(1) The principal representative shall negotiate a contract with the highest qualified person providing professional services for such services at compensation which the principal representative determines in writing to be fair and reasonable. In making such decision, the principal representative shall take into account the estimated value of the services to be rendered and the scope, complexity, and professional nature thereof. For all lumpsum or cost-plus-a-fixed-fee professional service contracts, the principal representative shall require the firm receiving the award to execute a certificate stating that wage rates and other factual unit costs supporting the compensation to be paid by the state agency or state institution of higher education for the professional services are accurate, complete, and current at the time of contracting. Any professional service contract under which such a certificate is required shall contain a provision that the original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the principal representative determines the contract price had been increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such contract adjustments shall be made within one year following the end of the contract.
If the principal representative is unable to negotiate a satisfactory contract with theperson considered to be the most qualified at a price the principal representative determines to be fair and reasonable, negotiations with that person shall be formally terminated. The principal representative shall then undertake negotiations with the second most qualified person. If the principal representative fails to negotiate a contract with the second most qualified person, the principal representative shall formally terminate such negotiations. The principal representative shall then undertake negotiations with the third most qualified person.
Upon completion of negotiations with the third most qualified person, the principalrepresentative shall be allowed to enter into renegotiations with any or all of the three most qualified persons to arrive at a satisfactory contractual arrangement, if possible. The principal representative shall have the authority to reject all bids and restructure or redesign the proposed project.
Each contract for professional services entered into by the principal representativeshall contain a prohibition against contingent fees as follows: The architect, or professional land surveyor, or professional engineer, or landscape architect, as applicable, warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for him, to solicit or secure this contract and that he has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for him, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or the making of this contract.
Upon any violation of this section, the principal representative shall have the right toterminate the contract without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, or consideration.
Nothing in this part 14 shall be construed to prohibit continuing contracts betweenstate agencies or state institutions of higher education and persons providing professional services. All selections, contracts, and negotiations undertaken pursuant to this part 14 and all processes and procedures in connection with such matters shall be in conformity with this part 14.
(a) Except as provided in subsections (7)(b), (7)(c), (7)(e), (7)(f), (7)(g), and (7)(h) of this section, any professional services contract entered into pursuant to the provisions of this part 14 shall be executed and encumbered within six months after the date on which the appropriation that includes the project for which the professional services are required becomes law. If no professional services contract is required for a particular project, the contract with the contractor for the project shall be entered into within six months after the appropriation. If a state agency or state institution of higher education determines that the nature of a particular project is such that the deadlines imposed by this section cannot be met, the state agency or state institution of higher education may request the capital development committee to recommend to the controller that the deadline be waived for that project. The controller, in consultation with the capital development committee may grant a waiver from the deadlines. This subsection (7) shall not apply to projects under the supervision of the department of transportation. This subsection (7) shall not affect any priority established pursuant to section 44-40-111 (11) in the general appropriation act for expenditures for projects to be financed from net lottery proceeds appropriated for capital construction.
The deadlines established in paragraph (a) of this subsection (7) shall apply to projects funded with net lottery proceeds, but the six-month period shall begin to run only when an agency receives a distribution from such proceeds for a particular project.
This subsection (7) shall not apply to:
Maintenance, repair, and improvement projects included in the capital constructionsection of the general appropriation act or in any supplemental appropriation act for the division of parks and wildlife in the department of natural resources;
The acquisition of any easement by the division of parks and wildlife in the department of natural resources;
Grants for off-highway vehicle trail purposes made pursuant to section 33-14.5-106,C.R.S.;
Projects included in the capital construction section of the general appropriation actfor the hazardous materials and waste management division in the department of public health and environment, or in any supplemental appropriation act, which projects are listed as remediation pursuant to the federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980", 42 U.S.C. sec. 9601 et seq., as amended, brownfields redevelopment, or natural resource damage repair, replacement, or restoration.
