GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
SENATE BILL 914
RATIFIED BILL
AN ACT TO PROVIDE FOR CONSTRUCTION FLEXIBILITY FOR PUBLIC
ENTITIES BY ALLOWING THE USE, WITHOUT LIMITATION, OF SEPARATE-
PRIME CONTRACTING, SINGLE-PRIME CONTRACTING, DUAL BIDDING,
CONSTRUCTION MANAGER AT RISK, AND ALTERNATIVE CONTRACTING
METHODS AUTHORIZED BY THE STATE BUILDING COMMISSION; TO
ENHANCE AND IMPROVE GOOD FAITH EFFORTS TO RECRUIT AND SELECT
MINORITY BUSINESSES FOR PARTICIPATION IN PUBLIC CONSTRUCTION
CONTRACTS; TO INCREASE THE MANDATORY PERFORMANCE AND PAYMENT
BOND THRESHOLD FOR PUBLIC CONSTRUCTION PROJECTS; TO PROVIDE
FOR CONSTRUCTION AND DESIGN SUPERVISORY AUTHORITY FOR
PROJECTS UP TO TWO MILLION DOLLARS FOR THE UNIVERSITY OF
NORTH CAROLINA UNTIL DECEMBER 31, 2006; TO PROVIDE FOR
EFFICIENCIES IN THE PLAN REVIEW PROCESS FOR PUBLIC BUILDINGS;
TO AMEND THE LAW GOVERNING LANDSCAPE ARCHITECTURE; AND TO
APPROPRIATE FUNDS TO IMPLEMENT THE PUBLIC CONSTRUCTION LAW
CHANGES.
The General Assembly of North Carolina enacts:
PART I. CONSTRUCTION CHANGES
SECTION 1. G.S. 143-64.31 reads as rewritten:
"§ 143-64.31. Declaration of public policy.
(a) It is the public policy of this State and
all public subdivisions and Local Governmental Units thereof,
except in cases of special emergency involving the health and
safety of the people or their property, to announce all
requirements for architectural, engineering, and
surveying and construction management at risk
services, to select firms qualified to provide such services
on the basis of demonstrated competence and qualification for
the type of professional services required without regard to fee
other than unit price information at this stage, and thereafter
to negotiate a contract for architectural, engineering,
or surveying those services at a fair and
reasonable fee with the best qualified firm. If a contract
cannot be negotiated with the best qualified firm, negotiations
with that firm shall be terminated and initiated with the next
best qualified firm. Selection of a firm under this Article
shall include the use of good faith efforts by the public entity
to notify minority firms of the opportunity to submit
qualifications for consideration by the public entity.
(b) Public entities that contract with a
construction manager at risk under this section shall report to
the Secretary of Administration the following information on all
projects where a construction manager at risk is utilized:
(1) A detailed explanation of the reason
why the particular construction manager at risk was
selected.
(2) The terms of the contract with the
construction manager at risk.
(3) A list of all other firms considered
but not selected as the construction manager at
risk and the amount of their proposed fees for
services.
(4) A report on the form of bidding
utilized by the construction manager at risk on the
project.
The Secretary of Administration shall adopt rules to
implement the provisions of this subsection including the format
and frequency of reporting."
SECTION 2. Article 8 of Chapter 143 of the
General Statutes is amended by adding the following new section
to read:
"§ 143-128.1. Construction management at risk
contracts.
(a) For purposes of this section and G.S. 143-
64.31:
(1) "Construction management services"
means services provided by a construction manager,
which may include preparation and coordination of
bid packages, scheduling, cost control, value
engineering, evaluation, preconstruction services,
and construction administration.
(2) "Construction management at
risk services" means services provided by a person,
corporation, or entity that (i) provides
construction management services for a project
throughout the preconstruction and construction
phases, (ii) who is licensed as a general
contractor, and (iii) who guarantees the cost of
the project.
(3) "Construction manager at risk" means a
person, corporation, or entity that provides
construction management at risk services.
(4) "First-tier subcontractor" means a
subcontractor who contracts directly with the
construction manager at risk.
(b) The construction manager at risk shall be
selected in accordance with Article 3D of this Chapter. Design
services for a project shall be performed by a licensed
architect or engineer. The public owner shall contract directly
with the architect or engineer.
(c) The construction manager at risk shall
contract directly with the public entity for all construction;
shall publicly advertise as prescribed in G.S. 143-129; and
shall prequalify and accept bids from first-tier subcontractors
for all construction work under this section. The
prequalification criteria shall be determined by the public
entity and the construction manager at risk to address
quality, performance, the time specified in the bids for
performance of the contract, the cost of construction oversight,
time for completion, capacity to perform, and other factors
deemed appropriate by the public entity. The public entity shall
require the construction manager at risk to submit its plan for
compliance with G.S. 143-128.2 for approval by the public entity
prior to soliciting bids for the project's first-tier
subcontractors. A construction manager at risk and first-tier
subcontractors shall make a good faith effort to recruit and
select minority businesses for participation in contracts
pursuant to G.S. 143-128.2. A construction manager at risk
may perform a portion of the work only if (i) bidding
produces no responsible, responsive bidder for that portion of
the work, the lowest responsible, responsive bidder will not
execute a contract for the bid portion of the work, or the
subcontractor defaults and a prequalified replacement cannot be
obtained in a timely manner, and (ii) the public entity approves
of the construction manager at risk's performance of the
work. All bids shall be opened publicly, and once they are
opened, shall be public records under Chapter 132 of the General
Statutes. The construction manager at risk shall act as the
fiduciary of the public entity in handling and opening bids. The
construction manager at risk shall award the contract to the
lowest responsible, responsive bidder, taking into consideration
quality, performance, the time specified in the bids for
performance of the contract, the cost of construction oversight,
time for completion, compliance with G.S. 143-128.2, and other
factors deemed appropriate by the public entity and advertised
as part of the bid solicitation. The public entity may require
the selection of a different first-tier subcontractor for any
portion of the work, consistent with this section, provided that
the construction manager at risk is compensated for any
additional cost incurred.
When contracts are awarded pursuant to this section, the
public entity shall provide for a dispute resolution procedure
as provided in G.S. 143-128(g).
(d) The construction manager at risk shall
provide a performance and payment bond to the public entity in
accordance with the provisions of Article 3 of Chapter 44A of
the General Statutes."
SECTION 3. G.S. 143-128 reads as rewritten:
"§ 143-128. Requirements for certain building contracts.
(a)Preparation of specifications. - Every officer, board,
department, commission or commissions charged with
responsibility of preparation of specifications or awarding or
entering into contracts for the erection, construction,
alteration or repair of any buildings for the State, or for any
county, municipality, or other public body, must
shall have prepared separate specifications for
each of the following subdivisions or branches of work to be
performed:
(1) Heating, ventilating, air conditioning and
accessories (separately or combined into one
conductive system)
and/orsystem), refrigeration for
cold storage (where the cold storage cooling load
is 15 tons or more of refrigeration), and all
work kindred thereto.related
work.
(2) Plumbing and gas fittings and accessories, and all
work kindred thereto.related
work.
(3) Electrical wiring and installations, and all
work kindred thereto.related
work.
(4) General work not included in subdivisions (1),
(2), and (3) of this subsection relating to the
erection, construction, alteration, or repair of
any building above referred to, which work
is not included in the above-listed three
subdivisions or branches.building.
All such specifications must
Specifications for contracts that will be bid under
the separate-prime system or dual bidding system shall
be so drawn as to permit separate and
independent bidding upon each of the subdivisions or
branches of work enumerated above.
in this subsection. The above enumeration of
subdivisions or branches of work shall not be construed to
prevent any officer, board, department, commission or
commissions from preparing additional separate specifications
for any other category of work.
(a1) Construction methods. - The State, a county,
municipality, or other public body shall award contracts to
erect, construct, alter, or repair buildings pursuant to any of
the following methods:
(1) Separate-prime bidding.
(2) Single-prime bidding.
(3) Dual bidding pursuant to subsection
(d1) of this section.
