North Carolina § 143-64 - 31. Declaration of public policy.

§ 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, construction management at risk services, design-build services, and public-private partnership construction 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. Selection of a firm under this Article shall include the use of good faith efforts by the public entity to notify minority firms of the opportunity to submit qualifications for consideration by the public entity. A resident firm providing architectural, engineering, surveying, construction management at risk services, design-build services, or public-private partnership construction services shall be granted a preference over a nonresident firm, in the same manner, on the same basis, and to the extent that a preference is granted in awarding contracts for these services by the other state to its resident firms over firms resident in the State of North Carolina. For purposes of this section, a resident firm is a firm that has paid unemployment taxes or income taxes in North Carolina and whose principal place of business is located in this State. Recodified as G.S. 143-133.1(a) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date. Recodified as G.S. 143-133.1(b) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date. Recodified as G.S. 143-133.1(c) by Session Laws 2014-42, s. 3, effective October 1, 2014, and applicable to contracts awarded on or after that date. For purposes of this Article, the definition in G.S. 143-128.1B and G.S. 143-128.1C shall apply. Except as provided in this subsection, no work product or design may be solicited, submitted, or considered as part of the selection process under this Article; and no costs or fees, other than unit price information, may be solicited, submitted, or considered as part of the selection process under this Article. Examples of prior completed work may be solicited, submitted, and considered when determining demonstrated competence and qualification of professional services; and discussion of concepts or approaches to the project, including impact on project schedules, is encouraged. History (1987, c. 102, s. 1; 1989, c. 230, s. 2; 2001-496, s. 1; 2006-210, s. 1; 2013-401, s. 1; 2014-42, ss. 3, 4.) Local Modification. - (As to certain economic development projects) Buncombe: 2013-31, s. 1 (expires June 30, 2016); 2013-40, s. 1 (expires June 30, 2016); (As to school building contracts) Cabarrus: 2009-430, s. 2 (expires June 30, 2014); Cherokee: 2007-48, s. 1; Currituck: 1993 (Reg. Sess., 1994), c. 668, s. 1 (expires on completion of project or January 1, 2004); Davidson: 2012-63 (expires June 30, 2014): Durham: 2013-386, s. 5(a); (As to water treatment and wastewater treatment plant expansion projects) Harnett: 2007-214, s. 1 (expires December 31, 2010); Johnston: 1995 (Reg. Sess., 1996), c. 611, s. 1; 2002-93, s. 2 (expires June 30, 2005); 2008-40 (as to contracts for renovations to the county courthouse); Rockingham: 2012-140, s. 1 (expires June 30, 2017); (As to Article 3D) Union: 2012-59 (expires June 26, 2017); Wayne: 2011-98, s. 1 (expires December 31, 2014); city of Charlotte: 2000-26, s. 8.87 as added by 2011-180, s. 3 (expires June 30, 2016); (as to water and wastewater treatment plants) 2007-312, s. 1; city of Clinton: 2013-115, ss. 1, 2 (as to use of design-build method of construction for certain projects awarded before June 30, 2015 involving city-owned facilities); city of Durham: 2013-386, s. 4 (as to Article 3D); town of Cornelius: 1971, c. 288, s. 1.4, as added by 2011-180, s. 1 and amended by 2011-326, s. 20 (expires July 1, 2018), and as amended by 2013-352, s. 1 (expires July 1, 2016); Lower Cape Fear Water and Sewer Authority: 2012-60, s. 1 (expires December 31, 2015). Cross References. - As to public contracts, see G.S. 143-128 et seq. Editor's Note. - Session Laws 2008-107, s. 27.7A, provides: "The Department of Administration shall contract with North Carolina Freedom Monument Project, Inc., a nonprofit corporation, for the design and construction of the North Carolina Freedom Project. Notwithstanding G.S. 143-64.31 through 143-64.34 and G.S. 143-135.26 , North Carolina Freedom Monument Project, Inc., shall select the designer and consultant for the project." Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'." Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year." Session Laws 2008-107, s. 30.5, is a severability clause. Session Laws 2013-352, s. 1, amended the local modification of this section in Session Laws 2011-180, s. 1, by extending the expiration date of that provision from July 1, 2013 until July 1, 2016. However, Session Laws 2013-352, s. 1, did not account for the amendment to Session Laws 2011-180, s. 1, by Session Laws 2011-326, s. 20, which extended the expiration date from July 1, 2013 until July 1, 2018. Session Laws 2013-401, provides in its preamble: "Whereas, the legislature recognizes that there is a public need for the design, construction, improvement, renovation, and expansion of high-performing public buildings within the State of North Carolina; and "Whereas, the public need may not be, in limited situations, wholly satisfied by existing procurement methods in which public buildings are designed, constructed, improved, renovated, or expanded; and "Whereas, many local governmental entities request special legislative authorization to enter into public-private partnerships and use design-build contracting every legislative session; and "Whereas, in some instances, more efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility; and "Whereas, the design-build integrated approach to project delivery, based upon qualifications and experience, in some instances, can yield improved