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68-2332. Alternative delivery transportation projects; conditions and restrictions; selection process; contractor requirements; liability for design defects. (a) The Eisenhower legacy transportation program shall allow the secretary of transportation to award certain state highway system projects using alternative delivery procurement methods other than award of a design-bid-build contract to the lowest bidder as provided in K.S.A. 68-410, and amendments thereto, subject to the following:

(1) Projects selected for alternative delivery shall not include preservation projects as described in K.S.A. 2023 Supp. 68-2314c, and amendments thereto;

(2) alternative delivery may be used on three projects utilizing toll revenues for construction and maintenance of the project. One project utilizing toll revenues may be let to construction once every three years;

(3) not more than 3% of dollars spent in the Eisenhower legacy transportation program shall be used on alternative delivery. An additional 2% of dollars spent in the Eisenhower legacy transportation program shall be available for use on alternative delivery starting in fiscal year 2023. The dollar value of the three projects utilizing toll revenues referenced in paragraph (2) and projects obtained through federal grants or federal stimulus shall not be considered in determining the limits set forth in this paragraph; and

(4) any project utilizing alternative delivery shall equal or exceed $10,000,000 in costs.

(b) In addition to the requirements in subsection (a), alternative delivery projects in the Eisenhower legacy transportation program shall be subject to the following requirements and restrictions:

(1) Procurement methods for transportation alternative delivery projects may provide for a single contract or multiple contracts that include, but are not limited to, services for preconstruction, design, construction, construction management, maintenance, operation, financing or a combination thereof;

(2) the Kansas department of transportation shall develop and utilize criteria for selecting whether alternative delivery or design-bid-build procurement process is in the best interest of the state. No project will be selected for alternative delivery without having been evaluated under the selection criteria established by the department. The selection criteria shall include, but not be limited to, the need for accelerated schedule, safety needs, project complexity, opportunity for innovation and economic development; and

(3) the Kansas department of transportation shall develop and utilize procedures for advertising proposals, receiving proposals, evaluating proposals, awarding contracts and administering contracts in its alternative delivery procurement program, and the procurement procedures in K.S.A. 68-408 through 68-410, 75-430a and 75-5804 through 75-5807, and amendments thereto, shall not apply to transportation alternative delivery projects.

(c) Notwithstanding any requirements set forth in subsections (b) or (c), the alternative delivery procedures shall include:

(1) A two-phase best value competitive selection or contracting process in which the first phase consists of short listing no more than four proposers based on qualifications identified in the request for qualifications and the second phase consists of the submission of price or technical proposals, or both, in response to a request for proposal;

(2) advertisement of requests for qualifications in the Kansas register for at least three consecutive weeks;

(3) prequalification of contractors performing construction and of firms performing professional technical services by the secretary in accordance with existing state statutes, regulations, and department procedures governing prequalification and licensing;

(4) a bond for performance and payment or alternative security guaranteeing contract performance and payment obligations for supplies, materials and labor furnished for the alternative delivery project; and

(5) a requirement that firms and key personnel identified in the qualifications phase and scored to determine the shortlist may not be replaced during the alternative delivery project without the Kansas department of transportation's written approval.

(d) Notwithstanding any other provision of law to the contrary, a contracting entity selected for an alternative delivery project shall not be in violation of K.S.A. 74-7001 et seq., and amendments thereto, and the contract entered into by such contractor shall not be void if such contractor obtains the professional services by subcontracting with an entity or entities duly licensed or holding a certificate of authorization to perform professional services in accordance with K.S.A. 74-7001 et seq., and amendments thereto.

(e) Notwithstanding the provisions of K.S.A. 68-419a, and amendments thereto, a contracting entity selected for an alternative delivery project that is responsible for preparing or furnishing design plans and specifications, through its own organization or by subcontracting as provided in subsection (d), shall be liable for damages arising out of design defects in such plans and specifications resulting in injury to persons or damage to property, occurring after completion of the contract and acceptance thereof by the Kansas department of transportation, if and to the extent such injury or damage arises out of a failure to exercise the degree of learning and skill ordinarily possessed by a reputable contractor or by a technical professional practicing in Kansas in the same or similar locality and under similar circumstances. Nothing contained in this subsection shall be construed as abrogating, limiting or otherwise affecting any cause of action accruing to the state or any agency or instrumentality thereof that was a party to such contract.

History: L. 2020, ch. 8, § 4; L. 2021, ch. 66, § 4; July 1.

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