Title 5, PUBLIC PROPERTY, PURCHASES AND CONTRACTS

If a purchasing agency elects to use and occupy the public improvement before acceptance, the purchasing agency shall pay all amounts due under the contract except double the amount that the architect or engineer estimates to be necessary to complete the improvement in accordance…

The purchasing agency may appoint a competent superintendent who may be the architect or engineer furnishing the plans and specifications for the public improvement. The superintendent shall report to the purchasing agency or board every thirty days as to the progress and charact…

No person, firm, or corporation may act as architect or engineer and also as contractor or construction manager on any public improvement project if the amount to be expended exceeds one hundred thousand dollars. Any public improvement of an emergency nature that affects the publ…

Each purchasing agency, on entering into a contract for a public improvement, shall provide in the contract that the contractor is required to pay the Department of Labor and Regulation of South Dakota all contributions and interest due under the provisions of chapter 61-5 , on w…

No purchasing agency may award any contract for the construction of any public improvement unless the purchasing agency has verified with the Department of Revenue that the contractor has a contractor's excise tax license pursuant to chapter 10-46A or 10-46B . Source: SL 2010, ch…

Before final payment may be made on any contract for public improvement, the purchasing agency awarding the contract shall require the contractor to furnish a certificate from the Department of Labor and Regulation that all contributions and interest due to the Department of Labo…

Any amendment or change order to an existing contract for construction, reconstruction, or remodeling of a public improvement does not need to be bid if: (1) The contract contains unit prices for the same type or class of work; (2) The change or extra work is necessitated by circ…

If the invitation for bids is for the construction of a public improvement, each bid shall contain a certified check or a cashier's check, for five percent of the amount of the bid. Such check shall be certified or issued by either a state or a national bank and payable to the pu…

A purchasing agency may enter into design-build contracts for public improvements, if the following conditions are met: (1) The purchasing agency shall, prior to issuing any design-build request for proposals, establish and publish procedures for the solicitation and award of des…

No design-builder may do business in this state unless authorized as either an architect, engineer, or general contractor. Source: SL 2010, ch 31 , § 60.

A design-builder may sublet responsibility for professional design services to any person licensed and registered to provide professional design services in this state. Nothing in this section limits or eliminates the responsibility or liability of any person registered pursuant …

A design-builder may sublet responsibility for construction or other services to persons registered, licensed, or otherwise qualified to provide those services in this state. Source: SL 2010, ch 31 , § 62.

A design-builder may contract with the purchasing agency to provide professional services or construction services for which the design-builder is not licensed, registered, or qualified to perform, as long as the design-builder sublets all such services required under the design-…

Any request for proposals shall contain performance criteria developed by a performance criteria developer and approved by the purchasing agency. For projects not exempted under chapter 36-18A from using a registered design professional, the performance criteria developer shall b…

The performance criteria developer may not submit a proposal to enter into the design-build contract and the design-builder may not delegate or contract services under the design-build contract to the performance criteria developer. Source: SL 2010, ch 31 , § 65.

The performance criteria developer shall be either an employee of the purchasing agency or shall be engaged in accordance with statutorial procedures for contracting with professional services. With the approval of the purchasing agency, the developer may delegate or contract for…

The purchasing agency, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit a person to submit a proposal in accordance with the de…

After a minimum of three design-builders have been pre- qualified in accordance with § 5-18B-31 , a design-build request for proposals shall be mailed to each pre-qualified design-builder. The minimum number of pre-qualified design-builders is not required for any improvement pro…

Notwithstanding the provisions of § 5-18B-2 , the requirement of a bid bond, certified or cashier's check, cash, or other security may be waived by the purchasing agency if the bid submitted does not exceed the limit established pursuant to § 5-18A-14 for a public improvement. So…

No design-build request for proposals may include detailed designs or detailed drawings prepared by the criteria developer. The request may, however, include drawings of existing conditions and any preliminary conceptual sketches necessary to illustrate the information required b…

A purchasing agency shall pre-qualify design-builders for design-build contracts by advertising its request for qualifications in accordance with § 5-18A-14 . A request for qualifications shall contain the following elements: (1) The identity of the purchasing agency; (2) A descr…

