Second Regular Session H.B. 2542
COMMITTEE ON GOVERNMENT
SENATE AMENDMENTS TO H.B. 2542
(Reference to House engrossed bill)
Strike everything after the enacting clause and insert:
"Section 1. Section 15-213, Arizona Revised Statutes, is amended to read:
15-213. Procurement practices of school districts and charter schools; definitions
A. The state board of education shall adopt rules prescribing procurement practices for all school districts in this state as follows:
1. The state board shall submit to the auditor general proposed rules consistent with the procurement practices prescribed in title 41, chapter 23, modifying the provisions for public notice of invitation for bids, requests for proposals and requests for qualifications to allow a governing board to give public notice of the invitation for bids, requests for proposals and requests for qualifications by publication in the official newspaper of the county as defined prescribed in section 11‑255, modifying the provisions relating to disposal of materials to comply with section 15‑342, paragraph 18, providing for governing board delegation of procurement authority and modifying as necessary other provisions that the state board determines are not appropriate for school districts. The rules shall include provisions specifying that school districts are not required to engage in competitive bidding in order to make the decision to participate in programs pursuant to section 15‑382 and that a program authorized by section 15‑382 is not required to engage in competitive bidding for the services necessary to administer the program or for purchase of insurance or reinsurance. The rules shall include provisions specifying that school districts are not required to engage in competitive bidding in order to place a pupil in a private school that provides special education services if such placement is prescribed in the pupil's individualized education program and the private school has been approved by the department of education division of special education pursuant to section 15‑765, subsection D. This placement is not subject to rules adopted by the state board of education before November 24, 2009 pursuant to this section. The rules for procurement of construction projects shall include provisions specifying that surety bonds furnished as bid security and performance and payment bonds shall be executed and furnished as required by title 34, chapter 2 or 6, as applicable. The rules shall specify the total cost of a procurement that is subject to invitations for bids, requests for proposals and requests for clarification, using the aggregate dollar amount limits for procurements prescribed in section 41‑2535.
2. The state board of education shall adopt rules for procurements involving construction not exceeding one hundred fifty thousand dollars, which shall be known as the simplified school construction procurement program. At a minimum, the rules for a simplified construction procurement program shall require that:
(a) A list be maintained by each county school superintendent of persons who desire to receive solicitations to bid on construction projects to which additions shall be permitted throughout the year.
(b) The list of persons be available for public inspection.
(c) A performance bond and a payment bond as required by this section be provided for contracts for construction by contractors.
(d) All bids for construction be opened at a public opening and the bids shall remain confidential until the public opening.
(e) All persons desiring to submit bids be treated equitably and the information related to each project be available to all eligible persons.
(f) Competition for construction projects under the simplified school construction procurement program be encouraged to the maximum extent possible. At a minimum, a school district shall submit information on each project to all persons listed with the county school superintendent by any school district within that county.
(g) A provision, covenant, clause or understanding in, collateral to or affecting a construction contract that makes the contract subject to the laws of another state or that requires any litigation, arbitration or other dispute resolution proceeding arising from the contract to be conducted in another state is against this state's public policy and is void and unenforceable.
3. The state board of education shall adopt rules for the procurement of goods and information services by school districts and charter schools using electronic, online bidding. The rules adopted by the state board shall include the use of reverse auctions and shall be consistent with the procurement practices prescribed in title 41, chapter 23, article 13, modifying as necessary those provisions and the rules adopted pursuant to that article that the state board determines are not appropriate for school districts and charter schools. Until the rules are adopted, school districts and charter schools may procure goods and information services pursuant to title 41, chapter 23, article 13 using the rules adopted by the department of administration in implementing that article.
