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2011 South Dakota Attorney General Reports and Opinions 1 (2011)

handle is hein.sag/sagsd0020 and id is 1 raw text is: OFFICIAL OPINION NO. 11-01, Construction Manager-at-Risk Services Available to be Provided STATE OF SOUTH DAKOTA OFFICEOF THE ATTORNEY GENERAL February 23, 2011 Randolph F. Stiles Mitchell City Attorney 612 N. Main St. Mitchell, SD 57301 OFFICIALOPINIONNO. 11-01 Construction Manager-at-Risk Services Available to be Provided Dear Mr. Stiles: You have requested an official opinion from this Office regarding the following question: lPT iloN 1. Whether the construction management provisions in SDCL 5-18B-40 through 44 allow the City to hire a construction manager-at-risk where the constniction manager does not perform any of the actual construction work on the prcject other than warranty work or completion/correction of incomplete or unacceptable work done by a third party contractor, subcontractor or supplier and receives no additional compensation for such work? QlTLFTTXlfT . Whether a construction inanager-at-risk providing architect/engineer services violates SDCL 5-181B 15 where the constniction manager's performance of work on the project is limited to warranty work or completion/correction of incomplete or unacceptable work done by third parties? LPTNTTNTTT 1 Z 4A V. The City may negotiate a contract with a firm to act as a construction manager-at-risk, however, that finn may not perfonn any construction work, including warranty work or completion/correction of incomplete or unacceptable work done by a third party. SDCL 5-18B-15 prohibits a constniction inanager-at-risk from performing architect or engineer services and performing any construction work when the public improvement exceeds $100,000. The City of Mitchell is in the development stages of construction of a community wellness center. The City desires to hire, through negotiation, a finn who will provide services as an arcitect/engineer and act as a construction manager-at-risk for the prcject. It is anticipated that the firm acting as a constniction manager-at-risk will enter into contracts with third party contractors, subcontractors and suppliers utilizing a bidding process with public notice. It is further anticipated that the firm will not perform construction work, except which is necessary for the completion or correction of work perfonned by third party contractors, subcontractors and suppliers, or warranty