Arizona 55th Legislature - 1st Regular Session Status: Enacted 4 R cosponsors

HB 2876 — government contracts; public-private partnerships

Last action — Signed by Governor

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  1. ✓
    Introduced
  2. ✓
    In Committee
  3. ✓
    Passed House
  4. ✓
    Passed Senate
  5. ✓
    To Executive
  6. 6
    Enacted

This bill has been enacted into law. Introduced February 10, 2021. Enacted.

Prognosis

Likely to advance 64% · moderate confidence

Where this bill stands today.

Odds of enactment

High

How often bills like it became law.

  • Enacted

    Current position in the legislative process.

  • 5 sponsors

    1 primary, 4 co-sponsors signed on.

  • Single-party support

    Sponsorship is currently within one party (4 R).

  • Mixed recorded votes

    3 passed, 1 failed in recorded votes so far.

Prognosis reads this bill's own signals — stage, sponsorship breadth, committee status, recorded votes and cross-state momentum. Odds come from a model trained on which bills have become law.

Bill Text

What changed in the latest version

271 added · 127 removed

Plain-language change summary

The recent amendment to Bill HB 2876 introduces a two-phase process for awarding design-build contracts, ensuring that the selection team includes a mix of qualified professionals such as architects, engineers, and contractor representatives. This change aims to enhance transparency and fairness in the bidding process for public projects. Additionally, the revised bill removes previous provisions that would have allowed private partners to recover costs related to project delays caused by the department, thus shifting more risk back onto those private partners. These adjustments are important as they could significantly impact how public contracts are awarded and the responsibilities of private contractors in Arizona.