4. THE STATE BOARD OF EDUCATION SHALL ADOPT RULES FOR THE PROCUREMENT BY SCHOOL DISTRICTS AND CHARTER SCHOOLS OF ANY MATERIALS, SERVICES, GOODS, CONSTRUCTION OR CONSTRUCTION SERVICES THAT ENSURE THE MAXIMUM PRACTICABLE COMPETITION AS PRESCRIBED IN SECTION 41-2565 AND SHALL REQUIRE THAT A PERSON:
(a) WHO CONTRACTS FOR OR PURCHASES ANY MATERIALS, SERVICES, GOODS, CONSTRUCTION OR CONSTRUCTION SERVICES IN A MANNER CONTRARY TO THE RULES ADOPTED BY THE STATE BOARD OF EDUCATION PURSUANT TO THIS SECTION IS PERSONALLY LIABLE FOR THE RECOVERY OF ALL PUBLIC MONIES PAID PLUS TWENTY PERCENT OF that AMOUNT AND LEGAL INTEREST FROM THE DATE OF PAYMENT AND ALL COSTS AND DAMAGES ARISING OUT OF THE VIOLATION AS PRESCRIBED IN SECTION 41‑2616.
(b) WHO INTENTIONALLY OR KNOWINGLY CONTRACTS FOR OR PURCHASES ANY MATERIALS, SERVICES, GOODS, CONSTRUCTION OR CONSTRUCTION SERVICES PURSUANT TO A SCHEME OR ARTIFICE TO AVOID THE RULES ADOPTED BY THE STATE BOARD OF EDUCATION PURSUANT TO THIS SECTION IS GUILTY OF A CLASS 4 FELONY AS PRESCRIBED IN SECTION 41-2616.
(c) WHO PREPARES PROCUREMENT SPECIFICATIONS MAY NOT RECEIVE ANY DIRECT OR INDIRECT BENEFIT FROM THE USE OF THOSE SPECIFICATIONS.
(d) WHO SERVES ON A SELECTION COMMITTEE FOR A PROCUREMENT MAY NOT BE A CONTRACTOR OR SUBCONTRACTOR UNDER A CONTRACT AWARDED UNDER THE PROCUREMENT OR PROVIDE ANY SPECIFIED PROFESSIONAL SERVICES, CONSTRUCTION, CONSTRUCTION SERVICES, MATERIALS OR OTHER SERVICES UNDER THE CONTRACT. A PERSON WHO SERVES ON A SELECTION COMMITTEE FOR A PROCUREMENT AND WHO FAILS TO DISCLOSE CONTACT WITH A REPRESENTATIVE OF A COMPETING VENDOR OR WHO FAILS TO PROVIDE REQUIRED ACCURATE INFORMATION IS SUBJECT TO A CIVIL PENALTY AS PRESCRIBED IN SECTION 41-2616.
5. THE STATE BOARD OF EDUCATION SHALL ADOPT RULES REQUIRING SCHOOL DISTRICTS AND CHARTER SCHOOLS TO OBTAIN, AND MAINTAIN A RECORD OF, PROOF THAT A CONSTRUCTION OR CONSTRUCTION SERVICES PROVIDER THAT HAS BEEN AWARDED A CONTRACT WITH THE SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE, HAS A VALID LICENSE TO PRACTICE IN THIS STATE.
4. 6. The auditor general shall review the proposed rules to determine whether the rules are consistent with the procurement practices prescribed in title 41, chapter 23 and any modifications are required to adapt the procedures for school districts.
5. 7. If the auditor general approves the proposed rules, the auditor general shall notify the state board in writing and the state board shall adopt such rules.
6. 8. If the auditor general objects to the proposed rules, the auditor general shall notify the state board of the objections in writing and the state board, in adopting the rules, shall conform the proposed rules to meet the objections of the auditor general or revise the proposed rules to which an objection has been made and submit the revisions to the auditor general for approval.
B. After the bids submitted in response to an invitation for bids are opened and the award is made or after the proposals or qualifications are submitted in response to a request for proposals or a request for qualifications and the award is made, the governing board shall make available for public inspection all information, all bids, proposals and qualifications submitted and all findings and other information considered in determining whose bid conforms to the invitation for bids and will be the most advantageous with respect to price, conformity to the specifications and other factors or whose proposal or qualifications are to be selected for the award, INCLUDING THE RATIONALE FOR AWARDING A CONTRACT FOR ANY SPECIFIED PROFESSIONAL SERVICES, CONSTRUCTION, CONSTRUCTION SERVICES OR MATERIALS TO AN ENTITY SELECTED FROM A QUALIFIED SELECT BIDDERS LIST OR THROUGH A SCHOOL PURCHASING COOPERATIVE. The invitation for bids, request for proposals or request for qualifications shall include a notice that all information and bids, proposals and qualifications submitted will be made available for public inspection. The rules adopted by the state board shall prohibit the use in connection with procurement of specifications in any way proprietary to one supplier unless the specification includes all of the following:
1. A statement of the reasons why no other specification is practicable.
2. A description of the essential characteristics of the specified product.
3. A statement specifically permitting an acceptable alternative product to be supplied.
C. No a project or purchase may not be divided or sequenced into separate projects or purchases in order to avoid the limits prescribed by the state board under subsection A of this section.
