GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	2
HOUSE BILL 623
Senate Judiciary I Committee Substitute Adopted 9/4/01 

Short Title:	Public Construction Law Changes.	()	
Sponsors:	     	
Referred to:	     	
March 15, 2001

A BILL TO BE ENTITLED
AN ACT TO MAKE CHANGES IN THE LAWS GOVERNING THE PUBLIC CONSTRUCTION LAWS TO PROVIDE FOR EFFICIENCIES AND FLEXIBILITY IN BUILDING DESIGN, CONSTRUCTION, AND PLAN REVIEW, TO PROMOTE ENERGY EFFICIENCY IN STATE-OWNED BUILDINGS, AND TO AMEND THE LAW GOVERNING LANDSCAPE ARCHITECTURE.

The General Assembly of North Carolina enacts:

PART I.  CONSTRUCTION CHANGES
SECTION 1.  G.S. 143‑64.31 reads as rewritten:
"§ 143‑64.31.  Declaration of public policy.
It is the public policy of this State and all public subdivisions and Local Governmental Units thereof, except in cases of special emergency involving the health and safety of the people or their property, to announce all requirements for architectural, engineering, surveying and construction management services, to select firms qualified to provide such services on the basis of demonstrated competence and qualification for the type of professional services required without regard to fee other than unit price information at this stage, and thereafter to negotiate a contract for those services at a fair and reasonable fee with the best qualified firm. If a contract cannot be negotiated with the best qualified firm, negotiations with that firm shall be terminated and initiated with the next best qualified firm."
SECTION 2.  Article 3D of Chapter 143 of the General Statutes is amended by adding the following new section to read:
"§ 143-64.31A.  Construction management services.
(a)	For purposes of this Article:
(1)	"Construction management services" means services provided by a construction manager, which may include, but are not limited to, preparation and coordination of bid packages, scheduling, cost control, value engineering, evaluation, preconstruction services, and construction administration.
(2)	"Construction manager" means a person, corporation, or entity that (i) provides construction management services for a project throughout the preconstruction and construction phases and (ii) who is licensed as a general contractor if those services are provided at risk.
(b)	Design services for a project must be performed by a licensed architect or engineer. The public owner shall contract directly with the architect or engineer.
(c)	The construction manager shall (i) contract directly with the public entity for all construction and (ii) guarantee the cost of the project. The construction manager shall publicly advertise, as prescribed for the appropriate public entity in G.S. 143-129, prequalify subcontractors and receive bids from the prequalified subcontractors for the performance of all major elements of the construction work. A construction manager may perform a portion of the work itself only if (i) bidding produces no responsible, responsive bidder for that portion of the work, the lowest responsible bidder will not execute a contract for the bid portion of the work, or the subcontractor defaults and a prequalified replacement cannot be obtained in a timely manner and (ii) the public entity approves of the construction manager’s performance of the work. All bids shall be opened publicly. The construction manager shall act as the fiduciary of the public entity in opening and awarding bids. The construction manager shall award the contract to the lowest responsible bidder, taking into consideration quality, performance, the time specified in the bids for performance of the contract, the cost of construction oversight, time for completion, and other factors deemed appropriate by the public entity and advertised as part of the bid solicitation. The public entity shall open and review all bids with the construction manager. The public entity may require the selection of a different subcontractor for any portion of the work, based on the lowest responsible bid as determined herein, provided that the construction manager is compensated for any additional cost incurred.
When contracts are awarded pursuant to this section, the public entity shall make available to subcontractors the dispute resolution process adopted by the State Building Commission pursuant to G.S. 143-135.26(12) or another dispute resolution process adopted by the public body, including mediation, to resolve project disputes.
A construction manager must make a good faith effort to recruit and select minority businesses, as defined in G.S. 143-128(f), for participation in the total value of contracts awarded under this section as follows:
(1)	For State projects, the minority participation goal is twelve and one-half percent (12.5%).
(2)	For projects of other public owners, the minority participation goal shall be the verifiable percentage goal adopted by the public owner in accordance with G.S. 143-128(f).
The public entity shall adopt written guidelines specifying the actions that a construction manager must take to ensure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded by the construction manager. The construction manager shall file an affidavit with the public owner at the completion of the subcontractor's bidding attesting that the construction manager has made the good faith effort required under this section.
(d)	Notwithstanding G.S. 143-64.32 or G.S.143-64.34, a public entity may not waive the requirements of subsection (c) of this section."
SECTION 3.  G.S. 143‑128 reads as rewritten:
"§ 143‑128.  Requirements for certain building contracts.
(a)	Preparation of specifications. – Every officer, board, department, commission or commissions charged with responsibility of preparation of specifications or awarding or entering into contracts for the erection, construction, alteration or repair of any buildings for the State, or for any county, municipality, or other public body, must have prepared separate specifications for each of the following subdivisions or branches of work to be performed:
(1)	Heating, ventilating, air conditioning and accessories (separately or combined into one conductive system) and/or refrigeration for cold storage (where the cold storage cooling load is 15 tons or more of refrigeration), and all work kindred thereto.
