State Procurement Regulations

Regulation Authority:

RIGL Section 37-2- 39

Purpose and Reason:

The purpose of these emergency rules and regulations is to establish the criteria by which public agencies would be authorized to select methods of construction contract management services. This emergency rule replaces Rule 8.11.1 and invalidated Rule 8.11.2; it also adds a new rule 8.11.3.

Brief statement of Reason for Finding Imminent Peril:

Failure to establish these criteria as an emergency rule will delay the construction and repair of essential roads, bridges and public buildings. See also Statement of Need for Emergency Action. This emergency rule replaces Rule 8.11.1 and invalidated Rule 8.11.2; it also adds a new rule 8.11.3. As required by §37-2-39, in 1990 the Chief Purchasing Officer adopted Purchasing Regulations 8.11, 8.11.1 and 8.11.2. From 1990 to the present, all construction management services contracts for state agencies and public agencies were procured pursuant to these Purchasing Regulations. However, as a result of civil action captioned as A.F. Lusi Construction, Inc. v. Rhode Island Department of Administration and Gilbane Building Company, C.A. No. PB 07-1104, (“the Lusi Case”), on May 7, 2007 the Superior Court (Silverstein, J.) issued a decision which invalidated Purchasing Regulation 8.11.2. Because the Superior Court’s decision in the Lusi Case invalidated Purchasing Regulation 8.11.2, state agencies and public agencies are no longer authorized to select methods of construction contract management services. The State annually procures millions of dollars worth of construction contract management services. Presently, there are a number of construction projects in development that are critical to the State. These projects include, but are not limited to, over $100 million in new road and bridge projects and repair of existing roads and bridges to be performed by contractors employed by the Department of Transportation; a new State Police Headquarters with expected construction costs in excess of $60 million; and, construction of facilities to house the University of Rhode Island College of Pharmacy with estimated costs to exceed $50 million. Any further delay in proceeding with the above projects will cause the taxpayers of Rhode Island to incur substantial, increased costs of construction, delay repair of inferior roads, bridges and buildings and delay the construction of new roads, bridges and buildings that enhance the public welfare. Overall, delay in the aforementioned projects will cause imminent peril to the public health, safety and/or welfare. Therefore, the Chief Purchasing Officer has determined that an emergency regulation must be adopted pursuant to subsection (b) of R.I. Gen. Laws §42-35-3 in order for the State to select necessary construction contract management services without further delay.