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HB2876 - 551R - H Ver       House Engrossed   government contracts;
Chapter 0341 - 551R - S Ver of HB2876     Senate Engrossed House Bill   government contracts;
public-private partnerships         State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session       HOUSE BILL 2876       AN ACT   amending sections 28-7705 and 34-603, Arizona Revised Statutes;
public-private partnerships       State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session       CHAPTER   HOUSE BILL 2876     AN ACT   amending sections 28-7365, 28-7705 and 34-603, Arizona Revised Statutes;
Section 28-7365, Arizona Revised Statutes, is amended to read:
START_STATUTE28-7365.
Design-build;
two-phase solicitation A.
If the department determines that the design-build method of project delivery is appropriate, the department shall establish a two-phase procedure for awarding the design-build contract.
The department shall limit each solicitation for a design-build contract to a specific single project.
B.
During phase one, and before solicitation, the director shall appoint a selection team of at least three persons.  At least one-half of the selection team shall be architects or engineers who are registered pursuant to section 32-121.
The selection team members may be either department employees or outside consultants.
The selection team shall also include at least one person who is a senior management employee of a licensed contractor who is not involved in the project.
Any architect or engineer who is serving on the selection team and who is not a department employee shall not be otherwise involved in the project.
The department shall prepare documents for a request for qualifications.
C.
The request for qualifications shall include all of the following:
1.
The minimum qualifications of the design-builder.
2.
A scope of work statement and schedule.
3.
Documents defining the project requirements.
4.
The form of contract to be awarded.
5.
The selection criteria for compiling a short list and the number of firms to be included on the short list.
At least three but not more than five firms shall be included on the short list.
6.
A description of the phase two requirements and subsequent management needed to bring the project to completion.
7.
The maximum time allowable for design and construction.
8.
The department's estimated cost of design and construction.
D.
The selection team shall evaluate the design-build qualifications of responding firms and shall compile a short list of firms in accordance with technical and qualifications-based criteria.
The number of firms on the short list shall be the number of firms specified in the request for qualifications, except that, if a smaller number of firms responds to the solicitation or if one or more of the firms on the short list drop out so that only two firms remain on the short list, the selection team may proceed with the selection process with the remaining firms if at least two firms remain or the department may readvertise as the department deems necessary.
E.
During phase two, the department shall issue a request for proposals to the design-builders on the short list.
The request shall include:
1.
Show all 121 changed rows (81 more)
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The scope of work, including programmatic, performance and technical requirements, conceptual design, specifications and functional and operational elements for the delivery of the completed project, which shall all be prepared by an architect or engineer, as appropriate, who is registered pursuant to section 32-121.
2.
A description of the qualifications required of the design-builder and the selection criteria, including the weight or relative order, or both, of each criterion.
3.
Copies of the contract documents that the successful proposer will be expected to sign.
4.
The maximum time allowable for design and construction.
5.
The department's estimated cost of design and construction.
6.
The requirement that a proposal be segmented into two parts, a technical proposal and a price proposal.
Each proposal shall be in a separately sealed, clearly identified package and shall include the date and time of the submittal deadline.
The technical proposal shall include a schedule, schematic design plans and specifications, technical reports, calculations, permit requirements, applicable development fees and other data requested in the request for proposals.
The price proposal shall contain all design, construction, engineering, inspection and construction costs of the proposed project.
7.
The date, time and location of the public opening of the sealed price proposals.
8.
Other information relevant to the project.
F.
If stated in the request for proposals, in order to inform each firm whether the firm's concept is responsive to the request for proposals, the department may enter into a separate confidential discussion with each firm on the short list to discuss alternative technical concepts that the firm may propose.
G.
The department shall proceed as follows:
1.
The selection team shall review the technical proposals and score the technical proposals using the selection criteria in the request for proposals.
The technical review team shall then submit a technical proposal score for each design-builder to the department.
The technical review team shall reject any proposal it deems to be nonresponsive.
2.
The department shall announce the technical proposal score for each design-builder, shall publicly open the sealed price proposals and shall divide each design-builder's price by the score that the selection team has given to it to obtain an adjusted score.
The design-builder selected shall be that responsive and responsible design-builder whose adjusted score is the lowest.
3.
If a time factor is included with the selection criteria in the request for proposals package, the department may also adjust the bids using a value of the time factor established by the department.  The value of the time factor shall be a value per day.
The adjustment shall be based on the total time value.
The total time value is the design-builder's proposed number of days to complete the project multiplied by the factor.
The time adjusted price is the total time value plus the bid amount.  This adjustment shall be used for selection purposes only and shall not affect the department's liquidated damages schedule or incentive and disincentive program.
An adjusted score shall then be obtained by dividing each design-builder's time adjusted price by the score given by the technical review team.
The department shall select the responsive and responsible design-builder whose adjusted score is the lowest.
4.
Unless all proposals are rejected, the board shall award the contract to the responsive and responsible design-builder with the lowest adjusted score.
The board reserves the right to reject all proposals.
5.
The department shall award a stipulated fee equal to two-tenths four-tenths of one per cent percent of the department's estimated cost of design and construction to each short list responsible proposer who that provides a responsive, but unsuccessful proposal.
