Have you ever been in a situation where you had to work with someone you did not trust? It’s not a pleasant experience, is it? Trust is the foundation of any successful relationship, and it’s no different when it comes to PDB projects.
by Grant Gourley, Senior Vice President/COO | W. M. Lyles Co. | Jan 2, 2024 | WCDA Blog
Have you ever been in a situation where you had to work with someone you did not trust? It’s not a pleasant experience, is it? Trust is the foundation of any successful relationship, and it’s no different when it comes to PDB projects.
ASA. § 22-9-203(j)(1))
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Notwithstanding any other provision of law to the contrary, a municipality, sanitation authority, water system, or consolidated waterworks system may enter into contracts with private persons, firms, associations, corporations, joint ventures, or other legal entities, including a combination of any of those entities, to provide for the design, building, operation, or maintenance, including a combination of those activities, of all or any portion of its wastewater system, stormwater system, water system, solar energy generation equipment and facilities, other capital asset, or any combination of those systems and assets.
A.C.A. § 14-235-226 (b) (1) and (2)
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(1) In addition to other applicable law on a municipal sewage system’s procurement authority, a municipal sewage system created and operating under this subchapter that employs or contracts with a licensed professional engineer to assist in project-scope development and to oversee construction observation for the benefit of the owner may use design-build construction for projects that exceed two million dollars ($2,000,000).
(2) In addition to other applicable law on a municipal sewage system’s procurement authority, a municipal sewage system created and operating under this subchapter may use general contractor construction management as a project delivery method for projects of any amount for building, altering, repairing, improving, maintaining, or demolishing any structure associated with the municipal sewage system.
A.C.A. § 22-10-102
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It is necessary to authorize the formation of public-private partnerships that may result in the ability to develop private projects for public infrastructure and governmental facilities in a more cost-efficient and timely manner, resulting in increased benefits to the public safety and welfare of the citizens of the state and substantial cost benefits to the governmental entities and the public.
FL § 287.055 (9) (c)
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0287/Sections/0287.055.html
Except as otherwise provided in s. 337.11(7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules or ordinances for the award of design-build contracts. Municipalities, political subdivisions, school districts, and school boards shall award design-build contracts by the use of a competitive proposal selection process as described in this subsection, or by the use of a qualifications-based selection process pursuant to subsections (3), (4), and (5) for entering into a contract whereby the selected firm will, subsequent to competitive negotiations, establish a guaranteed maximum price and guaranteed completion date. If the procuring agency elects the option of qualifications-based selection, during the selection of the design-build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency’s representative.
FL §255.20 (local)
https://www.flsenate.gov/Laws/Statutes/2023/255.20
A county, municipality, special district as defined in chapter 189, or other political subdivision of the state seeking to construct or improve a public building, structure, or other public construction works must competitively award to an appropriately licensed contractor each project that is estimated to cost more than $300,000. For electrical work, the local government must competitively award to an appropriately licensed contractor each project that is estimated to cost more than $75,000. As used in this section, the term “competitively award” means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation. This subsection expressly allows contracts for construction management services, design-build contracts, continuation contracts based on unit prices, and any other contract arrangement with a private sector contractor permitted by any applicable municipal or county ordinance, by district resolution, or by state law.
P3 (County, municipality, or special district):
FL §255.065
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0200-0299/0255/Sections/0255.065.html”
(3) PROCUREMENT PROCEDURES – A responsible public entity may receive unsolicited proposals or may solicit proposals for a qualifying project and may thereafter enter into a comprehensive agreement with a private entity, or a consortium of private entities, for the building, upgrading, operating, ownership, or financing of facilities.
FL §153.90 (state)
https://www.flsenate.gov/Laws/Statutes/2020/0153.90
(2) The Legislature therefore determines that it is in the public interest of the state to supplement and enhance the authority of public entities to solicit, negotiate, and enter into contracts with private entities for the financing, designing, acquisition, ownership, leasing, construction, improvement, operation, maintenance, and administration, or any combination thereof, of wastewater facilities.
