SF 740

2nd Unofficial Engrossment - 86th Legislature (2009 - 2010)

Posted on 12/26/2012 11:17 p.m.

1.1A bill for an act 1.2relating to highways; establishing a pilot program to authorize use of a 1.3design-build contracting process for certain highway construction projects. 1.4BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.5    Section 1. new text begin DESIGN-BUILD PILOT PROGRAM. new text end 1.6     new text begin Subdivision 1. new text end new text begin Definitions. new text end new text begin The following terms have the meanings given: new text end 1.7 new text begin (1) "commissioner" means the commissioner of transportation; new text end 1.8 new text begin (2) "municipality" means the board of commissioners of Anoka or Dakota County; new text end 1.9 new text begin (3) "design-build contract" means a single contract between a municipality and a new text end 1.10 new text begin design-build company or firm to furnish the architectural or engineering and related design new text end 1.11 new text begin services as well as the labor, material, supplies, equipment, and construction services new text end 1.12 new text begin for a pilot project; new text end 1.13 new text begin (4) "design-build firm" means a proprietorship, partnership, limited liability new text end 1.14 new text begin partnership, joint venture, corporation, any type of limited liability company, professional new text end 1.15 new text begin corporation, or any legal entity; new text end 1.16 new text begin (5) "design professional" means a person who holds a license under Minnesota new text end 1.17 new text begin Statutes, chapter 326B, that is required to be registered under Minnesota law; new text end 1.18 new text begin (6) "design-build transportation project" means the procurement of both the design new text end 1.19 new text begin and construction of a pilot project in a single contract with a company or companies new text end 1.20 new text begin capable of providing the necessary engineering services and construction; new text end 1.21 new text begin (7) "design-builder" means the design-build firm that proposes to design and build a new text end 1.22 new text begin pilot project governed by the procedures of this section; new text end 1.23 new text begin (8) "pilot project" means (1) the reconstruction of the intersection at marked new text end 1.24 new text begin Trunk Highway 10 and Anoka County State-Aid Highway 83, or (2) construction of new text end 2.1 new text begin an interchange at marked Trunk Highway 13 and Dakota County State-Aid Highway 5 new text end 2.2 new text begin in Burnsville; new text end 2.3 new text begin (9) "request for proposals" or "RFP" means the document by which the municipality new text end 2.4 new text begin solicits proposals from qualified design-build firms to design and construct a pilot project; new text end 2.5 new text begin (10) "request for qualifications" or "RFQ" means a document to qualify potential new text end 2.6 new text begin design-build firms; and new text end 2.7 new text begin (11) "responsive proposal" means a technical proposal of which no major component new text end 2.8 new text begin contradicts the goals of the project, significantly violates an RFP requirement, or places new text end 2.9 new text begin conditions on a proposal. new text end 2.10     new text begin Subd. 2. new text end new text begin Pilot program established. new text end new text begin (a) Each municipality may participate in a new text end 2.11 new text begin design-build contracting pilot program as provided in this section. If either municipality new text end 2.12 new text begin determines to participate, the commissioner and each participating municipality shall new text end 2.13 new text begin conduct a design-build contracting pilot program to support and evaluate the use of the new text end 2.14 new text begin design-build method of contracting by counties and statutory and home rule charter cities new text end 2.15 new text begin in constructing, improving, and maintaining streets and highways on the state-aid system. new text end 2.16 new text begin (b) Subject to the requirements of this section and as appropriate under that new text end 2.17 new text begin municipality's jurisdiction, a municipality may use the design-build method of contracting new text end 2.18 new text begin for (1) reconstruction of the intersection at marked Trunk Highway 10 and Anoka County new text end 2.19 new text begin State-Aid Highway 83, and (2) construction of an interchange at marked Trunk Highway new text end 2.20 new text begin 13 and Dakota County State-Aid Highway 5 in Burnsville. new text end 2.21     new text begin Subd. 3. new text end new text begin Licensing requirements. new text end new text begin (a) Each design-builder shall employ, or have new text end 2.22 new text begin as a partner, member, officer, coventurer, or subcontractor, a person duly licensed and new text end 2.23 new text begin registered to provide the design services required to complete the project and do business new text end 2.24 new text begin in the state. new text end 2.25 new text begin (b) A design-builder may enter into a contract to provide professional or construction new text end 2.26 new text begin services for a project that the design-builder is not licensed, registered, or qualified to new text end 2.27 new text begin perform, so long as the design-builder provides those services through subcontractors with new text end 2.28 new text begin duly licensed, registered, or otherwise qualified individuals in accordance with Minnesota new text end 2.29 new text begin Statutes, sections new text end new text begin to new text end new text begin . new text end 2.30 new text begin (c) Nothing in this section authorizing design-build contracts is intended to limit or new text end 2.31 new text begin eliminate the responsibility or liability owed by a professional on a design-build project to new text end 2.32 new text begin the