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State Accounting and Budgetary Procedures 

Title 19 | Chapter 4 | Subchapter 14

SUBCHAPTER 14 - CONSTRUCTION OF BUILDINGS AND FACILITIES

19-4-1401. Notice required.

In all instances wherein the state has any interest whatsoever in construction work requiring bids, the notice provisions of §§ 22-9-201 - 22-9-204 shall be strictly complied with and observed. Nothing in this subchapter shall be construed to amend or repeal these statutes, except those emergency procedures provided by §§ 22-9-201 - 22-9-204.

History. Acts 1973, No. 876, § 22; A.S.A. 1947, § 13-348; Acts 1999, No. 776, § 3.

 19-4-1402. Contracts to be filed.

 (a) Executed counterparts of all contracts entered into by any state agency with respect to proposed projects for new improvements or major repairs or additions to existing buildings and facilities shall be filed with the Arkansas Building Authority before the issuance of any vouchers making payments under the contract, unless the contract is exempted from the jurisdiction of the authority by a law or a regulation promulgated under the Arkansas Administrative Procedure Act, § 25-15-201 et seq. (b)(1) The Boards of Trustees of the University of Arkansas, Arkansas State University, University of Central Arkansas, Henderson State University, Arkansas Tech University, and Southern Arkansas University, respectively, are exempt from the requirements of this section requiring the filing of the contracts with the authority.

(2) The governing boards of all other public institutions of higher education shall be exempt from the requirement for approval and filing of the contracts with the authority:

(A) Upon approval of the Department of Higher Education; and

(B) If, prior to granting approval, the department shall have reviewed and approved policies and procedures adopted by the governing boards of the public institutions of higher education with respect to bidding and construction of capital improvement projects.

(3) Nothing in this section shall prevent a public institution of higher education exempt under this subsection from entering into an agreement with the authority to file its contracts with the authority.

(c)(1) All contracts for new improvements or major repairs or additions to existing buildings and facilities under this subchapter shall include a project disclosure statement prepared by the agency, board, commission, or public institution of higher education.

(2) The disclosure statement shall provide the estimated timeline, scope, and a cost of the total project.

(3) The disclosure statement shall not be construed as authorizing any:

(A) Additional work which is beyond the scope of the bid documents; or

(B) Payment exceeding the contract amount.

(d) Nothing in this section shall prohibit any agency, board, commission, or public institution of higher education from executing contract amendments.

History. Acts 1973, No. 876, § 22; 1977, No. 813, § 2; A.S.A. 1947, § 13-348; Acts 1997, No. 294, § 1; 2001, No. 214, § 1; 2001, No. 961, § 3; 2005, No. 2186, 1; 2009, No. 193, 1, 2.

19-4-1403. Agencies exempted.

The provisions of this subchapter shall not be applicable to the State Highway Commission and the Arkansas State Highway and Transportation Department.

History. Acts 1973, No. 876, § 22; 1977, No. 813, § 2; A.S.A. 1947, § 13-348.

19-4-1404. Forces employed.

(a) Whenever any agency of the state shall determine to construct any buildings and facilities or to make any repairs or additions to existing buildings and facilities and there are funds available for these purposes, then the agency shall have the authority to undertake any such project by the employment and use of its own forces, or by contract, or in part by its own forces and in part by contract, all as in its opinion shall be in the best interest of the state. For this purpose the agency may employ architects. (b) The provisions of this section shall not apply to any city, town, county, or school district within this state.

History. Acts 1973, No. 876, § 22; A.S.A. 1947, § 13-348.

19-4-1405. Bidding procedure.

(a)(1)(A) After a state agency has caused the preparation and has approved plans and specifications, it shall then proceed to advertise for bids for the contemplated work by the publication of notice one (1) time each week for not less than two (2) consecutive weeks for projects over the amount of fifty thousand dollars ($50,000), and shall proceed to advertise for bids one (1) time each week for not less than one (1) week for projects more than the quote bid and less than or equal to fifty thousand dollars ($50,000). (B)(i) This notice shall be published in a newspaper of general circulation published in the county in which the proposed improvements are to be made or in a trade journal reaching the construction industry.