(2)	Plumbing and gas fittings and accessories, and all work kindred thereto.
(3)	Electrical wiring and installations, and all work kindred thereto.
(4)	General work relating to the erection, construction, alteration, or repair of any building above referred to, which work is not included in the above‑listed three subdivisions or branches.
All such specifications must be so drawn as to permit separate and independent bidding upon each of the subdivisions or branches of work enumerated in this subsection for contracts that will be bid under the separate-prime system or dual bidding system. The above enumeration of subdivisions or branches of work shall not be construed to prevent any officer, board, department, commission or commissions from preparing additional separate specifications for any other category of work.
(a1)	Construction methods. – The State, a county, municipality, or other public body shall award contracts for the erection, construction, alteration, or repair of buildings pursuant to any of the following methods:
(1)	Separate-prime bidding.
(2)	Single-prime bidding.
(3)	Dual bidding pursuant to subsection (d1) of this section.
(4)	Construction management services contracts pursuant to G.S. 143-64.31A.
(5)	Alternative contracting methods authorized pursuant to G.S. 143-135.26(9).
(b)	Building projects  under the separate-prime contract system. – When the State, county, municipality, or other public body uses the separate-prime contract system, it shall accept bids for each subdivision or branch of work for which specifications are required to be prepared under subsection (a) of this section and shall award the respective work specified separately to responsible and reliable persons, firms or corporations regularly engaged in their respective lines of work. When the estimated cost of work to be performed in any single subdivision or branch for which separate bids are required by this subsection is less than twenty‑five thousand dollars ($25,000), the same may be included in the contract for one of the other subdivisions or branches of the work, irrespective of total project cost.
Bids may also be accepted from and awards made to separate contractors for other categories of work.
Each separate contractor shall be directly liable to the State of North Carolina, or to the county, municipality, or other public body and to the other separate contractors for the full performance of all duties and obligations due respectively under the terms of the separate contracts and in accordance with the plans and specifications, which shall specifically set forth the duties and obligations of each separate contractor. For the purpose of this section, "separate contractor" means any person, firm or corporation who shall enter into a contract with the State, or with any county, municipality, or other public body, for the erection, construction, alteration or repair of any building or buildings, or parts thereof.
	
(d)	Single‑prime contracts. – 
When bids are accepted under the single‑prime contract system all bidders must identify on their bid the contractors they have selected for the subdivisions or branches of work for:
(1)	Heating, ventilating, and air conditioning;
(2)	Plumbing;
(3)	Electrical; and
(4)	General.
No contractor whose bid is accepted shall substitute any person as subcontractor in the place of the subcontractor listed in the original bid, except (i) if the listed subcontractor's bid is later determined by the contractor to be nonresponsive or the listed subcontractor refuses to enter into a contract for the complete performance of the bid work, or (ii) with the approval of the awarding authority for good cause shown by the contractor. The terms, conditions, and requirements of each contract between the contractor and a subcontractor performing work under a subdivision or branch of work listed in this subsection shall incorporate by reference the terms, conditions, and requirements of the contract between the contractor and the State, county, municipality, or other public body.
The requirements of this subsection governing the identification of bidders, substitution of contractors, and the terms and conditions of subcontractor's contracts apply to all single‑prime bidding and single‑prime contracts, including those bids in the alternative pursuant to subsection (d1) of this section. When contracts are awarded pursuant to this section, the public body shall make available to subcontractors the dispute resolution process adopted by the State Building Commission pursuant to G.S. 143-135.26(12) or another dispute resolution process adopted by the public body, including mediation, to resolve project disputes.
(d1)	Dual bidding. – The State, a county, municipality, or other public entity may accept bids for the erection, construction, alteration, or repair of a building under both the single-prime and separate-prime contracting systems and shall award the contract to the lowest responsible bidder under the single‑prime system or to the lowest responsible bidder under the separate‑prime system, taking into consideration quality, performance, and time specified in the bids for performance of the contract. In determining the system under which the contract will be awarded to the lowest responsible bidder, the public entity may consider cost of construction oversight, time for completion, and other factors it deems appropriate. The public entity shall not open any bid solicited under subsection (d) of this section unless the unit receives at least three competitive bids from reputable and qualified contractors regularly engaged in their respective lines of endeavor. The bids received as separate‑prime bids shall be submitted one hour prior to the deadline for the submission of single‑prime bids. The amount of a bid submitted by a subcontractor to the general contractor under the single‑prime system shall not exceed the amount bid, if any, for the same work by that subcontractor to the public entity under the separate‑prime system. Each single‑prime bid that identifies the contractors selected to perform the three major subdivisions or branches of work described in subsection (d) of this section and that lists the contractors' respective bid prices for those branches of work shall constitute a single competitive bid, and each full set of separate‑prime bids for all of the branches of work described in subsection (d) of this section shall constitute a single competitive bid. If after advertisement as required by G.S. 143‑129, the public entity has not received the minimum number of competitive bids as required by this subsection, the public entity shall again advertise for bids. If the required minimum number of bids is not received as a result of the second advertisement, the public entity may let the contract to the lowest responsible bidder that submitted a bid for the project, even though the public entity received only one bid. A contractor must provide an affidavit to the public entity that it has made the good faith effort required pursuant to subsection (f) of this section and failure to file the affidavit that demonstrates that the contractor made the required good faith effort is grounds for rejection of the bid. All provisions of this Article that are not inconsistent with this subsection or other applicable provisions of the law shall apply to public entities subject to this section. The provisions of subsection (b) of this section apply to separate-prime contracts awarded pursuant to this section.