D. A contract for the procurement of construction or construction services shall include a provision that provides for negotiations between the school district and the contractor for the recovery of damages related to expenses incurred by the contractor for a delay for which the school district is responsible, that is unreasonable under the circumstances and that was not within the contemplation of the parties to the contract. This subsection shall does not be construed to void any provision in the contract that requires notice of delays, provides for arbitration or any other procedure for settlement or provides for liquidated damages.
E. The auditor general may conduct discretionary reviews, investigations and audits of the financial and operational procurement activities of school districts, nonexempt charter schools and school purchasing cooperatives. The auditor general has final review and approval authority over all school district, nonexempt charter school and school purchasing cooperative audit contracts and any audit reports issued in accordance with this section. IF THE ATTORNEY GENERAL HAS REASONABLE CAUSE TO BELIEVE AN EMPLOYEE OF A SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE, OR AN EMPLOYEE OF AN ENTITY THAT HAS BEEN AWARDED A CONTRACT BY A SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE, HAS ENGAGED IN, IS ENGAGING IN OR IS ABOUT TO ENGAGE IN ANY PRACTICE OR TRANSACTION THAT VIOLATES THE RULES ADOPTED BY THE STATE BOARD OF EDUCATION PURSUANT TO THIS SECTION, THE ATTORNEY GENERAL MAY:
1. REQUIRE THAT PERSON TO FILE ON FORMS PRESCRIBED BY THE ATTORNEY GENERAL A STATEMENT OR REPORT IN WRITING AND UNDER OATH AS TO ALL THE FACTS AND CIRCUMSTANCES CONCERNING A VIOLATION OF THE RULES ADOPTED BY THE STATE BOARD OF EDUCATION PURSUANT TO THIS SECTION BY THAT PERSON AND ANY OTHER DATA AND INFORMATION DEEMED NECESSARY BY THE ATTORNEY GENERAL.
2. EXAMINE UNDER OATH ANY PERSON IN CONNECTION WITH A VIOLATION OF THE RULES ADOPTED BY THE STATE BOARD OF EDUCATION PURSUANT TO THIS SECTION.
F. In addition to the requirements of sections 15‑914 and 15‑914.01, school districts, nonexempt charter schools and school purchasing cooperatives, in connection with any audit conducted by a certified public accountant, shall contract for a systematic review of purchasing practices using methodology consistent with sampling guidelines established by the auditor general. The auditor general shall consider cost when establishing guidelines pursuant to this subsection and to the extent possible shall attempt to minimize the cost of the review. The purpose of the review is to determine whether the school district, nonexempt charter school or school purchasing cooperative is in compliance with the procurement laws and applicable procurement rules of this state. A copy of the review shall be submitted on completion to the auditor general. The auditor general may conduct discretionary reviews of school districts, nonexempt charter schools and school purchasing cooperatives not required to contract for independent audits.
G. A SCHOOL DISTRICT OR CHARTER SCHOOL EMPLOYEE WHO HAS CONTROL OVER PERSONNEL ACTIONS MAY NOT TAKE REPRISAL AGAINST A SCHOOL DISTRICT OR CHARTER SCHOOL EMPLOYEE FOR DISCLOSURE OF INFORMATION THAT IS A MATTER OF PUBLIC CONCERN, INCLUDING A VIOLATION OF THIS SECTION, BY THE EMPLOYEE TO A PUBLIC BODY PURSUANT TO TITLE 38, CHAPTER 3, ARTICLE 9.
G. h. The attorney general or county attorney has jurisdiction to enforce this section. The attorney general or county attorney may seek relief for any violation of this section through an appropriate civil or criminal action in superior court, including an action to enjoin a threatened or pending violation of this section and including an action to enforce compliance with any request for documents made by the auditor general pursuant to this section.