If the department does not award a contract, all responsive proposers shall receive the stipulated fee.  If the department cancels the contract before reviewing the technical proposals, the department shall award each design-builder on the selected short list a stipulated fee equal to two-tenths four-tenths of one per cent percent of the department's estimated cost of design and construction.
The department shall pay the stipulated fee to each proposer within ninety days after the award of the contract or the decision not to award a contract.
In consideration for paying the stipulated fee, the department may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful proposers.
Notwithstanding the other provisions of this paragraph, an unsuccessful short list proposer may elect to waive the stipulated fee.
If an unsuccessful short list proposer elects to waive the stipulated fee, the department may not use ideas and information contained in the proposer's proposal, except that this restriction does not prevent the department from using any idea or information if the idea or information is also included in a proposal of a short list proposer that accepts the stipulated fee.
END_STATUTE Sec. 2.
The agreement shall contain a provision that provides for negotiations between the department and the private partner for the private partner to recover all damages incurred for a delay for which the department is responsible, that is unreasonable under the circumstances and that was not within the contemplation of the parties to the contract.  This subsection does not void any provision in the contract that requires notice of claims or delays, provides for arbitration or any other procedure for settlement or provides for liquidated damages.
The department shall award a stipulated fee equal to four-tenths of one percent of the department's estimated cost of design and construction to each short list responsible proposer that provides a responsive, but unsuccessful proposal.
J.
If the department does not award a contract, all responsive proposers shall receive the stipulated fee.
The agreement shall contain a provision that requires the department to pay the private partner reasonable compensation for all work performed by the private partner to relocate or adjust utility facilities that are located either within or outside the project right-of-way and that are required to be relocated or adjusted in order to construct the work contracted to the private partner.  Any provision in the agreement that imposes the risk of utility relocation or adjustment expenses on the private partner is void.END_STATUTE Sec. 2.
If the department cancels the contract before reviewing the technical proposals, the department shall award each design-builder on the short list a stipulated fee equal to four-tenths of one percent of the department's estimated cost of design and construction.
The department shall pay the stipulated fee to each proposer within ninety days after the award of the contract or the decision not to award a contract.
In consideration for paying the stipulated fee, the department may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful proposers.
Notwithstanding the other provisions of this subsection, an unsuccessful short list proposer may elect to waive the stipulated fee.
If an unsuccessful short list proposer elects to waive the stipulated fee, the department may not use ideas and information contained in the proposer's proposal, except that this restriction does not prevent the department from using any idea or information if the idea or information is also included in a proposal of a short list proposer that accepts the stipulated fee.
END_STATUTE Sec. 3.
(d) All construction-manager-at-risk construction services or design-build construction services included in a procurement under this section shall be limited to construction services to be performed at a single location, a common location or, if the construction services are all for a similar purpose, multiple locations.
(d) All construction-manager-at-risk construction services or design-build construction services included in a procurement under this section shall be limited to construction services to be performed at a single location, a common location or, if the construction services are  all for a similar purpose, multiple locations.
An agent shall issue a request for qualifications for each procurement and publish notice of the request for qualifications.  This notice shall be published by advertising in a newspaper of general circulation in the county in which the agent is located for two consecutive publications if it is a weekly newspaper or for two publications that are at least six but no more than ten days apart if it is a daily newspaper.
An agent shall issue a request for qualifications for each procurement and publish notice of the request for qualifications.
This notice shall be published by advertising in a newspaper of general circulation in the county in which the agent is located for two consecutive publications if it is a weekly newspaper or for two publications that are at least six but no more than ten days apart if it is a daily newspaper.
(c) As prescribed below, state the selection criteria and relative weight of the selection criteria to be used by the selection committee, except that for construction services one of the criteria shall be the person's or firm's subcontractor selection plan or procedures to implement the agent's subcontractor selection plan.  All selection criteria under this subsection shall be factors that demonstrate competence and qualifications for the type of professional services or construction services included in the procurement.  If:
(c) As prescribed below, state the selection criteria and relative weight of the selection criteria to be used by the selection committee, except that for construction services one of the criteria shall be the person's or firm's subcontractor selection plan or procedures to implement the agent's subcontractor selection plan.
All selection criteria under this subsection shall be factors that demonstrate competence and qualifications for the type of professional services or construction services included in the procurement.  If:
An agent shall award the single contract under the procurement as provided in subsection E or F of this section.  E.
An agent shall award the single contract under the procurement as provided in subsection E or F of this section.
E.
If the agent is not able to negotiate a satisfactory contract with the highest qualified person or firm on the final list, at compensation and on other contract terms the agent determines to be fair and reasonable, the agent shall formally terminate negotiations with that person or firm.  The agent shall then undertake negotiations with the next most qualified person or firm on the final list in sequence until an agreement is reached or a determination is made to reject all persons or firms on the final list.  5.
If the agent is not able to negotiate a satisfactory contract with the highest qualified person or firm on the final list, at compensation and on other contract terms the agent determines to be fair and reasonable, the agent shall formally terminate negotiations with that person or firm.  The agent shall then undertake negotiations with the next most qualified person or firm on the final list in sequence until an agreement is reached or a determination is made to reject all persons or firms on the final list.
