The Honorable Barbara Horn State Senator P.O. Box 64 Foreman, AR 71836-0064
Dear Senator Horn:
You have requested my opinion concerning construction management agreements for work performed for school districts.
You note that A.C.A. § 19-4-1415 addresses the treatment of some contracts in the context of projects exceeding five million dollars. Although your specific concern is not entirely clear, you appear to be asking what requirements are applicable to construction management agreements for work performed for school districts in connection with projects that are less than five million dollars. More specifically, I understand your question to be:
What requirements apply to construction management agreements for school district projects that do not exceed five million dollars?
RESPONSE
It is my opinion that a construction management agreement for a school district project that does not exceed five million dollars is governed by the provisions of A.C.A. § 19-11-801 et seq.
Various provisions in that set of statutes are pertinent. The first is A.C.A. § 19-11-801, which states:
(a) It is the policy of the State of Arkansas and its political subdivisions that state agencies and political subdivisions shall follow the procedures stated in this section, except that competitive bidding shall not be used for the procurement of legal, architectural, engineering, construction management, and land surveying professional consultant services, if:
(1) State agencies not exempt from review and approval of the Arkansas Building Authority shall follow procedures established by the authority for the procurement of architectural, engineering, land surveying, and construction management services; and
(2) Institutions of higher education exempt from review and approval of the authority shall follow procedures established by their governing boards for the procurement of architectural, engineering, land surveying, and construction management professional consultant services.
(b) Public school districts shall negotiate contracts for construction management in the same manner as set forth in subsection (a) of this section, except that a two-thirds vote of the board of directors of a public school district shall not be required for a school district to negotiate a contract for construction management.
A.C.A. § 19-11-801 (emphasis added).
In addition, A.C.A. § 19-11-802(d) states:
(d)(1) A public school district that utilizes construction management services shall encourage construction management firms to submit to the school district annual statements of qualifications and performance data or may request such information as needed for a particular public project.
(2) The public school district shall evaluate current statements of qualifications and performance data on file with the school district or when submitted as requested whenever a project requiring professional services of a construction manager is proposed.
(3) The public school district shall not use competitive bidding for the procurement of professional services of a construction manager.
A.C.A. § 19-11-802(d).
Finally, A.C.A. § 19-11-805 states:
(a) For the basis of negotiations, the state agency or political subdivisions and the selected firm shall jointly prepare a detailed, written description of the scope of the proposed services.
(b)(1)(A) If the state agency or political subdivision is unable to negotiate a satisfactory contract with the firm selected, negotiations with that firm shall be terminated.
(B) The state agency or political subdivision shall then undertake negotiations with another of the qualified firms selected.
(2)(A) If there is a failing of accord with the second firm, negotiations with the firm shall be terminated.
(B) The state agency or political subdivision shall undertake negotiations with the third qualified firm.
(c) If the state agency or political subdivision is unable to negotiate a contract with any of the selected firms, the agency shall reevaluate the necessary professional services, including the scope and reasonable fee requirements, again compile a list of qualified firms and proceed in accordance with the provisions of this subchapter.
(d) When unable to negotiate a contract for construction management, a public school district shall also perform a reevaluation of services in accordance with subsection (c) of this section.
A.C.A. § 19-11-805 (emphasis added).
All interested parties should, in consultation with their counsel, review the remaining provisions of Subchapter 800 to ascertain any other requirements that might be applicable.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General