(e)	Project expediter; scheduling; public body to resolve project disputes. – The State, county, municipality, or other public body may, if specified in the bid documents, provide for assignment of responsibility for expediting the work on a project under the separate-prime system to a single responsible and reliable person, firm or corporation, which may be a prime contractor. In executing this responsibility, the designated project expediter may recommend to the State, county, municipality, or other public body whether payment to a contractor should be approved. The project expediter, if required by the contract documents, shall be responsible for the preparation of the project schedule and shall allow all contractors and subcontractors performing any of the branches of work listed in subsection (d) of this section equal input into the preparation of the initial schedule. Whenever separate contracts are awarded and separate contractors engaged for a project pursuant to this section, the public body may provide in the contract documents for resolution of project disputes through alternative dispute resolution processes such as mediation, arbitration, or the dispute resolution process adopted by the State Building Commission.
(f)	Minority goals. – The State shall have a verifiable twelve and one-half percent (12.5%) goal for participation by minority businesses in the total value of work for each building project. Each city, county, or other public body shall adopt, after a notice and public hearing, an appropriate verifiable percentage goal for participation by minority businesses in the total value of work for each building project.
As used in this subsection:
(1)	The term "minority‑business" means a business:
a.	In which at least fifty‑one percent (51%) is owned by one or more minority persons, or in the case of a corporation, in which at least fifty‑one percent (51%) of the stock is owned by one or more minority persons; and
b.	Of which the management and daily business operations are controlled by one or more of the minority persons who own it.
(2)	The term "minority person" means a person who is a citizen or lawful permanent resident of the United States and who is:
a.	Black, that is, a person having origins in any of the black racial groups in Africa;
b.	Hispanic, that is, a person of Spanish or Portuguese culture with origins in Mexico, South or Central America, or the Caribbean Islands, regardless of race;
c.	Asian American, that is, a person having origins in any of the original peoples of the Far East, Southeast Asia and Asia, the Indian subcontinent, the Pacific Islands;
d.	American Indian or Alaskan Native, that is, a person having origins in any of the original peoples of North America; or
e.	Female.
(3)	The term "verifiable goal" means:
a.	For purposes of the separate prime contract system, that the awarding authority has adopted written guidelines specifying the actions that will be taken to ensure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded under this section.
b.	For purposes of the single‑prime contract system, that the awarding authority has adopted written guidelines specifying the actions that the prime contractor must take to ensure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded under this section; the required actions must be documented in writing by the contractor to the appropriate awarding authority.
c.	For purposes of an alternative contracting system authorized by the State Building Commission under G.S. 143‑135.26(9), that the awarding authority has adopted written guidelines specifying the action to be taken to ensure a good faith effort in the recruitment and selection of minority businesses for participation in contracts awarded under this section.
The State, counties, municipalities, and all other public bodies shall award public building contracts without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A‑3. Nothing in this section shall be construed to require contractors or awarding authorities to award contracts or subcontracts to or to make purchases of materials or equipment from minority‑business contractors or minority‑business subcontractors who do not submit the lowest responsible bid or bids.
A contractor must provide an affidavit to the awarding authority that it has made the good faith effort required pursuant to this subsection. Failure to file the affidavit that demonstrates that the contractor made the required good faith effort is grounds for rejection of the bid or proposal.
(g)	Exceptions. – This section shall not apply to:
(1)	The purchase and erection of prefabricated or relocatable buildings or portions thereof, except that portion of the work which must be performed at the construction site.
(2)	The erection, construction, alteration, or repair of a building when the cost thereof is three hundred thousand dollars ($300,000) or less, provided that subsection (f) of this section shall apply to the erection, construction, alteration, or repair of a building when the cost thereof is one hundred thousand dollars ($100,000) or more."
SECTION 4.  G.S. 143‑129(a), as amended by S.L. 2001‑328, reads as rewritten:
"(a)	Bidding Required. – No construction or repair work requiring the estimated expenditure of public money in an amount equal to or more than three hundred thousand dollars ($300,000) or purchase of apparatus, supplies, materials, or equipment requiring an estimated expenditure of public money in an amount equal to or more than ninety thousand dollars ($90,000) may be performed, nor may any contract be awarded therefor, by any board or governing body of the State, or of any institution of the State government, or of any political subdivision of the State, unless the provisions of this section are complied with. 