H. i. The department of education shall enact policies and procedures for the acceptance and disposition of complaints from the public regarding school procurement practices and shall forward all school procurement complaints to the attorney general. Notwithstanding rules adopted by the state board, school districts shall not be required to prepare or submit an annual report on the benefits associated with the use of construction‑manager‑at‑risk, design‑build, qualified select bidders list and job‑order‑contracting methods.
I. j. The state board of education shall adopt, and the auditor general shall review, rules authorizing school districts to procure construction services by construction‑manager‑at‑risk, design‑build, qualified select bidders list and job‑order‑contracting methods of project delivery. The rules shall not require school districts to obtain bid security for the construction‑manager‑at‑risk method of project delivery.
J. k. A school district or charter school may evaluate United States general services administration contracts for materials and services. The governing board or governing body may authorize purchases under a current contract for materials or services without complying with the requirements of the procurement rules adopted by the state board of education if the governing board or governing body determines in writing that all of the following apply:
1. The price for materials or services is equal to or less than the contractor's current federal supply contract price with the general services administration.
2. The contractor has indicated in writing that the contractor is willing to extend the current federal supply contract pricing, terms and conditions to the school district or charter school.
3. The purchase order adequately identifies the federal supply contract on which the order is based.
4. The purchase contract is cost effective and is in the best interests of the school district or charter school.
K. l. Unless otherwise provided by law, multiterm contracts for materials or services and contracts for job-order-contracting construction services may be entered into if the duration of the contract and the conditions of renewal or extension, if any, are included in the invitation for bids or the request for proposals and if monies are available for the first fiscal period at the time the contract is executed. The duration of contracts for materials or services and contracts for job‑order‑contracting construction services shall be are limited to no more than five years unless the governing board determines in writing before the procurement solicitation is issued that a contract of longer duration would be advantageous to the school district. Payment and performance obligations for succeeding fiscal periods are subject to the availability and appropriation of monies.
L. m. Notwithstanding the rules adopted by the state board of education, the maximum dollar amount of an individual job order for job‑order‑contracting construction services shall be is one million dollars or a higher or lower amount prescribed by the governing board in a policy adopted in a public meeting held pursuant to title 38, chapter 3, article 3.1. Requirements shall not be artificially divided or fragmented in order to constitute a job order that satisfies the requirements of this subsection.
n. A PERSON WHO SUPERVISES OR PARTICIPATES IN CONTRACTS, PURCHASES, PAYMENTS, CLAIMS OR OTHER FINANCIAL TRANSACTIONS, OR A PERSON WHO SUPERVISES OR PARTICIPATES IN THE PLANNING, RECOMMENDING, SELECTING OR CONTRACTING FOR MATERIALS, SERVICES, GOODS, CONSTRUCTION OR CONSTRUCTION SERVICES OF A SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE IS GUILTY OF A CLASS 6 FELONY IF that pErson SOLICITS, ACCEPTS OR AGREES TO ACCEPT ANY PERSONAL GIFT OR BENEFIT WITH A VALUE OF THREE HUNDRED DOLLARS OR MORE FROM A PERSON OR VENDOR THAT HAS OR HAS TAKEN STEPS TO SECURE A CONTRACT, PURCHASE, PAYMENT, CLAIM OR FINANCIAL TRANSACTION WITH THE SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE. SOLICITING, ACCEPTINg OR AGREEING TO ACCEPT ANY PERSONAL GIFT OR BENEFIT WITH A VALUE OF TWO HUNDRED NINETY-NINE DOLLARS OR LESS IS A CLASS 1 MISDEMEANOR. A GIFT OR BENEFIT DOES NOT INCLUDE AN ITEM OF NOMINAL VALUE SUCH AS A GREETING CARD, T-SHIRT, MUG OR PEN.