Any proposal, submitted pursuant to this section, shall be accompanied by a deposit or bond meeting the requirements of § 5-18B-2 . The deposit or security may be forfeited if the proposal is accepted but the design-builder fails to execute the design-build contract. Source: SL 2…

Any proposal shall be sealed and may not be opened until expiration of the time established for making proposals as set forth in the design-build request for proposals. To the extent required by the request for proposals, any proposal shall identify each person to whom the design…

Until a proposal is accepted, the drawings, specifications, and other information in the proposal remain the property of the person making the proposal. The purchasing agency shall make reasonable efforts to maintain the secrecy and confidentiality of any proposal and all informa…

Once received, any proposal shall be submitted to the performance criteria developer for review. Clarifications may be required to ensure conformance of any proposal with the performance criteria. In seeking clarifications, the performance criteria developer may not reveal any as…

After obtaining and evaluating proposals according to the criteria and procedures set forth in the design-build request for proposals, a purchasing agency may accept the proposal it considers most advantageous to the purchasing agency. Acceptance of a proposal shall be by written…

The purchasing agency may reject any and all design-build proposals. The purchasing agency may solicit new proposals using the same or different performance criteria, budget constraints, or qualifications. Source: SL 2010, ch 31 , § 76.

Any design-build proposal may be withdrawn by the proposer for any reason at any time prior to acceptance. Source: SL 2010, ch 31 , § 77.

Any purchasing agency may engage a construction manager if planning, designing, or constructing a public improvement, or if improving, altering, or repairing a public improvement. However, no purchasing agency is required to engage a construction manager. Source: SL 2010, ch 31 ,…

No purchasing agency may, directly or indirectly, require or direct a bidder on any public improvement contract that is about to be or has been competitively bid to obtain from a particular insurer or insurance producer any surety bond or contract of insurance required in the bid…

Construction management services provided in the planning and design phases of a public improvement project may include: (1) Services provided in the planning and design phases of a public improvement project including the following: (a) Consulting with, advising, assisting, and …

No construction manager-agent may contract directly with any contractor or supplier for the project. Source: SL 2010, ch 31 , § 80.

The construction manager-at-risk shall directly contract with subcontractors and suppliers for the project. Source: SL 2010, ch 31 , § 81.

Unless the construction manager-agent is an employee of the purchasing agency and provides the construction management services pursuant to such employment, no purchasing agency may engage the services of a construction manager except as follows: (1) The purchasing agency shall f…

Each qualification based request for proposals required by subsection 5-18B-43(2)(b) to enter into a construction manager-at-risk services contract where the construction manager-at-risk intends to actually perform construction on the project, shall meet the following criteria: (…

Each contract for a public improvement shall have a licensed design professional actively involved in the project from the start of design through final completion as required by chapter 36-18A . Source: SL 2010, ch 31 , § 84.

If an invitation for a bid for airport improvements states that the requirement the bid be awarded within thirty days has been waived, the provisions of subdivision 5-18A-5(7) and § 5-18B-9 do not apply. If the bid award time exceeds thirty days, any bid may be withdrawn by the b…

If the lowest responsive and responsible bid for a public improvement project exceeds the final estimated project cost, the Bureau of Human Resources and Administration, acting on behalf of the state, or any other purchasing agency may negotiate with that low bidder for the const…

Prior to execution of a public improvement contract, a successful bidder shall certify: (1) That no more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors; or (2) That more then twenty percent of the cost of labor in…

If a purchasing agency is to supply tangible personal property to be used in performance of the contract and the personal property is taxable to the contractor under § 10-46-5 , the specifications or notice to bidders shall state the purchase price or fair market value of the tan…

Any funds forfeited by a bidder or surety shall accrue to the funds provided for construction of the public improvement. Source: SL 2010, ch 31 , § 47.

No bidder on a public improvement contract may be required, either in the invitation for bids or otherwise, to leave a certified check or cashier's check, or bid bond, posted for a longer period than allowed in § 5-18A-5 if the bid is not accepted. The check or bid bond of the su…