(4) Construction management at risk
contracts pursuant to G.S. 143-128.1.
(5) Alternative contracting methods
authorized pursuant to G.S. 143-135.26(9).
(b) Building projects over five hundred thousand
dollars ($500,000); separate prime contracts.
Separate-prime contracts. - Except as provided in
subsection (d) of this section, when the entire cost of the
erection, construction, alteration, or repair of a building
exceeds five hundred thousand dollars ($500,000),
When the State, county, municipality, or other
public body uses the separate-prime contract system, it
shall accept bids for each subdivision or branch
of work for which specifications are required to be
prepared under subsection (a) of this section and shall award
the respective work specified separately to responsible and
reliable persons, firms or corporations regularly engaged in
their respective lines of work. When the estimated cost
of work to be performed in any single subdivision or branch for
which separate bids are required by this subsection is less than
twenty-five thousand dollars ($25,000), the same may be included
in the contract for one of the other subdivisions or branches of
the work, irrespective of total project cost.The
contracts shall be awarded to the lowest responsible, responsive
bidders, taking into consideration quality, performance, the
time specified in the bids for performance of the contract, and
compliance with G.S. 143-128.2. Bids may also be accepted
from and awards made to separate contractors for other
categories of work.
Each separate contractor shall be directly liable to the
State of North Carolina, or to the county or
municipality, county, municipality, or other public
body and to the other separate contractors for the full
performance of all duties and obligations due respectively under
the terms of the separate contracts and in accordance with the
plans and specifications, which shall specifically set forth the
duties and obligations of each separate contractor. For the
purpose of this section, "separate contractor" means any person,
firm or corporation who shall enter into a contract with the
State, or with any county, municipality, or other public
body, entity for the
erection, construction, alterationto erect,
construct, alter or repair of any building
or buildings, or parts thereof.of any
building or buildings.
(c) Building projects five hundred
thousand dollars ($500,000) or less. - When the entire cost of
the erection, construction, alteration, or repair of a building
is five hundred thousand dollars ($500,000) or less, the State,
county, municipality, or other public body may accept bids under
the single-prime contract system, the separate prime contract
system, or both. The provisions of subsection (b) of this
section apply to the use of the separate prime contract system
under this subsection. The provisions of subsection (d) of this
section apply to the use of the single-prime contract system
under this section, except that bidding in the alternative
between the single-prime and separate prime systems is not
required. Contracts bid in the alternative between the single-
prime and separate prime systems under this subsection must be
awarded to the lowest responsible bidder or bidders, as provided
in subsection (d) of this section.
(d) Single-prime and alternative contracts.
- The State, a county, municipality, or other public
body may accept bids under the single-prime contract system or a
contracting method approved by the State Building Commission
under G.S. 143-135.26.
If the State, county, municipality, or other public
body accepts bids under the single-prime contract system, it
must also seek bids for the project under the separate prime
contract system, except as otherwise authorized under G.S. 143-
135.26, and award the contract to the lowest responsible bidder
or bidders for the total project, taking into consideration
quality, performance and the time specified in the bids for the
performance of the contract.
When bids are accepted under the single-prime
contract system allAll bidders must
in a single-prime project shall identify on
their bid the contractors they have selected for the
subdivisions or branches of work for:
(1) Heating, ventilating, and air conditioning;
(2) Plumbing;
(3) Electrical; and
(4) General.
No contractor whose bid is acceptedThe
contract shall be awarded to the lowest responsible, responsive
bidder, taking into consideration quality, performance, the time
specified in the bids for performance of the contract, and
compliance with G.S. 143-128.2. A contractor whose bid is
accepted shall not substitute any person as
subcontractor in the place of the subcontractor listed in the
original bid, except (i) if the listed subcontractor's bid is
later determined by the contractor to be nonresponsible or
nonresponsive or the listed subcontractor refuses to enter into
a contract for the complete performance of the bid work, or (ii)
with the approval of the awarding authority for good cause
shown by the contractor. The terms, conditions, and requirements
of each contract between the contractor and a subcontractor
performing work under a subdivision or branch of work listed in
this subsection shall be substantially the same
asincorporate by reference the terms,
conditions, and requirements of the contract between the
contractor and the State, county, municipality, or other public
body.
The requirements of this subsection governing the
identification of bidders, substitution of contractors,and the
terms and conditions of subcontractor's contracts apply to all
single-prime bidding and single-prime contracts, regardless of
whether bidding in the alternative between the single-prime and
separate prime systems has been waived by the State Building
Commission.When contracts are awarded pursuant to
this section, the public body shall make available to
subcontractors the dispute resolution process as provided for in
subsection (g) of this section.
(d1)Local school administrative units; building
projects over five hundred thousand dollars ($500,000).
Dual bidding. - When the entire cost of
the building project is more than five hundred thousand dollars
($500,000), a local school administrative unit shall seek bids
as provided in subsection (b) or (d) of this section or this
subsection. The local school administrative unit The
State, a county, municipality, or other public entity may accept
bids to erect, construct, alter, or repair a building under both
the single-prime and separate-prime contracting systems and
shall award the contract to the lowest responsible
responsible, responsive bidder under the
single-prime system or to the lowest responsible
responsible, responsive bidder under the
separate-prime system, taking into consideration quality,
performance, compliance with G.S. 143-128.2, and time
specified in the bids for performance ofto
perform the contract. In determining the system under which
the contract will be awarded to the lowest responsible
responsible, responsive bidder, the
local school administrative unit public
entity may consider cost of construction oversight, time for
completion, and other factors it deems
considers appropriate. The local school
administrative unit shall not open any bid solicited under
subsection (d) of this section unless the unit receives at least
three competitive bids from reputable and qualified contractors
regularly engaged in their respective lines of endeavor and
unless the unit receives a bid from at least one general
contractor under the separate-prime system. The bids
received as separate-prime bids shall be submitted three
hours received, but not opened, one hour prior
to the deadline for the submission of single-prime bids. The
amount of a bid submitted by a subcontractor to the general
contractor under the single-prime system shall not exceed the
amount bid, if any, for the same work by that subcontractor to
the local school administrative unit public
entity under the separate-prime system. Each
single-prime bid that identifies the contractors selected to
perform the three major subdivisions or branches of work
described in subsection (d) of this section and that lists the
contractors' respective bid prices for those branches of work
shall constitute a single competitive bid, and each full set of
separate-prime bids for all of the branches of work described in
subsection (d) of this section shall constitute a single
competitive bid. If after advertisement as required by G.S.
143-129, the local school administrative unit has not received
the minimum number of competitive bids as required by this
subsection, the unit shall again advertise for bids. If the
required minimum number of bids is not received as a result of
the second advertisement, the unit may let the contract to the
lowest responsible bidder that submitted a bid for the project,
even though the unit received only one bid. A contractor must
provide an affidavit to the local school administrative unit
that it has made the good faith effort required pursuant to G.S.
143-128(f), and failure to file the affidavit is grounds for
rejection of the bid. All provisions of Article 8 of Chapter 143
of the General Statutes that are not inconsistent with this
subsection shall apply to local school administrative
units. The provisions of subsection (b) of this
section shall apply to separate-prime contracts awarded pursuant
to this section and the provisions of subsection (d) of this
section shall apply to single-prime contracts awarded pursuant
to this section.
(e) Project expediter; scheduling; public body to resolve
project disputes. - The State, county, municipality, or other
public body may, if specified in the bid documents, provide for
assignment of responsibility for expediting the work on
the a project to a single responsible
and reliable person, firm or corporation, which may be a prime
contractor. In executing this responsibility, the designated
project expediter may recommend to the State, county,
municipality, or other public body whether payment to a
contractor should be approved. The project expediter, if
required by the contract documents, shall be responsible for
the preparation ofpreparing the project
schedule and shall allow all contractors and subcontractors
performing any of the branches of work listed in subsection (d)
of this section equal input into the preparation of the initial
schedule. Whenever separate contracts are awarded and separate
contractors engaged for a project pursuant to this section, the
public body may provide in the contract documents for resolution
of project disputes through alternative dispute resolution
processes such as mediation or
arbitration.as provided for in subsection (g) of
this section.
