TN Code § 54-1-504 (2021)
2021 Tennessee Code|Title 54 - Highways, Bridges and Ferries|Chapter 1 - Department of Transportation|Part 5 - Tennessee Department of Transportation Contracts for Construction Manager/general Contractor Services|§ 54-1-504. Multi-Phase Process for Selecting the Cm/gc That Is the Most Responsive and Responsible Proposer

  If the commissioner determines that the CM/GC method of procurement is appropriate for a project, the commissioner shall establish a multi-phase process as described in subdivisions (b)(1)-(4) to select the CM/GC that is the most responsive and responsible proposer.    Phase 1 of the process is the appointment of the selection committee, as follows:  For each request for proposal (RFP) for CM/GC services, the commissioner shall appoint a selection committee to evaluate and score all responsive proposals in accordance with the procedures established in the RFP;   The selection committee shall have a total of eight (8) members. The commissioner shall appoint five (5) department employees to the selection committee based on their qualifications and experience, including at least one (1) employee who is a licensed professional engineer in this state;   In addition, the commissioner shall appoint three (3) members who are not employees of the department, all of whom must be residents of this state, with one (1) member appointed from and residing in each grand division of the state. At least two (2) of these three (3) members must have a minimum of ten (10) years of construction or highway engineering design experience, and at least one (1) of these two (2) members must have a valid professional engineering license. The other one (1) of these three (3) members must have either a minimum of ten (10) years of construction or highway engineering design experience or a minimum of five (5) years of employment experience in a banking, finance, accounting, surety, or insurance position.     Phase 2 of the process is the development and issuance of the request for proposals (RFP), as follows:  The RFP used to solicit a CM/GC proposal shall be reviewed by the selection committee established under subdivision (b)(1). Prior to the issuance of the RFP, the selection committee shall approve the proposed RFP indicating that the RFP complies with the requirements in this part, in a closed meeting that is not open to the public and by a majority vote;   The RFP shall not require prior experience with any particular project delivery method as a condition for submitting a responsive proposal. Further, the RFP shall not solicit information concerning prior experience with any particular contract delivery method, and the RFP shall not give any credit or preference for any particular contract delivery method experience in the scoring of any proposal. The RFP shall include, but not be limited to, the following:   The procedures for submitting proposals and the criteria for evaluating qualifications and the relative weight for each criterion as indicated in the technical score matrix, which shall be attached to the RFP;   The form of the contract to be awarded for pre-construction services;   A listing of the types and scope of pre-construction services that will be required;   The scope of the intended construction work, with a requirement that the CM/GC, if awarded the construction contract, shall complete at least thirty percent (30%) of the negotiated construction cost of the entire project internally. The cost for pre-construction services shall not be considered part of the thirty percent (30%) but may be considered a specialty item;   Any budget limits for the construction project and the pre-construction services;   The method of payment and structure of fees for the pre-construction services;   A requirement that the proposer submit relevant information regarding any licenses, registration and credentials that may be required to construct the project, including information on the revocation or suspension of any license, registration or credential. A Tennessee contractor's license shall not be required to submit a proposal or to be considered for award of a contract for pre-construction services; provided, however, that a Tennessee contractor's license shall be required prior to the execution of any contract for pre-construction services or to construct the project;   A requirement that the proposer submit evidence that establishes the entity has the capacity to obtain the required bonding and insurance for the project;   A requirement that the proposer submit information concerning any debarment or default from a federal, state or local government project within the past five (5) years;   A requirement that the proposer provide information concerning the bankruptcy or receivership of any member of the entity including information concerning any work completed by a surety;   A requirement that the proposing firm provide evidence that the proposing firm has actual experience in the successful construction of other highway transportation projects, as well as the competency, capability and capacity to complete a project of similar size, scope or complexity; and further, the proposing firm may not rely on the construction experience of a subcontractor or other team member for the purpose of meeting this requirement;   An affidavit that shall be signed by each proposer competing for a CM/GC contract affirming that the company, its agents, subcontractors and employees have not violated the prohibitions described in subdivisions (b)(3)(F) and (G); and   A prohibition that excludes any person or firm that has received compensation for assisting the department in preparing the RFP from submitting a proposal in response to the RFP, or participating as a CM/GC team member;     Once the selection committee has approved the RFP and determined that it complies with the requirements of this part, the RFP shall be published on the department's Internet web site, and may be advertised in a newspaper of general circulation in the region of the state where the work is to be performed and/or published in such other internet or print media of general circulation so as to afford an opportunity for qualified firms to be considered for award of the contract.     