O. ANY PERSON OR VENDOR THAT HAS OR HAS TAKEN STEPS TO SECURE A CONTRACT, PURCHASE, PAYMENT, CLAIM OR FINANCIAL TRANSACTION WITH A SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE THAT OFFERS, CONFERS OR AGREES TO CONFER ANY PERSONAL GIFT OR BENEFIT WITH A VALUE OF THREE HUNDRED DOLLARS OR MORE on A PERSON WHO SUPERVISES OR PARTICIPATES IN CONTRACTS, PURCHASES, PAYMENTS, CLAIMS OR OTHER FINANCIAL TRANSACTIONS, OR on A PERSON WHO SUPERVISES OR PARTICIPATES IN THE PLANNING, RECOMMENDING, SELECTING OR CONTRACTING FOR MATERIALS, SERVICES, GOODS, CONSTRUCTION OR CONSTRUCTION SERVICES OF A SCHOOL DISTRICT, CHARTER SCHOOL OR SCHOOL PURCHASING COOPERATIVE IS GUILTY OF A CLASS 6 FELONY. OFFERING, CONFERRING OR AGREEING TO CONFER ANY PERSONAL GIFT OR BENEFIT WITH A VALUE OF TWO HUNDRED NINETY-NINE DOLLARS OR LESS IS A CLASS 1 MISDEMEANOR. A GIFT OR BENEFIT DOES NOT INCLUDE AN ITEM OF NOMINAL VALUE SUCH AS A GREETING CARD, T-SHIRT, MUG OR PEN.
P. ANY PERSON OR VENDOR CONVICTED UNDER SUBSECTION O OF THIS SECTION MAY BE SUSPENDED FOR UP TO SIX MONTHS OR DEBARRED FOR UP TO THREE YEARS BY THE DIRECTOR OF THE DEPARTMENT OF ADMINISTRATION FROM DOING BUSINESS WITH SCHOOL DISTRICTS, CHARTER SCHOOLS AND SCHOOL PURCHASING COOPERATIVES. THE DIRECTOR OF THE DEPARTMENT OF ADMINISTRATION SHALL ADOPT RULES, INCLUDING ADMINISTRATIVE PROCEDURES, FOR THE SUSPENSION AND DEBARMENT OF ANY PERSON FROM CONSIDERATION FOR AWARD OF CONTRACTS PURSUANT TO THIS SECTION.
M. q. For the purposes of this section:
1. "Nonexempt charter school" means a charter school that is not exempted from procurement laws pursuant to section 15‑183, subsection E, paragraph 6.
2. "School purchasing cooperative" means an entity engaged in cooperative purchasing as defined in section 41‑2631.
3. "Total cost" means the cost of all materials and services, including the cost of labor performed by employees of the school district, for all construction as provided in subsection A of this section.
Sec. 2. Section 15-2041, Arizona Revised Statutes, is amended to read:
15-2041. New school facilities fund; capital plan; report
A. The new school facilities fund is established consisting of monies appropriated by the legislature and monies credited to the fund pursuant to section 37‑221. The school facilities board shall administer the fund and distribute monies, as a continuing appropriation, to school districts for the purpose of constructing new school facilities and for contracted expenses pursuant to section 15‑2002, subsection B, paragraphs 2, 3 and 4. On June 30 of each fiscal year, any unobligated contract monies in the new school facilities fund shall be transferred to the capital reserve fund established by section 15‑2003.
B. The school facilities board shall prescribe a uniform format for use by the school district governing board in developing and annually updating a capital plan that consists of each of the following:
1. Enrollment projections for the next five years for elementary schools and eight years for middle and high schools, including a description of the methods used to make the projections.
2. A description of new schools or additions to existing schools needed to meet the building adequacy standards prescribed in section 15‑2011. The description shall include:
(a) The grade levels and the total number of pupils that the school or addition is intended to serve.
(b) The year in which it is necessary for the school or addition to begin operations.
(c) A timeline that shows the planning and construction process for the school or addition.
3. Long‑term projections of the need for land for new schools.
4. Any other necessary information required by the school facilities board to evaluate a school district's capital plan.
5. If a school district pays tuition for all or a portion of the school district's high school pupils to another school district, the capital plan shall indicate the number of pupils for which the district pays tuition to another district. If a school district accepts pupils from another school district pursuant to section 15‑824, subsection A, the school district shall indicate the projections for this population separately. This paragraph does not apply to a small isolated school district as defined in section 15‑901.
C. If the capital plan indicates a need for a new school or an addition to an existing school within the next four years or a need for land within the next ten years, the school district shall submit its plan to the school facilities board by July 1 and shall request monies from the new school facilities fund for the new construction or land. The school facilities board may require a school district to sell land that was previously purchased entirely with monies provided by the school facilities board if the school facilities board determines that the property is no longer needed within the ten‑year period specified in this subsection for a new school or no longer needed within that ten‑year period for an addition to an existing school. Monies provided for land shall be are in addition to any monies provided pursuant to subsection D of this section.
