A BILL TO BE ENTITLED
AN ACT AUTHORIZING PUBLIC CONTRACTS TO UTILIZE THE JOB ORDER CONTRACTING METHOD OF CONSTRUCTION OR REPAIR CONTRACTS.
Whereas, the General Assembly recognizes it is in the best interest of the State to modernize, repair, and renovate facilities and infrastructure in a cost‑effective and efficient manner that represents the best overall value to the taxpayers and has the greatest benefit to the State's economy; and
Whereas, the job order contracting method of procuring construction or repair services can be an attractive option to governmental entities in comparison to existing procurement methods; and
Whereas, the State and governmental entities in the State should be able to utilize cost‑effective and efficient options for the delivery of construction or repair projects, including job order contracting, in accordance with the national trend to allow governmental entities to utilize job order contracts as a project delivery method; and
Whereas, the benefits of the job order contracting project delivery system include accelerated responsiveness to and completion of projects, cost‑savings, transparency, and reduction of construction or repair contracting complexity; and
Whereas, the job order contracting approach should be used for the purposes of reducing project costs, expediting project completion, or decreasing administrative expenses associated with construction or repair projects; and 
Whereas, the availability of job order contracting as a project delivery method will not preclude the use of other methods of project delivery; Now, therefore,
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 143‑49 reads as rewritten:
"§ 143‑49.  Powers and duties of Secretary.
The Secretary of Administration has the power and authority, and it is the Secretary's duty, subject to the provisions of this Article:
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(17)	To establish procedures to permit State government, or any of its departments, institutions, or agencies, to join with any federal, State, or local government agency, entity, or subdivision, or any nonprofit organization in this State or another State in cooperative purchasing plans, projects, arrangements, or agreements, including for construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, if the interest of the State would be served thereby. The procedures shall not require a governmental entity secure informal quotes or any additional competition for construction or repair work through job order contracting if the initial contract was competitively bid as provided by G.S. 143‑128.1D."
SECTION 2.  G.S. 143‑128 reads as rewritten:
"§ 143‑128.  Requirements for certain building contracts.
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(a1)	Construction methods. – The State, a county, municipality, or other public body shall award contracts to erect, construct, alter, or repair 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 at risk contracts pursuant to G.S. 143‑128.1.
(5)	Alternative contracting methods authorized pursuant to G.S. 143‑135.26(9).
(6)	Design‑build contracts pursuant to G.S. 143‑128.1A.
(7)	Design‑build bridging contracts pursuant to G.S. 143‑128.1B.
(8)	Public‑private partnership construction contracts pursuant to G.S. 143‑128.1C.
(9)	Job order contracting contracts pursuant to G.S. 143‑128.1D.
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SECTION 3.  Article 8 of Chapter 143 of the General Statutes is amended by adding a new section to read as follows:
"§ 143‑128.1D.  Job order contracting contracts.
(a)	Definitions. – For purposes of this section, the following definitions shall apply:
(1)	Adjustment factor. – The job order contractor's competitively bid adjustment to the governmental entity's prices as published in the unit price catalog.
(2)	Governmental entity. – Every officer, board, department, commission, or commissions charged with responsibility of preparation of specifications or awarding or entering into contracts for construction or repair work for the State or for any county, municipality, political subdivision of the State, or other public body.
(3)	Indefinite quantity. – One or more of the construction or repair tasks listed in the unit price catalog.
(4)	Job order. – A firm, fixed priced, lump sum order issued by a governmental entity to a job order contractor for a definite project scope of construction or repair work as compiled from the unit price catalog to be performed pursuant to a job order contract.
(5)	Job order contract. – A competitively bid, fixed priced, indefinite quantity procurement contract, as compiled from a unit price catalog of construction or repair tasks that is awarded to the most qualified job order contractor bidder, as described in subsection (b) of this section, by or under the authority of a governmental entity. In a job order contract, the contractor agrees to an indefinite quantity contract that provides for the use of job orders for construction or repair projects.
(6)	Job order contract technical specifications. – The technical specifications detailing the quality of materials and workmanship to be used by the job order contractor in accomplishing the tasks listed in the unit price catalog.
(7)	Job order contractor. – A contractor awarded a job order contract.
(8)	Project. – The specific requirements and work to be accomplished by the job order contractor in connection with an individual job order.
(9)	Project scope of work. – The documents and related drawings, specifications, and writings referenced therein which together set forth the specific requirements and work to be accomplished by the job order contractor in connection with an individual job order.
