(a) If the commissioner determines that the CM/GC or PDB method of procurement is appropriate for a project, the commissioner shall establish a multi-phase process as described in subdivisions (b)(1)-(4) to select the CM/GC or PDB that is the most responsive and responsible proposer.
Terms Used In Tennessee Code 54-1-504
Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
Authorized contingency: means the contingency prepared and submitted by the CM/GC as part of the GMP, which is designed to cover costs that may result from incomplete design, unforeseen and unpredictable conditions, or uncertainties within the defined project scope which a prudent CM/GC would not have reasonably detected or anticipated during the discharge of CM/GC's pre-construction duties. See Tennessee Code 54-1-502
Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
Design-builder: means a business firm or joint venture that is able to provide both design and construction services for a transportation project, including, but not limited to, design, right-of-way acquisition, or utility relocation, as well as construction of the project. See Tennessee Code 54-1-502
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
GMP: means the total dollar amount within which the CM/GC commits to complete construction of the project, or the PDB commits to complete the final design and construction of the project, including the CM/GC's or PDB's direct costs, overhead, and profit, plus any authorized contingency. See Tennessee Code 54-1-502
Highway: includes public bridges and may be held equivalent to the words "county way" "county road" or "state road". See Tennessee Code 1-3-105
PDB: means a design-builder that is able to provide pre-construction services during the preliminary design and development phase of a transportation project, including, but not limited to, constructability review, scheduling, pricing, and phasing, and is able to complete the final design and construct the project if the department and the design-builder agree to a guaranteed maximum price. See Tennessee Code 54-1-502
Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(b)(1) Phase 1 of the process is the appointment of the selection committee, as follows:
(A) For each request for proposal (RFP) for CM/GC or PDB services, the commissioner shall appoint a selection committee to evaluate and score all responsive proposals in accordance with the procedures established in the RFP;(B) The selection committee consists of a total of five (5) members, to be appointed by the commissioner as follows:
(i) Three (3) department employees, including at least one (1) employee who is a licensed professional engineer in this state; and(ii) Two (2) members who are not employees of the department, each of whom must be a resident of this state. At least one (1) of the members must have a minimum of ten (10) years of construction or highway engineering design experience, and at least one (1) of the members must be a licensed professional engineer in this state.(C) [Deleted by 2023 amendment.](2) Phase 2 of the process is the development and issuance of the request for proposals (RFP), as follows:
(A) The RFP used to solicit a CM/GC or PDB proposal shall be reviewed by the selection committee established under subdivision (b)(1). Prior to the issuance of the RFP, the selection committee shall approve the proposed RFP indicating that the RFP complies with the requirements in this part, in a closed meeting that is not open to the public and by a majority vote;(B) The RFP shall not require prior experience with any particular project delivery method as a condition for submitting a responsive proposal. Further, the RFP shall not solicit information concerning prior experience with any particular contract delivery method, and the RFP shall not give any credit or preference for any particular contract delivery method experience in the scoring of any proposal. The RFP shall include, but not be limited to, the following:
(i) The procedures for submitting proposals and the criteria for evaluating qualifications and the relative weight for each criterion as indicated in the technical score matrix, which shall be attached to the RFP;(ii) The form of the contract to be awarded for pre-construction services;(iii) A listing of the types and scope of pre-construction services that will be required;(iv) The scope of the intended construction work, with a requirement that the CM/GC or PDB, if awarded the construction contract, shall complete at least thirty percent (30%) of the negotiated construction cost of the entire project internally. The cost for pre-construction services shall not be considered part of the thirty percent (30%) but may be considered a specialty item;(v) Any budget limits for the construction project and the pre-construction services;(vi) The method of payment and structure of fees for the pre-construction services;(vii) A requirement that the proposer submit relevant information regarding any licenses, registration and credentials that may be required to construct the project, including information on the revocation or suspension of any license, registration or credential. A Tennessee contractor’s license shall not be required to submit a proposal or to be considered for award of a contract for pre-construction services; provided, however, that a Tennessee contractor’s license shall be required prior to the execution of any contract for pre-construction services or to construct the project;(viii) A requirement that the proposer submit evidence that establishes the entity has the capacity to obtain