(f) Minority goals. - The State
shall have a verifiable ten percent (10%) goal for participation
by minority businesses in the total value of work for each
building project. Each city, county, or other public body shall
adopt, after a notice and public hearing, an appropriate
verifiable percentage goal for participation by minority
businesses in the total value of work for each buildingAs used
in this subsection:
(1) The term
"minority-business" means a business:
a. In which at least
fifty-one percent (51%) is owned by one or
more minority persons, or in the case of a
corporation, in which at least fifty-one
percent (51%) of the stock is owned by one or
more minority persons; and
b. Of which the management
and daily business operations are controlled
by one or more of the minority persons who own
it.
(2) The term "minority
person" means a person who is a citizen or lawful
permanent resident of the United States and who
is:
a. Black, that is, a
person having origins in any of the black
racial groups in Africa;
b. Hispanic, that is, a
person of Spanish or Portuguese culture with
origins in Mexico, South or Central America,
or the Caribbean Islands, regardless of
race;
c. Asian American, that
is, a person having origins in any of the
original peoples of the Far East, Southeast
Asia and Asia, the Indian subcontinent, the
Pacific Islands;
d. American Indian or
Alaskan Native, that is, a person having
origins in any of the original peoples of
North America; or
e. Female.
(3) The term "verifiable
goal" means:
a. For purposes of the
separate prime contract system, that the
awarding authority has adopted written
guidelines specifying the actions that will be
taken to ensure a good faith effort in the
recruitment and selection of minority
businesses for participation in contracts
awarded under this section.
b. For purposes of the
single-prime contract system, that the
awarding authority has adopted written
guidelines specifying the actions that the
prime contractor must take to ensure a good
faith effort in the recruitment and selection
of minority businesses for participation in
contracts awarded under this section; the
required actions must be documented in writing
by the contractor to the appropriate awarding
authority.
c. For purposes of an
alternative contracting system authorized by
the State Building Commission under G.S.
143-135.26(9), that the awarding authority has
adopted written guidelines specifying the
action to be taken to ensure a good faith
effort in the recruitment and selection of
minority businesses for participation in
contracts awarded under this section.The
State, counties, municipalities, and all other
public bodies shall award public building
contracts without regard to race, religion,
color, creed, national origin, sex, age, or
handicapping condition, as defined in G.S.
168A-3. Nothing in this section shall be
construed to require contractors or awarding
authorities to award contracts or subcontracts
to or to make purchases of materials or
equipment from minority-business contractors
or minority-business subcontractors who do not
submit the lowest responsible bid or
bids.
(g) Dispute resolution. - A public entity shall
use the dispute resolution process adopted by the State Building
Commission pursuant to G.S. 143-135.26(12), or shall adopt
another dispute resolution process, which shall include
mediation, to be used as an alterative to the dispute resolution
process adopted by the State Building Commission. This dispute
resolution process will be available to all the parties involved
in the public entity's construction project including the public
entity, the architect, the construction manager, the
contractors, and the first-tier and lower-tier subcontractors
and shall be available for any issues arising out of the
contract or construction process. The public entity may set a
reasonable threshold, not to exceed fifteen thousand dollars
($15,000), concerning the amount in controversy that must be at
issue before a party may require other parties to participate in
the dispute resolution process. The public entity may require
that the costs of the process be divided between the parties to
the dispute with at least one-third of the cost to be paid by
the public entity, if the public entity is a party to the
dispute. The public entity may require in its contracts that a
party participate in mediation concerning a dispute as a
precondition to initiating litigation concerning the
dispute.
(g)(h) Exceptions. - This section
shall not apply to:
(1) The purchase and erection of prefabricated or
relocatable buildings or portions thereof, except
that portion of the work which must be performed at
the construction site.
(2) The erection, construction, alteration, or repair
of a building when the cost thereof is one
hundred thousand dollars ($100,000) or
less. three hundred thousand dollars
($300,000) or less.
Notwithstanding the other provisions of this subsection,
subsection (g) of this section shall apply to any erection,
construction, alteration, or repair of a building by a public
entity."
SECTION 3.1. Article 8 of Chapter 143 is amended
by adding a new section to read:
"§ 143-128.2. Minority business participation goals.
(a) The State shall have a verifiable ten
percent (10%) goal for participation by minority businesses in
the total value of work for each State building project,
including building projects done by a private entity on a
facility to be leased or purchased by the State. A local
government unit or other public or private entity that receives
State appropriations for a building project or other State grant
funds for a building project, including a building project done
by a private entity on a facility to be leased or purchased by
the local government unit, where the project cost is one hundred
thousand dollars ($100,000) or more, shall have a verifiable ten
percent (10%) goal for participation by minority businesses in
the total value of the work; provided, however, a local
government unit may apply a different verifiable goal that was
adopted prior to December 1, 2001, if the local government unit
had and continues to have a sufficiently strong basis in
evidence to justify the use of that goal. On State building
projects and building projects subject to the State goal
requirement, the Secretary shall identify the appropriate
percentage goal, based on adequate data, for each category of
minority business as defined in G.S. 143-128.2(g)(1) based on
the specific contract type.
Except as otherwise provided for in this subsection, each
city, county, or other local public entity shall adopt, after a
notice and public hearing, an appropriate verifiable percentage
goal for participation by minority businesses in the total value
of work for building projects.
Each entity required to have verifiable percentage goals
under this subsection shall make a good faith effort to recruit
minority participation in accordance with this section or G.S.
143-131(b), as applicable.
(b) A public entity shall establish prior to
solicitation of bids the good faith efforts that it will take to
make it feasible for minority businesses to submit successful
bids or proposals for the contracts for building projects.
Public entities shall make good faith efforts as set forth in
subsection (e) of this section. Public entities shall require
contractors to make good faith efforts pursuant to subsection
(f) of this section. Each first-tier subcontractor on a
construction management at risk project shall comply with the
requirements applicable to contractors under this
subsection.
(c) Each bidder, which shall mean first-tier
subcontractor for construction manager at risk projects for
purposes of this subsection, on a project bid under any of the
methods authorized under G.S. 143-128(a1) shall identify on its
bid the minority businesses that it will use on the project and
an affidavit listing the good faith efforts it has made pursuant
to subsection (f) of this section and the total dollar value of
the bid that will be performed by the minority businesses. A
contractor, including a first-tier subcontractor on a
construction manager at risk project, that performs all of the
work under a contract with its own workforce may submit an
affidavit to that effect in lieu of the affidavit otherwise
required under this subsection. The apparent lowest responsible,
responsive bidder shall also file the following:
(1) Within the time specified in the bid
documents, either:
a. An affidavit that includes a
description of the portion of work to be
executed by minority businesses, expressed as
a percentage of the total contract price,
which is equal to or more than the applicable
goal. An affidavit under this sub-subdivision
shall give rise to a presumption that the
bidder has made the required good faith
effort; or
b. Documentation of its good faith effort
to meet the goal. The documentation must
include evidence of all good faith efforts
that were implemented, including any
advertisements, solicitations, and evidence of
other specific actions demonstrating
recruitment and selection of minority
businesses for participation in the
contract.
(2) Within 30 days after award of the
contract, a list of all identified subcontractors
that the contractor will use on the project.
Failure to file a required affidavit or documentation that
demonstrates that the contractor made the required good faith
effort is grounds for rejection of the bid.
(d) No subcontractor who is identified and listed
pursuant to subsection (c) of this section may be replaced with
a different subcontractor except:
(1) If the subcontractor's bid is later
determined by the contractor or construction
manager at risk to be nonresponsible or
nonresponsive, or the listed subcontractor refuses
to enter into a contract for the complete
performance of the bid work, or
(2) With the approval of the public entity
for good cause.
Good faith efforts as set forth in G.S. 143-131(b) shall
apply to the selection of a substitute subcontractor. Prior to
substituting a subcontractor, the contractor shall identify the
substitute subcontractor and inform the public entity of its
good faith efforts pursuant to G.S. 143-131(b).
