In accordance with the provision of § 2.2-4306 of the Code of Virginia, I hereby adopt the following procedures for the procurement of Construction Management (“CM”) contracts, as defined in § 2.2-4301, which shall be followed by all departments, agencies, and institutions of the Commonwealth (each of which is hereinafter referred to as the "Agency"). These procedures shall be effective March 1, 2012.

 

A.   LEGISLATIVE AUTHORITY: Under authority of § 2.2-4306of the Code of Virginia, the Commonwealth may enter into a contract with a Construction Manager in accordance with these procedures and § 2.2-1502 of the Code of Virginia. Under authority of § 2.2-4303 (D)(1) of the Code of Virginia, an Agency is authorized to use competitive negotiations to procure CM contracts when it determines in advance, and sets forth in writing, that competitive sealed bidding is either not practicable or not fiscally advantageous to the public, which writing shall document the basis for this determination.

 

B.   CRITERIA FOR USE OF CM: CM contracts may be approved for use on projects where 1) fast tracking of construction is needed to meet Agency program requirements, or 2) value engineering and/or constructability analyses concurrent with design are required.

 

 

 

C. PROCEDURE FOR APPROVAL TO USE CM: Prior to taking any further action, the Agency shall request authority, in writing and receive approval from the Director, to use a CM contract.     

The request shall justify and substantiate that a CM contract meets the criteria found in paragraph B. The request must also include the stipulation that the CM contract will be initiated no later than the Schematic Phase of design. The request shall also include a written justification that competitive sealed bidding is not practical and/or fiscally advantageous. 

 

Approval of exceptions to this policy may be granted by the Director, who is the approving authority for requests to use CM procedures.

 

 

D. CM SELECTION PROCEDURES:

1.    The Agency shall appoint an Evaluation Committee (“Committee”) which shall consist of at least three members from the Agency, including a registered design professional, if possible. The Committee shall include a licensed professional engineer or architect provided by the Division of Engineering and Buildings. The Agency shall contact the Section in the Office of the Attorney General representing the Division of Engineering and Buildings (currently the Real Estate and Land Use Section) to determine whether a representative from the OAG should be involved.

 

2.   The basis of the award of the contract shall be in accordance with § 2.2-4301(3)(b) and the criteria for the award shall be submitted to the Director, in advance, for approval. Cost shall be a critical component of the selection criteria.

 

3.   Selection of Qualified Offerors (STEP I): 

On projects approved for CM, the Agency shall conduct a prequalification process as follows to determine which offerors are qualified to submit proposals.

 

a)   The Agency shall post a Request for Qualifications ("RFQ") in accordance with the current standards for the posting of public bids in the Code of Virginia and in accordance with the latest edition of the Construction and Professional Services Manual.

 

b)   The Committee shall evaluate each responding firm's submittals and any other relevant information and shall determine those deemed qualified with respect to the criteria established for the project.

 

c)   An offeror may be denied prequalification only as specified under § 2.2-4317 of the Code of Virginia.

 

d)   At least 30 days prior to the date established for the submission of proposals, the Agency shall advise in writing each offeror which sought prequalification whether that offeror has been prequalified. In the event that an offeror is denied prequalification, the written notification to such offeror shall state the reasons for such denial of prequalification and the factual basis of such reasons.

 

e)   In addition to the procedures described above for prequalifying firms for individual CM projects, the Director may approve requests to prequalify Construction Managers for particular types of construction projects in accordance with § 2.2-4317of the Code of Virginia.  Firms qualified under that approval may compete for projects of the same type for which they qualified unless the Director determines that further prequalification for a particular project is desirable.

 

 

4.   Selection of a Construction Manager (STEP II):

 

a)   The Committee will send a Request for Proposal (“RFP”) to each of the prequalified firms and request submission of formal proposals from them.

 

b)   The Committee will evaluate and rank the proposals and conduct negotiations with two or more offerors submitting the best proposals. Should the Agency determine, in writing and at its sole discretion, that only one offeror is fully qualified or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated with that offeror after approval of the Director.

 

c)   The Committee shall make its recommendation on the selection of a Construction Manager to the Agency head based on its evaluations and negotiations. The contract shall be awarded to the offeror who is fully qualified, has submitted an acceptable proposal and has been determined provide the best value in response to the Request for Proposal. When the terms and conditions for multiple awards are so provided in the RFP, awards may be made to more than one offeror.

 

d)   The Agency shall notify the Division of Engineering and Buildings of its selection of the Construction Manager and shall request authority to award a contract by submission of form DGS-30-058, CO-8, Approval to Award Construction Contract, and supporting documents to the Bureau of Capital Outlay Management via e-mail to coforms@dgs.virginia.gov.

 

e)   Award of the CM contract shall be made to the offeror selected.

 

f)   The Agency will notify all offerors who submitted proposals which offeror was selected for the project.   

 

E. REQUIRED CONSTRUCTION MANAGEMENT CONTRACT TERMS: Any Guaranteed Maximum Price construction management contract entered into by any Agency will contain provisions requiring that (1) not more than 10% of the construction work (measured by cost of the work) will be performed by the CM with its own forces and (2) that the remaining 90% of the construction work will be performed by subcontractors of the CM which the CM must procure by publicly advertised, competitive sealed bidding. In extraordinary circumstances the Director may grant a waiver of these contractual requirements in whole or in part.

 

F. The Guaranteed Maximum Price shall be established at the completion of working drawings unless a waiver has been granted to this requirement by the Director.

 

G. An Agency may request from the Director approval to perform a one-step solicitation for its project. If adequate justification is provided, the Director may approve the request.

 

 

H. Any institution of higher education with authority for capital projects pursuant to the Restructured Higher Education Financial and Administrative Operations Act, may utilize these procedures or such other procedures as they may have adopted pursuant to any signed memorandum of agreement.

 

I.    The Code of Virginia requires other public bodies planning to use CM to adopt guidelines consistent with the above procedures. A key difference is that steps requiring the approval or involvement of the Director of the Division of Engineering and Buildings will instead seek the approval or involvement of the appropriate authority, as directed by the governing body of the public body. Before implementing CM, such public body must have the required professional staff and meet the material requirements of § 2.2-4308 of the Code of Virginia. It should also be noted that certain procedures incorporated above are mandated by Code for state agencies. Other public bodies may not be required to adopt identical standards, but their procedures are required to be consistent with these.