For purchases of apparatus, supplies, materials, or equipment, the governing body of any  political subdivision of the State may, subject to any restriction as to dollar amount, or other conditions that the governing body elects to impose, delegate to the manager or the chief purchasing official, or both, the authority to award contracts, reject bids, or readvertise to receive bids on behalf of the unit. Any person to whom authority is delegated under this subsection shall comply with the requirements of this Article that would otherwise apply to the governing body."
SECTION 5.  G.S. 143‑129(e), as amended by S.L. 2001‑328, is amended by adding a new subdivision to read:
"(11)	Contracts executed pursuant to Article 3D of Chapter 143 of the General Statutes."
SECTION 6.  G.S. 133‑1.1(a) reads as rewritten:
"(a)	In the interest of public health, safety and economy, every officer, board, department, or commission charged with the duty of approving plans and specifications or awarding or entering into contracts involving the expenditure of public funds in excess of:
(1)	Three hundred thousand dollars ($300,000) for the repair of public buildings where such repair does not include major structural change in framing or foundation support systems,
(2)	One hundred thirty-five thousand dollars ($135,000) for the repair of public buildings where such repair includes major structural change in framing or foundation support systems, or
(3)	One hundred thirty-five thousand dollars ($135,000) for the construction of, or additions to, public buildings or State‑owned and operated utilities,
shall require that such plans and specifications be prepared by a registered architect, in accordance with the provisions of Chapter 83A of the General Statutes, or by a registered engineer, in accordance with the provisions of Chapter 89C of the General Statutes, or by both architect and engineer, particularly qualified by training and experience for the type of work involved, and that the North Carolina seal of such architect or engineer together with the name and address of such architect or engineer, or both, be placed on all such plans and specifications."
SECTION 7.  G.S. 44A‑26(a) reads as rewritten:
"(a)	When the total amount of construction contracts awarded for any one project exceeds three hundred thousand dollars ($300,000), a performance and payment bond as set forth in (1) and (2) is required by the contracting body from any contractor with a contract more than fifty thousand dollars ($50,000). In the discretion of the contracting body, a performance and payment bond may be required on any construction contract as follows:
(1)	A performance bond in the amount of one hundred percent (100%) of the construction contract amount, conditioned upon the faithful performance of the contract in accordance with the plans, specifications and conditions of the contract. Such bond shall be solely for the protection of the contracting body that is constructing the project.
(2)	A payment bond in the amount of one hundred percent (100%) of the construction contract amount, conditioned upon the prompt payment for all labor or materials for which a contractor or subcontractor is liable. The payment bond shall be solely for the protection of the persons furnishing materials or performing labor for which a contractor, subcontractor, or construction manager is liable."
SECTION 8.(a)  G.S. 116‑31.11, as enacted and expired by S.L. 1997‑412, is reenacted and reads as rewritten:
"§ 116‑31.11.  Powers of Board regarding certain fee negotiations, contracts, and capital improvements.
(a)	Notwithstanding G.S. 143‑341(3) and G.S. 143‑135.1, the Board shall, with respect to the design, construction, or renovation of buildings, utilities, and other property developments of The University of North Carolina requiring the estimated expenditure of public money of two million dollars ($2,000,000) or less:
(1)	Conduct the fee negotiations for all design contracts and supervise the letting of all construction and design contracts.
(2)	Develop procedures governing the responsibilities of The University of North Carolina and its affiliated and constituent institutions to perform the duties of the Department of Administration and the Director or Office of State Construction under G.S. 133‑1.1(d) and G.S. 143‑341(3).
(3)	Develop procedures and reasonable limitations governing the use of open‑end design agreements, subject to G.S. 143‑64.34 and the approval of the State Building Commission.
(b)	The Board may delegate its authority under subsection (a) of this section to a constituent or affiliated institution if the institution is qualified under guidelines adopted by the Board and approved by the State Building Commission and the Director of the Budget.
(c)	The University shall use the standard contracts for design and construction currently in use for State capital improvement projects by the Office of State Construction of the Department of Administration.
(d)	A contract may not be divided for the purpose of evading the monetary limit under this section."
SECTION 8.(b)  Section 5.1 of S.L. 1997‑412 is repealed.
SECTION 8.(c)  Sections 5, 7, 8, and 10 of S.L. 1997‑412 are reenacted.