the required bonding and insurance for the project;(ix) A requirement that the proposer submit information concerning any debarment or default from a federal, state or local government project within the past five (5) years;(x) A requirement that the proposer provide information concerning the bankruptcy or receivership of any member of the entity including information concerning any work completed by a surety;(xi) A requirement that the proposing firm provide evidence that the proposing firm has actual experience in the successful construction of other highway transportation projects, as well as the competency, capability and capacity to complete a project of similar size, scope or complexity; and further, the proposing firm may not rely on the construction experience of a subcontractor or other team member for the purpose of meeting this requirement;(xii) An affidavit that shall be signed by each proposer competing for a CM/GC or PDB contract affirming that the company, its agents, subcontractors and employees have not violated the prohibitions described in subdivisions (b)(3)(F) and (G); and(xiii) A prohibition that excludes any person or firm that has received compensation for assisting the department in preparing the RFP from submitting a proposal in response to the RFP, or participating as a CM/GC or PDB team member;(C) Once the selection committee has approved the RFP and determined that it complies with the requirements of this part, the RFP shall be published on the department’s internet website, and may be advertised in a newspaper of general circulation in the region of the state where the work is to be performed and/or published in such other internet or print media of general circulation so as to afford an opportunity for qualified firms to be considered for award of the contract.(3) Phase 3 of the process is the evaluation and selection phase, as follows:
(A) The department’s RFP shall establish a procedure for the evaluation and selection of a CM/GC or PDB to perform pre-construction services and potentially construct the project. Members of the selection committee are to be instructed as to their responsibilities and duties, as established in this part, prior to their review or evaluation of the proposals;(B) All proposals received by the department in response to the RFP, and any documents used by the selection committee to evaluate and score the proposals, shall remain confidential and not subject to disclosure to any proposer or to the public until after the department issues a written notice of award as provided in subdivision (b)(3)(E);(C) The RFP may provide for the selection committee to make an initial review and evaluation of interested proposers through a request for qualifications (RFQ), with a more detailed proposal to be submitted by a selected list of proposers, and it may provide for interviews or presentations. The RFP may also provide for a process by which members of the selection committee, through a department employee identified in the RFP as a point of contact, may request and obtain information on technical matters to assist them in the evaluation of proposals;(D) Upon completion of the evaluation process, each member of the selection committee shall independently review and score the proposals. Each member shall score the proposals pursuant to the scoring matrix that the department provides in the RFP and based on the RFP’s evaluation criteria. The scores must be tallied and averaged according to the procedure established in the RFP. Upon completion of the scoring, the proposals must be ranked in order of the highest aggregate score to the lowest aggregate score. The proposer whose proposal receives the highest aggregate score must be identified as a first-tier proposer. In addition, another proposer whose proposal receives an aggregate score within five percent (5%) of the proposal with the highest aggregate score, where five percent (5%) is measured as a percentage of the highest aggregate score, must also be identified as a first-tier proposer. Notwithstanding another law to the contrary, this subdivision (b)(3)(D) expires on June 30, 2029;(E) The proposals of the first-tier proposers must be submitted in alphabetical order to the commissioner without an evaluation ranking. The commissioner may select a first-tier proposer, or the commissioner may reject all proposals and proceed with construction of the project through a lawful method for procuring a construction services contract. The department shall send all proposers a written notice of award to the selected proposer, or a written notice that all proposals have been rejected. If the department issues a written notice of award, then the notice must include a copy of the scores from each member of the selection committee for each RFP proposal. Notwithstanding another law to the contrary, this subdivision (b)(3)(E) expires on June 30, 2029;(F) Throughout the selection process:
