Contract Clauses Regarding Bidding Subs

The following is taken from web resources and demonstrates the variability  of contract language regarding subs.  All the resources related to major educational institutions, but are designed by numbers because the below may not be the latest standard from the states or institutions and I don’t want my interpretation or cut and paste to be a commentary on any particular institution.

Summary
For the five universities examined,

  1. University 1. Bidding of subs is urged, but QBS may be authorized.
  2. University 2. Law requires competition of subs, but whether it is a bid or a best value is left up to the project team.
  3. University 3. Requires prequalification of subs, then bidding.
  4. University 4. Subs can be designed for “early selection” then competitive proposals solicited.
  5. University 5. Requires three sealed bids or proposals, and requires the CM to bid if the CM wants to self-perform work. 
Below follows the excerpts from the contracts at those five universities:

Contract Language
University 1

From a recent RFP, the CM may select mechanical and electrical subs and pay them for preconstruction services, but

 “selection and participation of subcontractors during preconstruction services phases does not guarantee or convey any rights to a contract for construction or construction services.  The contract has a formal selection process for determine qualified subs.”

The [CM] will solicit and publicly conduct subcontractor bidding for all construction work except hat which is specifically exempted by the University.

The University wants to obtain the best value for funds expended.  Competition is generally the preferred method of assuring the least cost and subcontracting by bid process is encouraged.  Qualification-based selection or pre-qualification selection of specific subcontracts may be authorized by the University.  The University understands that there may be times when the best interest of the project is served by the [CM] itself performing or otherwise exempting a portion of the work from the bidding process.”

 

Univesity 2. In [State], the matter may be determined by a statute         

§ 51.782. CONTRACTS FOR FACILITIES:  CONSTRUCTION  which says,”
MANAGER-AT-RISK.  (i)  A construction manager-at-risk shall publicly advertise, in the manner prescribed by the institution, and receive bids or proposals from trade contractors or subcontractors for the performance of all major elements of the work other than general conditions work.  The law does allow the CM to self-perform some work, if the owner determines it is the best value. 
From a typical [State] contact:
5.7.1 In accordance with Texas Education Code section 51.782, as amended, Construction Manager shall publicly advertise and solicit competitive lump sum bids/proposals from trade contractors or subcontractors for the performance of all major elements of the work other than the minor work that may be included in General Conditions. Criteria for determining the bid/proposal that provides the best value to the Owner shall be established by the Project Team and included in the request for bids/proposals. The Construction Manager shall notify the Owner in advance in writing of the date it will receive the bids/proposals.

University 3
General Conditions
2.2.4.7 The [CM] shall: Assist the Owner and Design Professional in the preparation of the necessary bidding information, bidding forms, and pre-qualification criteria for bidders; develop subcontractor interest; establish bidding schedules; advertise for bids; and conduct pre-bid conferences to familiarize bidders with the bidding documents and management techniques and with any special systems, materials, or methods.  The [CM] shall review all potential subcontractors with the Owner and Design Professional and obtain Owner’s approval of the pre-qualification of any subcontractor.  If the [CM] becomes aware prior to any bid date that less than three (3) pre-qualified subcontractors plan to bid any portion of any Bid Package or that anticipated bids from previously approved or pre-qualified subcontractors are likely to exceed the current Schedule of Values or estimate of Construction Cost, the [CM] shall promptly notify the Owner.

2.2.4.8 The [CM] shall receive and open bids when advertised, prepare a bid analysis, conduct pre-award conferences, and notify the Owner and Design Professional concerning which bids from pre-qualified subcontractors will be accepted and awarded.  The Owner and Design Professional shall be notified of the time and place of all bid openings and shall be permitted to attend such openings with their representatives and guests.  A proposal to accept other than a low lump sum bid shall be justified in writing by the [CM], and be subject to prior written approval by the Owner, with no increase in the GMP.

University 4
[From an SOP manual]
2.12 Early Selection of Certain Subcontractors Owner has determined that it is advantageous to the Owner to have the Subcontractors that will perform the Construction Work in the following trades participate in the design process for the Project during the Design Phase: [INSERT LIST OF MAJOR TRADES THAT CAN MAKE A SIGNIFICANT CONTRIBUTION BY PARTICIPATING IN THE DESIGN PHASE. THE LIST MUST BE TAILORED AND JUSTIFIED BY THE NEEDS OF THE PARTICUALR PROJECT. FOR EXAMPLE: “mechanical, plumbing, electrical, fire sprinklers and glazing”]. Therefore, Subcontractors in these trades will be selected at the beginning of the CMAR’s participation in the Design Phase. This requires that the Subcontractor selection procedures in Section 2.11 apply in a modified form as set forth below to the selection of each early selected Subcontractor (“Early Selected Subcontractor”). The Early Selected Subcontractors will be selected using the [a competitive proposal system]

 

University 5
a
a