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2008 Nebraska Attorney General Reports and Opinions 1 (2008)

handle is hein.sag/sagne0008 and id is 1 raw text is: SUBJECT: Use of Construction Management at Risk Method by Community Colleges. REQUESTED BY: Michael J. Flood, Senator Nebraska State Legislature WRITTEN BY: Jon Bruning, Attorney General Lynn A. Melson, Assistant Attorney General You have requested our opinion whether the use of construction management at risk services is prohibited under Nebraska law. We have learned from your staff that your specific question is whether community colleges may use this method for their construction projects. You have also stated that, if the use of such services by community colleges is prohibited, you may introduce legislation on this topic. According to the information that you have submitted to our office, the construction management at risk method is an alternative to the traditional design - bid - build method of building construction. The term construction management at risk contract is defined at Neb. Rev. Stat. § 79-2003(1) as follows: Construction management at risk contract means a contract by which a construction manager (a) assumes the legal responsibility to deliver a construction project within a contracted price to the school district, (b) acts as a construction consultant to the school district during the design development phase of the project when the school district's architect or engineer designs the project, and (c) is the builder during the construction phase of the project; This statutory definition is part of the Nebraska Schools Construction Alternatives Act which was enacted in 2002 and applies solely to school districts. Our review of Nebraska statutes reveals this is the only mention of this term in current statutes. With your request letter you enclosed information submitted by the Executive Director of the Associated General Contractors, Nebraska Building Chapter. That letter explains that, in the construction management at risk method, the construction manager is also the constructor and that the construction manager/constructor typically provides preconstruction services, holds the trade contracts, takes responsibility for performance of the actual work and guarantees the construction costs and schedule. You have also provided us with a letter you received from the State Auditor which suggests that the construction management at risk method can not be employed by political subdivisions in Nebraska because a facility would need to be designed prior to accepting bids for the construction portion of the project. You then ask our office whether construction management at risk services are prohibited under Nebraska law and you note that school districts in Nebraska as well as the University of Nebraska system have built several buildings using construction management at risk services. In Nebraska, community colleges are governed, in part, by the Coordinating Commission