state, municipality, or other third party under existing law. new text end 2.33 new text begin (d) The design service portion of a design-build contract must be considered a new text end 2.34 new text begin service and not a product. new text end 2.35     new text begin Subd. 4. new text end new text begin Information session for municipal engineer. new text end new text begin The commissioner or the new text end 2.36 new text begin commissioner's designee with design-build experience shall conduct an information new text end 3.1 new text begin session for the municipality's engineer for each pilot project, in which issues unique to new text end 3.2 new text begin design-build must be discussed, including, but not limited to, writing an RFP, project new text end 3.3 new text begin oversight requirements, assessing risk, and communication with the design-build firm. new text end 3.4 new text begin After participation in the information session, the municipality's engineer may solicit new text end 3.5 new text begin proposals under subdivision 6 for the pilot project. new text end 3.6     new text begin Subd. 5. new text end new text begin Technical Review Committee. new text end new text begin During the phase one RFQ and before new text end 3.7 new text begin solicitation, the municipality shall appoint a Technical Review Committee of at least new text end 3.8 new text begin five individuals. The Technical Review Committee must include an individual whose new text end 3.9 new text begin name and qualifications are submitted to the municipality by the Minnesota chapter of new text end 3.10 new text begin the Associated General Contractors, after consultation with other commercial contractor new text end 3.11 new text begin associations in the state. Members of the Technical Review Committee who are not state new text end 3.12 new text begin employees are subject to the Minnesota Government Data Practices Act and Minnesota new text end 3.13 new text begin Statutes, section new text end new text begin 16C.06, new text end new text begin to the same extent that state agencies are subject to those new text end 3.14 new text begin provisions. A Technical Review Committee member may not participate in the review or new text end 3.15 new text begin discussion of responses to the RFQ or RFP when a design-build firm in which the member new text end 3.16 new text begin has a financial interest has responded to the RFQ or RFP. "Financial interest" includes, new text end 3.17 new text begin but is not limited to, being or serving as an owner, employee, partner, limited liability new text end 3.18 new text begin partner, shareholder, joint venturer, family member, officer, or director of a design-build new text end 3.19 new text begin firm responding to an RFQ or RFP for a specific project, or having any other economic new text end 3.20 new text begin interest in that design-build firm. The members of the Technical Review Committee must new text end 3.21 new text begin be treated as municipal employees in the event of litigation resulting from any action new text end 3.22 new text begin arising out of their service on the committee. new text end 3.23     new text begin Subd. 6. new text end new text begin Phase one; design-build RFQ. new text end new text begin The municipality shall prepare an RFQ, new text end 3.24 new text begin which must include the following: new text end 3.25 new text begin (1) the minimum qualifications of design-builders necessary to meet the requirements new text end 3.26 new text begin for acceptance; new text end 3.27 new text begin (2) a scope of work statement and schedule; new text end 3.28 new text begin (3) documents defining the project requirements; new text end 3.29 new text begin (4) the form of contract to be awarded; new text end 3.30 new text begin (5) the weighted selection criteria for compiling a short list and the number of firms new text end 3.31 new text begin to be included in the short list, which must be at least two but not more than five; new text end 3.32 new text begin (6) a description of the request for proposals (RFP) requirements; new text end 3.33 new text begin (7) the maximum time allowed for design and construction; new text end 3.34 new text begin (8) the municipality's estimated cost of design and construction; new text end 3.35 new text begin (9) requirements for construction experience, design experience, financial, personnel, new text end 3.36 new text begin and equipment resources available from potential design-builders for the project and new text end 4.1 new text begin experience in other design-build transportation projects or similar projects, provided that new text end 4.2 new text begin these requirements may not unduly restrict competition; and new text end 4.3 new text begin (10) a statement that "past performance" or "experience" or other criteria used in the new text end 4.4 new text begin RFQ evaluation process does not include the exercise or assertion of a person's legal rights. new text end 4.5     new text begin Subd. 7. new text end new text begin Information session for prospective design-build firms. new text end new text begin After an RFQ new text end 4.6 new text begin solicitation for a pilot project is made, any prospective design-build firm shall attend a new text end 4.7 new text begin design-build information session conducted by the commissioner or the commissioner's new text end 4.8 new text begin designee with design-build experience. The information must include information about new text end 4.9 new text begin design-build contracts, including, but not limited to, communication with partner firms, new text end 4.10 new text begin project oversight requirements, assessing risk, and communication with the municipality's new text end 4.11 new text begin engineer. After participation in the information session, the design-build firm is eligible new text end 4.12 new text begin to bid on the pilot project and any future design-build pilot