SECTION 8.(d)  G.S. 143‑341(3) reads as rewritten:
"(3)	Architecture and Engineering:
a.	To examine and approve all plans and specifications for the construction or renovation of:
1.	All State buildings; and
2.	All community college buildings requiring the estimated expenditure for construction or repair work for which public bidding is required under G.S. 143‑129 prior to the awarding of a contract for such work; and to examine and approve all changes in those plans and specifications made after the contract for such work has been awarded.
b.	To assist, as necessary, all agencies in the preparation of requests for appropriations for the construction or renovation of all State buildings.
b1.	To certify that a statement of needs pursuant to G.S. 143‑6 is feasible. For purposes of this sub‑subdivision, "feasible" means that the proposed project is sufficiently defined in overall scope; building program; site development; detailed design, construction, and equipment budgets; and comprehensive project scheduling so as to reasonably ensure that it may be completed with the amount of funds requested. At the discretion of the General Assembly, advanced planning funds may be appropriated in support of this certification. This sub‑subdivision shall not apply to requests for appropriations of less than one hundred thousand dollars ($100,000).
c.	To supervise the letting of all contracts for the design, construction or renovation of all State buildings and all community college buildings whose plans and specifications must be examined and approved under a.2. of this subdivision.
d.	To supervise and inspect all work done and materials used in the construction or renovation of all State buildings and all community college buildings whose plans and specifications must be examined and approved under a.2. of this subdivision; and no such work may be accepted by the State or by any State agency until it has been approved by the Department.
Except for sub-subdivisions b. and b1. of this subdivision, this subdivision does not apply to the design, construction, or renovation of projects by The University of North Carolina pursuant to G.S. 116-31.11."
SECTION 8.(e)  G.S. 133‑1.1(d) reads as rewritten:
"(d)	On projects on which no registered architect or engineer is required pursuant to the provisions of this section, the governing board or awarding authority shall require a certificate of compliance with the State Building Code from the city or county inspector for the specific trade or trades involved or from a registered architect or engineer, except that the provisions of this subsection shall not apply on projects where any of the following apply:
(1)	Where plans and specifications are approved by the Department of Administration, Division of State Construction, and the completed project is inspected by the Division of State Construction and the State Electrical Inspector.
(2)	That are exempt from the State Building Code.
(3)	That are subject to G.S. 116-31.11 and the completed project is inspected by the State Electrical Inspector and by The University of North Carolina or its constituent or affiliated institution.
(4)	That are subject to G.S. 116-37(j) and the completed project is inspected by the State Electrical Inspector and by the University of North Carolina Health Care System.
(5)	That are subject to G.S. 116-37(a)(4) and the completed project is inspected by the State Electrical Inspector and by the University of North Carolina Hospitals at Chapel Hill.
(6)	That are subject to G.S. 116-37(a)(4) and the completed project is inspected by the State Electrical Inspector and the University of North Carolina at Chapel Hill on behalf of the clinical patient care programs of the School of Medicine of the University of North Carolina.
(7)	That are subject to G.S. 116-40.6(e) and the completed project is inspected by the State Electrical Inspector and by East Carolina University on behalf of the Medical Faculty Practice Plan."
SECTION 9.  G.S. 143‑132(b) reads as rewritten:
"(b)	For purposes of contracts bid in the alternative between the separate‑prime and single‑prime contracts, pursuant to G.S. 143-128(d1) each single‑prime bid shall constitute a competitive bid in each of the four subdivisions or branches of work listed in G.S. 143‑128(a), and each full set of separate‑prime bids shall constitute a competitive single‑prime bid in meeting the requirements of subsection (a) of this section. If there are at least three single‑prime bids but there is not at least one full set of separate‑prime bids, no separate‑prime bids shall be opened."
SECTION 10.(a)  Section 2 of S.L. 1999‑102 is repealed.
SECTION 10.(b)  Section 3 of S.L. 1999‑102 reads as rewritten:
"Section 3. This act is effective when it becomes law."
SECTION 10.(c)  Section 8 of S.L. 1999‑207 reads as rewritten:
"Section 8. This act is effective when it becomes law."
SECTION 10.(d)  Notwithstanding Article 8 of Chapter 143 of the General Statutes, New Hanover Regional Medical Center may use force account qualified personnel on its payroll to maintain, repair, renovate, and improve hospital and medical facilities that it owns or manages under the following conditions:
(1)	The work is primarily for purposes of ensuring compliance with the Life Safety Code and other applicable codes, including requirements of the Joint Commission on the Accreditation of Healthcare Organizations, or involves work to the same or related components or areas of the building at the time of the compliance work.
(2)	The force account labor is qualified to perform and is capable of performing the work in an active patient environment.
This Section 10(d) expires December 31, 2007.

PART II.  CONSTRUCTION AND DESIGN ADMINISTRATION
SECTION 11.  G.S. 143‑135.26 reads as rewritten:
"§ 143‑135.26.  Powers and duties of the Commission.
The State Building Commission shall have the following powers and duties with regard to the State's capital facilities development and management program:
(1)	To adopt rules establishing standard procedures and criteria to assure that the designer selected for each State capital improvement project and the consultant selected for planning and studies of an architectural and engineering nature associated with a capital improvement project or a future capital improvement project has the qualifications and experience necessary for that capital improvement project or the proposed planning or study project. The rules shall provide that the State Building Commission, after consulting with the funded agency, is responsible and accountable for the final selection of the designer and the final selection of the consultant except when the General Assembly or The University of North Carolina is the funded agency. When the General Assembly is the funded agency, the Legislative Services Commission is responsible and accountable for the final selection of the designer and the final selection of the consultant, and when the University is the funded agency, it shall be subject to the rules adopted hereunder, except it is responsible and accountable for the final selection of the designer and the final selection of the consultant. All designers and consultants shall be selected within 60 days of the date funds are appropriated for a project by the General Assembly or the date of project authorization by the Director of the Budget; provided, however, the State Building Commission may grant an exception to this requirement upon written request of the funded agency if (i) no site was selected for the project before the funds were appropriated or (ii) funds were appropriated for advance planning only; provided, further, the Director of the Budget, after consultation with the State Construction Office, may waive the 60‑day requirement for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects. The Director of the Budget also may, after consultation with the State Construction Office, schedule the availability of design and construction funds for capital improvement projects for the purpose of minimizing project costs through increased competition and improvements in the market availability of qualified contractors to bid on State capital improvement projects.
