FOR AN ACT ENTITLED, An Act to amend the criteria for construction manager engagement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 5-18B-43 be amended to read as follows:
    5-18B-43. Unless the construction manager-agent is an employee of the purchasing agency and provides the construction management services pursuant to such employment, no purchasing agency may engage the services of a construction manager except as follows:

            (1)    The purchasing agency shall first make the following determinations:

            (a)    That it is in the public interest to utilize the services of a construction manager; and

            (b)    That the construction management services would not unreasonably duplicate and would be in addition to the normal scope of separate architect or engineer contracts;

            (2)    Notwithstanding any other provisions of this chapter, no construction manager may contract to perform actual construction on the project, except as follows:

            (a)    The construction manager may perform general conditions of the construction

contract as required by the owner;

            (b)    The construction manager is a construction manager-at-risk and was solicited through a qualification- best value based request for proposals method of procurement as provided in § 5-18B-44 and the construction manager-at-risk, for any actual construction contracted by the construction manager-at-risk to be performed on the project, provides payment and performance bonds and competitively bids the work as required by any statute governing bidding and bonding for public improvement projects;

            (c)    Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or

            (d)    Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9); and

            (3)    No person, firm, or corporation may act as a construction manager-agent and also as a contractor on any public improvement, except as follows:

            (a)    Pursuant to a contract awarded on an emergency basis, pursuant to § 5-18A-9; or

            (b)    Pursuant to a contract negotiated pursuant to subdivision 5-18A-5(9).
    Section 2. That § 5-18B-44 be amended to read as follows:
    5-18B-44. Each qualification best value based request for proposals required by subsection 5-18B-43(2)(b) to enter into a construction manager-at-risk services contract where the construction manager-at-risk intends to actually perform construction on the project, shall meet the following criteria:

            (1)    The purchasing agency shall, prior to issuing any request for proposals to enter in a construction management services contract, establish and publish procedures for the solicitation and award of such contracts, which procedures shall include the following:

            (a)    The procedures and standards to be used to qualify construction managers;

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            (b)    The procedures for preparing and submitting competitive sealed proposals;

            (c)    The procedures for evaluating proposals;

            (d)    The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve the confidential information and proprietary information supplied by those submitting proposals; and

            (e)    The procedures for awarding construction management services contracts;

            (2)    A request for proposals to enter into a construction management services contract shall contain the following elements:

            (a)    The identity of the purchasing agency;

            (b)    A description of the proposed public improvement;

            (c)    A description of the qualifications the construction manager will be required to have;

            (d)    The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and procedures for making awards;

            (e)    The proposed terms and conditions for the construction management services contract, including a description of the scope of services to be provided;

            (3)    Notice of any request for proposals shall be advertised in accordance with the provisions of § 5-18A-14;

            (4)    After obtaining and evaluating proposals, a purchasing agency may accept the proposal it considers the most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the construction manager submitting the accepted proposal, and by simultaneously notifying in writing the other construction managers that their proposals were not accepted The award of a best value construction contract shall be made to the

responsible offeror whose proposal is determined in writing to be the most advantageous to the state and that represents the best overall value to the state, taking into consideration the price and other evaluation factors set forth in the request for proposals. No other factors or criteria may be evaluated in making the award determination other than those specified in the request for proposals. The contract file maintained by the purchasing agency shall contain the basis on which the award determination was made; and

            (5)    The purchasing agency shall reserve the right to reject any or all proposals submitted.