The provisions of this subsection (7) shall not be construed to limit the authority ofany state agency or state institution of higher education to amend a contract in order to provide for technical corrections, provision of unanticipated work, extensions of performance periods, or other modifications which are necessary to secure satisfactory completion of the work and provision of goods and services within the scope of the original contract.
In the event that the governor restricts or delays the expenditure of moneys for aproject for which a professional services contract is required pursuant to the authority granted the governor in section 24-75-201.5, the running of the six-month deadline imposed in paragraph (a) of this subsection (7) for such projects shall be tolled until such time as the restriction or delay is no longer in effect.
In the event that an appropriation is made to a state agency or state institution ofhigher education for allocation to other state agencies or state institutions of higher education, the six-month period applies to the execution and encumbrance of a contract by the agency or institution receiving the allocation and begins to run from the date of the allocation by the agency or institution that received the original appropriation. Nothing in this paragraph (f) shall be construed to extend the duration of any appropriation.
This subsection (7) shall not apply to:
A capital construction project at a state institution of higher education that is to beconstructed solely from cash funds held by the institution or federal funds made available for the project or a combination of the cash funds and the federal funds; or
The state board of land commissioners, established in article 1 of title 36, C.R.S., inconnection with contract expenditures from the state board of land commissioners investment and development fund created in section 36-1-153, C.R.S., or the commercial real property operating fund created in section 36-1-153.7, C.R.S.
(h) The six month deadline imposed by paragraph (a) of this subsection (7) does not apply to information technology projects that are overseen by the joint technology committee pursuant to part 17 of article 3 of title 2, C.R.S. For the purposes of this paragraph (h), "information technology" has the same meaning as provided in section 2-3-1701 (2), C.R.S.
Source: L. 79: Entire part added, p. 892, § 1, effective July 1. L. 81: (3) R&RE, p. 1165, § 1, effective January 1, 1982. L. 84: (4) amended, p. 1121, § 23, effective June 7. L. 89: (7) added, p. 1027, § 3, effective April 27. L. 90: (7) amended, p. 1192, § 1, effective April 12. L. 91: (7)(a) amended and (7)(e) added, p. 804, § 1, effective July 1; (7)(a) amended, p. 1059, § 18, effective July 1. L. 95: (7)(a) amended and (7)(f) added, p. 164, § 1, effective April 7. L. 2007:
(7)(a) and (7)(c) amended, p. 494, § 1, effective August 3. L. 2008: (7)(c)(II) amended and (7)(c)(IV) added, p. 176, § 14, effective March 24; (7)(a) amended and (7)(g) added, p. 261, § 82, effective March 31. L. 2009: (7)(g) amended, (SB 09-096), ch. 60, p. 217, § 1, effective March 25; (7)(g) amended, (SB 09-022), ch. 246, p. 1112, § 6, effective May 14. L. 2010:
(7)(c)(IV) amended, (HB 10-1422), ch. 419, p. 2083, § 62, effective August 11. L. 2012: (7)(g)(I) amended, (HB 12-1081), ch. 210, p. 903, § 5, effective August 8. L. 2013: (7)(g)(II) amended, (HB 13-1274), ch. 376, p. 2217, § 8, effective June 5. L. 2014: (1), (6), (7)(a), (7)(d), (7)(f), and (7)(g)(I) amended, (HB 14-1387), ch. 378, p. 1839, § 39, effective June 6. L. 2016: (7)(a) amended and (7)(h) added, (HB 16-1043), ch. 29, p. 66, § 1, effective August 10. L. 2018:
(7)(a) amended, (HB 18-1027), ch. 31, p. 364, § 12, effective October 1.
Editor's note: (1) Amendments to subsection (7)(a) by Senate Bill 91-17 and House Bill 91-1198 were harmonized.
(2) Amendments to subsection (7)(g) by Senate Bill 09-022 and Senate Bill 09-096 were harmonized.
Cross references: For the legislative declaration in HB 14-1387, see section 1 of chapter 378, Session Laws of Colorado 2014.