S.C. Code Regs. 19-445.2145 - Construction, Architect Engineer, Construction Management, and Land Surveying Services
A.
Definitions
(1) Designer, as used in these
regulations, means a person who has been awarded, through the
qualifications-based process set forth in Section
11-35-3220,
a contract with the State for the design of any infrastructure facility using
the design-bid-build project delivery method defined in Section
11-35-2910(6).
(2) Builder, as used in these regulations,
means a person who has been awarded, through competitive sealed bidding, a
separate contract with the State to construct (alter, repair, improve, or
demolish) any infrastructure facility using the design-bid-build project
delivery method defined in Section
11-35-2910(6).
(3) Design-Builder, as used in these
regulations, means a person who has been awarded a contract with the State for
the design and construction of any infrastructure facility using the
design-build project delivery method defined in Section
11-35-2910(7).
(4) DBO Producer, as used in these
regulations, means a person who has been awarded a contract with the State for
the design, construction, operation, and maintenance of any infrastructure
facility using the design-build-operate-maintain project delivery method
defined in Section
11-35-2910(9).
(5) DBFO Producer, as used in these
regulations, means a person who has been awarded a contract with the State for
the design, construction, finance, operation, and maintenance of any
infrastructure facility using the design-build-finance-operate-maintain project
delivery method defined in Section
11-35-2910(8).
(6) Guaranteed Maximum Price (GMP) means a
price for all costs for the construction and completion of the project, or
designated portion thereof, including all construction management services and
all mobilization, general conditions, profit and overhead costs of any nature,
and where the total contract amount, including the contractor's fee and general
conditions, will not exceed a guaranteed maximum amount.
(7) Independent Peer Reviewer means a person
who has been awarded a contract with the State for an independent,
contemporaneous, peer review of the design services provided to the State by a
DBO or DBFO Producer. In the event the State does not elect to contract with
the Independent Peer Reviewer proposed by the successful DBO or DBFO Producer,
the Independent Peer Reviewer shall be selected as provided in Section
11-35-2910(11).
(8) Operator, as used in these regulations,
means a person who has been awarded, through competitive sealed bidding, a
separate contract with the State for the routine operation, routine repair, and
routine maintenance (Operation and Maintenance) of any infrastructure facility,
as defined in Section
11-35-2910(13).
B. Choice of Project Delivery
Method.
(1) This Subsection contains
provisions applicable to the selection of the appropriate project delivery
method for constructing infrastructure facilities, that is, the method of
configuring and administering construction projects which is most advantageous
to the State and will result in the most timely, economical, and otherwise
successful completion of the infrastructure facility. The governmental body
shall have sufficient flexibility in formulating the project delivery approach
on a particular project to fulfill the State's needs. Before choosing the
project delivery method, a careful assessment must be made of requirements the
project must satisfy and those other characteristics that would be in the best
interest of the State.
(2)
Selecting An Appropriate Project Delivery Method.
