Repealed or Renumbered

Repealed or Renumbered

Repealed or Renumbered

Article 02. LOCAL CONTROL OF PUBLIC WORKS PROJECTS

Award of a contract for the construction of a public work shall comply with this title, Section 36.30 (State Procurement Code), and the regulations adopted under those laws.

(a) Before advertisement for bids or construction contract negotiations, the department shall approve both the project site and the land interest in the site.

(b) Responsibility for maintenance of the project shall be established in the original contract agreement. The department shall participate in the final inspection of the project and approve of the final documents on the project.

Upon execution of an agreement under Section 35.15.080 (a), state funds appropriated for a public works project that is the subject of the agreement shall be transferred to a special account in the state treasury. A municipality administering the project under the agreement may draw on the account for costs of the project, under fiscal control of the department. If an agreement provides for joint or cooperative administration of the project, payment of costs shall be made to the party incurring the costs.

When a municipality has assumed responsibility for a public works project under Section 35.15.080 - 35.15.120, the department is relieved of responsibility to the extent it is assumed by the municipality. The department may provide technical assistance on the responsibility assumed if requested to do so by the municipality and shall be reasonably compensated for that assistance from the account established under Section 35.15.090 .

In Section 35.15.080 - 35.15.120,

(1) 'construction' or any derivative of the term 'construct' means, in addition to the meaning given in Section 35.95.100 , selecting and acquiring a project site and necessary rights-of-way and easements, providing for and connecting to utilities, and building, supervising, and inspecting the public works project;

(2) 'governing body' means a municipality's assembly or council.

The solicitation of bids for construction of public works is governed by Section 36.30 (State Procurement Code). The request for bids may require the contractor to furnish equipment, labor, materials, and supplies for the project, or it may state that the department will furnish the materials and supplies. If the department elects to provide materials and supplies for a project, it shall make the election at the time it adopts the construction program. The department shall acquire these materials and supplies under Section 36.30 by requesting bids for them according to the class, type, and nature of the materials and supplies. The contract may be awarded either upon the basis of delivery to the construction project directly or to a central storehouse or storehouses maintained by the department. Those materials and supplies so purchased by the department may be delivered to the project site without expense to the contractor, or it may sell them to the contractor at cost and make the materials and supplies a part of the construction cost.

(a) Except as provided in Section 44.33.300 , it is the general policy of the state to require the construction of all public works under bid contract in accordance with Section 36.30 (State Procurement Code). However, when the estimated cost of a construction project is less than $100,000, or when it appears to be in the best interests of the state, the department may perform the work, notwithstanding any other provisions of law. A complete record shall be kept by the commissioner or the commissioner's designee of all transactions entered into under this section including names of employees involved in the transactions.

(b) Construction or professional services in connection with the construction of a public work performed by the department under (a) of this section which have an estimated cost exceeding $5,000 may not be performed by the department unless the commissioner determines, in writing, that the cost to the state will be less than that incurred as a result of a formally advertised or negotiated contract. The determination of the commissioner shall be supported by findings of fact which shall set out enough facts and circumstances to clearly justify the determination. The determinations and findings shall be maintained as a permanent record of the department.

(c) In this section, 'professional services' means architectural, engineering, or land surveying services.

(a) A municipality may, by resolution of its governing body, request the assumption of all or part of the department's responsibilities relating to the planning, design, and construction of a public works project of the state that is to be located within the boundaries of the municipality and that would otherwise be constructed in the manner provided in Section 35.15.010 . After receipt of the request, the department may provide by agreement for transfer to and assumption by the municipality of the department's responsibilities relating to the project, unless the commissioner determines that assumption of responsibilities by the municipality is not practicable or not in the best interests of the state.

(b) If the commissioner of transportation and public facilities determines that assumption of responsibilities by a municipality under (a) of this section is not practicable or not in the best interests of the state, the commissioner shall notify the governing body of the municipality of the finding and specify reasons for it. If the governing body requests reconsideration of the decision, the commissioner shall hold a hearing in the municipality within 30 days following mailing of the request. Following the hearing, the commissioner may affirm, modify or reverse the initial decision and shall specify in writing the reasons.

(c) A municipality may request joint assumption of responsibilities with the department relating to the planning, design, and construction of a public works project. Two or more municipalities may by agreement provide for cooperative assumption of responsibilities relating to the planning, design, and construction of a public works project. If two or more municipalities request assumption of responsibilities for a project and meet the standard of practicability set out in (a) of this section, the commissioner shall determine which municipality is best able to direct planning, design, and construction of the project and enter into an agreement with that municipality or provide for joint or cooperative administration, as the parties may agree or the commissioner may determine. Decisions of the commissioner under this subsection are final.

(d) Provisions of this title governing planning, design, and construction of public works by the department, and regulations adopted under the provisions, govern the administration of projects assumed by a municipality under this section. For that purpose the provisions supersede any conflicting provisions of ordinance or charter of a municipality.

(e) An organized borough may plan and construct public works under this section and make an agreement with the department for that purpose irrespective of restrictions of other provisions of law on the acquisition and exercise of borough powers. Borough exercise of the power conferred under this subsection does not preclude exercise by a city of the borough of the same power within the city.

(f) To carry out the purpose of this section, the commissioner of transportation and public facilities shall adopt regulations relating to the application for and the making and the conditions of agreements and the local assumption of responsibilities for the planning, design, and construction of public works under this section. The commissioner may require different terms in agreements for different projects to meet local conditions and unique requirements and to assure compliance with the public facilities procurement policies developed by the department under Section 35.10.160 - 35.10.200. If necessary, the commissioner may require as a condition of an agreement approval of the agreement by the federal government.