(e) Before awarding a contract, a public entity
shall do the following:
(1) Develop and implement a minority
business participation outreach plan to identify
minority businesses that can perform public
building projects and to implement outreach efforts
to encourage minority business participation in
these projects to include education, recruitment,
and interaction between minority businesses and
nonminority businesses.
(2) Attend the scheduled prebid
conference.
(3) At least 10 days prior to the
scheduled day of bid opening, notify minority
businesses that have requested notices from the
public entity for public construction or repair
work and minority businesses that otherwise
indicated to the Office of Historically
Underutilized Businesses an interest in the type of
work being bid or the potential contracting
opportunities listed in the proposal. The
notification shall include the following:
a. A description of the work for which
the bid is being solicited.
b. The date, time, and location where
bids are to be submitted.
c. The name of the individual within the
public entity who will be available to answer
questions about the project.
d. Where bid documents may be
reviewed.
e. Any special requirements that may
exist.
(4) Utilize other media, as appropriate,
likely to inform potential minority businesses of
the bid being sought.
(f) A public entity shall require bidders to
undertake the following good faith efforts to the extent
required by the Secretary on projects subject to this section.
The Secretary shall adopt rules establishing points to be
awarded for taking each effort and the minimum number of points
required, depending on project size, cost, type, and other
factors considered relevant by the Secretary. In establishing
the point system, the Secretary may not require a contractor to
earn more than fifty (50) points, and the Secretary must assign
each of the efforts listed in subdivisions (1) through (10) of
this subsection at least 10 points. The public entity may
require that additional good faith efforts be taken, as
indicated in its bid specifications. Good faith efforts include:
(1) Contacting minority businesses that
reasonably could have been expected to submit a
quote and that were known to the contractor or
available on State or local government maintained
lists at least 10 days before the bid or proposal
date and notifying them of the nature and scope of
the work to be performed.
(2) Making the construction plans,
specifications and requirements available for
review by prospective minority businesses, or
providing these documents to them at least 10 days
before the bid or proposals are due.
(3) Breaking down or combining elements of
work into economically feasible units to facilitate
minority participation.
(4) Working with minority trade,
community, or contractor organizations identified
by the Office of Historically Underutilized
Businesses and included in the bid documents that
provide assistance in recruitment of minority
businesses.
(5) Attending any prebid meetings
scheduled by the public owner.
(6) Providing assistance in getting
required bonding or insurance or providing
alternatives to bonding or insurance for
subcontractors.
(7) Negotiating in good faith with
interested minority businesses and not rejecting
them as unqualified without sound reasons based on
their capabilities. Any rejection of a minority
business based on lack of qualification should have
the reasons documented in writing.
(8) Providing assistance to an otherwise
qualified minority business in need of equipment,
loan capital, lines of credit, or joint pay
agreements to secure loans, supplies, or letters of
credit, including waiving credit that is ordinarily
required. Assisting minority businesses in
obtaining the same unit pricing with the bidder's
suppliers in order to help minority businesses in
establishing credit.
(9) Negotiating joint venture and
partnership arrangements with minority businesses
in order to increase opportunities for minority
business participation on a public construction or
repair project when possible.
(10) Providing quick pay agreements and
policies to enable minority contractors and
suppliers to meet cash-flow demands.
(g) As used in this section:
(1) The term "minority business" means a
business:
a. In which at least fifty-one percent
(51%) is owned by one or more minority persons
or socially and economically disadvantaged
individuals, or in the case of a corporation,
in which at least fifty-one percent (51%) of
the stock is owned by one or more minority
persons or socially and economically
disadvantaged individuals; and
b. Of which the management and daily
business operations are controlled by one or
more of the minority persons or socially and
economically disadvantaged individuals who own
it.
(2) The term "minority person" means a
person who is a citizen or lawful permanent
resident of the United States and who is:
a. Black, that is, a person having
origins in any of the black racial groups in
Africa;
b. Hispanic, that is, a person of Spanish
or Portuguese culture with origins in Mexico,
South or Central America, or the Caribbean
Islands, regardless of race;
c. Asian American, that is, a person
having origins in any of the original peoples
of the Far East, Southeast Asia and Asia, the
Indian subcontinent, or the Pacific
Islands;
d. American Indian, that is, a person
having origins in any of the original Indian
peoples of North America; or
e. Female.
(3) The term "socially and economically
disadvantaged individual" means the same as defined
in 15 U.S.C. 637.
(h) The State, counties, municipalities, and all
other public bodies shall award public building contracts,
including those awarded under G.S. 143-128.1, 143-129, and 143-
131, without regard to race, religion, color, creed, national
origin, sex, age, or handicapping condition, as defined in G.S.
168A-3. Nothing in this section shall be construed to require
contractors or awarding authorities to award contracts or
subcontracts to or to make purchases of materials or equipment
from minority-business contractors or minority-business
subcontractors who do not submit the lowest responsible,
responsive bid or bids.
(i) Notwithstanding G.S. 132-3 and G.S. 121-5, all
public records created pursuant to this section shall be
maintained by the public entity for a period of not less than
three years from the date of the completion of the building
project.
(j) Except as provided in subsections (a), (g),
(h) and (i) of this section, this section shall only apply to
building projects costing three hundred thousand dollars
($300,000) or more. This section shall not apply to the purchase
and erection of prefabricated or relocatable buildings or
portions thereof, except that portion of the work which must be
performed at the construction site."
SECTION 3.2. G.S. 113-315.36 reads as rewritten:
"§ 113-315.36. Building contracts.
(a)The following general laws, to the extent provided
below, do not apply to the North Carolina Seafood Industrial
Park Authority:
(1) Repealed by Session Laws 1999-368, s. 1.
(2) Except for G.S. 143-128(f),G.S.
143-128.2, Article 8 of Chapter 143 of the
General Statutes does not apply to public building
contracts of the Authority that require the
estimated expenditure of public money in an amount
less than two hundred fifty thousand dollars
($250,000). With respect to a contract that is
exempted from certain provisions of Article 8 under
this subdivision, the powers and duties set out in
Article 8 shall be exercised by the Authority, and
the Secretary of Administration and other State
officers, employees, or agencies shall have no
duties or responsibilities concerning the contract.
(3) G.S. 143-341(3) does not apply to plans and
specifications for construction or renovation
authorized by the Authority that require the
estimated expenditure of public money in an amount
less than two hundred fifty thousand dollars
($250,000).
(b) Notwithstanding the other provisions of this section, the
services of the Department of Administration may be made
available to the Authority, when requested by the Authority,
with regard to matters governed by Article 8 of Chapter 143 of
the General Statutes and G.S. 143-341(3). The Authority shall
report quarterly to the Joint Legislative Commission on
Governmental Operations on any building contract to which this
exemption is applied. The quarterly report required by this
subsection shall specifically include information regarding the
Authority's compliance with the provisions of G.S. 143-
128(f).G.S. 143-128.2."
SECTION 3.3. G.S. 143-129.4 reads as rewritten:
"§ 143-129.4. Guaranteed energy savings contracts.
The solicitation and evaluation of proposals for
guaranteed energy savings contracts, as defined in Part 2 of
Article 3B of this Chapter, and the letting of contracts for
these proposals are governed solely by the provisions of that
Part; except that guaranteed energy savings contracts are
subject to the requirements of G.S. 143-128(f).
G.S. 143-128.2."
SECTION 3.4. G.S. 143B-437.29 reads as
rewritten:
"§ 143B-437.29. Contracting with minority businesses.
The Authority must comply with the policies regarding
contracting with minority businesses as set out in G.S. 143-48,
143-128(f),143-128.2, and 143-135.5 and
with any other applicable laws. The Authority is subject to
Executive Order Number 150, issued April 20, 1999, regarding
contracting with historically underutilized businesses."