(ii) The last insertion shall be not less than one (1) week prior to the date on which the bids are to be received.

(2) The notice shall:

(A) Provide for the receipt of sealed bids;

(B) Set forth the time and place in which the bids will be received;

(C) Specify from whom copies of the plans and specifications and a draft of the proposed contract may be obtained for examination;

(D) Contain the amount of the bid security; and

(E) Contain such other information and requirements as, in the opinion of the state agency, may be necessary or desirable.

(b)(1) On the date and time fixed in the notice, the state agency shall open, tabulate, and compare bids, and award the contract to the lowest responsible bidder.

(2) However, the state agency shall have the right to reject any or all bids and to waive any formalities.

(c)(1) The successful bidder shall be required to furnish bonds to the State of Arkansas, with corporate guaranty or indemnity sureties on the bonds.

(2)(A) The bonds shall be both for the completion of the construction free of all liens and encumbrances, in an amount fixed by Arkansas Building Authority, and for the protection of the state agency and its members against all liability for injury to persons or damage to, or loss of, property arising, or claimed to have arisen, in the course of the work project, within limits fixed by the authority.

(B) However, for projects undertaken by public institutions of higher education, the bonds shall be in an amount and within limits fixed by the governing board of the public institution of higher education.

(d)(1)(A) Every bid submitted on state agency construction contracts for projects over the amount of twenty thousand dollars ($20,000) shall be void unless accompanied by a cashier's check drawn upon a bank or trust company doing business in this state or by a corporate bid bond and the agent's power of attorney as his or her authority.

(B) No bid security shall be required for projects under or equal to the amount of twenty thousand dollars ($20,000).

(2) The bid security shall indemnify the public against failure of the contractor to execute and deliver the contract and necessary bonds for faithful performance of the contract.

(3) The bid security shall provide that the contractor or surety must pay the damage, loss, cost, and expense subject to the amount of the bid security directly arising out of the contractor's default in failing to execute and deliver the contract and bonds.

(4) Liability under this bid security shall be limited to five percent (5%) of the amount of the bid.

(e)(1)(A) When it is obvious from examination of the bid document that it was the intent of a bidder to submit a responsive bid and because of a scrivener's error, the bid, if accepted, would create a serious financial loss to the bidder, the Director of the Arkansas Building Authority may relieve the bidder from responsibility under his or her bond and may reject the bid.

(B) However, for projects undertaken by public institutions of higher education exempt from review and approval of the authority, the chief executive officer of the public institution of higher education or his or her designee may relieve the bidder from responsibility under his or her bond and may reject his or her bid in the same manner and within the same period as allowed by the authority.

(2) As used in this section, "scrivener's error" means:

(A) An error in the calculation of a bid which can be documented by clear and convincing written evidence and which can be clearly shown by objective evidence drawn from inspection of the original work papers, documents, or materials used in the preparation of the bid sought to be withdrawn; and

(B) In the case of a bid sought to be withdrawn, the bid was submitted in good faith and the mistake was due to a calculation or clerical error, an inadvertent omission, or a typographical error as opposed to an error in judgment.

(3)(A) To receive relief under subdivision (e)(1) of this section, the bidder must serve written notice to the director or to the chief executive officer or his or her designee of a public institution of higher education exempt from review and approval of the authority any time after the bid opening, but no later than seventy-two (72) hours after receiving the intent to award, excluding Saturdays, Sundays, and holidays.

(B) Failure to make a withdrawal request within seventy-two (72) hours shall constitute a waiver by the bidder of the bidder's right to claim that the mistake in his or her bid was a scrivener's error.

(4) In the event the director or the chief executive officer or his or her designee of a public institution of higher education exempt from review and approval of the authority has relieved the bidder from responsibility under his or her bond, action on the remaining bids should be considered as though the withdrawn bid had not been received.