5.
Before opening any price proposal, the selection committee shall open the final technical proposals, evaluate the final technical proposals and score the final technical proposals using the scoring method in the request for proposals.  No other factors or criteria may be used in the evaluation and scoring.
Before opening any price proposal, the selection committee shall open the final technical proposals, evaluate the final technical proposals and score the final technical proposals using the scoring method in the request for proposals.
No other factors or criteria may be used in the evaluation and scoring.
After completion of the evaluation and scoring of all final technical proposals, the selection committee shall open the price proposals, evaluate the price proposals, score the price proposals and complete the scoring of the entire proposals using the scoring method in the request for proposals.  No other factors or criteria may be used in the evaluation and scoring.
After completion of the evaluation and scoring of all final technical proposals, the selection committee shall open the price proposals, evaluate the price proposals, score the price proposals and complete the scoring of the entire proposals using the scoring method in the request for proposals.
No other factors or criteria may be used in the evaluation and scoring.
For design-build construction services only, the agent shall award a stipulated fee equal to a percentage, as prescribed in the request for proposals, of the agent's project final budget for design and construction, as prescribed in the request for proposals, but not less than two-tenths of one at least _______ percent of the project final budget for design and construction to each final list offeror who provides a responsive, but unsuccessful, proposal.
For design-build construction services only, the agent shall award a stipulated fee equal to a percentage, as prescribed in the request for proposals, of the agent's project final budget for design and construction, as prescribed in the request for proposals, but not less than two-tenths of one at least four-tenths of one percent of the project final budget for design and construction to each final list offeror who provides a responsive, but unsuccessful, proposal.
In consideration for paying the stipulated fee, the agent may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the offerors.  Notwithstanding the other provisions of this paragraph, an offeror may elect to waive the stipulated fee.  If an offeror elects to waive the stipulated fee, the agent may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agent from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.
In consideration for paying the stipulated fee, the agent may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the offerors.  Notwithstanding the other provisions of this paragraph, an offeror may elect to waive the stipulated fee.
If an offeror elects to waive the stipulated fee, the agent may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agent from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.
Notwithstanding title 39, chapter 1, article 2, until the agent awards a contract or terminates the procurement, only the name of each person or firm on the final list developed pursuant to subsection C or subsection K, paragraph 2 of this section may be made available to the public.  All other information received by the agent in response to the request for qualifications pursuant to subsection C or subsection K, paragraph 2 of this section or contained in proposals submitted pursuant to subsection F or subsection K, paragraph 3 of this section shall be confidential in order to avoid disclosure of the contents that may be prejudicial to competing submitters and offerors during the selection process.
Notwithstanding title 39, chapter 1, article 2, until the agent awards a contract or terminates the procurement, only the name of each person or firm on the final list developed pursuant to subsection C or subsection K, paragraph 2 of this section may be made available to the public.
All other information received by the agent in response to the request for qualifications pursuant to subsection C or subsection K, paragraph 2 of this section or contained in proposals submitted pursuant to subsection F or subsection K, paragraph 3 of this section shall be confidential in order to avoid disclosure of the contents that may be prejudicial to competing submitters and offerors during the selection process.
(h) Before opening any price proposal, the selection committee shall open the final qualitative and technical proposals, evaluate the final qualitative and technical proposals and score the final qualitative and technical proposals using the qualitative and technical criteria and assigned points in the scoring method in the request for proposals.  No other factors or criteria may be used in the evaluation and scoring.
(h) Before opening any price proposal, the selection committee shall open the final qualitative and technical proposals, evaluate the final qualitative and technical proposals and score the final qualitative and technical proposals using the qualitative and technical criteria and assigned points in the scoring method in the request for proposals.
No other factors or criteria may be used in the evaluation and scoring.
(j) After evaluating and scoring the price proposals, the selection committee shall add the qualitative and technical proposal score and the price proposal score of each offeror together for a total score.  The responsive and responsible offeror with the highest total score is the winning offeror.
(j) After evaluating and scoring the price proposals, the selection committee shall add the qualitative and technical proposal score and the price proposal score of each offeror together for a total score.
The responsive and responsible offeror with the highest total score is the winning offeror.
Notwithstanding this subsection, an agent shall not procure any construction-manager-at-risk construction services for horizontal construction pursuant to this subsection after June 30, 2025.  For the purposes of this paragraph, an agent procures construction-manager-at-risk construction services for horizontal construction pursuant to this subsection when the contract for the construction-manager-at-risk construction services for horizontal construction is executed by the agent  and the contractor.
Notwithstanding this subsection, an agent shall not procure any construction-manager-at-risk construction services for horizontal construction pursuant to this subsection after June 30, 2025.
For the purposes of this paragraph, an agent procures construction-manager-at-risk construction services for horizontal construction pursuant to this subsection when the contract for the construction-manager-at-risk construction services for horizontal construction is executed by the agent  and the contractor.
END_STATUTE
END_STATUTE       APPROVED BY THE GOVERNOR MAY 7, 2021.
  FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 7, 2021.
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Action History