SECTION 3.5. G.S. 158-35(a), as amended by
Section 20.13(a) of S.L. 2001-424, reads as rewritten:
"(a)Commission Membership. - The governing body of the Zone
is the Global TransPark Development Commission. The members of
the Commission must be residents of the Zone and shall be
appointed as follows:
(1) The board of commissioners of each county
participating in the Zone shall appoint three
voting members, one of whom shall be a minority
person as defined in G.S. 143-
128(f)(2)G.S. 143-128.2(g)(2) and
one of whom may be a member of the board of
commissioners.
(2) The Commission shall appoint at least three but no
more than seven voting members. By the appointment
of these members, the Commission shall ensure that
the voting membership of the Commission includes at
least seven women and seven members of a racial
minority described in G.S. 143-
128(f)(2).G.S. 143-128.2(g)(2). The
Commission shall appoint the fewest number of
members necessary to achieve these minimums.
(3) Four nonvoting members shall be appointed as
follows:
a. One appointed by the Chancellor of East
Carolina University to represent the
University.
b. One appointed by a majority vote of the
presidents of the community colleges located
in the Zone, to represent the community
colleges.
c. One appointed by the chair of the State Ports
Authority, to represent the sea ports of the
State.
d. One member of the board of directors of the
Global TransPark Foundation, Inc., appointed
by that board."
SECTION 3.6. Article 8 of Chapter 143 is amended
by adding a new section to read:
"§ 143-128.3. Minority business participation
administration.
(a) All public entities subject to G.S. 143-
128.2 shall report to the Department of Administration, Office
of Historically Underutilized Business, the following with
respect to each building project:
(1) The verifiable percentage goal.
(2) The type and total dollar value of the
project, minority business utilization by minority
business category, trade, total dollar value of
contracts awarded to each minority group for each
project, the applicable good faith effort
guidelines or rules used to recruit minority
business participation, and good faith
documentation accepted by the public entity from
the successful bidder.
(3) The utilization of minority businesses
under the various construction methods under G.S.
143-128(a1).
The reports shall be in the format and contain the data
prescribed by the Secretary of Administration. The University of
North Carolina and the State Board of Community Colleges shall
report quarterly and all other public entities shall report
semiannually. The Secretary of the Department of Administration
shall make reports every six months to the Joint Legislative
Committee on Governmental Operations on information reported
pursuant to this subsection.
(b) A public entity that has been notified by the
Secretary of its failure to comply with G.S. 143-128.2 on a
project shall develop a plan of compliance that addresses the
deficiencies identified by the Secretary. The corrective plan
shall apply to the current project or to subsequent projects
under G.S. 143-128, as appropriate, provided that the plan must
be implemented, at a minimum, on the current project to the
extent feasible. If the public entity, after notification from
the Secretary, fails to file a corrective plan, or if the public
entity does not implement the corrective plan in accordance with
its terms, the Secretary shall require one or both of the
following:
(1) That the public entity consult with
the Department of Administration, Office of
Historically Underutilized Businesses on the
development of a new corrective plan, subject to
the approval of the Department and the Attorney
General. The public entity may designate a
representative to appear on its behalf, provided
that the representative has managerial
responsibility for the construction project.
(2) That the public entity not bid another
contract under G.S. 143-128 without prior review by
the Department and the Attorney General of a good
faith compliance plan developed pursuant to
subdivision (1) of this subsection. The public
entity shall be subject to the review and approval
of its good faith compliance plan under this
subdivision with respect to any projects bid
pursuant to G.S. 143-128 during a period of time
determined by the Secretary, not to exceed one
year.
A public entity aggrieved by the decision of the Secretary
may file a contested case proceeding under Chapter 150B of the
General Statutes.
(c) The Secretary shall study and recommend to the
General Assembly and other State agencies ways to improve the
effectiveness and efficiency of the State capital facilities
development, minority business participation program and good
faith efforts in utilizing minority businesses as set forth in
G.S. 143-128.2, and other appropriate good faith efforts that
may result in the increased utilization of minority
businesses.
(d) The Secretary shall appoint an advisory board
to develop recommendations to improve the recruitment and
utilization of minority businesses. The Secretary, with the
input of its advisory board, shall review the State's programs
for promoting the recruitment and utilization of minority
businesses involved in State capital projects and shall
recommend to the General Assembly, the State Construction
Office, The University of North Carolina, and the community
colleges system changes in the terms and conditions of State
laws, rules, and policies that will enhance opportunities for
utilization of minority businesses on these projects. The
Secretary shall provide guidance to these agencies on
identifying types of projects likely to attract increased
participation by minority businesses and breaking down or
combining elements of work into economically feasible units to
facilitate minority business participation.
(e) The Secretary shall adopt rules for State
entities, The University of North Carolina, and community
colleges and shall adopt guidelines for local government units
to implement the provisions of G.S. 143-128.2.
(f) The Secretary shall provide the following
information to the Attorney General:
(1) Failure by a public entity to report
data to the Secretary in accordance with this
section.
(2) Upon the request of the Attorney
General, any data or other information collected
under this section.
(3) False statements knowingly provided in
any affidavit or documentation under G.S. 143-128.2
to the State or other public entity. Public
entities shall provide to the Secretary information
concerning any false information knowingly provided
to the public entity pursuant to G.S. 143-
128.2.
(g) The Secretary shall report findings and
recommendations as required under this section to the
Joint Legislative Committee on Governmental Operations annually
on or before June 1, beginning June 1, 2002."
SECTION 4. G.S. 143-129(a), as amended by S.L.
2001-328, reads as rewritten:
"(a)Bidding Required. - No construction or repair work
requiring the estimated expenditure of public money in an amount
equal to or more than one hundred thousand dollars
($100,000) three hundred thousand dollars ($300,000)
or purchase of apparatus, supplies, materials, or equipment
requiring an estimated expenditure of public money in an amount
equal to or more than fifty thousand dollars
($50,000)ninety thousand dollars ($90,000) may
be performed, nor may any contract be awarded therefor, by any
board or governing body of the State, or of any institution of
the State government, or of any political subdivision of the
State, unless the provisions of this section are complied with.
For purchases of apparatus, supplies, materials, or
equipment, the governing body of any political subdivision of
the State may, subject to any restriction as to dollar amount,
or other conditions that the governing body elects to impose,
delegate to the manager or the chief purchasing official, or
both, the authority to award contracts, reject bids, or
readvertise to receive bids on behalf of the unit. Any person to
whom authority is delegated under this subsection shall comply
with the requirements of this Article that would otherwise apply
to the governing body."
SECTION 4.1. S.L. 1999-52 is repealed.
SECTION 5. G.S. 143-129(e), as amended by S.L.
2001-328, is amended by adding a new subdivision to read:
"(11) Contracts by a public entity with a
construction manager at risk executed
pursuant to G.S. 143-128.1."
SECTION 5.1. G.S. 143-131 reads as rewritten:
"§ 143-131. When counties, cities, towns and other
subdivisions may let contracts on informal bids.
(a) All contracts for construction or repair
work or for the purchase of apparatus, supplies, materials, or
equipment, involving the expenditure of public money in the
amount of five thousand dollars ($5,000) or more, but less than
the limits prescribed in G.S. 143-129, made by any officer,
department, board, or commission of any county, city, town, or
other subdivision of this State shall be made after informal
bids have been secured. All such contracts shall be awarded to
the lowest responsible responsible,
responsive bidder, taking into consideration quality,
performance, and the time specified in the bids for the
performance of the contract. It shall be the duty of any
officer, department, board, or commission entering into such
contract to keep a record of all bids submitted, and such record
shall not be subject to public inspection until the contract has
been awarded.
(b) All public entities shall solicit minority
participation in contracts for the erection, construction,
alteration or repair of any building awarded pursuant to this
section. The public entity shall maintain a record of
contractors solicited and shall document efforts to recruit
minority business participation in those contracts. Nothing in
this section shall be construed to require formal advertisement
of bids. All data, including the type of project, total dollar
value of the project, dollar value of minority business
participation on each project, and documentation of efforts to
recruit minority participation shall be reported to the
Department of Administration, Office for Historically
Underutilized Business, upon the completion of the project."