D. The school facilities board shall distribute monies from the new school facilities fund for additional square footage as follows:
1. The school facilities board shall review and evaluate the enrollment projections. On or before December 1, following the submission of the enrollment projections, the school facilities board shall either approve the projections as submitted or revise the projections. In approving or revising the enrollment projections, the school facilities board shall use the most recent fortieth day average daily membership data available during the current school year. On request from the school facilities board, the department of education shall make available the most recent average daily membership data for use in revising the enrollment projections. In determining new construction requirements, the school facilities board shall determine the net new growth of pupils that will require additional square footage that exceeds the building adequacy standards prescribed in section 15‑2011. If the projected growth and the existing number of pupils exceed three hundred fifty pupils who are served in a school district other than the pupil's resident school district, the school facilities board, the receiving school district and the resident school district shall develop a capital facilities plan on how to best serve those pupils. A small isolated school district as defined in section 15‑901 is not required to develop a capital facilities plan pursuant to this paragraph.
2. If the most recent fortieth day average daily membership during the current school year indicates that additional space would not have been needed during the current school year in order to meet the building adequacy standards prescribed in section 15‑2011, the request shall be held for consideration by the school facilities board for possible future funding and the school district shall annually submit an updated plan until the additional space is needed.
3. If the most recent fortieth day average daily membership during the current school year indicates that additional space would have been needed during the current school year in order to meet the building adequacy standards prescribed in section 15‑2011, the school facilities board shall provide an amount as follows:
(a) Determine the number of pupils requiring additional square footage to meet building adequacy standards. This amount for elementary schools shall not be less than the number of new pupils for whom space will be needed in the next year and shall not exceed the number of new pupils for whom space will be needed in the next five years. This amount for middle and high schools shall not be less than the number of new pupils for whom space will be needed in the next four years and shall not exceed the number of new pupils for whom space will be needed in the next eight years.
(b) Multiply the number of pupils determined in subdivision (a) of this paragraph by the square footage per pupil. The square footage per pupil is ninety square feet per pupil for preschool children with disabilities, kindergarten programs and grades one through six, one hundred square feet for grades seven and eight, one hundred thirty‑four square feet for a school district that provides instruction in grades nine through twelve for fewer than one thousand eight hundred pupils and one hundred twenty‑five square feet for a school district that provides instruction in grades nine through twelve for at least one thousand eight hundred pupils. The total number of pupils in grades nine through twelve in the district shall determine the square footage factor to use for net new pupils. The school facilities board may modify the square footage requirements prescribed in this subdivision for particular schools based on any of the following factors:
(i) The number of pupils served or projected to be served by the school district.
(ii) Geographic factors.
(iii) Grade configurations other than those prescribed in this subdivision.
(iv) Compliance with minimum school facility adequacy requirements established pursuant to section 15‑2011.
(c) Multiply the product obtained in subdivision (b) of this paragraph by the cost per square foot. The cost per square foot is ninety dollars for preschool children with disabilities, kindergarten programs and grades one through six, ninety‑five dollars for grades seven and eight and one hundred ten dollars for grades nine through twelve. The cost per square foot shall be adjusted annually for construction market considerations based on an index identified or developed by the joint legislative budget committee as necessary but not less than once each year. The school facilities board shall multiply the cost per square foot by 1.05 for any school district located in a rural area. The school facilities board may only modify the base cost per square foot prescribed in this subdivision for particular schools based on geographic conditions or site conditions. For the purposes of this subdivision, "rural area" means an area outside a thirty‑five‑mile radius of a boundary of a municipality with a population of more than fifty thousand persons.
(d) Once the school district governing board obtains approval from the school facilities board for new facility construction monies, additional portable or modular square footage created for the express purpose of providing temporary space for pupils until the completion of the new facility and any additional space funded by the school district shall not be included by the school facilities board for the purpose of new construction funding calculations. On completion of the new facility construction project, any additional space funded by the school district shall be included as prescribed by this chapter and, if the portable or modular facilities continue in use, the portable or modular facilities shall be included as prescribed by this chapter, unless the school facilities board approves their continued use for the purpose of providing temporary space for pupils until the completion of the next new facility that has been approved for funding from the new school facilities fund.