The State Building Commission shall submit a written report to the Joint Legislative Commission on Governmental Operations on the Commission's selection of a designer for a project within 30 days of selecting the designer.
(2)	To adopt rules for coordinating the plan review, approval, and permit process for State capital improvement  and community college buildings, as defined in subdivision (4) of this section. The rules shall provide for a specific time frame for plan review and approval and permit issuance by each agency, consistent with applicable laws, and submission of plans to the State Construction Office. The time frames shall be established to provide for expeditious review, approval, and permitting of State capital improvement projects and community college buildings.
(2a)	To adopt rules exempting specified types of State capital improvement projects, including community college buildings as defined in subdivision (4) of this section, from plan review, provided that the plan has been reviewed and sealed by a licensed architect, engineer, or both, as appropriate.
(3)	To adopt rules for establishing a post‑occupancy evaluation, annual inspection and preventive maintenance program for all State buildings.
(4)	To develop procedures for evaluating the work performed by designers and contractors on State capital improvement projects and those community college buildings, as defined in G.S. 143‑336, requiring the estimated expenditure for construction or repair work for which public bidding is required under G.S. 143‑129, and for use of the evaluations as a factor affecting designer selections and determining qualification of contractors to bid on State capital improvement projects and community college buildings.
(5)	To continuously study and recommend ways to improve the effectiveness and efficiency of the State's capital facilities development and management program.
(6)	To request designers selected prior to April 14, 1987, whose plans for the projects have not been approved to report to the Commission on their progress on the projects. The Department of Administration shall provide the Commission with a list of all such projects.
(7)	To appoint an advisory board, if the Commission deems it necessary, to assist the Commission in its work. No one other than the Commission may appoint an advisory board to assist or advise it in its work.
(8)	To review the State's provisions for ensuring the safety and health of employees involved with State capital improvement projects, and to recommend to the appropriate agencies and to the General Assembly, after consultation with the Commissioner of Labor, changes in the terms and conditions of construction contracts, State regulations, or State laws that will enhance employee safety and health on these projects.
(9)	To authorize a State agency, a local governmental unit, or any other entity subject to the provisions of G.S. 143‑129 to use a method of contracting not authorized under G.S. 143-128. An authorization under this subdivision for an alternative contracting method shall be granted only under the following conditions:
a.	An authorization shall apply only to a single project.
b.	The entity seeking authorization must demonstrate to the Commission that the alternative contracting method is necessary because the project cannot be reasonably completed under the methods authorized under G.S. 143‑128 or for such other reasons as the Commission, pursuant to its rules and criteria, deems appropriate and in the public's interest.
c.	The authorization must be approved by a majority of the members of the Commission present and voting.
	The Commission shall not waive the requirements of G.S. 143‑129 or G.S. 143‑132 for public contracts unless otherwise authorized by law.
(10)	To adopt rules, no later than January 1, 2002, governing review and final approval of plans that are submitted to the State Construction Office pursuant to G.S. 58-31-40. The rules shall provide for the manner of submission of the plan by the owner, the type of structural work that may be completed by the owner pursuant to 
G.S. 58-31-40(c), and the expeditious review or completion of review of the plan in a manner that ensures that the building will meet the fire safety requirements of G.S. 58-31-40(b).
(11)	To direct the Department in the development of guidelines for agency evaluation of energy savings contracts pursuant to G.S. 143-64.17F.
(12)	To develop dispute resolution procedures, including mediation, for subcontractors under the single-prime contracting system and under the construction management system on State capital improvement projects and community college buildings as defined in subdivision (4) of this section, for use by any agency that has not developed its own dispute resolution process.
(13)	To adopt rules governing the use of open-end design agreements for State capital improvement projects and community college buildings as defined in subdivision (4) of this section, where the fee does not exceed the amount specified in G.S. 143-64.34(b).
(14)	To submit an annual report of its activities to the Governor and the Joint Legislative Commission on Governmental Operations."
SECTION 11.1.  G.S. 58‑31‑40 is amended by adding the following new subsection to read:
"(c)	The Commissioner shall review a plan subject to subsection (b) of this section within 30 days of submission, provided that the Commissioner may require one additional 30-day extension if necessary to complete the review. If the Commissioner has neither approved nor denied the plan during the initial 30-day review period, the owner may proceed with the building site preparation, the building foundation, and any structural components of the building that are not subject to inspection for the purposes set forth in subsection (b) of this section. If the Commissioner has neither approved nor denied the plan within 60 days of submission, the owner may request review and final approval under subsection (b) of this section by the Department of Administration, State Construction Office, pursuant to rules adopted under G.S. 143-135.26."