SECTION 5.2. G.S. 143-135.5 reads as rewritten:
"§ 143-135.5. State policy; cooperation in promoting the use
of small, minority, physically handicapped and women
contractors; purpose.
(a) It is the policy of this State to encourage
and promote the use of small, minority, physically handicapped
and women contractors in State construction projects. All State
agencies, institutions and political subdivisions shall
cooperate with the Department of Administration and all other
State agencies, institutions and political subdivisions in
efforts to encourage and promote the use of small, minority,
physically handicapped and women contractors in achieving the
purpose of this Article, which is the effective and economical
construction of public buildings.
(b) It is the policy of this State not to accept
bids or proposals from, nor to engage in business with, any
business that, within the last two years, has been finally found
by a court or an administrative agency of competent jurisdiction
to have unlawfully discriminated on the basis of race, gender,
religion, national origin, age, physical disability, or any
other unlawful basis in its solicitation, selection, hiring, or
treatment of another business."
SECTION 6. G.S. 133-1.1(a) reads as rewritten:
"(a)In the interest of public health, safety and economy,
every officer, board, department, or commission charged with the
duty of approving plans and specifications or awarding or
entering into contracts involving the expenditure of public
funds in excess of:
(1) One Three hundred thousand
dollars
($100,000)($300,000) for
the repair of public buildings where such repair
does not include major structural change in framing
or foundation support systems,
(1a) One hundred thousand dollars
($100,000) for the repair of public buildings
affecting life safety systems,
(2) Forty-five thousand dollars
($45,000)One hundred thirty-five
thousand dollars ($135,000) for the repair of
public buildings where such repair includes major
structural change in framing or foundation support
systems, or
(3) Forty-five thousand dollars
($45,000)One hundred thirty-five
thousand dollars ($135,000) for the
construction of, or additions to, public buildings
or State-owned and operated utilities,
shall require that such plans and specifications be prepared by
a registered architect, in accordance with the provisions of
Chapter 83A of the General Statutes, or by a registered
engineer, in accordance with the provisions of Chapter 89C of
the General Statutes, or by both architect and engineer,
particularly qualified by training and experience for the type
of work involved, and that the North Carolina seal of such
architect or engineer together with the name and address of such
architect or engineer, or both, be placed on all such
these plans and specifications."
SECTION 7. G.S. 44A-26(a) reads as rewritten:
"(a)When the total amount of construction contracts awarded
for any one project exceeds one three
hundred thousand dollars
($100,000)($300,000), a performance and
payment bond as set forth in (1) and (2) is required by the
contracting body from any contractor or construction manager
at risk with a contract more than fifteen thousand
dollars ($15,000).fifty thousand dollars
($50,000). In the discretion of the contracting body, a
performance and payment bond may be required on any construction
contract as follows:
(1) A performance bond in the amount of one hundred
percent (100%) of the construction contract amount,
conditioned upon the faithful performance of the
contract in accordance with the plans,
specifications and conditions of the contract. Such
bond shall be solely for the protection of the
contracting body which awarded the
contract.that is constructing the
project.
(2) A payment bond in the amount of one hundred percent
(100%) of the construction contract amount,
conditioned upon the prompt payment for all labor
or materials for which a contractor or
subcontractor is liable. The payment bond shall be
solely for the protection of the persons furnishing
materials or performing labor for which a
contractor or
subcontractorcontractor, subcontractor,
or construction manager at risk is liable."
SECTION 8.(a) G.S. 116-31.11, as enacted and
expired by S.L. 1997-412, is reenacted and reads as rewritten:
"§ 116-31.11. Powers of Board regarding certain fee
negotiations, contracts, and capital improvements.
(a)Notwithstanding G.S. 143-341(3) and G.S. 143-135.1,
the Board shall, with respect to the design, construction, or
renovation of buildings, utilities, and other property
developments of The University of North Carolina requiring the
estimated expenditure of public money of five hundred
thousand dollars ($500,000)two million dollars
($2,000,000) or less:
(1) Conduct the fee negotiations for all design
contracts and supervise the letting of all
construction and design contracts.
(2) Develop procedures governing the responsibilities
of The University of North Carolina and its
affiliated and constituent institutions to perform
the duties of the Department of Administration and
the Director or Office of State Construction under
G.S. 133-1.1(d) and G.S. 143-341(3).
(3) Develop procedures and reasonable limitations
governing the use of open-end design agreements,
subject to G.S. 143-64.34 and the approval of the
State Building Commission.
(b) The Board may delegate its authority under subsection (a)
of this section to a constituent or affiliated institution if
the institution is qualified under guidelines adopted by the
Board and approved by the State Building Commission and the
Director of the Budget.
(c) The University shall use the standard contracts for
design and construction currently in use for State capital
improvement projects by the Office of State Construction of the
Department of Administration.
(d) A contract may not be divided for the purpose of evading
the monetary limit under this section.
(e) Notwithstanding any other provision of this
Chapter, the Department of Administration shall not be the
awarding authority for contracts awarded pursuant to this
section."
SECTION 8.(b) Section 5.1 of S.L. 1997-412 is
repealed.
SECTION 8.(c) Sections 5, 7, 8, and 10 of S.L.
1997-412 are reenacted.
SECTION 8.(d) G.S. 143-341(3) reads as
rewritten:
"(3) Architecture and Engineering:
a. To examine and approve all plans and
specifications for the construction or
renovation of:
1. All State buildings;
buildings or buildings
located on State lands, except those
buildings over which a local building
code inspection department has and
exercises jurisdiction; and
2. All community college buildings requiring
the estimated expenditure for
construction or repair work for which
public bidding is required under G.S.
143-129 prior to the awarding of a
contract for such work; and to examine
and approve all changes in those plans
and specifications made after the
contract for such work has been awarded.
b. To assist, as necessary, all agencies in the
preparation of requests for appropriations for
the construction or renovation of all State
buildings.
b1. To certify that a statement of needs pursuant
to G.S. 143-6 is feasible. For purposes of
this sub-subdivision, "feasible" means that
the proposed project is sufficiently defined
in overall scope; building program; site
development; detailed design, construction,
and equipment budgets; and comprehensive
project scheduling so as to reasonably ensure
that it may be completed with the amount of
funds requested. At the discretion of the
General Assembly, advanced planning funds may
be appropriated in support of this
certification. This sub-subdivision shall not
apply to requests for appropriations of less
than one hundred thousand dollars ($100,000).
c. To supervise the letting of all contracts for
the design, construction or renovation of all
State buildings and all community college
buildings whose plans and specifications must
be examined and approved under a.2. of this
subdivision.
d. To supervise and inspect all work done and
materials used in the construction or
renovation of all State buildings and all
community college buildings whose plans and
specifications must be examined and approved
under a.2. of this subdivision; and no such
work may be accepted by the State or by any
State agency until it has been approved by the
Department.
Except for sub-subdivisions b. and b1. of this
subdivision, this subdivision does not apply to the
design, construction, or renovation of projects by
The University of North Carolina pursuant to G.S.
116-31.11."
SECTION 8.(e) G.S. 133-1.1(d) reads as rewritten:
"(d)On projects on which no registered architect or engineer
is required pursuant to the provisions of this section, the
governing board or awarding authority shall require a
certificate of compliance with the State Building Code from the
city or county inspector for the specific trade or trades
involved or from a registered architect or engineer, except that
the provisions of this subsection shall not apply on
to projects where any of the following
apply:
(1) wherein The plans
and specifications are approved by the Department
of Administration, Division of State Construction,
and the completed project is inspected by the
Division of State Construction and the State
Electrical Inspector, or on projects
Inspector.
(2) The project is exempt from the
State Building Code.
(3) The project has a total projected cost
of less than $100,000 and does not alter life
safety systems."
SECTION 9. G.S. 143-132(b) reads as rewritten:
"(b)For purposes of contracts bid in the alternative between
the separate-prime and single-prime contracts, pursuant to
G.S. 143-128(c) or (d),G.S. 143-128(d1)
each single-prime bid shall constitute a competitive bid in each
of the four subdivisions or branches of work listed in G.S.
