firm determines in writing to be fair and reasonable based upon a written description of the scope of the proposed services.
(11) (a) The construction manager selected by the agency or governing authority to provide construction management at risk services shall solicit bids for construction on the project pursuant to Section 31-7-13. The construction manager shall be entitled to enter into contracts for construction with the lowest and best bidders, as determined in consultation with the agency or governing authority. Before soliciting bids or entering into any such contract, the construction manager, in consultation with the agency or governing authority, may prequalify any contractors or vendors seeking to submit a bid on the project, taking into account defined qualifications which may include, but not be limited to, the following:
(i) Past experience and performance record on projects of similar size and scope;
(ii) Current financial status and ability to provide acceptable payment and performance bonds and meet defined insurance requirements;
(iii) Current workload and backlog of committed work for the period scheduled for the project under consideration;
(iv) Safety record to include prior citations and fines if applicable;
(v) History of legal disputes or performance defaults;
(vi) Identification and experience of project personnel and required manpower;
(vii) Plan for and ability to meet the applicable project schedule; and
(viii) Any other qualification-based factors as the agency, governing authority or construction manager may determine are applicable.
(b) The construction manager, in consultation with the agency or governing authority, shall publish the defined qualifications that shall be considered in the prequalification process at least two (2) weeks in advance of any prequalification of contractors or vendors seeking to submit a bid on the project. Publication shall be in a regular newspaper published in the county or municipality in which the agency or governing authority is located. The agency or governing authority shall also post the defined prequalification requirements on its website.
(c) The failure of a bidder to provide information in a timely and complete manner in response to any prequalification process may result in the disqualification of such bidder in the discretion of the agency, governing authority, and construction manager.
(d) Except as otherwise provided in Section 25-61-9, confidential and proprietary information furnished by a bidder pursuant to this section shall not be disclosed outside of the agency, governing authority, or construction manager without the prior written consent of the bidder. The bidder shall identify and label any information considered to be confidential and proprietary at the time of submission of the same to the agency, governing authority, or construction manager.
(12) The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.
SECTION 3. This act shall take effect and be in force from and after July 1, 2025.