(f)(1) A state agency shall not require in plans or specifications that a bidder or supplier:

(A) Hold membership in any professional or industry associations, societies, trade groups, or similar organizations;

(B) Possess certification from any professional or industry associations, societies, trade groups, or similar organizations as steel building fabricators; or

(C) Be endorsed by any professional or industry associations, societies, trade groups, or similar organizations.

(2) However, plans and specifications may include or reference standards adopted by professional or industry associations, societies, trade groups, or similar organizations.

History. Acts 1973, No. 876, § 22; 1985, No. 365, § 11; A.S.A. 1947, § 13-348; Acts 1987, No. 758, § 1; 1995, No. 1319, § 1; 1997, No. 1193, § 2; 1999, No. 219, § 2; 2001, No. 214, §§ 2, 3; 2001, No. 961, §§ 4, 5; 2003, No. 364, §§ 4, 19; 2005, No. 859, § 1.

19-4-1406. [Repealed.]

19-4-1407. Method of financing.

(a) Before any state agency shall enter into any contract of employment with an architect or take any other affirmative action toward the construction or financing of any project as provided in this subchapter, it shall submit to the Chief Fiscal Officer of the State, in writing, a summary statement setting forth: (1) A general description of the proposed project;

(2) Its estimated overall costs; and

(3) The method it proposes to use to finance its cost, which is to be a method of financing that must be approved by the Governor.

(b) After examining the method of financing and making such investigation as he shall deem necessary or advisable, the Chief Fiscal Officer of the State shall notify the agency, in writing, of his and the Governor's approval or disapproval of the method of financing the project. In the event of disapproval by the Chief Fiscal Officer of the State and the Governor, the agency may submit an alternate plan of financing the project. In any event, no affirmative action shall be taken by the agency unless and until a method of financing shall be approved by the Governor and the Chief Fiscal Officer of the State. The Chief Fiscal Officer of the State shall have no authority to pass upon the need for any such construction, such authority being vested solely in the agency.

(c) The method of financing as required by this subchapter shall include estimated dates for commencing and completing the project. After the contracts for the project have been awarded, then the method of financing shall be amended to include the estimated dates of completion in accordance with the awarded contracts.

History. Acts 1973, No. 876, § 22; 1975, No. 985, § 1; A.S.A. 1947, § 13-348.

19-4-1408. Matching funds.

(a) In the event funds provided by the state for projects regulated in this subchapter are subject to matching provisions, the Chief Fiscal Officer of the State shall require in the proposed method of financing that all of the funds or approved grants available for the proposed project, including state, federal, and agency funds, shall be considered in connection with preliminary planning and

the awarding of contracts in connection with the project. (b) In those instances where construction projects utilize funds other than those deposited in the State Treasury, the Chief Fiscal Officer of the State shall prescribe the procedure for payments from all other funds made available to the agency.

History. Acts 1973, No. 876, § 22; A.S.A. 1947, § 13-348; Acts 2001, No. 1453, § 41.

19-4-1409. Use of other funds.

(a) No state agency for which appropriations have been made by the General Assembly for construction and improvements shall make any contract or incur any indebtedness payable from those appropriations unless and until there are sufficient funds on hand or, in the case of federal grants, until the grant has received final approval from the granting federal agency for the benefit of the state agency to pay for the proposed obligations under the contracts. However, any agency shall have the power to accept and use grants and donations and to use its unobligated cash income and other funds available to it for the purpose of supplementing appropriations for construction purposes. (b) The appropriations and funds otherwise provided by the General Assembly for personal services, maintenance, and general operation of the agency shall not be used in connection with any proposed construction projects for which specific appropriations have been made by the General Assembly.

History. Acts 1973, No. 876, § 22; A.S.A. 1947, § 13-348.

19-4-1410. Completion of contracts.

Upon completion of each contract awarded for the fulfillment of a project authorized by the General Assembly: (1) The affected state agency shall notify the Department of Finance and Administration of the culmination of the contract;

(2) No further expenditures or obligations will be incurred; and

(3) The unexpended and unobligated funds shall be impounded.

History. Acts 1973, No. 876, § 22; 1975, No. 985, § 1; A.S.A. 1947, § 13-348.

