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Committee Advances Bill to Apply 'Lowest and Best' Standard for Public Works, Raises CMC Self‑Perform Cap to 30%
Summary
House Bill 15-59, amended to allow construction-managers-at-risk (CMCs) to self-perform up to 30% of a project and to apply a single procurement standard for public works, passed the committee 11-0. Supporters said the changes increase flexibility and competition; witnesses cautioned about owner sophistication and the need for clear records.
The Pensions and Labor Committee on Monday voted 11-0 to advance an amended House Bill 15-59 that would create a single procurement standard for public works projects and increase the percentage of work a construction manager at risk (CMC) may self-perform from 20 percent to 30 percent.
Senator Baldwin presented the amended bill and said the measure "creates one standard for public works projects" and harmonizes procurement rules that currently differ for state/higher‑education projects and local units. The amendment approved in committee raised the allowable CMC self‑performance rate from 20 percent to 30 percent; Baldwin said many states have no percent limit and that the change would provide savings for project owners.
Supporters: Kevin Tharpe of the Associated General Contractors testified as neutral but supportive of the 30 percent amendment and explained the difference between the current "lowest responsive and responsible" standard used by many local units and the "lowest and best" standard applied to state projects and higher education. Tharpe said the lowest-and-best approach permits evaluation of factors beyond price — including experience, schedule, proposed methods and other qualifications — and that the added discretion can yield better outcomes when owners are sufficiently sophisticated.
Carly Hopper of the Indiana Builders Association testified in support and said the change would create efficiencies, permit local units more flexibility in selecting qualified contractors, and reduce taxpayer costs when projects are delivered efficiently.
Concerns and safeguards: Witnesses and several senators urged that local owners keep clear records explaining how they determined a contractor was "best," because the lowest-and-best standard gives owners more discretion and therefore more potential exposure to legal challenge if rationale is not documented. Tharpe described how the lowest responsive and responsible standard limits owner discretion to selecting the lowest qualified bidder, while lowest and best requires the owner to document and defend discretionary choices.
Committee action: After adopting the amendment changing the self-perform cap to 30 percent, the committee called the roll and recorded 11 affirmative votes; Chair Rogers declared the bill passed and moved it to the floor.
Next steps: The bill moves to the full chamber; committee discussion emphasized the need for clear record-keeping and recognized differing capacities among owner entities to apply the discretionary standard.