Phase 3 of the process, which may be known as the “CM/GC Selection-Design Phase,” is as follows:  The department's RFP shall establish a procedure for the evaluation and selection of a CM/GC to perform pre-construction services and potentially construct the project. Members of the selection committee are to be instructed as to their responsibilities and duties, as established in this part, prior to their review or evaluation of the proposals;   All proposals received by the department in response to the RFP, and any documents used by the selection committee to evaluate and score the proposals, shall remain confidential and not subject to disclosure to any proposer or to the public until after the department issues a written notice of award as provided in subdivision (b)(3)(E);   The RFP may provide for the selection committee to make an initial review and evaluation of interested proposers through a request for qualifications (RFQ), with a more detailed proposal to be submitted by a selected list of proposers, and it may provide for interviews or presentations. The RFP may also provide for a process by which members of the selection committee, through a department employee identified in the RFP as a point of contact, may request and obtain information on technical matters to assist them in the evaluation of proposals;   Upon completion of the evaluation process, each member of the selection committee shall independently review and score the proposals. Each member shall score the proposals pursuant to the scoring matrix that the department provides in the RFP and based on the RFP's evaluation criteria. The scores will be tallied and averaged according to the procedure established in the RFP; provided, however, that the scores of the two (2) selection committee members giving the highest and lowest scores on a proposal shall be excluded when computing the average score for each proposal. Upon completion of the scoring, the proposals will be ranked in order of the highest aggregate score to the lowest aggregate score. The proposer whose proposal receives the highest aggregate score will be considered the best-evaluated proposer;   The proposals shall be submitted in rank order to the commissioner. The commissioner may either accept the selection committee's recommendation of the best-evaluated proposer, or the commissioner may reject all proposals and proceed with construction of the project through any lawful method for procuring a construction services contract. The department shall send all proposers a written notice of award to the best-evaluated proposer, or a written notice that all proposals have been rejected. If the department issues a written notice of award, the notice shall include a copy of the scores from each member of the selection committee for each RFP proposal;   Throughout the selection process:   The members of the selection committee shall not communicate with each other concerning their review or evaluation of the proposals;   Any entity that submits a proposal in response to the RFP, as well as their employees, agents and subcontractors, shall not communicate with any member of the selection committee, or with any employee or official of the department, concerning the review or evaluation of any proposal, except that a proposer may communicate with those department employees who are specifically listed in the RFP as appropriate points of contact and in accordance with procedures established in the RFP that allow proposers to communicate with entities such as utilities and permit agencies. Any proposer's failure to comply with this restriction shall render said proposer's RFP response ineligible for selection;   To confirm that no member of the selection committee has been improperly influenced, prior to reviewing the RFP responses, each committee member must affirmatively complete an affidavit indicating that such member has not discussed the proposals or such member's review of the same with any other selection committee member, with any department employee other than those listed in the RFP as an appropriate point of contact, or with any of the proposers, their agents, employees or subcontractors;   Each member of the selection committee shall also be required to complete an affidavit stating that such member is not aware of having any conflict of interest, financial or otherwise, regarding the member's ability to fairly evaluate all proposals;     Entities competing for a CM/GC contract are also prohibited from offering or paying a contingency fee of any type that is directly tied to specific actions or work designed to help the proposer obtain a contract through the CM/GC RFP process. The selected CM/GC firm shall complete an affidavit affirming this information before being awarded a contract. Falsely affirming that a contingency fee, associated with the CM/GC RFP process, was neither offered nor paid shall be grounds for debarment of the proposer under official compilation Rules and Regulations of the State of Tennessee, Chapter 1680-05-01, governing suspension and debarment for department contractors.     Phase 4 of the process, which may be known as the “CM/GC Selection- Construction Phase,” is as follows:  Once the design has been completed, or has been sufficiently developed to allow the CM/GC to prepare a proposed guaranteed maximum price for construction of the project, or a part of the project, the department shall conduct the steps described in subdivision (4)(B) before proceeding with any construction of the project;   The department shall:   Prepare and compile the contract plans, specifications, special provisions, and other requirements which will comprise the contract for construction of the project;   Prepare a detailed construction cost estimate to evaluate the appropriate price for construction of the project as designed; and   If directed by the commissioner, have an independent third-party estimator prepare a detailed construction cost estimate to confirm the appropriate price for construction of the project as designed;     The department's detailed construction cost estimate, and any construction cost estimate prepared by an independent third-party estimator, shall not be disclosed to the CM/GC, and shall remain confidential and not subject to public disclosure until after award of the contract for construction of the project;   The contract shall require the CM/GC to self-perform a portion of the construction work comprising at least thirty percent (30%) of the total cost for construction, excluding specialty items. The cost for pre-construction services shall not be considered part of the thirty percent (30%) but may be considered a specialty item;   Based on the contract plans, specifications, special provisions, and other contract terms and conditions compiled by the department, the CM/GC shall prepare a guaranteed maximum price, including any authorized contingency, for construction of the project. When completed, the CM/GC's proposed GMP shall be submitted to the department for review. The CM/GC's proposed GMP shall otherwise remain confidential and not subject to public disclosure until after award of the contract for construction of the project;   The department shall compare the CM/GC's proposed GMP with its own confidential construction estimate, and with any construction estimate prepared by an independent third-party estimator. If the GMP does not exceed the department's estimate, or the independent third-party estimate, by more than ten percent (10%), the commissioner may, but is not required to, award the contract for construction of the project to the CM/GC;   If the commissioner rejects the proposed GMP, the department may continue to conduct contract discussions with the CM/GC to develop an acceptable GMP for the project as designed. Alternatively, the department may direct the CM/GC to provide additional pre-construction services as needed to assist in the further development of contract plans, terms, or specifications for the purpose of repeating the Phase 4 process steps established in this subdivision (b)(4);   If the CM/GC and the commissioner are unable to reach agreement on the GMP, the commissioner may proceed with construction of the project through the low bid procurement process.