19-4-1411. Processing of payments.

(a)(1) When a contractor submits a properly prepared request for payment of work completed on state construction projects and the request for payment conforms with the provisions of the contract award and laws of the State of Arkansas, the following maximum time is allowed for the processing of the payment requests by the various parties involved, excluding time required for transmittal from one (1) party to another: (A) A design professional - five (5) working days;

(B) A state agency or institution of higher education exempt from review and approval by the Arkansas Building Authority - five (5) working days, including preparation of a voucher and submission for payment; and

(C) The Department of Finance and Administration - five (5) working days.

(2) Should payment be contested by any of the parties listed in this subsection, it shall be the responsibility of the parties contesting the payment, within the time specified for processing payment, to notify the contractor involved that payment has been contested and reasons therefor.

(3) Should any of the parties listed in this subsection fail to properly process uncontested requests for payments within the time limits specified following date of receipt, a penalty of eight percent (8%) per annum of the amount of the request for payment shall be assessed against the parties responsible for the delay.

(b)(1) The Chief Fiscal Officer of the State shall establish procedures for monitoring payments to contractors. When it has been determined that payment processing has exceeded the time limits established in this section, the Chief Fiscal Officer of the State shall cause an investigation to be made for the purpose of determining the responsible parties and the amount of penalty to be paid.

(2) Penalties assessed for failure to comply with the provisions in this section shall be paid to the contractor by the parties responsible in accordance with procedures established by the Chief Fiscal Officer of the State.

History. Acts 1973, No. 876, § 22; 1977, No. 813, § 3; 1979, No. 833, § 9; A.S.A. 1947, § 13-348; Acts 2001, No. 214, § 4; 2001, No. 961, § 6; 2003, No. 364, § 6.

19-4-1412. Fund balances.

(a) If, after the expiration date of the second biennial period for which funds have been appropriated for the benefit of any specific capital improvement project, there remains a balance of funds or appropriations, then such fund balances as may remain in the General Improvement Fund for the benefit of the capital improvement project shall be reallocated for the benefit of proposed new or existing capital improvement projects of the various State agencies as may be enacted. (b) Nothing in this section shall be construed as to limit the authority of the General Assembly to appropriate funds for the benefit of any proposed new or existing capital improvement project of the various State agencies.

History. Acts 1973, No. 876, § 22; 1977, No. 641, § 1; A.S.A. 1947, § 13-348.

19-4-1413. Projects constructed with private funds.

(a) In the event funds from private sources are provided to a public institution of higher education for projects, which exceed five million dollars ($5,000,000) regulated in this subchapter sufficient to finance at least eighty percent (80%) of the estimated cost of the proposed project, excluding the cost of land, the provisions of this subchapter and of all other provisions of the Arkansas Code governing construction of public facilities, including, but not limited to, the provisions of §§ 22-9-101 - 22-9-103 and §§ 22-9-201 - 22-9-212 shall not be applicable to such projects, subject to the following: (1)(A)(i) The governing board of the public institution of higher education shall have adopted a resolution and procedure setting forth the method by which the architect, engineer, construction manager, contractor, and major subcontractors are to be selected for the project.

(ii) The procedure shall include by appropriate public notice and solicitation the opportunity for qualified, licensed professionals to submit proposals and shall assure the design and completion of the project in an expeditious manner while adhering to high standards of design and construction quality.

(iii) Such procedures shall require a payment and performance bond in an amount determined by the governing board and shall provide for the manner in which the construction shall be managed and supervised.

(B) In selecting a contractor and other professionals for the projects, the governing board shall consider the experience of the person or firm in constructing similar projects, the record of the person or firm in timely completion of such projects and other similar matters to assure that the person or firm will complete the project within the time and to the specifications set by the governing board;

(2)(A) Before the public institution of higher education shall enter into a contract with an architect, engineer, construction manager, or contractor for the design, construction or financing of any project financed from private funds as provided herein, it shall submit to the Chief Fiscal Officer of the State and the Legislative Council, in writing, a summary statement setting forth a general description of the proposed project, its estimated overall cost, and the method proposed to finance the cost, including a description of the sources and amount of private funds.