The Clean Water Fund (SRF) program in CT does not allow the use of design-build project delivery methods. CT-CWF program requires all projects to go through the design-bid-build process. CWF is the primary financial program in CT for municipal water and wastewater projects. Local governments will have their own requirements for procuring engineering or construction services which they can employ if local funds are being used. However, municipal governments pursuing CWF funds will need to abide by the programmatic and regulatory requirements under the CWF program in order to remain eligible for CWF funding assistance. CWF’s procurement requirements will supersede local requirements.
C.G.S.A. § 58, Sec. 4a-59
https://www.cga.ct.gov/current/pub/chap_058.htm#sec_4a-59
(c) All open market orders or contracts shall be awarded to (1) the lowest responsible qualified bidder, the qualities of the articles to be supplied, their conformity with the specifications, their suitability to the requirements of the state government and the delivery terms being taken into consideration and, at the discretion of the Commissioner of Administrative Services, life-cycle costs and trade-in or resale value of the articles may be considered where it appears to be in the best interest of the state, (2) the highest scoring bidder in a multiple criteria bid, in accordance with the criteria set forth in the bid solicitation for the contract, or (3) the proposer whose proposal is deemed by the awarding authority to be the most advantageous to the state, in accordance with the criteria set forth in the request for proposals, including price and evaluation factors. Notwithstanding any provision of the general statutes to the contrary, each state agency awarding a contract through competitive negotiation shall include price as an explicit factor in the criteria in the request for proposals and for the contract award.
CRS § 24-92-108 (2024) State Government
https://colorado.public.law/statutes/crs_24-92-108
Subject to the limitations of this section, any type of contract which will promote the best interests of the agency of government may be used; except that the use of a cost-plus-a-percentage-of-cost contract is prohibited. A cost-reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the agency of government than any other type of contract or that it is impracticable to obtain the construction required unless the cost-reimbursement contract is used.
CRS § 24-93-104
https://colorado.public.law/statutes/crs_24-93-104
Notwithstanding any other provision of law, any agency may award an IPD contract for a public project in accordance with the provisions of this article upon the determination by such agency that integrated project delivery represents a timely or cost-effective alternative for a public project.
CRS § 30-20-1104 – 30-20-1108 County Government
https://colorado.public.law/statutes/crs_30-20-1104
Notwithstanding any other provision of law, any agency may award an IPD contract for a public project under the provisions of this part 11 upon the determination by such agency that integrated project delivery represents a timely or cost-effective alternative for a public project.
CRS § 31-25-1304 City/Town Government
https://colorado.public.law/statutes/crs_31-25-1304
Same as county.
CRS § 32-1-1804
https://colorado.public.law/statutes/crs_32-1-1804
Same as county/city/town.
PCC § 22160 – 22169 Local Agency DB Projects and PCC § 10187 State Agency DB Projects (same as below but repealed as of Jan 1, 2025)
The Legislature finds and declares that the design-build method of project delivery, using a best-value procurement methodology, has been authorized for various agencies that have reported benefits from such projects including reduced project costs, expedited project completion, and design features that are not achievable through the traditional design-bid-build method. (until Jan. 31, 2031)
Progressive Design-Build:
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB706&search_keywords=progressive+design-build
CA SB 706 (October 8, 2023)
Existing law authorizes the Director of General Services to use the progressive design-build procurement process for the construction of up to 3 capital outlay projects, as jointly determined by the Department of General Services and the Department of Finance, and prescribes that process. Existing law defines “progressive design-build” as a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. Existing law, until January 1, 2029, authorizes local agencies, defined as any city, county, city and county, or special district authorized by law to provide for the production, storage, supply, treatment, or distribution of any water from any source, to use the progressive design-build process for up to 15 public works projects in excess of $5,000,000 for each project, similar to the progressive design-build process authorized for use by the Director of General Services. Existing law requires a local agency that uses the progressive design-build process to submit, no later than January 1, 2028, to the appropriate policy and fiscal committees of the Legislature a report on the use of the progressive design-build process containing specified information, including a description of the projects awarded using the progressive design-build process. Existing law requires the design-build entity and its general partners or joint venture members to verify specified information under penalty of perjury. This bill would, until January 1, 2030, provide additional authority for cities, counties, cities and counties, or special districts to use the progressive design-build process for up to 10 public works in excess of $5,000,000, not limited to water-related projects, excluding projects on state-owned or state-operated facilities. The bill would require information to be provided under penalty of perjury and would require similar reports due no later than December 31, 2028.
