16-6-1001. Capital construction projects restrictions; preference requirements; waivers.

(a) Unless otherwise prohibited by federal law, any funds appropriated or authorized for expenditure for capital construction projects shall be subject to the restrictions of this section which shall be construed where possible as complimentary and consistent with other statutory requirements relating to competitive bidding and contractor preferences. To the extent the restrictions in this section are inconsistent with other state statutes, this section shall supersede all such inconsistent provisions and shall govern. This section shall be applied as follows:

(i) This paragraph shall apply to any alternate design and construction delivery method as defined in W.S. 16-6-701(a)(v):

(A) All contracts shall require the construction manager at risk or design builder to conduct an open bid process in compliance with Wyoming contractor preference laws before awarding any subcontracts for work covered under the contract;

(B) Unless exempted pursuant to subparagraph (C) of this paragraph the construction manager at risk or design builder shall award to responsible Wyoming resident contractors not less than seventy percent (70%) of the work covered by the manager's or builder's contract. As used in this subparagraph "work covered" shall be calculated using the total contract price and the total of payments made to all subcontractors under the contract, including materials but excluding from both amounts the price for any part of the contract for which a waiver is provided under subparagraph (C) of this paragraph;

(C) The requirement of subparagraph (B) of this paragraph may be waived for any part of the subcontract work to be performed under the contract. If waived in part, the remaining value of the total subcontract work to be performed under the contract is subject to and shall be used to calculate compliance with the requirement of subparagraph (B) of this paragraph. A waiver shall require a written determination that:

(I) The work to be performed is specialized or of such a scale that it can be more suitably performed by out-of-state contractors;

(II) The bid amounts submitted by responsible Wyoming subcontractors exceed one hundred five percent (105%) of the costs of out-of-state providers for equivalent quality of work or services;

(III) The enforcement of the requirement would unreasonably delay completion of construction; or

(IV) There were insufficient responsible Wyoming contractors submitting bids to make the seventy percent (70%) requirement.

(V) Repealed by Laws 2012, Ch. 106, § 2.

(D) Any waiver shall be approved in writing by the following persons:

(I) For projects to be completed by the state of Wyoming, by the director of the state construction department;

(II) For projects to be completed by the University of Wyoming, by the president of the university and the chairman of the board of trustees;

(III) For projects subject to review by the state construction department under title 21 of Wyoming statutes, by the director of the state construction department and the chairman of the board of the school facilities commission;

(IV) For projects completed by a community college, by the community college president and its chairman of the board of trustees;

(V) For all other projects, by the respective governing body.

(E) Any approved waiver shall be documented in writing and provided to the governor. Notice of all approved waivers shall also be published on a website maintained by the state construction department, including a statement of the grounds for the waiver.

(ii) Unless exempted pursuant to subparagraph (D) of this paragraph, this paragraph shall apply to all construction delivery methods:

(A) The procurement of furniture and movable equipment shall be done by competitive bid based upon:

(I) Specifications written for products that are available from Wyoming resident suppliers; or

(II) If specified products are not available from any Wyoming resident supplier, specifications addressing performance standards and functional requirements determined by the agency. The agency may specify suggested individual brands or manufacturers, provided that similar products that meet or exceed specifications shall be accepted as substitute products. Specified products that are not available to any responsible Wyoming resident suppliers shall not be used in any group or package within the bid documents which would exclude responsible Wyoming resident suppliers from submitting a bid on the final bid package. As used in this subdivision, "agency" means any department, agency or other instrumentality of the state or of a political subdivision of the state to which funds are appropriated or authorized for expenditure for capital construction projects and includes any entity that the agency contracts with to administer or award any bid.

(B) No person who was employed by the agency to prepare the bid documents, whether with or without compensation, shall be eligible to bid on the final bid package;

(C) A five percent (5%) preference shall be granted to responsible Wyoming resident suppliers for procurements by public entities subject to this paragraph and that are used in and incorporated into a public capital construction project;

(D) The requirements of subparagraph (A) of this paragraph may be waived by a political subdivision of the state for furniture or movable equipment upon a written determination that the furniture or movable equipment requirements of the project are so specialized or that an item or type of furniture or movable equipment is so unique or uncommon that failure to waive the requirements would materially impair the functionality of the project. Waivers under this subparagraph shall be approved by the governing body of the political subdivision.

(iii) All bids shall be opened in public at a location designated by the public entity soliciting the bid. This paragraph shall apply to all construction delivery methods;

(iv) Contractor progress payments shall be made only in accordance with this paragraph. If a contracting entity determines that a general contractor in good standing on a project requires a progress payment due for work completed in a workmanlike manner in order to pay a materialman, subcontractor or laborer for their work performed to date, the entity may issue the progress payment upon verification that all materialmen, subcontractors and laborers have been paid for completed work through the date of the most recent previous progress payment. If a progress payment has been withheld by a general contractor due to a reasonable dispute between a general contractor and a materialman, subcontractor or laborer, further progress payments shall not be paid to the general contractor but shall be retained in accordance with the guidelines addressing disputed final payments under the provisions of W.S. 16-6-117. A person submitting false information regarding a progress payment subject to this paragraph shall be subject to the provisions of W.S. 16-6-120.

(b) No funds subject to this section shall be expended unless the contracting agency has submitted a plan to the governor which promotes the employment of responsible Wyoming resident design firms, including professional architectural and engineering services as defined by W.S. 9-2-1028(a)(v), in the planning and design phases of facilities funded with monies subject to this section. The plans shall allow for partnerships between responsible Wyoming design firms, including professional architectural and engineering services, and nonresident firms when necessary to secure specialized services required for a project. The contracting agency shall evaluate and consider overall qualifications, residency, fee proposal, past performance and level of services in the final decisions.

(c) Any entity which has received an appropriation of state funds on or after July 1, 2008, for any capital construction project shall conduct a review of each project funded with state funds to assess whether contractors that were awarded contracts using a resident preference complied in all respects to applicable resident preference laws. If the entity determines that there is reasonable suspicion that a contractor failed to comply with the resident preference laws, the entity shall report the matter to the department of workforce services and the attorney general. The department of workforce services and the attorney general shall take such enforcement action on behalf of the state of Wyoming and the entity against the contractor as they deem appropriate. An entity shall be required to conduct only one (1) review under this subsection after March 1, 2011.

(d) The governor may modify any requirement of this section by executive order if he determines it to be necessary to promote effective competitive bidding. Any order shall be effective only until June 30, 2012 or until superseded by law.

(e) Repealed by Laws 2013, Ch. 134, § 2.