(B) The Chief Fiscal Officer of the State may forward a copy of this statement to Arkansas Building Authority and the Governor for information; and

(3) To enable a public institution of higher education to qualify under this subsection, the private funds shall be paid to the public institution of higher education or to a fund or foundation for the benefit of the public institution of higher education, and such funds may be represented in whole or in part by a written pledge or commitment from a donor, provided that the public institution of higher education shall assure itself of the financial stability of such donor to fulfill the pledge or commitment.

(b) Notwithstanding anything in this subsection to the contrary, the provisions of §§ 19-4-1405(f), §§ 22-9-301 et seq., §§ 22-9-401 - 22-9-404, §§ 22-9-501et seq., §§ 22-9-601et seq., and §§ 22-9-701 et seq. shall remain in full force and effect and shall not be affected by this section.

History. Acts 1997, No. 961, § 1; 2005, No. 859, 2.

19-4-1414. [Repealed.]

19-4-1415. Projects exceeding five million dollars.

(a) In the event funds from any sources are provided to state agencies for projects which exceed five million dollars ($5,000,000), excluding the cost of land, the provisions of this subchapter and all other provisions of the Arkansas Code governing construction of public facilities, including, but not limited to, the provisions of § 22-9-201 et seq. at the election of state agencies or the institutions of higher education set forth in subdivision (b)(5) of this section shall not be applicable to the projects if the selection and contracting process set forth in this section is followed. (b)(1) No contract for projects between the state agency and the construction manager, general contractor, architect, or engineer shall be entered into without first obtaining approval of the Arkansas Building Authority and review by the Legislative Council.

(2) The authority shall have involvement in the selection and contract process from the project inception.

(3) There shall be separate contracts for design and construction services.

(4) The authority shall have the authority to promulgate rules and regulations pertaining to the process for awarding and overseeing the contracts.

(5) The Board of Trustees of the University of Arkansas, the Board of Trustees of Arkansas State University, and the Arkansas Lottery Commission shall be exempt from review and approval by the authority and any regulations promulgated by it, provided that the Board of Trustees of the University of Arkansas, the Board of Trustees of Arkansas State University, and the Arkansas Lottery Commission have adopted policies and procedures involving the awarding and oversight of the contracts for design and construction services.

(6) All procedures pertaining to the contracts shall provide, to the extent practicable, substantial uniformity between these institutions with respect to the policies and procedures to be followed.

(c)(1) For all projects contemplated or contracted for, the authority shall:

(A) Review and approve the advertisement as stated in subsection (d) of this section, the scope of work, the site selection, funding review, and, to the extent available, all project drawings, plans, and specifications prior to any solicitation of proposals for the project;

(B) Conduct on-site observations of the construction project on a regular basis and maintain project records; and

(C)(i) Review and approve all contract amendments.

(ii) State agencies shall submit a summary of all contract amendments to the Legislative Council;

(2)(A) The institutions of higher education stated in subdivision (b)(5) of this section shall perform all duties and responsibilities stated in subdivision (c)(1) of this section under policies and procedures adopted by their governing boards.

(B) They shall submit a summary of all contract amendments to the Legislative Council.

(d)(1) The selection procedures for the construction manager, general contractor, architect, or engineer shall provide for solicitation for qualified, licensed professionals to submit proposals.

(2) The procedures shall assure the design and completion of the project in an expeditious manner while adhering to high standards of design and construction quality.

(3) The state agency and each institution of higher education stated in subdivision (b)(5) of this section shall:

(A) Publish notice of its intention to receive written proposals three (3) consecutive days in a newspaper of statewide distribution;

(B) Allow a minimum of ten (10) working days for the professionals to send letters or resumes in response to newspaper advertisement; and

(C) Provide additional means of notification, if any, as the state agency or institution of higher education stated in subdivision (b)(5) of this section shall determine is appropriate.

