§ 143-128.1. Construction management at risk contracts.
§ 143‑128.1. Construction management at risk contracts.
(a) For purposes ofthis section and G.S. 143‑64.31:
(1) "Constructionmanagement 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, andconstruction administration.
(2) "Constructionmanagement at risk services" means services provided by a person,corporation, or entity that (i) provides construction management services for aproject throughout the preconstruction and construction phases, (ii) who islicensed as a general contractor, and (iii) who guarantees the cost of theproject.
(3) "Constructionmanager at risk" means a person, corporation, or entity that providesconstruction management at risk services.
(4) "First‑tiersubcontractor" means a subcontractor who contracts directly with theconstruction manager at risk.
(b) The constructionmanager at risk shall be selected in accordance with Article 3D of thisChapter. Design services for a project shall be performed by a licensedarchitect or engineer. The public owner shall contract directly with thearchitect or engineer.
(c) The constructionmanager at risk shall contract directly with the public entity for allconstruction; shall publicly advertise as prescribed in G.S. 143‑129; andshall prequalify and accept bids from first‑tier subcontractors for allconstruction work under this section. The prequalification criteria shall bedetermined by the public entity and the construction manager at risk to addressquality, performance, the time specified in the bids for performance of thecontract, the cost of construction oversight, time for completion, capacity toperform, and other factors deemed appropriate by the public entity. The publicentity shall require the construction manager at risk to submit its plan forcompliance with G.S. 143‑128.2 for approval by the public entity prior tosoliciting bids for the project's first‑tier subcontractors. Aconstruction manager at risk and first‑tier subcontractors shall make agood faith effort to recruit and select minority businesses for participationin contracts pursuant to G.S. 143‑128.2. A construction manager at riskmay 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 obtainedin a timely manner, and (ii) the public entity approves of the constructionmanager 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 GeneralStatutes. The construction manager at risk shall act as the fiduciary of thepublic entity in handling and opening bids. The construction manager at riskshall award the contract to the lowest responsible, responsive bidder, takinginto consideration quality, performance, the time specified in the bids forperformance of the contract, the cost of construction oversight, time forcompletion, compliance with G.S. 143‑128.2, and other factors deemedappropriate by the public entity and advertised as part of the bidsolicitation. The public entity may require the selection of a different first‑tiersubcontractor for any portion of the work, consistent with this section,provided that the construction manager at risk is compensated for anyadditional cost incurred.
When contracts are awardedpursuant to this section, the public entity shall provide for a disputeresolution procedure as provided in G.S. 143‑128(f1).
(d) The constructionmanager at risk shall provide a performance and payment bond to the publicentity in accordance with the provisions of Article 3 of Chapter 44A of theGeneral Statutes. (2001‑496,s. 2.)