143-128(a), and each full set of separate-prime bids shall
constitute a competitive single-prime bid in meeting the
requirements of subsection (a) of this section. If there are at
least three single-prime bids but there is not at least one full
set of separate-prime bids, no separate-prime bids shall be
opened."
SECTION 10.(a) Section 2 of S.L. 1999-102 is
repealed.
SECTION 10.(b) Section 3 of S.L. 1999-102 reads
as rewritten:
"Section 3. This act is effective when it becomes law
and shall expire on June 30, 2003.law."
SECTION 10.(c) Section 8 of S.L. 1999-207 reads
as rewritten:
"Section 8. This act is effective when it becomes law
and expires July 1, 2002.law."
SECTION 10.(d) Notwithstanding Article 8 of
Chapter 143 of the General Statutes, New Hanover Regional
Medical Center may use force account qualified personnel on its
payroll to maintain, repair, renovate, and improve hospital and
medical facilities that it owns, operates, or manages under the
following conditions:
(1) The work is primarily for purposes of ensuring
compliance with the Life Safety Code and other
applicable codes, including requirements of the
Joint Commission on the Accreditation of Healthcare
Organizations, or involves work to the same or
related components or areas of the building at the
time of the compliance work.
(2) The force account labor is qualified to perform and
is capable of performing the work in an active
patient environment.
This subsection 10(d) expires December 31, 2007.
PART II. CONSTRUCTION AND DESIGN ADMINISTRATION
SECTION 11. G.S. 143-135.26 reads as rewritten:
"§ 143-135.26. Powers and duties of the Commission.
The State Building Commission shall have the following
powers and duties with regard to the State's capital facilities
development and management program:
(1) To adopt rules establishing standard procedures and
criteria to assure that the designer selected for
each State capital improvement project and
project, the consultant selected
for planning and studies of an architectural and
engineering nature associated with a capital
improvement project or a future capital improvement
project and a construction manager at risk
selected for each capital improvement project
has the qualifications and experience necessary for
that capital improvement project or the proposed
planning or study project. The rules shall provide
that the State Building Commission, after
consulting with the funded agency, is responsible
and accountable for the final selection of the
designer and the final selection of the
designer, consultant or
construction manager at risk except when the
General Assembly or The University of North
Carolina is the funded agency. When the General
Assembly is the funded agency, the Legislative
Services Commission is responsible and accountable
for the final selection of the designer and
the final selection of thedesigner,
consultant, or the construction manager at risk
and when the University is the funded agency,
it shall be subject to the rules adopted hereunder,
except it is responsible and accountable for the
final selection of the designer and the
final selection of the
consultant.designer, consultant, or
construction manager at risk. All designers and
consultants shall be selected within 60 days of the
date funds are appropriated for a project by the
General Assembly or the date of project
authorization by the Director of the Budget;
provided, however, the State Building Commission
may grant an exception to this requirement upon
written request of the funded agency if (i) no site
was selected for the project before the funds were
appropriated or (ii) funds were appropriated for
advance planning only; provided, further, the
Director of the Budget, after consultation with the
State Construction Office, may waive the 60-day
requirement for the purpose of minimizing project
costs through increased competition and
improvements in the market availability of
qualified contractors to bid on State capital
improvement projects. The Director of the Budget
also may, after consultation with the State
Construction Office, schedule the availability of
design and construction funds for capital
improvement projects for the purpose of minimizing
project costs through increased competition and
improvements in the market availability of
qualified contractors to bid on State capital
improvement projects.
The State Building Commission shall submit a
written report to the Joint Legislative Commission
on Governmental Operations on the Commission's
selection of a designer for a project within 30
days of selecting the designer.
(2) To adopt rules for coordinating the plan review,
approval, and permit process for State capital
improvement projects. and
community college buildings, as defined in
subdivision (4) of this section. The rules shall
provide for a specific time frame for plan review
and approval and permit issuance by each agency,
consistent with applicable laws. The time frames
shall be established to provide for expeditious
review, approval, and permitting of State capital
improvement projects and community college
buildings.
(2a) To adopt rules exempting specified
types of State capital improvement projects,
including community college buildings as defined in
subdivision (4) of this section, from plan
review.
(3) To adopt rules for establishing a post-occupancy
evaluation, annual inspection and preventive
maintenance program for all State buildings.
(4) To develop procedures for evaluating the work
performed by designers and contractors on State
capital improvement projects and those community
college buildings, as defined in G.S. 143-336,
requiring the estimated expenditure for
construction or repair work for which public
bidding is required under G.S. 143-129, and for use
of the evaluations as a factor affecting designer
selections and determining qualification of
contractors to bid on State capital improvement
projects and community college buildings.
(5) To continuously study and recommend ways to improve
the effectiveness and efficiency of the State's
capital facilities development and management
program.
(6) To request designers selected prior to April 14,
1987, whose plans for the projects have not been
approved to report to the Commission on their
progress on the projects. The Department of
Administration shall provide the Commission with a
list of all such projects.
(7) To appoint an advisory board, if the Commission
deems it necessary, to assist the Commission in its
work. No one other than the Commission may appoint
an advisory board to assist or advise it in its
work; andwork.
(8) To review the State's provisions for ensuring the
safety and health of employees involved with State
capital improvement projects, and to recommend to
the appropriate agencies and to the General
Assembly, after consultation with the Commissioner
of Labor, changes in the terms and conditions of
construction contracts, State regulations, or State
laws that will enhance employee safety and health
on these projects.
(9) Effective July 1, 1996,
toTo authorize a State agency, a
local governmental unit, or any other entity
subject to the provisions of G.S. 143-129 to use a
method of contracting not authorized under
G.S. 143-128, including the use of the
single-prime contracting system without soliciting
bids under both the single and separate prime
contract systems.G.S. 143-128. An
authorization under this subdivision for an
alternative contracting method shall be granted
only under the following conditions:
a. An authorization shall apply only to a single
project.
b. The entity seeking authorization must
demonstrate to the Commission that the
alternative contracting method is necessary
because the project cannot be reasonably
completed under the methods authorized under
G.S. 143-128 or for such other reasons as the
Commission, pursuant to its rules and
criteria, deems appropriate and in the
public's interest.
b1. The entity includes in its bid or
proposal requirements that the contractor will
file a plan for making a good faith effort to
reach the minority participation goal set out
in G.S. 143-128.2.
c. The authorization must be approved by
two-thirdsa majority
of the members of the Commission present and
voting.
The Commission shall not waive the requirements of
G.S. 143-129 or G.S. 143-132 for public contracts
unless otherwise authorized by law.
(10) To adopt rules governing review and
final approval of plans that are submitted to the
State Construction Office pursuant to G.S. 58-31-
40. The rules shall provide for the manner of
submission of the plan by the owner, the type of
structural work that may be completed by the owner
pursuant to G.S. 58-31-40(c), and the expeditious
review or completion of review of the plan in a
manner that ensures that the building will meet the
fire safety requirements of G.S. 58-31-40(b).
(11) To develop dispute resolution
procedures, including mediation, for subcontractors
under any of the construction methods authorized
under G.S. 143-128(a1) on State capital improvement
projects, including building projects of The
University of North Carolina, and community college
buildings as defined in subdivision (4) of this
section, for use by any public entity that has not
developed its own dispute resolution process.
(12) To adopt rules governing the use of
open-end design agreements for State capital
improvement projects and community college
buildings as defined in subdivision (4) of this
section, where the fee does not exceed the amount
specified in G.S. 143-64.34(b).
(13) The Commission shall
To submit an annual report of its
activities to the Governor and the Joint
Legislative Commission on Governmental Operations."
SECTION 11.1. G.S. 58-31-40 is amended by adding
the following new subsection to read:
"(c) The Commissioner shall review a plan subject
to subsection (b) of this section within 30 days of submission,
provided that the Commissioner may require one additional 30-day
extension if necessary to complete the review. If the
Commissioner has neither approved nor denied the plan during the
initial 30-day review period, the owner may proceed with the
building site preparation, the building foundation, and any
structural components of the building that are not subject to
inspection for the purposes set forth in subsection (b) of this
section. If the Commissioner has neither approved nor denied the
plan within 60 days of submission, the owner may request review
and final approval under subsection (b) of this section by the
Department of Administration, State Construction Office,
pursuant to rules adopted under G.S. 143-135.26."