4. For projects approved after December 31, 2001, and notwithstanding paragraph 3 of this subsection, a unified school district that does not have a high school is not eligible to receive high school space as prescribed by section 15‑2011 and this section unless the unified district qualifies for geographic factors prescribed by paragraph 3, subdivision (b), item (ii) of this subsection.
5. If a joint technical education district leases a building from a school district, that building shall be included in the school district's square footage calculation for the purposes of new construction pursuant to this section.
6. If a school district leases a building to another entity, that building shall be included in the school district's square footage calculation for purposes of new construction pursuant to this section.
7. A school district shall qualify for monies from the new school facilities fund for additional square footage in a fiscal year only if the school facilities board has approved or revised its enrollment projection under paragraph 3 1 of this subsection on or before March 1 of the prior fiscal year.
E. Monies for architectural and engineering fees, project management services and preconstruction services shall be distributed on the completion of the analysis by the school facilities board of the school district's request. After receiving monies pursuant to this subsection, the school district shall submit a design development plan for the school or addition to the school facilities board before any monies for construction are distributed. If the school district's request meets the building adequacy standards, the school facilities board may review and comment on the district's plan with respect to the efficiency and effectiveness of the plan in meeting state square footage and facility standards before distributing the remainder of the monies. If the school facilities board modifies the cost per square foot as prescribed in subsection D, paragraph 3, subdivision (c) of this section, the school facilities board may deduct the cost of project management services and preconstruction services from the required cost per square foot. The school facilities board may decline to fund the project if the square footage is no longer required due to revised enrollment projections.
F. The school facilities board shall distribute the monies needed for land for new schools so that land may be purchased at a price that is less than or equal to fair market value and in advance of the construction of the new school. If necessary, the school facilities board may distribute monies for land to be leased for new schools if the duration of the lease exceeds the life expectancy of the school facility by at least fifty percent. A school district shall not use land purchased or partially purchased with monies provided by the school facilities board for a purpose other than a site for a school facility without obtaining prior written approval from the school facilities board. A school district shall not lease, sell or take any action that would diminish the value of land purchased or partially purchased with monies provided by the school facilities board without obtaining prior written approval from the school facilities board. The proceeds derived through the sale of any land purchased or partially purchased, or the sale of buildings funded or partially funded, with monies provided by the school facilities board shall be returned to the state fund from which it was appropriated and to any other participating entity on a proportional basis. Except as provided in section 15‑342, paragraph 33, if a school district acquires real property by donation at an appropriate school site approved by the school facilities board, the school facilities board shall distribute an amount equal to twenty percent of the fair market value of the donated real property that can be used for academic purposes. The school district shall place the monies in the unrestricted capital outlay fund and increase the unrestricted capital budget limit by the amount of monies placed in the fund. Monies distributed under this subsection shall be distributed from the new school facilities fund. A school district that receives monies from the new school facilities fund for a donation of land pursuant to section 15‑342, paragraph 33 shall not receive monies from the school facilities board for the donation of real property pursuant to this subsection. A school district shall not pay a consultant a percentage of the value of any of the following:
1. Donations of real property, services or cash from any of the following:
(a) Entities that have offered to provide construction services to the school district.
(b) Entities that have been contracted to provide construction services to the school district.
(c) Entities that build residential units in that school district.
(d) Entities that develop land for residential use in that school district.
2. Monies received from the school facilities board on behalf of the school district.
3. Monies paid by the school facilities board on behalf of the school district.
G. In addition to distributions to school districts based on pupil growth projections, a school district may submit an application to the school facilities board for monies from the new school facilities fund if one or more school buildings have outlived their useful life. If the school facilities board determines that the school district needs to build a new school building for these reasons, the school facilities board shall remove the square footage computations that represent the building from the computation of the school district's total square footage for purposes of this section. If the square footage recomputation reflects that the school district no longer meets building adequacy standards, the school district qualifies for a distribution of monies from the new school construction formula in an amount determined pursuant to subsection D of this section. The school facilities board may only modify the base cost per square foot prescribed in this subsection under extraordinary circumstances for geographic factors or site conditions.