  1. Signed by Governor

  2. Transmit to Governor

  3. PASSED

  4. PASSED

  5. Transmit to House

  6. PASSED

  7. DPA

  8. DPA

  9. Senate Second Reading

  10. Senate First Reading

  11. Transmit to Senate

  12. PASSED

  13. House Placed on Consent Calendar

  14. DP

  15. House Second Reading

  16. House First Reading.

Sponsors

Sponsorship breakdown

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1 sponsors · 4 co-sponsors · 88 not signed on · 6 voted No

Sponsors (1)

Co-sponsors (4)

Not signed on (88)

88 members have not signed on to this bill.

Show all 88 →

"Not signed on" means a member has not sponsored or co-sponsored this bill — it does not imply opposition. Members flagged Voted No have a recorded No vote on this bill.

Whip count is in markup. Polling the chamber and every recorded vote this session. Only the first open is slow. It’s instant for you after this. Calling the roll · Tallying · Engrossing

Votes

Passed

Passed 60 Yea · 0 Nay
Party YeaNayPresentNot Voting
Unaffiliated 42000
Republican 14000
Democrat 4000
Total 60000
% of votes cast 100%0%0%0%
How each member voted (60)
Member Party Vote
Jasmine Blackwater-Nygren — Yea
Aaron Lieberman — Yea
Amish Shah — Yea
Andrea Dalessandro — Yea
Andres Cano — Yea
Athena Salman — Yea
Becky A. Nutt — Yea
Ben Toma — Yea
Brenda Barton — Yea
Bret Roberts — Yea
Charlene R. Fernandez — Yea
César Chávez — Yea
Daniel Hernandez — Yea
David L. Cook — Yea
Diego Espinoza — Yea
Diego Rodriguez — Yea
Domingo DeGrazia — Yea
Frank Pratt — Yea
Jacqueline Parker — Yea
Jennifer Jermaine — Yea
Jennifer Longdon — Yea
Jennifer Pawlik — Yea
Joanne Osborne — Yea
Joel John — Yea
John Fillmore — Yea
Judy Burges — Yea
Judy Schwiebert — Yea
Kelli Butler — Yea
Lorenzo Sierra — Yea
Melody Hernandez — Yea
Michelle Udall — Yea
Pamela Powers Hannley — Yea
Randall Friese — Yea
Raquel Terán — Yea
Regina E. Cobb — Yea
Reginald Bolding — Yea
Richard C. Andrade — Yea
Robert Meza — Yea
Russell Bowers — Yea
Steve Kaiser — Yea
Travis W. Grantham — Yea
Walter Blackman — Yea
Alma Hernandez Democrat Yea
Denise “Mitzi” Epstein Democrat Yea
Myron Tsosie Democrat Yea
Stephanie Stahl Hamilton Democrat Yea
Beverly Pingerelli Republican Yea
Frank Carroll Republican Yea
Gail Griffin Republican Yea
Jake Hoffman Republican Yea
Jeff Weninger Republican Yea
John Kavanagh Republican Yea
Joseph Chaplik Republican Yea
Justin Wilmeth Republican Yea
Kevin Payne Republican Yea
Leo Biasiucci Republican Yea
Mark Finchem Republican Yea
Quang H Nguyen Republican Yea
Shawnna Bolick Republican Yea
Timothy "Tim" Dunn Republican Yea