collaboration among design professionals, builders, and owners throughout the entire process and deliver a quality and cost-efficient building; and "Whereas, certain governmental entities within the State lack the financial resources required to undertake capital building construction projects that are necessary to satisfy critical public needs; and "Whereas, partnerships with private developers may offer an effective financial mechanism for governmental entities to secure public buildings to satisfy critical public needs that cannot otherwise be met; and "Whereas, the legislature recognizes that the general public must have confidence in governmental entities' processes for construction contracting; and "Whereas, the legislature realizes that open competition delivers the best value for taxpayers and public owners; and "Whereas, the legislature seeks to create transparent, fair, and equitable contracting procedures for the use of public funds in government construction contracting; and "Whereas, the legislation proposed in this act is not intended to affect the existing statutes, regulations, or practices relevant to projects administered by the North Carolina Department of Transportation nor licensing requirements of designers or contractors; Now, therefore," Session Laws 2014-42, s. 3, effective October 1, 2014, recodified former subsections (b), (c), and (d) of this section as subsections (a), (b), and (c), respectively, of G.S. 143-133.1 . Session Laws 2014-42, s. 10, made the amendment to this section by Session Laws 2014-42, ss. 3 and 4, applicable to contracts awarded on or after October 1, 2014. Session Laws 2015-241, s. 14.5(b), provides: "The General Assembly finds that there is a need for timely initiation of projects authorized by this section during the biennium to expedite mitigation of impaired waters of the State. Therefore, any contract, contract extension, lease, purchase, or other agreement entered into under this section shall not be subject to the requirements of Article 3, 3D, or 8 of Chapter 143 of the General Statutes in order to expedite deployment. Session Laws 2015-241, s. 14.5(a), (c), and (d) provided for funding to continue the Jordan Lake Nutrient Mitigation Demonstration Project established in Session Laws 2013-360, s. 14.3A; for an effective date delay for modification of existing or proposed rules related to basinwide nutrient management and mitigation of water quality of impaired water bodes; and for a study [due no later than April 1, 2016] of in situ strategies beyond traditional watershed controls that have the potential to mitigate water quality impairments resulting from water quality variables that impair or have the potential to impair water bodies of the State." However, Session Laws 2015-241, s. 14.5(a) and (c) were repealed by Session Laws 2016-94, s. 14.13(b) and further provided that: "the Department shall terminate the demonstration project authorized by that section. Any funds allocated under subsection (a) of Section 14.5 of S.L. 2015-241 that are unspent and unencumbered on the effective date of this act shall revert to the Clean Water Management Trust Fund." Session Laws 2016-94, s. 14.13(j) provides: "Subsection (b) of this section becomes effective on the earlier of July 1, 2016, or the date of termination of a contract related to in situ water quality remediation strategies that was previously extended pursuant to Section 14.5 of S.L. 2015-241." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as `The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Effect of Amendments. - Session Laws 2006-210, s. 1, effective August 8, 2006, added subsection (a1). Session Laws 2013-401, s. 1, inserted "design-build services, and public-private partnership construction services," and made minor stylistic changes in subsections (a) and (a1); inserted "design-builder, or private developer under a public-private partnership" twice in subsection (b), or similar language in subdivisions (b)(1) through (b)(4); added subdivision (b)(5); redesignated former subsection (b) as present subsection (b) and (c); and added subsections (d) and (e). Fore effective date and applicability, see Editor's note. Session Laws 2014-42, s. 4, effective October 1, 2014, added subsection (f). See Editor's note for applicability. Opinions of Attorney General This Section Does Not Apply to Subcontract Services Procured by Private Firms. - This section applies only to the procurement of architectural, engineering, or surveying services by state or local government entities and does not extend to subcontract services procured by private firms. See opinion of Attorney General to Jerry T. Carter, Executive Director, N.C. Board of Examiners for Engineers and Surveyors, 2001 N.C. AG LEXIS 23 (6/19/2001). Legislative exemptions authorizing public "design-build" contracts are not intended to require strict compliance with this section; such should be presumed to supersede strict qualifications-based selection methods unless specifically stated otherwise in the authorizing legislation. See opinion of Attorney General to Jerry T. Carter, Executive Director, N.C. Board of Examiners for Engineers and Surveyors, 2001 N.C. AG LEXIS 23 (6/19/2001). Award of Professional Services Contracts on Competitive Basis. - With respect to state-funded projects, professional services contracts may be awarded on a competitive basis in limited circumstances; however, before these contracts are awarded as a routine matter, the Department of Transportation should adopt rules and regulations governing their award. See opinion of Attorney General to Mr. Len Hill, P.E., Deputy Highway Administrator - Preconstruction, North Carolina Department of Transportation, 2000 N.C. AG LEXIS 3 (5/31/2000).