April 7, 2014 · 8:57 AM
Senator Neal Hunt, Chair, and Representative Dean Arp, House Co-Chair, helm the Purchase and Contract Study Committee, which is currently considering prequalification reform in North Carolina.
Statutes governing the procurement of public construction contracts are intended to promote honest and open bidding procedures, thereby placing interested contractors on an equal footing when competing for the work. A Pennsylvania court observed way back in 1908 that it is the duty of public awarding authorities “to see that the purposes aimed at by the laws shall be effected in good faith.”
Many contractors are skeptical that standard is being met in North Carolina.
As I’ve previously written, a number of prime contractors recently testified before the General Assembly’s Purchase and Contract Study Committee about how the statute permitting prequalification of bidders is often misused so that certain contractors are favored over others, particularly in the construction management at-risk context. The opportunity for misuse arises from the utter lack of any statutory direction for exercising the right to prequalify under existing law (click image below for larger version):
Thankfully, the Committee appears ready to recommend extensive and significant modifications to this bare-bones statute.
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Filed under Project Delivery Systems, Public Bidding, State law, policy & news
Tagged as abuses in prequalification, bidder prequalification, CM At-Risk, construction management at-risk, lowest responsible bidder NC, lowest responsible responsive bidder, nc bidder prequalification, public contracting nc
October 30, 2011 · 11:30 AM
Construction attorneys learn early on that there are two forms of “construction management” – “pure” construction management, where the construction manager is an agent of the owner (“CM-Agency”); and construction management “at-risk,” where the construction manager is legally responsible for delivering the project on-time and on-budget (“CM At-Risk”). A CM-Agent helps the owner manage/make critical decisions about a project, but does not actually commit to delivering the project on-time or on-budget, and does not enter into subcontracts with trade contractors. Compare the CM At-Risk, who is “at risk” to the owner for the project schedule and cost and also “at risk” to the subcontractors for timely payments down the chain.
Seems simple enough. But what does this distinction actually mean in the real world? I recently stumbled upon this concise, helpful article from a representative of Holder Construction in Atlanta clarifying the practical differences between CM-Agency and CM At-Risk. The article emphasizes that CM-Agency is a method for managing a construction project, while CM At-Risk is a project delivery system (competing with other methods such as single prime, multi-prime, design-build, etc.). That distinction is critical, and demonstrates that comparing CM-Agency and CM At-Risk is a lot like comparing apples and oranges.
Assume you’re an owner in the early stages of planning a new project and assembling the project team. Maybe you don’t have in-house staff with construction management experience, or maybe (if you’re REALLY fortunate in these difficult times) you have multiple projects to manage but insufficient staff to handle all the decision-making and day-to-day responsibilities those projects entail. You might be in the market for a “pure” construction manager, someone who is in your corner and serving your interests exclusively throughout the project, including hiring the design team, evaluating what industry form contracts to utilize and managing day-to-day construction operations once the shovels hit the dirt.
The CM-Agent can also help you decide early on what project delivery method to utilize. And if the project is on a fast track schedule, requiring timely budgetary input from the builder during the design phase, the CM At-Risk project delivery system might be the CM-Agent’s recommendation. Unlike the CM-Agent, the CM At-Risk is not, from a project relationship perspective, entirely in the owner’s corner. Because it serves as the guarantor of the project’s schedule and budget, the relationship between the owner and the CM At-Risk, no matter how strong the team approach to the project may be, is inherently adversarial.
Viewed in light of this hypothetical, then, CM-Agency and CM At-Risk are not opposites. “CM-Agency v. CM At-Risk” is not an either-or proposition. Project owners should not think in terms of choosing between CM-Agency and CM At-Risk. Instead, and under the right set of circumstances, they can be complimentary project management and delivery tools, utilized together to ensure a successful project.