(i) The members of the selection committee shall not communicate with each other concerning their review or evaluation of the proposals;(ii) Any entity that submits a proposal in response to the RFP, as well as their employees, agents and subcontractors, shall not communicate with any member of the selection committee, or with any employee or official of the department, concerning the review or evaluation of any proposal, except that a proposer may communicate with those department employees who are specifically listed in the RFP as appropriate points of contact and in accordance with procedures established in the RFP that allow proposers to communicate with entities such as utilities and permit agencies. Any proposer’s failure to comply with this restriction shall render said proposer’s RFP response ineligible for selection;(iii) To confirm that no member of the selection committee has been improperly influenced, prior to reviewing the RFP responses, each committee member must affirmatively complete an affidavit indicating that such member has not discussed the proposals or such member’s review of the same with any other selection committee member, with any department employee other than those listed in the RFP as an appropriate point of contact, or with any of the proposers, their agents, employees or subcontractors;(iv) Each member of the selection committee shall also be required to complete an affidavit stating that such member is not aware of having any conflict of interest, financial or otherwise, regarding the member’s ability to fairly evaluate all proposals;(G) Entities competing for a CM/GC or PDB contract are also prohibited from offering or paying a contingency fee of any type that is directly tied to specific actions or work designed to help the proposer obtain a contract through the CM/GC or PDB RFP process. The selected CM/GC or PDB firm or joint venture shall complete an affidavit affirming this information before being awarded a contract. Falsely affirming that a contingency fee, associated with the CM/GC or PDB RFP process, was neither offered nor paid shall be grounds for debarment of the proposer under official compilation Rules and Regulations of the State of Tennessee, Chapter 1680-05-01, governing suspension and debarment for department contractors.(4) Phase 4 of the process is the potential award of the contract phase, as follows:
(A) Once the design has been completed, or has been sufficiently developed to allow the CM/GC or PDB to prepare a proposed GMP for construction, or for final design and construction, of the project, or a part of the project, the department shall conduct the steps described in subdivision (b)(4)(B) before proceeding with construction or final design and construction;(B) The department shall:
(i) Prepare and compile the contract plans, specifications, special provisions, or other requirements that will comprise the contract for construction, or final design and construction;(ii) Prepare a detailed cost estimate to evaluate the appropriate price for construction or final design and construction; and(iii) If directed by the commissioner, have an independent third-party estimator prepare a detailed cost estimate to confirm the appropriate price for construction or final design and construction;(C) The department’s detailed cost estimate, and a cost estimate prepared by an independent third-party estimator, must not be disclosed to the CM/GC or PDB, and must remain confidential and is not subject to public disclosure under § 10-7-503 or another law until after award of the contract for construction or final design and construction;(D) The contract must require the CM/GC or PDB to self-perform a portion of the construction work comprising at least thirty percent (30%) of the total cost for construction, excluding specialty items. The cost for pre-construction services must not be considered part of the thirty percent (30%) but may be considered a specialty item;(E) Based on the contract plans, specifications, special provisions, or other contract terms and conditions compiled by the department, the CM/GC or PDB shall prepare a GMP, including an authorized contingency, for construction or final design and construction. When completed, the CM/GC’s or PDB’s proposed GMP must be submitted to the department for review. The CM/GC’s or PDB’s proposed GMP must otherwise remain confidential and is not subject to public disclosure until after award of the contract;(F) The department shall compare the CM/GC’s or PDB’s proposed GMP with the department’s own confidential cost estimate, and with a cost estimate prepared by an independent third-party estimator. If the GMP does not exceed the department’s estimate, or the independent third-party estimate, by more than ten percent (10%), the commissioner may, but is not required to, award the contract to the CM/GC or PDB;(G) If the commissioner rejects the proposed GMP, then the department may continue to conduct contract discussions with the CM/GC or PDB to develop an acceptable GMP for the project. Alternatively, the department may direct the CM/GC or PDB to provide additional pre-construction services as needed to assist in the further development of contract plans, terms, or specifications for the purpose of repeating the Phase 4 process established in this subdivision (b)(4); and(H) If an agreement on the GMP is unable to be reached:
(i) For CM/GC, then the commissioner may proceed with construction of the project through the low bid procurement process; or(ii) For PDB, then the PDB shall relinquish and assign ownership of its design work product to the department, the department shall take ownership of and assume liability for the design work product, and the commissioner may:
(a) Employ the PDB’s design consultant or another design consultant to complete the final design and proceed with construction of the project through the low bid procurement process; or(b) Use the PDB’s design consultant’s work product, or a part of it, to proceed with construction of the project through a design-build procurement process, and, if another design consultant or design-builder completes the final design, the other design consultant or design-builder shall assume responsibility for the final design.