(e)(1)(A) A preselection committee, which shall be composed of no more than three (3) members from the state agency and two (2) members from the authority shall review the proposals.

(B) A preselection committee for institutions of higher education stated in subdivision (b)(5) of this section shall consist of at least three (3) members as determined by each of the institutions, and the members may be from the authority.

(C) The preselection committee shall select a maximum of five (5) applicants and schedule interviews.

(D) The state agency or an institution of higher education as stated in subdivision (b)(5) of this section shall notify the finalists of their status.

(2)(A) The final selection committee shall be composed of the (3) three members from the state agency on the preselection committee.

(B) The final interviews shall be held at the time and date as designated by the final selection committee.

(C) Representatives of the authority may attend the final selection meeting, but shall not vote in the final selection process.

(D) The final selection committee for institutions of higher education stated in subdivision (b)(5) of this section shall consist of at least three (3) members as determined by each of the institutions.

(E) Members of a preselection committee may also serve as members of the final selection committee of the institutions.

(F) In selecting a general contractor, construction manager, architect, or engineer, the state agency or institution of higher education as stated in subdivision (b)(5) of this section shall consider their established criteria which shall include, but are not limited to, the following:

(i) The experience of the professional or professionals in similar projects;

(ii) The record of the professional or professionals in timely completion of the projects with high quality workmanship; and

(iii) Other similar matters to determine that the professional or professionals will complete the project within the time and budget and to the specifications set by the state agency or institution of higher education as stated in subdivision (b)(5) of this section.

(3)(A) The final selection committee shall select or make a formal recommendation to its governing body of the professional or professionals which it determines to be in the best interest of the state.

(B) Contracts for architectural, engineering, and land surveying professional consultant services shall be negotiated on the basis of demonstrated competence and qualifications for the type of services required and at fair and reasonable prices without the use of competitive bidding, and no rule or regulation shall inhibit the agency's authority to negotiate fees for the services.

(C) The final selection committee for the institutions of higher education as stated in subdivision (b)(5) of this section shall make a recommendation to its governing board or appropriate committee thereof of the professional or professionals which it determines to be in the best interest of the institution, and the governing board shall make the final decision and authorize the contract or contracts to be negotiated and awarded, unless it has delegated the action to a committee of the board.

(f)(1) Construction contracts for the projects shall not be entered into without a payment and performance bond in the amount of the contract and any amendments thereto and shall provide for the manner in which the construction shall be managed and supervised.

(2) All project architects and engineers shall be properly licensed in accordance with the Arkansas State Board of Architects, Landscape Architects, and Interior Designers and the State Board of Registration for Professional Engineers and Land Surveyors.

(3) The construction manager or general contractor shall be properly licensed by the Contractors Licensing Board.

(4)(A) All subcontractors on the project shall be properly licensed by the Contractors Licensing Board.

(B) Any person who is not considered a contractor under § 17-25-101 et seq. may continue to perform subcontracting work under the provisions of this subchapter.

(g)(1) To enable a state agency or an institution of higher education as stated in subdivision (b)(5) of this section to qualify under this section, the funds shall be paid to or for the benefit of the state agency or institution of higher education, or to a fund or foundation for the benefit of the state agency or institution of higher education.

(2) The funds may be represented in whole or in part by a written pledge or commitment from a donor, provided that the state agency or institution of higher education shall assure itself of the financial stability of the donor to fulfill the pledge or commitment.

(h) All projects constructed pursuant to this section, to the extent applicable, shall be in accordance and compliance with:

(1) Section 17-38-101 et seq., regulating plumbers;

(2) Section 17-33-101 et seq., regulating the heating, ventilation, air conditioning, and refrigeration industry;

(3) The Fire Prevention Act, § 12-13-101 et seq.;

(4) Section 12-80-101 et seq., regarding earthquake resistant design for public structure;

(5) Americans with Disabilities Act Accessibility Guidelines, 28 C.F.R. Part 36, Appx. A, adopted by the authority; and

(6)(A) The minimum standards of the authority and criteria pertaining to projects constructed under this section.

