State funded construction projects/preference provisions.

WORKING DRAFT

ORIGINAL SENATE
FILE

NO.
0144

ENROLLED ACT NO. 67, SENATE

SIXTY-FIRST LEGISLATURE OF THE STATE OF
WYOMING
2011 GENERAL SESSION

AN ACT relating to
administration of government; modifying procurement requirements for expenditures for capital construction projects through the remainder of the fiscal biennium;
modifying and
specifying preference requirements;
providing for waivers of the requirements; authorizing modifications by executive order;
providing for further study;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 16
‑
6
‑
1001 is created to read:

ARTICLE 10
CAPITAL CONSTRUCTION PROJECTS TEMPORARY RESTRICTIONS

16
‑
6
‑
1001.

Capital construction projects restrictions;
preference requirements; waivers;
sunset of section.

(a)

Unless otherwise prohibited by federal law, any funds appropriated or authorized for expenditure during the fiscal biennium ending June 30, 2012, which have not been encumbered
,
obligated by contract
or designed
as of January 17, 2011, for capital construction projects shall be subject to the restrictions of this section which shall be construed where possible as complimentary and consistent with other statutory requirements relating to competitive bidding and contractor preferences. To the extent the restrictions in this section are inconsistent with other state statutes, this section shall supersede all such inconsistent provisions and shall govern
. This section shall be applied as follows
:

(i)

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

(A)

All contracts shall require the construction manager
at risk or design builder
to conduct an open bid process in compliance with Wyoming contractor preference laws before awarding any subcontracts for work to be performed for the project
;

(B)

Unless exempted
pursuant to subparagraph (C) of this paragraph
the construction manager
at risk or design builder
shall award to
responsible
Wyoming resident contractors not less than
seventy percent (
70%
)
of the value of the total subcontract work to be performed for the project;

(C)

The requirement
of subparagraph (B) of this paragraph
may be waived
in part
upon a written determination that
:

(
I
)

T
he work to be performed is specialized or of such a scale that it can be more suitably performed by out
-
of
-
state contractors
;

(
II
)

T
he
bid amounts
submitted by
responsible
Wyoming

sub
contractors exceed one hundred five percent (105%) of the costs of out
-
of
-
state providers for equivalent quality of work or services
;

(III)

T
he enforcement of
the requirement
would unreasonably delay completion of construction
;

(IV)

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

(V)

If the requirement of subparagraph (B) of this paragraph is waived in part, the remaining value of the total subcontract work to be performed for the project is subject to the requirement of subparagraph (B) of this paragraph.

(D)

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

(I)

For projects to be completed by the
s
tate of
Wyoming
, by the
d
irector of the
d
epartment of
a
dministration and
i
nformation;

(II)

For projects to be completed by the
University
of
Wyoming
, by the
p
resident of the
u
niversity and the
p
resident of the
b
oard of
t
rustees;

(III)

F
or projects
subject to review
by
the
s
chool
f
acilities
c
ommission, by the
d
irector of the
s
chool
f
acilities
c
ommission and the
c
hairman of the
b
oard of the
s
chool
f
acilities
c
ommission;

(IV)

F
or projects completed by
a

c
ommunity
c
ollege, by the
c
ommunity
c
ollege
p
resident and its
c
hairman of the
b
oard
of t
rustees
;

(V)

For all other projects, by the respective governing body.

(E)

Any approved waiver shall be documented in writing and provided to the g
overnor and the
j
oint
a
ppropriations
interim

c
ommittee.

(ii)

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

(A)

T
he procurement of furniture, fixtures and equipment shall be done by competitive bid based upon either
:

(I)

G
eneric specifications
;

or

(II)

S
pecifications addressing performance standards and functional requirements determined by the agency, but
without
specification of indiv
id
ual brands or manufacturers.

(B)

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

(C)

A five percent
(5%)
preference shall be granted to
responsible
Wyoming
re
si
dent suppliers for procurements
subject to this paragraph
;

(D)

The requirements of subparagraph (A) or (B) of this paragraph may be waived for
furniture,
fixtures or equipment upon a written determination that the
furniture,
fixtures or equipment requirements of the project are so specialized
or that an item or type of furniture, fixture or equipment is so unique or uncommon
that failure to waive the requirements would materially impair the functionality of the project. Waivers under this subparagraph shall be approved by the persons listed in subparagraph (a)(i)(D) of this section and are subject to subparagraph (a)(i)(E) of this section.

(
iii
)

All bids shall be open
ed
in public in an office of the agency soliciting the bid;

(
iv
)

Contractor progress p
ayment
s
shall be made only after
the
agency
has been supplied with applicable
lien waiver
s

signed by
the m
aterialm
a
n, subcontractor
or
laborer
, as applicable
, or upon the
contractor
's

a
ffidavit that all materialmen
,
subcontractors
and laborers
have been paid
for that portion of payment requested
, less any contracted amounts held for retainage or
for
which the
re is

a
reasonable basis for dispute
.

(b)

No funds subject to this section shall be expended unless the
contracting agenc
y

has

submitted a plan to the governor and the joint appropriations
interim
committee which
promote
s
the employment of
responsible
Wyoming resident
design firms
, including professional architectural and engineering services as defined by W.S. 9
‑
2
‑
1028(a)(v),

in the planning and design phases of facilities
funded with monies subject to this section
.
The
plans shall allow for partnerships between
responsible
Wyoming

design

firms
,
including professional architectural and engineering services,

and
nonresident
firms when necessary to secure specialized services required for a project.

The contracting agency shall evaluate and consider overall qualifications, residency, fee proposal, past performance and level of services in the final decisions.

(c)

A
ny
agenc
y

which has
received
an appropriation of state
fund
s

on or after July 1, 2008,
for
any capital construction project
shall
conduct a review of
each
project funded with state funds to assess whether contractors that were awarded contracts using a
resident
preference complied in all respects to
applicable resident
preference
laws
. If the agency determines that there is reasonable suspicion that a contractor failed to comply with the
resident
preference
laws
, the
agency
shall report
the matter
to the
department of employment and the
a
ttorney
g
eneral
. The
department of employment and the
attorney general
shall take
such
enforcement action on behalf of the
s
tate of
Wyoming
and the agency against the contractor
as
they deem
appropriate
.

(d)

The
g
overnor may modify any requirement of this
s
ection by
e
xecutive
o
rder if he de
termines
it to be necessary to promote effective competitive bidding.
Any order
shall be effective only
until June 30,

2012 or until
superseded by
law
.

(e)

This section is repealed effective June 30, 2012.

Section 2.

The joint appropriations
interim
committee shall study the impacts of the statutory changes under this act and shall propose permanent changes to contractor preference laws consistent with this act. The committee shall further propose changes to the
resident preference laws as it determines necessary to effectively enforce those laws and to deter violations of those provisions. The committee shall present its recommendations for consideration in the 2012 budget session.

Section 3.

This act is effective immediately upon co
m
pletion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constit
u
tion.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the Senate.

Chief Clerk

1