(10)	Proposal. – The job order contractor prepared documents quoting those construction or repair tasks listed in the unit price catalog that the job order contractor requires to complete the project scope of work and the appropriate quantities of tasks. The pricing of each task shall be accomplished by multiplying the task unit price by the proposed quantity of tasks and the contractor's competitively bid adjustment factor. The proposal shall also contain a schedule for the completion of a specific project scope of work as requested by the governmental entity. The proposal may also contain approved drawings, work schedule, permits, or other documentation as the governmental entity may require for a specific job order.
(11)	Subcontractor. – Any person, firm, or corporation, other than the employees of the job order contractor, who contracts to furnish labor or labor and materials at the work site or in connection with a job order, whether directly or indirectly, on behalf of the job order contractor.
(12)	Unit price catalog. – A compilation of specific construction or repair tasks and the unit prices to undertake each construction or repair task. The listed tasks shall be based on generally accepted industry standards and information, where available, for various items of work to be performed by the job order contractor. The prices shall include the cost of materials, labor, and equipment for performing the items of work. The prices shall not include overhead and profit. All unit prices shall be developed using local prevailing wages.
(b)	Contracting Procedures. – A governmental entity shall award a job order contract subject to the following requirements:
(1)	The governmental entity shall prepare a set of solicitation documents for job order contracts. The solicitation documents shall include a unit price catalog and preestablished unit prices, job order contract technical specifications, and any other information deemed necessary to describe adequately the needs of the governmental entity. Any architect, engineer, or consultant retained by the governmental entity to assist in the development of the job order contract solicitation documents shall not assist the job order contractor in preparing the contractor's bid.
(2)	The governmental entity shall provide a guaranteed minimum amount of construction or repair work of not less than thirty thousand dollars ($30,000) to be awarded under the job order contract. Once the guaranteed minimum amount has been met, the governmental entity may, for any reason, elect to not award any additional amount of construction or repair work under the job order contract.
(3)	In response to a request for bids, a job order contractor shall bid one or more adjustment factors to the unit prices listed in the unit price catalog based on the job order contract technical specifications. The combined average lowest adjustment factor shall constitute the lowest bid.
(4)	The governmental entity shall award the job order contract to the lowest responsive, responsible bidder when awarding a single job order contract.
(5)	The governmental entity may award multiple job order contracts through a single request for bid as follows:
a.	Job order contracts shall be awarded to the bidders that bid the lowest adjustment factors as described in this subsection.
b.	The governmental entity shall not award more than five job order contracts under a single solicitation.
c.	The governmental entity may issue job orders on a rotating basis or other method, as determined by the governmental entity, provided that method is included in the solicitation documents, but in no circumstance shall the government entity require additional competition among the contractors who have been awarded job order contracts.
(6)	The governmental entity may prequalify job order contractors as provided in subsection (c) of this section and may award to bidders as provided in subdivisions (4) and (5) of this subsection.
(c)	Prequalification. – Notwithstanding the provisions of G.S. 143‑135.8, a governmental entity may establish a procedure to prequalify job order contractors which includes, at a minimum, a requirement that each job order contractor provides the following information:
(1)	If the job order contractor is a partnership, limited partnership, or other association, the job order contractor shall list all of the partners or association members known at the time of bid submission who will participate in the job order contract.
(2)	Evidence that the job order contractor, including partners and association members, have the capacity to complete projects of similar size, scope, or complexity, evidence that proposed key personnel have sufficient experience and training to competently manage the construction of the project, and a financial statement that assures the governmental entity that the job order contractor has the capacity to complete projects under the contract.
(3)	The licenses, registration, and credentials required to perform construction, including, but not limited to, information on the revocation or suspension of any license, credential, or registration.
(4)	Evidence that establishes the job order contractor has the capacity to obtain all required payment and performance bonds and liability insurance required by law.
(5)	Information concerning workers' compensation experience history, worker safety programs, and apprenticeship programs.
(6)	A full disclosure regarding all of the following that are applicable:
a.	Any serious or willful violation of Chapter 95 of the General Statutes or the federal Occupational Safety and Health Act of 1970 (Public Law 91‑596), as amended, that have been settled in any way against the job order contractor, including partners and association members.
b.	Any debarment, disqualification, or removal from a federal, State, or local government construction or repair project.
c.	Any instance where the job order contractor, or the job order contractor's owners, officers, or managing employees, submitted a bid on a construction or repair project that was found by the awarding body to be nonresponsive or not responsible.
d.	Any instance where the job order contractor, or the job order contractor's owners, officers, or managing employees, defaulted on a construction contract.
e.	Any violations of Chapter 87 of the General Statutes, or other applicable licensure requirements, against the job order contractor, including partners or association members.
f.	Any bankruptcy or receivership of the job order contractor, including partners or association members, and including information concerning any work completed by a surety.
g.	Any settled adverse claims, disputes, or lawsuits between the owner of a construction or repair project and any job order contractor, including partners or association members, during the five years preceding submission of a bid under this section in which the claim, settlement, or judgment exceeds fifty thousand dollars ($50,000). Information shall also be provided concerning any work completed by a surety during the five years preceding prequalification under this section.
h.	In the case of a partnership or any association that is not a legal entity under the laws of this State, a copy of the agreement creating the partnership or association and specifying that all partners or association members agree to be fully liable for the performance under the job order contract.