PART III. LANDSCAPE ARCHITECTURE LAW CHANGES
SECTION 12.1.(a) G.S. 89A-1(3) reads as rewritten:
"(3) Landscape architecture or the practice of landscape
architecture. - The performance of services in
connection with the development of land areas
where, and to the extent that the dominant purpose
of the services is the preservation, enhancement or
determination of proper land uses, natural land
features, ground cover and planting, naturalistic
and aesthetic values, the settings, approaches or
environment for structures or other improvements,
natural drainage and the consideration and
determination of inherent problems of the land
relating to the erosion, wear and tear, blight or
other hazards. This practice shall include the
preparation of plans and specifications and
supervising the execution of projects involving the
arranging of land and the elements set forth in
this subsection used
thereon in connection with the
land for public and private use and enjoyment,
embracing the following, all
drainage, soil conservation, grading and
planting plans and erosion control, in
accordance with the accepted professional standards
of public health, safety and
welfare.welfare:
a. The location and orientation of
buildings and other similar site elements.
b. The location, routing and design of
public and private streets, residential and
commercial subdivision roads, or roads in and
providing access to private or public
developments. This does not include the
preparation of construction plans for proposed
roads classified as major thoroughfares or a
higher classification.
c. The location, routing and design of
private and public pathways and other
travelways.
d. The preparation of planting plans.
e. The design of surface or incidental
subsurface drainage systems, soil conservation
and erosion control measures necessary to an
overall landscape plan and site design."
SECTION 12.1.(b) The State Board of Examiners
for Engineers and Surveyors and the Board of Landscape
Architects shall agree to a Memorandum of Understanding that
identifies areas of overlap or common practice regarding the
scope of their respective professions and means for resolving
disputes concerning standards of practice, qualifications, and
jurisdiction regarding the identified areas of overlap. The
parties shall send a joint written report to the General
Assembly no later than April 30, 2002, concerning the Memorandum
of Understanding and whether the changes in Section 13.1(a) of
this act should be repealed or modified, and the General
Assembly may consider and take action on the report during its
session in 2002 or at any other time as it may consider
appropriate.
SECTION 12.1.(c) The Legislative Research
Commission is authorized to study the relationship between the
professions of engineering and landscape architecture.
This study shall include an examination of:
(1) The qualifications and education of landscape
architects.
(2) The definition of landscape architecture in G.S.
89A-1(3), as amended by subsection 13.1(a) of this
act, and whether the changes made in subsection
13.1(a) of this act should be repealed or modified.
(3) The areas of overlap or common practice regarding
the scope of the professions of engineering and
landscape architecture.
(4) The governance and procedures of the State Board of
Examiners for Engineers and Surveyors and the Board
of Landscape Architects in their respective roles
in protecting the public health, safety, and
welfare of the people of the State.
In considering appointees to the committee to study this
matter, the appointing authorities shall consider inclusion of
representatives of the following groups:
(1) The State Board of Landscape Architects.
(2) The State Board of Examiners for Engineers and
Surveyors.
(3) The Consulting Engineers Council of North Carolina.
(4) The North Carolina Chapter of the American Society
of Landscape Architects.
(5) The Professional Engineers of North Carolina, Inc.
(6) The North Carolina League of Landscape Architects.
(7) The academic community involved in instruction in
the area of engineering and landscape architecture.
The Legislative Research Commission may make an interim
report to the 2001 General Assembly, Regular Session 2002, and
shall make a final report to the 2003 General Assembly upon its
convening. The reports may include proposed legislation to carry
out the recommendations of the study.
SECTION 12.1.(d) This section is effective when
this act becomes law.
PART IV. MISCELLANEOUS PROVISIONS
SECTION 13. Annually, on or before April 1st,
beginning April 1, 2003, The University of North Carolina and
all other public entities shall report to the Secretary of the
Department of Administration on the effectiveness and
cost-benefit of utilization of each of the construction methods
authorized in G.S. 143-128(a1) that are used by the public
entity. The reports, which shall be initially filed in the year
in which the project is completed, shall be in the format and
contain the data prescribed by the Secretary of Administration
and shall include at least the following:
(1) The type of construction method used on the
project.
(2) The total dollar value of building projects by
specific project with costs.
(3) The bid costs and relevant post-bid costs.
(4) A detailed listing of all contractors and
subcontractors used on the project indicating
whether the contractor or subcontractor was an out-
of-state contractor or subcontractor.
(5) If any contractor or subcontractor was an out-of-
state contractor or subcontractor, the reasons why
the contractor or subcontractor was selected.
The Secretary of the Department of Administration shall
report to the General Assembly on or before May 1st each year on
the information collected pursuant to this section.
SECTION 13.1. The provisions of this act are
severable. In the event that any provision of this act shall be
declared invalid, that invalidity shall not affect the remaining
provisions of this act.
SECTION 13.2. The Legislative Research
Commission may authorize a study of the issue of certification
of minority businesses for public construction purposes and the
problem of substitution of nonminority businesses in place of
minority businesses in public construction projects and the
effect of frustrating the public purpose of attempting to
lawfully increase minority business participation in public
construction projects. The Legislative Research Commission may
file an interim report to the 2002 Session of the 2001 General
Assembly and shall file a final report to the 2003 General
Assembly.
SECTION 13.3.(a) There is appropriated from the
General Fund to the Department of Administration the sum of
seven hundred seventy-one thousand two hundred sixty-four
dollars ($771,264) for the 2001-2002 fiscal year and the sum of
seven hundred forty-eight thousand four hundred seventy-eight
dollars ($748,478) for the 2002-2003 fiscal year to implement
the provisions of this act. The funds shall be allocated as
follows:
Fiscal Year 2001-2002Fiscal Year
2002-2003
Office of the Secretary $ 32,396 $ 64,791
State Construction Office $232,800 $349,810
Office of Historically
Underutilized Business $506,098 $333,877.
SECTION 13.3.(b) There is appropriated from the
General Fund to the Department of Justice the sum of sixty-four
thousand seven hundred ninety-one dollars ($64,791) for the
2002-2003 fiscal year to implement the provisions of this act.
PART V. EFFECTIVE DATE
SECTION 14.(a) Sections 8(a) through 8(e) of this
act become effective July 1, 2001. Section 11.1 of this act
becomes effective March 1, 2002. The remaining sections of
Parts I and II of this act become effective January 1, 2002, and
apply to construction projects for which bids or proposals are
solicited on or after that date. The remainder of this act is
effective when it becomes law. Sections 8(a) through 8(e) of
this act expire December 31, 2006.
SECTION 14.(b) The State Building Commission
shall adopt temporary rules to implement G.S. 143-135.26(10) and
G.S. 143-135.26(11) as enacted by Section 11 of this act no
later than 60 days following the effective date of Section 11 of
this act. The Secretary of Administration shall adopt rules to
implement G.S. 143-128.2(f) as enacted by Section 3.1 of this
act no later than June 30, 2002. A bidder must show compliance
with at least five of the 10 efforts, as set forth in G.S.
143-128.2(f) as enacted by Section 3.1 of this act, until 60
days following the adoption of rules to implement G.S.
143-128.2(f) by the Secretary of Administration as required in
this section.
SECTION 14.(c) A city, county, or other public
entity, other than the State, may apply verifiable percentage
goals enacted prior to the effective date of Section 3.1 of this
act to building projects undertaken on or after the effective
date of Section 3.1 of this act.
In the General Assembly read three times and ratified
this the 6th day of December, 2001.
_____________________________________
Marc Basnight
President Pro Tempore of the
Senate
_____________________________________
James B. Black
Speaker of the House of
Representatives
_____________________________________
Michael F. Easley
Governor
Approved __________.m. this ______________ day of
___________________, 2001