(B)(i) However, institutions of higher education as stated in subdivision (b)(5) of this section shall be exempt from these standards and criteria, provided that the institutions shall have adopted policies and procedures involving the awarding and oversight of contracts for projects under this section.

(ii) It is the intention of this section that all procedures adopted by these institutions pertaining to the contracts shall provide, to the extent practicable, substantial uniformity between these institutions with respect to the policies and procedures to be followed.

(iii) Notwithstanding anything in this subsection to the contrary, the provisions of §§ 19-4-1405(f), 19-4-1413, 19-11-801, 22-9-101, 22-9-103, 22-9-104, 22-9-212, 22-9-213, 22-9-301 et seq., 22-9-401 et seq., 22-9-501 et seq., 22-9-601 et seq., and 22-9-701 et seq. shall remain in full force and effect and shall not be affected by this section.

History. Acts 2001, No. 1626, § 1; 2003, No. 364, § 7; 2003, No. 1315, § 2; 2005, No. 859, §3;

2009, No. 193, 5; 2009, No. 605, 18; 2009, No. 606, 18; 2009, No. 1405, 26.

R1-19-4-1415 Procedures for Approval of Design Professionals

Authority and General Requirements

The Arkansas Building Authority (ABA) maintains oversight in the selection process of design professionals for capital improvement projects. Issues regarding design professionals under ABA’s jurisdiction should be directed to the ABA State Architect or the ABA State Engineer within the ABA Design Review Section.

All contracts for design professional services (architectural, engineering, land surveyors, interior design, landscape architects, specialized building related consultants and environmental consultants) must first be submitted to ABA for recommendation and approval. The contract shall then be forwarded to Department of Finance and Administration-Office of Procurement (DFA-OP).

Contracts under the jurisdiction of ABA shall not be sent directly to DFA-OSP. Agencies not under ABA jurisdiction shall seek approval in accordance within their own internal policies and then forward the contract to DFA-OP.

State Agency Defined

A state agency is defined under the authority of ABA as any board or commission, agency, department, institution of higher education including colleges, universities, and vocational-technical schools or other State institutions. However, "state agency" shall not include any county, municipality, school district, subdivision, or unit thereof of the State of Arkansas, nor shall the term "State agency" mean or include the Arkansas State Highway and Transportation Department, the State Highway Commission, or the lands, buildings or structures acquired as investment assets of Arkansas Teachers Retirement System. (ACA §22-2-102(5), 22-2-103(a))

Special Provisions

While the boards of trustees of the University of Arkansas, Arkansas State University, University of Central Arkansas, Henderson State University, Arkansas Tech University, and Southern Arkansas University, respectively, are exempt from review, consultation, assistance, advice and approval by ABA for capital improvements, they remain subject to applicable laws governing public works including ACA §22-9-101 through 22-9-702 and ACA §19-4-1401 through 19-4-1415. Upon approval of the Department of Higher Education, the governing boards of all other public institutions of higher education shall be exempt from review and approval by ABA for design professionals provided that prior to granting such approval the department shall have reviewed and approved policies and procedures adopted by the governing board with respect to bidding and construction of capital improvement projects. While these entities may be exempt from ABA’s jurisdiction, the applicable laws on public works and capital improvements shall be adhered to with respect to the design professional.

The ABA may enter into an agreement with any of the above exempt institutions to provide reviews and approval of all capital improvements. Once an entity enters into an agreement with the ABA, the mandates under the Arkansas Building Authority Minimum Standards and Criteria (ABAMSC) become applicable to the institution’s project.

ABA Regulations

State agencies under ABA jurisdiction must adhere to the Arkansas Building Authority Minimum Standards and Criteria (ABAMSC), which can be found at http://aba.arkansas.gov/Pages/default.aspx. The regulations pertaining to the selection of design professionals is located in ABAMSC §6-100 through 106. The fee schedules and other issues regarding the contracting of design professionals can be located in §6-200 through §6-222. Exception: Entities utilizing alternative delivery methods shall follow the selection and contract award process as stated in ACA §19-4-1415.