CMAR:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=20146.&lawCode=PCC
PCC § 20146
(a) A county, with approval of the board of supervisors, or a public entity, with approval of its governing body, may utilize construction manager at-risk construction contracts for the erection, construction, alteration, repair, or improvement of any infrastructure, excluding roads, and including, but not limited to, buildings, utility improvements associated with buildings, flood control and underground utility improvements, and bridges, owned or leased by the county. A construction manager at-risk construction contract may be used only for projects in the county in excess of one $1,000,000 and may be awarded using either the lowest responsible bidder or best-value method to a construction manager at-risk entity that possesses or that obtains sufficient bonding to cover the contract amount for construction services and risk and liability insurance as may be required by the county or public entity. Any payment or performance bond written for the purposes of this section shall be written using a bond form developed by the county or public entity.
PCC § 5956.4
A governmental agency may solicit proposals and enter into agreements with private entities for the design, construction, or reconstruction by, and may lease to, private entities for the following types of fee-producing infrastructure projects:…
(b) Drainage
(d) Water supply, treatment, distribution
(e) Flood control
(h) Municipal improvements
(m) Purification of water
(n) Sewage treatment, disposal, and water recycling
(p) Structures or buildings, except for sporting or entertainment events
Ariz. Rev. Stat. §§ 34-602-605 and Ariz. Rev. Stat §§ 41-2582
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/34/00602.htm
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/41/02582.htm
An agent/purchasing agent may procure design services, construction and construction services, as applicable, under any of the following project delivery methods:
design-bid-build, construction manager at-risk, design-build, job-order contracting.
Other pertinent legislation:
Ariz. Rev. Stat. § 41-2578
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/41/02578.htm
AK Stat. § 36.30.200 (2023)
https://www.akleg.gov/basis/statutes.asp#36.30.200
Except as otherwise provided in this chapter, or unless specifically exempted by law, an agency contract shall be awarded by competitive sealed proposals if it is not awarded by competitive sealed bidding.
When the commissioner of transportation and public facilities determines that it is advantageous to the state, a procurement officer may issue a request for proposals requesting the submission of offers to provide
(1) construction in accordance with a design provided by the offeror; request for proposals issued under this paragraph must require that each proposal submitted contain a single price that includes the design-build; or
(2) preconstruction and construction services under a single construction manager general contractor contract awarded under AS 36.30.309.
2 AAC 12.931 – 12.949
https://casetext.com/regulation/alaska-administrative-code/title-2-administration/chapter-12-procurement/article-16-design-build-construction-contracts/section-2-aac-12933-general-design-build-requirements
The procurement officer may conduct a design-build procurement process only if the commissioner of transportation and public facilities determines in writing that it is advantageous to the state.
https://casetext.com/regulation/alaska-administrative-code/title-2-administration/chapter-12-procurement/article-16-design-build-construction-contracts/section-2-aac-12933-general-design-build-requirements
CMAR/CMGC:
Ak. Stat. § 36.30.309
https://www.akleg.gov/basis/statutes.asp#36.30.309
The Department of Transportation and Public Facilities may award by competitive sealed proposals a construction manager general contractor contract in which the department awards a two-phase contract for a construction manager to be responsible for providing preconstruction services during the design phase of the project and, if an agreed-on price for constructing the project is reached, general contractor services during the construction phase.
Alaska is not currently enabled for P3.
https://aiai-infra.info/wp-content/uploads/P3-Snapshot-ALASKA.pdf
Al. Code § 39-2-2
Design-build and CMAR are not currently allowed for water projects.
P3 allowances are unclear.