In selecting an appropriate project delivery method for each of the State's Infrastructure Facilities , the governmental body should consider the results achieved on similar projects in the past and the methods used. Consideration should be given to all authorized project delivery methods, the comparative advantages and disadvantages of each, and how these methods may be appropriately configured and applied to fulfill State requirements. Additional factors to consider include:
(a) the
extent to which the governmental body's design requirements for the
Infrastructure Facility are known, stable, and established in
writing;
(b) the extent to which
qualified and experienced State personnel are available to the governmental
body to provide the decision-making and administrative services required by the
project delivery method selected;
(c) the extent to which decision-making and
administrative services may be appropriately assigned to designers, builders,
construction-managers at-risk, design-builders, DBO producers, DBFO producers,
peer reviewers, or operators, as appropriate to the project delivery
method;
(d) the extent to which
outside consultants, including construction manager agent, may be able to
assist the governmental body with decision-making and administrative
contributions required by the project delivery method;
(e) the governmental body's projected cash
flow for the Infrastructure Facility to be acquired (both sources and uses of
the funds necessary to support design, construction, operations, maintenance,
repairs, and demolition over the facility life cycle);
(f) the type of infrastructure facility or
service to be acquired - for example, public buildings, schools, water
distribution, wastewater collection, highway, bridge, or specialty structure,
together with possible sources of funding for the infrastructure facility - for
example, state or federal grants, state or federal loans, local tax
appropriations, special purpose bonds, general obligation bonds, user fees, or
tolls;
(g) the required delivery
date of the infrastructure facility to be constructed;
(h) the location of the infrastructure
facility to be constructed;
(i) the
size, scope, complexity, and technological difficulty of the infrastructure
facility to be constructed;
(j) the
State's current and projected sources and uses of public funds that are
currently generally available (and will be available in the future) to support
operation, maintenance, repair, rehabilitation, replacement, and demolition of
existing and planned infrastructure facilities;
(k) and, any other factors or considerations
specified in the Manual for Planning of Execution of State Permanent
Improvements, Part 11, or as otherwise requested by the State
Engineer.
(3) Except for
guaranteed energy, water, or wastewater savings contracts (Section
48-52-670
), design-bid-build (acquired using competitive sealed bidding) is hereby
designated as an appropriate project delivery method for any infrastructure
facility and may be used by any governmental body without further project
specific justification.
(4)
Governmental Body Determination.
The head of the governmental body shall make a written determination that must be reviewed by the State Engineer. The determination shall describe the project delivery method (Section 11-35-3005 ), source selection method (Section 11-35-3015 and 11-35-1510 ), any additional procurement procedures (11-35-3023 and 11-35-3024(2)(c)), and types of performance security (Sections 11-35-3030 and 11-35-3037 ) selected and set forth the facts and considerations leading to those selections. This determination shall demonstrate either reliance on paragraph (3) above, or that the considerations identified in paragraphs (1) and (2) above, as well as the requirements and financing of the project, were all considered in making the selection. Any determination to use a project delivery method other than design-bid-build must explain why the use of design-bid-build is not practical or advantageous to the State. Any determination to use any of the additional procedures allowed by Section 11-35-3024(2)(c) must explain why the use of such procedures are in the best interests of the State. Any request to use the prequalification process in a design-bid-build procurement must be in writing and must set forth facts sufficient to support a finding that pre-qualification is appropriate and that the construction involved is unique in nature, over ten million dollars in value, or involves special circumstances.
C. Bonds and Security.
(1) Bid Security. Bid Security required by
Section
11-35-3030
shall be a certified cashier's check or a bond, in a form to be specified in
the Manual for Planning and Execution of State Permanent Improvements - Part
II, provided by a surety company licensed in South Carolina with an "A" minimum
rating of performance as stated in the most current publication of "Best Key
Rating Guide, Property Liability", which company shows a financial strength
rating of at least five (5) times that portion of the contract price that does
not include operations, maintenance, and finance. Each bond shall be
accompanied by a "Power of Attorney" authorizing the attorney in fact to bind
the surety.
(2) Contract
Performance and Payment Bonds. Unless waived pursuant to Section
11-35-3030(2)(iii),
the contractor shall provide a certified cashier's check in the full amount of
the Performance and Payment Bonds or may provide, and pay for the cost of,
Performance and Payment Bonds in a form to be specified in the Manual for
Planning and Execution of State Permanent Improvements-Part II. Each bond for
construction exceeding $50,000 shall be issued by a Surety Company licensed in
South Carolina with an "A" minimum rating of performance as stated in the most
current publication of "Best Key Rating Guide, Property Liability", which
company shows a financial strength rating of at least five (5) times that
portion of the contract price that does not include operations, maintenance,
and finance. Where the agency requires a payment bond for construction of
$50,000 or less, the bond must be issued by a surety meeting the requirements
of Section
29-6-270.
Each bond shall be accompanied by a "Power of Attorney" authorizing the
attorney in fact to bind the surety.