PART III.  ENERGY EFFICIENCY IN STATE BUILDINGS
SECTION 12.(a)  The title of Part 2 of Article 3B of Chapter 143 of the General Statutes reads as rewritten:
"Part 2. Guaranteed Energy Savings Contracts for Governmental Units."
SECTION 12.(b)  G.S. 143‑64.17 reads as rewritten:
"§ 143‑64.17.  Definitions.
As used in this Part:
(1)	"Energy conservation measure" means a facility alteration, training, or services related to the operation of the facility, when the alteration, training, or services provide anticipated energy savings. Energy conservation measure includes any of the following:
a.	Insulation of the building structure and systems within the building.
b.	Storm windows or doors, caulking, weatherstripping, multiglazed windows or doors, heat‑absorbing or heat‑reflective glazed or coated window or door systems, additional glazing, reductions in glass area, or other window or door system modifications that reduce energy consumption.
c.	Automatic energy control systems.
d.	Heating, ventilating, or air‑conditioning system modifications or replacements.
e.	Replacement or modification of lighting fixtures to increase the energy efficiency of a lighting system without increasing the overall illumination of a facility, unless an increase in illumination is necessary to conform to the applicable State or local building code or is required by the light system after the proposed modifications are made.
f.	Energy recovery systems.
g.	Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a building or complex of buildings.
h.	Other energy conservation measures.
(2)	"Energy savings" means a measured reduction in fuel costs, energy costs, or operating costs created from the implementation of one or more energy conservation measures when compared with an established baseline of previous fuel costs, energy costs, or operating costs developed by the local governmental unit.
(3)	"Guaranteed energy savings contract" means a contract for the evaluation, recommendation, or implementation of energy conservation measures, including the design and installation of equipment or the repair or replacement of existing equipment, in which all payments, except obligations on termination of the contract before its expiration, are to be made over time, and in which energy savings are guaranteed to exceed costs.
(4)	"Governmental unit" means an agency, board, or commission of the State or any board or governing body of a political subdivision of the State, including any board of a community college, any school board, or an agency, commission, or authority of a political subdivision of the State.
(5)	"Qualified provider" means a person or business experienced in the design, implementation, and installation of energy conservation measures.
(6)	"Request for proposals" means a negotiated procurement initiated by a local governmental unit by way of a published notice that includes the following:
a.	The name and address of the local governmental unit.
b.	The name, address, title, and telephone number of a contact person in the local governmental unit.
c.	Notice indicating that the local governmental unit is requesting qualified providers to propose energy conservation measures through a guaranteed energy savings contract.
d.	The date, time, and place where proposals must be received.
e.	The evaluation criteria for assessing the proposals.
f.	A statement reserving the right of the governmental unit to reject any or all the proposals.
g.	Any other stipulations and clarifications the governmental unit may require."
SECTION 12.(c)  G.S. 143‑64.17A reads as rewritten:
"§ 143‑64.17A.  Solicitation of guaranteed energy savings contracts.
(a)	Before entering into a guaranteed energy savings contract, a local governmental unit shall issue a request for proposals. Notice of the request shall be published at least 15 days in advance of the time specified for opening of the proposals in at least one newspaper of general circulation in the geographic area for which the local governmental unit is responsible. No guaranteed energy savings contract shall be awarded by any governmental unit unless at least two proposals have been received from qualified providers. Provided that if after the publication of the notice of the request for proposals, fewer than two proposals have been received from qualified providers, the governmental unit shall again publish notice of the request and if as a result of the second notice, one or more proposals by qualified providers are received, the governmental unit may then open the proposals and select a qualified provider even if only one proposal is received.
(b)	The governmental unit shall evaluate a sealed proposal from any qualified provider. Proposals shall contain estimates of all costs of installation, modification, or remodeling, including costs of design, engineering, installation, maintenance, repairs, and debt service, and estimates of energy savings.
(c)	Proposals received pursuant to this section shall be opened by a member or an employee of the governmental unit at a public opening at which the contents of the proposals shall be announced and recorded in the minutes of the governmental unit. Proposals shall be evaluated for the governmental unit by a licensed architect or engineer on the basis of:
(1)	The information required in subsection (b) of this section; and
(2)	The criteria stated in the request for proposals.
The governmental unit may require a qualified provider to include in calculating the cost of a proposal for a guaranteed energy savings contract any reasonable fee payable by the governmental unit for evaluation of the proposal by a licensed architect or professional engineer not employed as a member of the staff of the  governmental unit or the qualified provider.