Official roll call →

Passed

Passed 26 Yea · 3 Nay · 1 Other
Party YeaNayPresentNot Voting
Democrat 2100
Unaffiliated 18200
Republican 6001
Total 26301
% of votes cast 87%10%0%3%
How each member voted (30)
Member Party Vote
Christine Marsh — Yea
Jamescita Peshlakai — Yea
Juan Mendez — Nay
Karen Fann — Yea
Kelly Townsend — Yea
Kirsten Engel — Yea
Lisa Otondo — Yea
Martin Quezada — Nay
Michelle B. Ugenti-Rita — Yea
Nancy Barto — Yea
Paul Boyer — Yea
Rebecca Rios — Yea
Rick Gray — Yea
Rosanna Gabaldon — Yea
Sean Bowie — Yea
Sine Kerr — Yea
Sonny Borrelli — Yea
Tony Navarrete — Yea
Tyler Pace — Yea
Victoria Steele — Yea
Lela Alston Democrat Yea
Lupe Contreras Democrat Yea
Sally Ann Gonzales Democrat Nay
David Gowan Republican Yea
David Livingston Republican Yea
J.D. Mesnard Republican Yea
Thomas "T.J." Shope Republican Yea
Venden "Vince" Leach Republican Yea
Warren Petersen Republican Yea
Wendy Rogers Republican Not Voting

Official roll call →

Passed

Passed 56 Yea · 3 Nay · 1 Other
Party YeaNayPresentNot Voting
Unaffiliated 39201
Republican 13100
Democrat 4000
Total 56301
% of votes cast 93%5%0%2%
How each member voted (60)
Member Party Vote
Jasmine Blackwater-Nygren — Yea
Aaron Lieberman — Yea
Amish Shah — Yea
Andrea Dalessandro — Yea
Andres Cano — Yea
Athena Salman — Yea
Becky A. Nutt — Yea
Ben Toma — Yea
Brenda Barton — Yea
Bret Roberts — Yea
Charlene R. Fernandez — Yea
César Chávez — Yea
Daniel Hernandez — Yea
David L. Cook — Yea
Diego Espinoza — Yea
Diego Rodriguez — Yea
Domingo DeGrazia — Nay
Frank Pratt — Yea
Jacqueline Parker — Yea
Jennifer Jermaine — Yea
Jennifer Longdon — Yea
Jennifer Pawlik — Yea
Joanne Osborne — Yea
Joel John — Yea
John Fillmore — Yea
Judy Burges — Not Voting
Judy Schwiebert — Yea
Kelli Butler — Yea
Lorenzo Sierra — Yea
Melody Hernandez — Yea
Michelle Udall — Yea
Pamela Powers Hannley — Nay
Randall Friese — Yea
Raquel Terán — Yea
Regina E. Cobb — Yea
Reginald Bolding — Yea
Richard C. Andrade — Yea
Robert Meza — Yea
Russell Bowers — Yea
Steve Kaiser — Yea
Travis W. Grantham — Yea
Walter Blackman — Yea
Alma Hernandez Democrat Yea
Denise “Mitzi” Epstein Democrat Yea
Myron Tsosie Democrat Yea
Stephanie Stahl Hamilton Democrat Yea
Beverly Pingerelli Republican Yea
Frank Carroll Republican Yea
Gail Griffin Republican Yea
Jake Hoffman Republican Yea
Jeff Weninger Republican Yea
John Kavanagh Republican Yea
Joseph Chaplik Republican Yea
Justin Wilmeth Republican Yea
Kevin Payne Republican Yea
Leo Biasiucci Republican Yea
Mark Finchem Republican Nay
Quang H Nguyen Republican Yea
Shawnna Bolick Republican Yea
Timothy "Tim" Dunn Republican Yea

Official roll call →

Subjects

public-safety labor transportation
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Frequently asked questions

Who sponsors HB 2876?
HB 2876 is sponsored by Frank Carroll (Republican), Kevin Payne (Republican), Justin Wilmeth (Republican), Joseph Chaplik (Republican), and David L. Cook.
What is the current status of HB 2876?
This bill has been enacted into law. Introduced February 10, 2021. Enacted.
Where can I track HB 2876?
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