D. Architect Engineer, Construction
Management and Land Surveying Services Procurement.
(1) The Advertisement of Project Description
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Code Section 11-35-3220(2), Advertisement of Project Description.
(2) State Engineer's Office Review.
The Office of State Engineer will provide forms in the Manual for Planning and Execution of State Permanent Improvements Projects-Part II for use by governmental bodies in submitting a contract for approval pursuant to Section 11-35-3220(8) of the Code.
E.
Contract Forms.
(1) Pursuant to Section
11-35-2010(2),
the following contract forms shall be used as applicable, as amended by the
State Engineer, and as provided in the Manual for Planning and Execution of
State Permanent Improvements-Part II. Subject to the foregoing:
(a) If an agency conducts a competitive
sealed bid to acquire construction independent of architect-engineer or
construction management services, the governmental body may use a document in
the form of AIA Document A701.
(b)
If an agency acquires architect-engineer services independent of construction,
the governmental body may use a document in the form of AIA Document
B151.
(c) If an agency acquires
construction independent of architect-engineer or construction management
services, the governmental body may use documents in the form of ALA Document
A101 and A201. Other contract forms may be used as are approved by the State
Engineer.
(d) If an agency acquires
architect-engineer services, construction management services, and construction
on the same project, each under separate contract, the governmental body may
use documents in the form of AIA Documents Al0l/CMa, A201/CMa, B141/CMa, and
B801/CMa. This paragraph does not apply if an agency acquires both construction
and construction management services from the same business under the same
contract.
(2) With prior
approval of the State Engineer, a governmental body may supplement the contract
forms identified in paragraph (1), as they have been amended by the State
Engineer.
(3) Paragraph (1) does
not apply to a contract entered into pursuant to Sections
11-35-1530,
11-35-1550,
11-35-3230,
or
11-35-3310.
(4) For any contract forms specified herein,
the Manual for Planning and Execution of State Permanent Improvements-Part II
shall specify the appropriate edition or, if applicable, replacement
form.
(5) For any contract forms
not specified herein or otherwise required by law, the Manual for Planning and
Execution of State Permanent Improvements-Part II may, without limitation,
require the use of any appropriate contract document, standard industry
contract form, standard state amendments to such documents or forms, or publish
state specific contract forms. Absent contrary instructions in the Manual, the
governmental body may use a contract written for an individual
project.
(6) Construction under
Procurement Code Section
11-35-1550
and
11-35-1530
may be in a format and description of services approved by the State
Engineer.
F. Manual for
Planning and Execution of State Permanent Improvements Projects.
For the purpose of these Regulations and Code Section 11-35-3240, a manual of procedures to be followed by governmental bodies for planning and execution of state permanent improvement projects is prepared and furnished by the designated board office, and included in this regulation. Part II of this manual, covering the procurement of construction for the projects, will be the responsibility of the Office of the State Engineer.
G. Prequalifying Construction Bidders.
In accordance with Section 11-35-3023, the State Engineer's Office shall develop procedures for a prequalification process and shall include it in the Manual for Planning and Execution of State Permanent Improvements-Part II. The provisions of Regulation 19-445.2132 shall apply to implement Section 11-35-3023.
H. With regard to Section
11-35-3310,
the State Engineer's Office will establish working procedures for indefinite
quantity contracts for professional services, and shall include them in the
Manual for Planning and Execution of State Permanent Improvements-Part II. With
regard to Section
11-35-3320, the State Engineer's
Office will establish working procedures for task order contracts for
construction services and shall include them in the Manual for Planning and
Execution of State Permanent Improvements-Part II.
I. Construction Procurement-The Invitation
for Bids.
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-3020(a), Invitation for Bids. The provisions of Regulation 19-445.2090(B) shall not apply to implement the requirements of Code Section 11-35-3020.
J. Participation in Prior
Reports or Studies.