H. School districts that receive monies from the new school facilities fund shall establish a district new school facilities fund and shall use the monies in the district new school facilities fund only for the purposes prescribed in this section. By October 15 of each year, each school district shall report to the school facilities board the projects funded at each school in the previous fiscal year with monies from the district new school facilities fund and shall provide an accounting of the monies remaining in the new school facilities fund at the end of the previous fiscal year.
I. If a school district has surplus monies received from the new school facilities fund, the school district may use the surplus monies only for capital purposes for the project for up to one year after completion of the project. If the school district possesses surplus monies from the new school construction project that have not been expended within one year of the completion of the project, the school district shall return the surplus monies to the school facilities board for deposit in the new school facilities fund.
J. The board's consideration of any application filed after December 31 of the year in which the property becomes territory in the vicinity of a military airport or ancillary military facility as defined in section 28‑8461 for monies to fund the construction of new school facilities proposed to be located in territory in the vicinity of a military airport or ancillary military facility shall include, if after notice is transmitted to the military airport pursuant to section 15‑2002 and before the public hearing the military airport provides comments and an analysis concerning compatibility of the proposed school facilities with the high noise or accident potential generated by military airport or ancillary military facility operations that may have an adverse effect on public health and safety, consideration and analysis of the comments and analysis provided by the military airport before making a final determination.
K. If a school district uses its own project manager for new school construction, the members of the school district governing board and the project manager shall sign an affidavit stating that the members and the project manager understand and will follow the minimum adequacy requirements prescribed in section 15‑2011.
L. The school facilities board shall establish a separate account in the new school facilities fund designated as the litigation account to pay attorney fees, expert witness fees and other costs associated with litigation in which the school facilities board pursues the recovery of damages for deficiencies correction that resulted from alleged construction defects or design defects that the school facilities board believes caused or contributed to a failure of the school building to conform to the building adequacy requirements prescribed in section 15‑2011. Attorney fees paid pursuant to this subsection shall not exceed the market rate for similar types of litigation. On or before December 1 of each year, the school facilities board shall report to the joint committee on capital review the costs associated with current and potential litigation that may be paid from the litigation account.
M. Until the state board of education and the auditor general adopt rules pursuant to section 15‑213, subsection I j, the school facilities board may allow school districts to contract for construction services and materials through the qualified select bidders list method of project delivery for new school facilities pursuant to this section.
N. The school facilities board shall submit electronically a report on project management services and preconstruction services to the governor, the president of the senate and the speaker of the house of representatives by December 31 of each year. The report shall compare projects that use project management and preconstruction services with those that do not. The report shall address cost, schedule and other measurable components of a construction project. School districts, construction manager at risk construction-manager-at-risk firms and project management firms that participate in a school facilities board funded project shall provide the information required by the school facilities board in relation to this report.
O. If a school district constructs new square footage according to section 15‑342, paragraph 33, the school facilities board shall review the design plans and location of any new school facility submitted by school districts and another party to determine whether the design plans comply with the adequacy standards prescribed in section 15‑2011 and the square footage per pupil requirements pursuant to subsection D, paragraph 3, subdivision (b) of this section. When the school district qualifies for a distribution of monies from the new school facilities fund according to this section, the school facilities board shall distribute monies to the school district from the new school facilities fund for the square footage constructed under section 15‑342, paragraph 33 at the same cost per square foot established by this section that was in effect at the time of the beginning of the construction of the school facility. Before the school facilities board distributes any monies pursuant to this subsection, the school district shall demonstrate to the school facilities board that the facilities to be funded pursuant to this section meet the minimum adequacy standards prescribed in section 15‑2011. The agreement entered into pursuant to section 15‑342, paragraph 33 shall set forth the procedures for the allocation of these funds to the parties that participated in the agreement.
P. Accommodation schools are not eligible for monies from the new school facilities fund.
Q. If the school facilities board approves a school district for funding from the new school facilities fund and the full legislative appropriation is not available to the school district in the fiscal year following the approval by the school facilities board, the school district may use any legally available monies to pay for the land or the new construction project approved by the school facilities board and may reimburse the fund from which the monies were used in subsequent years with legislative appropriations when those appropriations are made available by this state."
Amend title to conform