Code Provisions

ACA §22-9-101 and §22-2-113 set forth when registered design professionals should be utilized for state capital improvement projects.

Payments

Capital improvement payments are processed through the State of Arkansas' accounting system. Agencies are solely responsible for making timely payments pursuant to their professional services agreement.

PLEASE NOTE: Details of Construction (bidding/contract awards/project observations), Design Services (architectural/engineering/other consultants), Real Estate Services (leasing/sale & purchase of property), etc. may be viewed on the Arkansas Building Authority Web site at: http://aba.arkansas.gov/Pages/default.aspx

19-4-1416. Job order contracting.

(a) As used in this section: (1) "Job order contracting" means the acquisition of contracting services using a selection method that requires contractors to submit qualifications and prices based on wage rates inclusive of fringes and burden, plus a pricing matrix for markups on materials and subcontractors; and

(2)(A) "On-call contracting" means the ability of the state agency or institution of higher education to continue to call upon the successful bidder to conduct additional construction services as required by the State agency or institution of higher education.

(B) The contractor shall be required to bid all subcontractor work and the state agency or the institution of higher education shall receive and open the bids with the contractor present at bid opening date.

(b) The state agency or the institution of higher education may supply all materials for the work with no additional markup if the materials may be purchased off state contracts at a lesser price than the contractor would be able to procure.

(c)(1)(A) After a state agency or institution of higher education has prepared appropriate scope documents and achieved appropriate reviews, it shall advertise for bids and award and file contracts for the contemplated work as identified in §§ 19-4-1401 - 19-4-1405.

(B) Additional work may be awarded based upon the initial bid within the fiscal year.

(2)(A) The bidder may not submit a multiplier representing estimated cost inflation as part of the formal bid process.

(B) The bid will represent the fixed price amount for the fiscal year.

(3) The most qualified bidder offering the best value for the state agency or the institution of higher education shall be selected to perform the construction services identified in the construction specifications.

(d) (1) Job order contracting bid awards:

(A) Shall not extend beyond one (1) fiscal year; and

(B) Shall not exceed:

(i) Four hundred thousand dollars ($400,000) per construction job for the first year of the contract for state agencies and institutions of higher education with education and general appropriations beginning in the 2009 fiscal year and each fiscal year thereafter equal or exceeding ten million dollars ($10,000,000); and

(ii) One hundred thousand dollars ($100,000) per construction job for state agencies or institutions of higher education with education and general appropriations beginning in the 2009 fiscal year and each fiscal year thereafter of less than ten million dollars ($10,000,000).

(2) However, reasonable extensions may be granted at the beginning of each new fiscal year not to exceed a total of four (4) years, if:

(A) The price remains mutually agreeable to the state agency or the institution of higher education and the contractor; and

(B) The quality of the work is satisfactory to the state agency or the institution of higher education.

(3) On or before the four-year threshold, the state agency or the institution of higher education shall bid the construction service to assure competitive opportunities and lowest cost circumstances.

(e) (1) Executed counterparts of a contract entered into by a state agency with respect to job order projects shall be approved by and filed with the Arkansas Building Authority before the issuance of any vouchers making payments under the contract.

(2) (A) The boards of trustees of the University of Arkansas, Arkansas State University, University of Central Arkansas, Henderson State University, Arkansas Tech University, and Southern Arkansas University are exempt from the requirements of this section regarding the approval and filing of the contracts with the authority.

(B) (i) With the exception of those boards of trustees listed in subdivision (e)(2)(A) of this section, the governing board of a public institution of higher education is exempt from filing the contracts with the authority if it receives the approval of the Department of Higher Education.

(ii) Before granting approval, the department shall review and approve the policies and procedures regarding bidding and construction of capital improvement projects as adopted by the governing board of the public institution of higher education.

(3) A public institution of higher education that is exempt under this section may enter into an agreement with the authority to file its contracts with the authority.

History. Acts 2003, No. 1476, § 1; 2009, No. 193, 6; 2009, No. 206, 1.

PLEASE NOTE: Also refer to R1-19-4-524.