(1) Before awarding a
contract for a report or study that could subsequently be used in the creation
of design requirements for an infrastructure facility or service, the
procurement officer should address, to the extent practical, the contractor's
ability to compete for follow-on work.
(2) Before issuing a request for proposals
for an infrastructure facility or service, the procurement officer should take
reasonable steps to determine if prior participation in a report or study could
provide a firm with a substantial competitive advantage, and, if so, the
procurement officer should take appropriate steps to eliminate or mitigate that
advantage.
(3) In complying with
items (1) and (2) above, the procurement officer shall consider the
requirements of Section
11-35-3245
and the Manual for Planning and Execution of State Permanent Improvements, Part
II.
K. Additional
Procedures for Design-Build; Design-Build-Operate-Maintain; and
Design-Build-Finance -Operate-Maintain.
(1)
Content of Request for Proposals. Each request for proposals (RFP) issued by
the State for design-build, design-build-operate-maintain, or
design-build-finance-operate-maintain services shall contain a cover sheet
that:
(a) confirms that design requirements
are included in the RFP,
(b)
confirms that proposal development documents are solicited in each offeror's
response to the RFP, and
(c) states
the governmental body's determination for that procurement (i) whether offerors
must have been prequalified through a previous request for qualifications; (ii)
whether the governmental body will select a short list of responsible offerors
prior to discussions and evaluations (along with the number of proposals that
will be short-listed); and (iii) whether the governmental body will pay
stipends to unsuccessful offerors (along with the amount of such stipends and
the terms under which stipends will be paid).
(2) Purpose of Design Requirements. The
purpose and intent of including design requirements in the RFP is to provide
prospective and actual offerors a common, and transparent, written description
of the starting point for the competition and to provide the State with the
benefit of having responses from competitors that meet the same RFP
requirements. In order to be effective, the governmental body must first come
to understand and then to communicate its basic requirements for the
infrastructure facility to those who are considering whether they will
participate in the procurement competition.
(3) Purpose of Requirement for Proposal
Development Documents. The purpose and intent of including the requirement for
submittal of proposal development documents in each RFP for design-build,
design-build-operate-maintain, or design-build-finance-operate-maintain is to
provide actual offerors with a common, and transparent, written description of
the finish point for the competition. To be responsive, each offeror must
submit drawings and other design related documents that are sufficient to fix
and describe the size and character of the infrastructure facility to be
acquired, including price (or life-cycle price for
design-build-operate-maintain and design-build-finance-operate-maintain
procurements).
(4) Content of
Request for Proposals: Evaluation Factors. Each request for proposals for
design-build, design-build-operate-maintain, or
design-build-finance-operate-maintain shall state the relative importance of
(1) demonstrated compliance with the design requirements, (2) offeror
qualifications, (3) financial capacity, (4) project schedule, (5) price (or
life-cycle price for design-build-operate-maintain and
design-build-finance-operate-maintain procurements), and (6) other factors, if
any by listing the required factors in descending order of importance (without
numerical weighting), or by listing each factor along with a numerical weight
to be associated with that factor in the governmental body's evaluation.
Subfactors, if any, must be stated in the RFP and listed, pursuant to the
requirements of this Regulation, either in descending order, or with numerical
weighting assigned to each subfactor. The purpose and intent of disclosing the
relative importance of factors (and subfactors) is to provide transparency to
prospective and actual competitors from the date the RFP is first
published.
(5) The Manual for
Planning and Execution of State Permanent Improvement Projects - Part II must
include guidelines for the proper drafting of design requirements, proposal
development documents, and requests for proposals.
L. Errors and Omissions Insurance.
(1) For design services in design-bid-build
procurements. A governmental body shall include in the solicitation such
requirements as the procurement officer deems appropriate for errors and
omissions insurance (commonly called "professional liability insurance" in
trade usage) coverage of architectural and engineering services in the
solicitation for design services in design-bid-build procurements.