(d)	The governmental unit shall select the qualified provider that it determines to best meet the needs of the  governmental unit by evaluating the following:
(1)	Prices offered;
(2)	Proposed costs of construction, financing, maintenance, and training;
(3)	Quality of the products proposed;
(4)	Amount of energy savings;
(5)	General reputation and performance capabilities of the qualified providers;
(6)	Substantial conformity with the specifications and other conditions set forth in the request for proposals;
(7)	Time specified in the proposals for the performance of the contract; and
(8)	Any other factors the  governmental unit deems necessary, which factors shall be made a matter of record.
(e)	Nothing in this section shall limit the authority of local governmental units as set forth in Article 3D of this Chapter."
SECTION 12.(d)  G.S. 143‑64.17B reads as rewritten:
"§ 143‑64.17B.  Guaranteed energy savings contracts.
(a)	A governmental unit may enter into a guaranteed energy savings contract with a qualified provider if all of the following apply:
(1)	The term of the contract does not exceed 12 years from the date of the installation and acceptance by the  governmental unit of the energy conservation measures provided for under the contract.
(2)	The governmental unit finds that the energy savings resulting from the performance of the contract will equal or exceed the total cost of the contract.
(3)	The energy conservation measures to be installed under the contract are for an existing building.
(b)	Before entering into a guaranteed energy savings contract, the governmental unit shall provide published notice of the meeting at which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. The notice must be published at least 15 days before the date of the meeting.
(c)	A qualified provider entering into a guaranteed energy savings contract under this Part shall provide a bond to the governmental unit in the amount equal to one hundred percent (100%) of the total cost of the guaranteed energy savings contract to assure the provider's faithful performance. Any bonds required by this subsection shall be subject to the provisions of Article 3 of Chapter 44A of the General Statutes. If the savings resulting from a guaranteed energy savings contract are not as great as projected under the contract and all required shortfall payments to the governmental unit have not been made, the governmental unit may terminate the contract without incurring any additional obligation to the qualified provider.
(d)	As used in this section, "total cost" shall include, but not be limited to, costs of construction, costs of financing, and costs of maintenance and training during the term of the contract. "Total cost" does not include any obligations on termination of the contract before its expiration, provided that those obligations are disclosed when the contract is executed.
(e)	A guaranteed energy savings contract may not require the  governmental unit to purchase a maintenance contract or other maintenance agreement from the qualified provider who installs energy conservation measures under the contract if the unit of government takes appropriate action to budget for its own forces or another provider to maintain new systems installed and existing systems affected by the guaranteed energy savings contract."
SECTION 12.(e)  G.S. 143‑64.17D reads as rewritten:
"§ 143‑64.17D.  Contract continuance.
A guaranteed energy savings contract may extend beyond the fiscal year in which it becomes effective. Such a contract shall stipulate that it does not constitute a debt, liability, or obligation of any local governmental unit or a pledge of the faith and credit of any governmental unit."
SECTION 12.(f)  Part 2 of Article 3B of Chapter 143 of the General Statutes is amended by adding the following new section to read:
"§ 143-64.17F.  State agencies to use contracts when feasible.
State governmental units, including State universities, shall evaluate the use of guaranteed energy savings contracts in reducing energy costs and may use those contracts when feasible and practical. The Department of Administration shall develop guidelines for agency evaluation of guaranteed energy savings contracts."
SECTION 12.(g)  The Department of Administration shall develop a plan for establishing and implementing an energy efficiency goal for all State buildings.  The Department shall report the plan to the General Assembly no later than May 1, 2002, by filing copies with the Office of the President Pro Tempore of the Senate, the Office of the Speaker of the House of Representatives, the legislative Fiscal Research Division, and the Legislative Library.
SECTION 13.  Nothing in this act limits the use of any method of contracting authorized by local law or other applicable laws.

PART IV. lANDSCAPE ARCHITECTURE LAW CHANGES
SECTION 14.(a)  G.S. 89A‑1(3) reads as rewritten:
"(3)	Landscape architecture or the practice of landscape architecture. – The preparation of plans and specifications and supervising the execution of projects involving the arranging of land and the elements used thereon for public and private use and enjoyment, embracing such matters as the location and placement of buildings and structures, the location, routing, and design of streets or other public or private ways and associated drainage systems, soil conservation and erosion control, stormwater management and surface or subsurface drainage, site grading, and planting plans, all in accordance with the accepted professional standards of public health, safety and welfare."
SECTION 14.(b)  The State Board of Examiners for Engineers and Surveyors and the Board of Landscape Architects are directed to meet and confer to identify areas of overlap or common practice with respect to the scope of their respective professions and to consider means for resolving disputes concerning standards of practice, qualifications, and jurisdiction regarding such areas of overlap.  They shall present a joint written report to the General Assembly not later than April 30, 2002, concerning their findings and recommendations, and the General Assembly may consider and take action on such report during its session in 2002 or at such other time as it may deem appropriate.

PART V.  eFFECTIVE DATE
SECTION 15.  Sections 8(a) through 8(e) of this act become effective July 1, 2001. Section 11.1 of this act becomes effective January 1, 2002.  The remainder of this act is effective when it becomes law.