RS 38:2225.2.4     

§2225.2.4. Construction management at risk; public entity

            A.(1) Notwithstanding any other provision of law to the contrary, a public entity may use the construction management at risk project delivery method to contract for a project to construct public works as set forth in this Section.

            (2) This Section creates an alternative project delivery method, known as "construction management at risk", or "CMAR", for use by a public entity to award a contract to construct public works when deemed in the public interest, beneficial to the owner, and in accordance with the procedures in this Section. The following are reasons to use the CMAR delivery method: collaboration and cost control; concurrent execution of design and construction; a complex project with a tight time frame; owner, designer, and contractor with mutual project goals; risk identification controlled by owner; and minimization of the risk of construction and design disputes by using a collaborative process.

            (3) CMAR shall not be used for any project that is estimated to cost less than five million dollars. At least sixty days prior to proceeding to use CMAR for any project that is estimated to cost less than fifteen million dollars, a public entity shall deliver written notification of the proposed CMAR project by name and description of the project, together with the reason to use CMAR, to the House and Senate transportation, highways, and public works committees for review and approval.

            B. When used in this Section, the following words and phrases have the meanings ascribed to them in this Section, unless the context indicates a different meaning:

            (1) "Construction management at risk" or "CMAR" means a delivery method by which the owner uses a design professional, who is engaged by the owner for professional predesign or design services, or both. The owner contracts separately with a CMAR contractor to engage in the preconstruction phase. As specified in this Section, the same CMAR contractor may also provide construction services to build the project.

            (2) "Construction management at risk contractor" or "CMAR contractor" means a person, sole proprietorship, partnership, corporation, or other legal entity, properly licensed, bonded, and insured, who does one or both of the following:

            (a) Provides construction experience to the owner or its design professional during the preconstruction phase regarding the constructability of the project.

            (b) May contract with the owner to assume the risk to construct the project for a guaranteed maximum price, without re-procurement.

            (3) "Design professional" means an engineer, architect, or landscape architect who has secured a professional license from a Louisiana registration board as required by state law and who is selected by an owner in accordance with state law.

            (4) "Owner" means a "public entity" as defined in R.S. 38:2211.

            (5) "Selection review committee" means the committee appointed by the owner to review the request for qualifications, score, or rank of the proposers, and recommend award to a construction management at risk contractor. The committee shall consist of no more than five individuals as follows:

            (a) One design professional in the discipline of but not involved in the project.

            (b) One licensed contractor in the discipline of but not involved in the project.

            (c) One representative of the owner.

            (d) Two members at large.

            (6) All other terms shall have the meanings as provided for in R.S. 38:2211.

            (7) All selection review committee members shall be required to sign an ethics statement prior to commencement of any committee meeting.

            C. Any owner who determines to use the construction management at risk method shall indicate such intent in the request for qualifications to procure a CMAR contractor and the reasons it deems such method to be in the public interest and beneficial to the owner.

            D. There shall be no challenge by any legal process to the choice of the successful construction manager at risk contractor except for fraud, bias for pecuniary or personal reasons not related to the taxpayers' interest, or arbitrary and capricious selection by the owner.

            E.(1) Prior to the selection committee conducting business, the owner, the owner's representative, or an assigned RFQ coordinator shall inform the committee on the RFQ, the project, the scoring and ranking procedure, the conduct of the committee's responsibility, and any particulars of the project.

            (2) The owner shall select and contract with a design professional for design services in the manner provided for by law.

            F.(1) A request for qualifications, or RFQ, to award a contract for a construction management at risk contractor for preconstruction and construction services shall be advertised in the official journal of the owner and, if one exists, on the Internet website of the owner. The RFQ shall be advertised at least two times within the thirty-day period prior to the deadline for receipt of responses.

            (2) The RFQ shall include the following as well as any other pertinent information limited to the qualifications of a proposer that the owner determines a proposer may need to submit in a response to an RFQ:

            (a) The preconstruction scope of services.

            (b) Submittal criteria for the project.

            (c) Procurement grading criteria.

            (d) Scoring methodology.

            (e) Total fees and compensation payable to the CMAR contractor for preconstruction services.

            (f) The estimate of the probable construction costs for the project.

            (3) The RFQ may request that proposers include the following in response to the RFQ, as well as any other appropriate factors that would, in the opinion of the owner, demonstrate the capability of the proposer to perform the role of CMAR contractor:

            (a) The proposer's surety.

            (b) Construction methodologies previously used by the proposer on other projects.

            (c) Extent to which the proposer intends to self-perform portions of the work, if applicable.

            (d) Past performance of the proposer including timely completion of other public works projects of similar complexity and size.

            (e) Proposed management and staffing for the project.

            (f) The proposer's last safety record to include current experience modification rate, or EMR, recordable incident rate, or RIR, lost work time incident rate, or other data as required by the owner.

            (g) The proposer's standard safety plan.

            (4) Within ninety days after the deadline for responses to the RFQ, a selection review committee chosen by the owner and identified in the RFQ shall make a written recommendation to the owner as to which proposer should be awarded the contract. The results of the selection review committee, inclusive of its findings, grading, score sheets, and recommendations, shall be available for review by all proposers and shall be deemed public records. The exceptions to the Open Meetings Law are applicable to the selection review committee meetings where individual proposers will be interviewed pursuant to R.S. 42:17(A)(10).

            (5) The benefits of using the CMAR method reduce as the design process progresses. The owner shall select the CMAR contractor either before, but not later than, when in the professional opinion of the owner's design professional, the design professional's design of the project is not more than thirty percent complete.

            (6) If the owner deems the highest scored or ranked proposer to be nonresponsive or nonresponsible, then the public entity may award the project to the next highest scored or ranked proposer.

            G. After award and execution of the contract with the CMAR contractor, the following actions shall proceed:

            (1) The design professional, in consultation with the CMAR contractor, shall proceed with design services.

            (2) The owner shall obtain an opinion of probable cost of the project from both the CMAR contractor and the design professional when final design of the project is not more than sixty percent complete, and again when final design of the project is not more than ninety percent complete.

            (3) The CMAR contractor shall provide to the owner a guaranteed maximum price for construction of the project, before or upon completion of the final design.

            (4) If the owner and CMAR contractor are able to negotiate, and to establish and agree upon a guaranteed maximum price, or GMP, to render construction services for the project, and additionally, to agree upon constructability, construction phasing and sequencing, and the maximum number of contract days to complete the project, the owner may then award the contract for construction services to the CMAR contractor for the construction phase of the contract.

            (5) Once a guaranteed maximum price is agreed upon, the owner may contract with the CMAR contractor to undertake construction services. Additionally, the owner may determine and contract with the CMAR contractor to undertake specific items of construction services prior to agreement upon a GMP for such items, provided such undertaking is for the benefit of the project and a GMP for the undertaking can be agreed upon between the owner and CMAR contractor. Such items may benefit the project, including but not limited to items that require a long lead time, may further the understanding of unknown site conditions, or other items.

            (6) If the owner and the CMAR contractor are not able to agree upon constructability, construction phasing and sequencing, the GMP for the project, the maximum number of contract days to complete the project, and to reach a negotiated agreement, then the project shall be readvertised and publicly bid utilizing the design-bid-build delivery method, provided the CMAR contractor shall be prohibited from bidding on the project.

            H. The provisions of this Section shall supersede any conflicting provisions of any law, including but not limited to the requirements of Chapter 10 of this Title, but the provisions of such Chapter shall otherwise be applicable to such contracts.

            Acts 2014, No. 782, §1; Acts 2015, No. 163, §1; Acts 2018, No. 456, §1; Acts 2022, No. 573, §1.