(2) For design services to be provided as
part of design-build procurements. A governmental body shall include in the
solicitation for design-build such requirements as the procurement officer
deems appropriate for errors and omissions insurance coverage of architectural
and engineering services to be provided as part of such procurements. Prior to
award, the head of a governmental body, or his delegee, shall review and
approve the errors and omissions insurance coverage for all design-build
contracts in excess of $25,000,000.
(3) For design services to be provided as
part of design-build-operate-maintain and design-build-finance-operate-maintain
procurements. A governmental body shall include in the solicitation for
design-build-operate-maintain and design-build-finance-operate-maintain such
requirements as the procurement officer deems appropriate for errors and
omissions insurance coverage of architectural and engineering services to be
provided as part of such procurements. Prior to award, the head of a
governmental body, or his delegee, shall review and approve the errors and
omissions insurance coverage for all design-build-operate-maintain and
design-build-finance-operate-maintain contracts in excess of
$25,000,000.
(4) For Construction
Management (Agency) services. A governmental body shall include in the
solicitation for construction management agency services such requirements as
the procurement officer deems appropriate for errors and omissions insurance
coverage.
(5) Errors and omissions
(or professional liability) insurance coverage for construction management
services is typically not required when the governmental body is conducting a
construction management at-risk procurement.
M. Other Security; Operations Period
Performance Bonds.
(1) Purpose.
To assure the timely, faithful, and uninterrupted provision of operations and maintenance services procured separately, or as one element of design-build-operate-maintain or design-build-finance-operate-maintain services, the governmental body shall identify, in the solicitation, one or more of the other forms of security identified in Section 11-35-3037 that shall be furnished to the governmental body by the offerors (or bidders) in order to be considered to be responsive.
(2) Operations Period Performance Bonds.
(a) If required in a solicitation for
operation and maintenance, design-build-operate-maintain, or
design-build-finance-operate-maintain, each offeror shall demonstrate in its
offer that it is prepared to provide, and upon award of the contract, to
maintain in effect an operations period performance bond that secures the
timely, faithful, and uninterrupted performance of operations and maintenance
services required under the contract, in the amount of 100% of that portion of
the contract price that includes the cost of such operation and maintenance
services during the period covered by the bond. In those procurements in which
the contract period for operation and maintenance is longer than 5 years, the
procurement officer may accept an operations period performance bond of five
years' duration, provided that such bond is renewable by the contractor every
five (5) years during the contract, and provided further, that the contractor
has made a firm contractual commitment to maintain such bond in full force and
effect throughout the contract term.
(b) The operations period performance bond
shall be delivered by the contractor to the governmental body at the same time
the contract is executed. If a contractor fails to deliver the required bond,
the contractor's bid (or offer) shall be rejected, its bid security shall be
enforced, award of the contract shall be made to the next ranked bidder (or
offeror), or the contractor shall be declared to be in default, as otherwise
provided by these regulations.
(c)
Operations period performance bond shall be in a form to be specified in the
Manual for Planning and Execution of State Permanent Improvement, Part II. Each
bond shall be issued by a Surety Company licensed in South Carolina with an "A"
minimum rating of performance as stated in the most current publication of
"Best Key Rating Guide, Property Liability", which company shows a financial
strength rating of at least five (5) times the bond amount.
(3) Letters of Credit to Cover
Interruptions in Operation.
(a) If required in
a solicitation for operation and maintenance, design-build-operate-maintain, or
design-build-finance-operate-maintain, each offeror shall demonstrate in its
offer that it is prepared to post, and upon award of the contract shall post,
and in each succeeding year adjust and maintain in place, an irrevocable letter
of credit with a banking institution in this State that secures the timely,
faithful, and uninterrupted performance of operations and maintenance services
required under the contract, in an amount established under the contract that
is sufficient to cover 100% of the cost of performing such operation and
maintenance services during the next 12 months.