(7)	The information required by this subsection shall be verified under oath by the job order contractor in the same manner in which civil pleadings in civil actions are verified.
(d)	Limitations. – The following limitations apply to contracts awarded pursuant to this section:
(1)	The maximum total dollar amount that may be awarded under a single job order contract shall not exceed twenty million dollars ($20,000,000) in the first term of the job order contract and, if extended or renewed pursuant to subdivision (2) of this subsection, a maximum of forty million dollars ($40,000,000) over the subsequent two terms of the job order contract.
(2)	Job order contracts may be executed for an initial contract term of no more than 12 months, with the option of extending or renewing the job order contract for two 12‑month periods. The term of the job order contract shall be for the contract term or whenever the maximum value of the contract is achieved, whichever is less. All extensions or renewals shall be priced as provided in the request for bids. The extension or renewal shall be mutually agreed to by the governmental entity and job order contractor.
(3)	The governmental entity may issue job orders to the job order contractor that has been awarded the job order contract. The job order shall be based on a project scope of work prepared by the governmental entity as well as a proposal from the job order contractor who is awarded the job order contract. No single job order may exceed the available aggregate contract value.
(4)	The amounts specified in subdivisions (1) and (2) of this subsection shall be adjusted on January 1, 2018, and each January 1 thereafter, to reflect the percentage change in the North Carolina Consumer Price Index, as determined and published by the Department of Administration.
(e)	Performance and Payment Bonds. – The job order contractor shall provide a payment and performance bond to the governmental entity for job orders in accordance with the provisions of Article 3 of Chapter 44A of the General Statutes when applicable.
(f)	Historically Underutilized Businesses. – A governmental entity shall make a good‑faith effort to comply with the provisions of G.S. 143‑128.2 and G.S. 143‑128.4, if applicable for job orders. Notwithstanding the provisions of G.S. 143‑128.2 and G.S. 143‑128.4, the goal for participation by minority businesses shall be based on the entire job order contract."
SECTION 4.  G.S. 143‑129 reads as rewritten:
"§ 143‑129.  Procedure for letting of public contracts.
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(e)	Exceptions. – The requirements of this Article do not apply to:
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(3)	Construction or repair work, including construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, or purchases of apparatus, supplies, materials, or equipment made through a competitive bidding group purchasing program, which is a formally organized program that offers competitively obtained purchasing services at discount prices to two or more public agencies.
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(9)	Construction or repair work, including construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, or purchases of apparatus, supplies, materials, or equipment from contracts established by the State or any agency of the State, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the State contract.
(9a)	Construction or repair work, including construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, or purchases of apparatus, supplies, materials, or equipment from contracts established by the United States of America or any federal agency, if the contractor is willing to extend to a political subdivision of the State the same or more favorable prices, terms, and conditions as established in the federal contract.
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(g)	Waiver of Bidding for Previously Bid Contracts. – When the governing board of any political subdivision of the State, or the person to whom authority has been delegated under subsection (a) of this section, determines that it is in the best interest of the unit, the requirements of this section may be waived for construction or repair work, including construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, or the purchase of apparatus, supplies, materials, or equipment from any person or entity that has, within the previous 12 months, after having completed a public, formal bid process substantially similar to that required by this Article, contracted to furnish the apparatus, supplies, materials, or equipment to:
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(3)	Any other state or any agency or political subdivision of that state, if the person or entity is willing to furnish the items at the same or more favorable prices, terms, and conditions as those provided under the contract with the other unit or agency. Notwithstanding any other provision of this section, any construction or repair work, including construction or repair work through job order contracting pursuant to G.S. 143‑128.1D, or purchase of apparatus, supplies, materials, or equipment made under this subsection shall be approved by the governing body of the purchasing political subdivision of the State at a regularly scheduled meeting of the governing body no fewer than 10 days after publication of notice that a waiver of the bid procedure will be considered in order to contract with a qualified supplier pursuant to this section. Notice may be published in a newspaper having general circulation in the political subdivision or by electronic means, or both. A decision to publish notice solely by electronic means for a particular contract or for all contracts under this subsection shall be approved by the governing board of the political subdivision. Rules issued by the Secretary of Administration pursuant to G.S. 143‑49(6) shall apply with respect to participation in State term contracts.
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SECTION 5.  This act is effective when it becomes law.