The Alabama AGC Board of Directors asked the CMAR Committee to read and comment on the latest version of the Construction Manager at Risk legislation proposed by ABC. Following are comments, beginning with those from Lister Hubbard of Capell & Howard, PC.
Those comments are included here along with a link to the latest version of the bill, CMAR draft legislation. We will begin a 30-day comment period Oct. 1-31. Please reply by email to Bill Caton at firstname.lastname@example.org with comments. All the comments will then be considered by the CMAR Committee and the Board before it makes a determination concerning the bill.
Title of delivery system “Construction Manager at Risk” changed to “Construction Manager/General Contractor” (CM/GC). This appears to be window dressing – not substantive.
In prequalifying a CM/GC or a DB (design-builder), it’s now specified that prior experience as a CM/GC or DB on a public project is NOT required.
The dollar threshold for allowing CM/GC or DB systems on public works is now set at $15,000,000, with no provision for future stepping down of that threshold.
The determination of the dollar threshold can now be set by either the designer’s estimate or the owner’s preliminary budget. NOTE: Letting the nonobjective owner set the threshold seems to be a conflict of interest under the law; I’d prefer an independent professional (architect or engineer) setting that threshold.
The effective date of the bill is now January 1, 2015
While this is not new to the bill, this is a reminder that it eliminates any restrictions/safeguards for sole source specifications.
And while this is also not new to the bill, this is a reminder that it vests subjective discretion in the awarding authority for weighing the various award criteria to choose its CM/GC or DB. The bill does accomplish an “open, pre-established and systematic process”, but since the weighing of selection criteria is highly subjective under the bill, the “open process” can’t be measured for undue bias/preference toward a particular bidder. It is NOT open and competitive bidding, but negotiated work.
Regarding Lister’s comments:
I do agree with Lister’s comment that an independent professional would be a better choice to set the budget.
I think January 1st is an unrealistic date.
As a whole I do think this bill is light years ahead of last year’s version. My main remaining concern would be should we spend more time and effort further outlining the selection criteria?
$15 million threshold may be determined by owner or architect’s budget. No future step down is part of this bill.
No DOT work, or county/municipality roadwork is included
Threshold based on “single” project, not multiple projects like on a University campus
CM at Risk guarantees the maximum cost of the project
Owner has to hire design professional to help with prequalification and selection, supposed to be the design professional of record for the project
Owner has to publish a statement of why they think this particular project needs to use CMAR
Owner/agent have to publish prequalification and selection criteria prior to the process
Owner/agent have to publish results with an explanation of the scoring
Prior experience as CMAR cannot be used as a prequalification or selection criteria
CMAR can self-perform 10% of the work, possibly more if a sub defaults or can’t meet the budget
CMAR has to use same criteria as Owner is selecting subcontractors
If CMAR owns a subcontracting firm that part of the work counts as their 10% even though a different company name
Items that receive no subcontract bids are legal to be performed by the CMAR and not count towards his 10%
Everything used for prequalification and scoring is a matter of public record
Design- Build follows the same rules except the owner’s agent for prequalification and selection has to be a separate design professional other than the design professional of record
Within 90 days of submitting design-build proposal each prequalified design-builder shall be paid the proposal fee which the proposal criteria stated, if any
Current date is January 1, 2015 for effective date of the legislation
Negative aspects which I see:
Owner may not be able to provide an accurate budget to establish the threshold, needs to be done by the design professional
January 15th, 2015 is unrealistic,State Building Commission needs some time to establish their contractual documents
I agree with all of Lister’s comments except #6, I don’t see how it “promotes” sole source specifications
I am not sure the bill will pass until we get AIA, the colleges, county and municipality groups, etc. to have their input
An unscrupulous CMAR could manipulate budgets and bid packages to allow him to self-perform more than the 10% as currently stated.