(b) The letter of credit required under this
Section shall be posted by the contractor at the same time the contract is
executed, and thereafter, shall be annually adjusted in amount and maintained
by the contractor. If an offeror or bidder fails to demonstrate in its offer
that it is prepared to post the required letter of credit, the bid (or offer)
shall be rejected, the bid security shall be enforced, and award of the
contract shall be made to the next ranked bidder (or offeror), as otherwise
provided by these regulations. If the contractor fails to place and maintain
the required letter of credit, the contractor shall be declared to be in
default, as otherwise provided by these regulations.
(c) If required by the solicitation, letters
of credit shall be in a form to be specified in the Manual for Planning and
Execution of State Permanent Improvement, Part II.
(4) Guarantees.
(a) If required in a solicitation for
operation and maintenance, design-build-operate-maintain, or
design-build-finance-operate-maintain, the contractor and affiliated
organizations (including parent corporations) shall provide a written guarantee
that secures the timely, faithful, and uninterrupted performance of operations
and maintenance services required under the contract, in an amount established
under the contract that is sufficient to cover 100% of the cost of performing
such operation and maintenance services during the contract period.
(b) The written guarantee required under this
Section shall be submitted by each offeror at the time the proposal is
submitted. If the contractor fails to submit the required guarantee, the
contractor's bid (or offer) shall be rejected, its bid security shall be
enforced, and award of the contract shall be made to the next ranked bidder (or
offeror) as otherwise provided by these regulations.
(c) If required by the solicitation,
guarantees shall be in a form to be specified in the Manual for Planning and
Execution of State Permanent Improvement, Part II.
N. Construction Management
At-Risk.
(1) Absent the approval required by
Section
11-35-2010,
a contract with a construction manager at-risk may not involve cost
reimbursement.
(2) Prior to
contracting for a GMP, all construction management services provided by a
construction manager at-risk must be paid as a fee based on either a fixed
rate, fixed amount, or fixed formula.
(3) As required by Section
11-35-3030(2)(a)(iv),
construction may not commence until the bonding requirements of Section
11-35-3030(2)(a)
have been satisfied. Subject to the foregoing, bonding may be provided and
construction may commence for a designated portion of the
construction.
(4) In a construction
management at-risk project, construction may not commence for any portion of
the construction until after the governmental body and the construction manager
at risk contract for a fixed price or a GMP regarding that portion of the
construction. Prior to executing a contract for a fixed price or a GMP, a
governmental body shall comply with Section
11-35-1830
and Regulation
19-445.2120,
if applicable. For purposes of Section
11-35-1830(3)(a),
adequate price competition exists for all components of the construction work
awarded by a construction manager at-risk on the basis of competitive
bids.
(5) When seeking competitive
sealed proposals in a construction management at-risk procurement, the
solicitation shall include a preliminary budget, and if applicable, completed
programming and the conceptual design. The solicitation shall request
information concerning the prospective offeror's qualifications, experience,
and ability to perform the requirements of the contract, including but not
limited to, experience on projects of similar size and complexity, and history
of on-time, on-budget, on-schedule construction. The offeror's proposed fee may
be a factor in determining the award.
(6) After all preconstruction services and
final construction drawings have been completed, or prior thereto upon written
determination by the procurement officer, a governmental body must negotiate
with and contract for a GMP with a construction manager at-risk. If
negotiations are unsuccessful, the governmental body may issue an invitation
for bids, as allowed by this code, for the remaining construction.
(7) A governmental body shall have the right
at any time, and for three years following final payment, to audit the
construction manager at-risk to disallow and to recover costs not properly
charged to the project. Any costs incurred above the GMP shall be paid for by
the construction manager at-risk.
(8) A construction manager at-risk may not
self-perform any construction work for which subcontractor bids are invited,
unless no acceptable bids are received or a subcontractor fails to perform.
Ordinarily, the contract with a construction manager at-risk should require the
construction manager at-risk to invite bids for all major components of the
construction work. Section
11-35-4210
does not apply to any subcontractor bid process conducted by a construction
manager at-risk.
Notes
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