Effective 28 Aug 2016, see footnote

67.5050. Definitions — use of construction manager-at-risk method, when — procedure — default, effect of — inapplicability — expiration date. — 1. As used in this section, the following terms mean:

(1) "Construction manager", the legal entity that proposes to enter into a construction management-at-risk contract under this section;

(2) "Construction manager-at-risk", a sole proprietorship, partnership, corporation, or other legal entity that assumes the risk for the construction, rehabilitation, alteration, or repair of a project at the contracted price as a general contractor and provides consultation to a political subdivision regarding construction during and after the design of the project.

2. Any political subdivision may use the construction manager-at-risk method for: civil works projects such as roads, streets, bridges, utilities, water supply projects, water plants, wastewater plants, water distribution and wastewater conveyance facilities, airport runways and taxiways, storm drainage and flood control projects, or transit projects commonly designed by professional engineers in excess of two million dollars; and noncivil works projects such as buildings, site improvements, and other structures, habitable or not, commonly designed by architects in excess of three million dollars. In using that method and in entering into a contract for the services of a construction manager-at-risk, the political subdivision shall follow the procedures prescribed by this section.

3. The political subdivision shall publicly disclose at a regular meeting its intent to utilize the construction management at-risk method and its selection criteria at least one week prior to publishing the request for qualifications. Before or concurrently with selecting a construction manager-at-risk, the political subdivision shall select or designate an engineer or architect who shall prepare the construction documents for the project and who shall comply with all state laws, as applicable. If the engineer or architect is not a full-time employee of the political subdivision, the political subdivision shall select the engineer or architect on the basis of demonstrated competence and qualifications as provided by sections 8.285 to 8.291. The political subdivision's engineer or architect for a project may not serve, alone or in combination with another, as the construction manager-at-risk. This subsection does not prohibit a political subdivision's engineer or architect from providing customary construction phase services under the engineer's or architect's original professional service agreement in accordance with applicable licensing laws.

4. The political subdivision may provide or contract for, independently of the construction manager-at-risk, inspection services, testing of construction materials, engineering, and verification of testing services necessary for acceptance of the project by the political subdivision.

5. The political subdivision shall select the construction manager-at-risk in a two-step process. The political subdivision shall prepare a request for qualifications, for the case of the first step of the two-step process, that includes general information on the project site, project scope, schedule, selection criteria, and the time and place for receipt of proposals or qualifications, as applicable, and other information that may assist the political subdivision in its selection of a construction manager-at-risk. The political subdivision shall state the selection criteria in the request for proposals or qualifications, as applicable. The selection criteria may include the construction manager's experience, past performance, safety record, proposed personnel and methodology, and other appropriate factors that demonstrate the capability of the construction manager-at-risk. The political subdivision shall not request fees or prices in step one. In step two, the political subdivision may request that five or fewer construction managers, selected solely on the basis of qualifications, provide additional information, including the construction manager-at-risk's proposed fee and its price for fulfilling the general conditions. Qualifications shall account for a minimum of forty percent of the evaluation. Cost shall account for a maximum of sixty percent of the evaluation.

6. The political subdivision shall publish the request for proposals or qualifications by publication in a newspaper of general circulation published in the county where the political subdivision is located once a week for two consecutive weeks prior to opening the proposals or qualifications submissions or by a virtual notice procedure that notifies interested parties for at least twenty various purchases, design contracts, construction contracts, or other contracts each year for the political subdivision.

7. For each step, the political subdivision shall receive, publicly open, and read aloud the names of the construction managers. Within forty-five days after the date of opening the proposals or qualification submissions, the political subdivision or its representative shall evaluate and rank each proposal or qualification submission submitted in relation to the criteria set forth in the request for proposals or request for qualifications. The political subdivision shall interview at least two of the top qualified offerors as part of the final selection.

8. The political subdivision or its representative shall select the construction manager that submits the proposal that offers the best value for the political subdivision based on the published selection criteria and on its ranking evaluation. The political subdivision or its representative shall first attempt to negotiate a contract with the selected construction manager. If the political subdivision or its representative is unable to negotiate a satisfactory contract with the selected construction manager, the political subdivision or its representative shall, formally and in writing, end negotiations with that construction manager and proceed to negotiate with the next construction manager in the order of the selection ranking until a contract is reached or negotiations with all ranked construction managers end.

9. A construction manager-at-risk shall publicly advertise, in the manner prescribed by chapter 50, and receive bids or proposals from trade contractors or subcontractors for the performance of all major elements of the work other than the minor work that may be included in the general conditions. A construction manager-at-risk may seek to perform portions of the work itself if the construction manager-at-risk submits its sealed bid or sealed proposal for those portions of the work in the same manner as all other trade contractors or subcontractors. All sealed bids or proposals shall be submitted at the time and location as specified in the advertisement for bids or proposals and shall be publicly opened and the identity of each bidder and their bid amount shall be read aloud. The political subdivision shall have the authority to restrict the construction manager-at-risk from submitting bids to perform portions of the work.

10. The construction manager-at-risk and the political subdivision or its representative shall review all trade contractor, subcontractor, or construction manager-at-risk bids or proposals in a manner that does not disclose the contents of the bid or proposal during the selection process to a person not employed by the construction manager-at-risk, engineer, architect, or political subdivision involved with the project. If the construction manager-at-risk submitted bids or proposals, the political subdivision shall determine if the construction manager-at-risk's bid or proposal offers the best value for the political subdivision. After all proposals have been evaluated and clarified, the award of all subcontracts shall be made public.

11. If the construction manager-at-risk reviews, evaluates, and recommends to the political subdivision a bid or proposal from a trade contractor or subcontractor but the political subdivision requires another bid or proposal to be accepted, the political subdivision shall compensate the construction manager-at-risk by a change in price, time, or guaranteed maximum cost for any additional cost and risk that the construction manager-at-risk may incur because of the political subdivision's requirement that another bid or proposal be accepted.

12. If a selected trade contractor or subcontractor materially defaults in the performance of its work or fails to execute a subcontract after being selected in accordance with this section, the construction manager-at-risk may itself, without advertising, fulfill the contract requirements or select a replacement trade contractor or subcontractor to fulfill the contract requirements. The penal sums of the performance and payment bonds delivered to the political subdivision shall each be in an amount equal to the fixed contract amount or guaranteed maximum price. The construction manager-at-risk shall deliver the bonds not later than the tenth day after the date the fixed contract amount or guaranteed maximum price is established.

13. Any political subdivision engaged in a project under this section, which impacts a railroad regulated by the Federal Railroad Administration, shall consult with the affected railroad on required specifications relating to clearance, safety, insurance, and indemnification to be included in the construction documents for such project.

14. This section shall not apply to:

(1) Any metropolitan sewer district established under Article VI, Section 30(a) of the Constitution of Missouri;

(2) Any special charter city, or any city or county governed by home rule under Article VI, Section 18 or 19 of the Constitution of Missouri that has adopted a construction manager-at-risk method via ordinance, rule or regulation.

15. Notwithstanding the provisions of section 23.253 to the contrary, the provisions of this section shall expire September 1, 2026.

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(L. 2016 H.B. 2376)

Expires 9-01-26