program projects under this new text end 4.13 new text begin section. new text end 4.14     new text begin Subd. 8. new text end new text begin Evaluation; short list. new text end new text begin The selection team shall evaluate the design-build new text end 4.15 new text begin qualifications of responding firms and shall compile a short list of no more than five new text end 4.16 new text begin most highly qualified firms in accordance with qualifications criteria described in the new text end 4.17 new text begin RFQ. If only one design-build firm responds to the RFQ or remains on the short list, the new text end 4.18 new text begin municipality may readvertise or cancel the project as the municipality deems necessary. new text end 4.19     new text begin Subd. 9. new text end new text begin Phase two; design-build RFP. new text end new text begin The municipality shall prepare an RFP, new text end 4.20 new text begin which must include: new text end 4.21 new text begin (1) the scope of work, including (i) performance and technical requirements, (ii) new text end 4.22 new text begin conceptual design, (iii) specifications, and (iv) functional and operational elements for new text end 4.23 new text begin the delivery of the completed project, all of which must be prepared by a registered or new text end 4.24 new text begin licensed professional engineer; new text end 4.25 new text begin (2) copies of the contract documents that the successful proposer will be expected to new text end 4.26 new text begin sign; new text end 4.27 new text begin (3) the maximum time allowable for design and construction; new text end 4.28 new text begin (4) the road authority's estimated cost of design and construction; new text end 4.29 new text begin (5) the requirement that a submitted proposal be segmented into two parts, a new text end 4.30 new text begin technical proposal and a price proposal; new text end 4.31 new text begin (6) the requirement that each proposal be in a separately sealed, clearly identified new text end 4.32 new text begin package and include the date and time of the submittal deadline; new text end 4.33 new text begin (7) the requirement that the technical proposal include a critical path method, new text end 4.34 new text begin bar schedule of the work to be performed, or similar schematic; preliminary design new text end 4.35 new text begin plans and specifications; technical reports; calculations; permit requirements; applicable new text end 4.36 new text begin development fees; and other data requested in the RFP; new text end 5.1 new text begin (8) the requirement that the price proposal contain all design, construction, new text end 5.2 new text begin engineering, inspection, and construction costs of the proposed project; new text end 5.3 new text begin (9) the date, time, and location of the public opening of the sealed price proposals; new text end 5.4 new text begin (10) the amount of, and eligibility for, a stipulated fee; new text end 5.5 new text begin (11) other information relevant to the project; and new text end 5.6 new text begin (12) a statement that "past performance," "experience," or other criteria used in the new text end 5.7 new text begin RFP evaluation process does not include the exercise or assertion of a person's legal rights. new text end 5.8     new text begin Subd. 10. new text end new text begin Design-build award; computation; announcement. new text end new text begin (a) A design-build new text end 5.9 new text begin contract must be awarded as follows. new text end 5.10 new text begin (b) The Technical Review Committee shall score the technical proposals of the new text end 5.11 new text begin proposers selected under subdivision 8 using the selection criteria in the RFP. The new text end 5.12 new text begin Technical Review Committee shall then submit a technical proposal score for each new text end 5.13 new text begin design-builder to the municipality. The Technical Review Committee shall reject any new text end 5.14 new text begin nonresponsive proposal. The municipality shall review the technical proposal scores. new text end 5.15 new text begin (c) The commissioner or the commissioner's designee shall review the technical new text end 5.16 new text begin proposal scores. The commissioner shall submit the final technical proposal scores to the new text end 5.17 new text begin municipality. new text end 5.18 new text begin (d) The municipality shall announce the technical proposal score for each new text end 5.19 new text begin design-builder and shall publicly open the sealed price proposals and shall divide each new text end 5.20 new text begin design-builder's price by the technical score that the commissioner has given to it to obtain new text end 5.21 new text begin an adjusted score. The design-builder selected must be that responsive and responsible new text end 5.22 new text begin design-builder whose adjusted score is the lowest. new text end 5.23 new text begin (e) If a time factor is included with the selection criteria in the RFP package, the new text end 5.24 new text begin municipality may use a value of the time factor established by the municipality as a new text end 5.25 new text begin criterion in the RFP. new text end 5.26 new text begin (f) Unless all proposals are rejected, the municipality shall award the contract new text end 5.27 new text begin to the responsive and responsible design-builder with the lowest adjusted score. The new text end 5.28 new text begin municipality shall reserve the right to reject all proposals. new text end 5.29 new text begin (g) The municipality shall award a stipulated fee not less than two-tenths of new text end 5.30 new text begin one percent of the municipality's estimated cost of design and construction to each new text end 5.31 new text begin short-listed, responsible proposer who provides a responsive but unsuccessful proposal. new text end 5.32 new text begin If the municipality does not award a contract, all short-listed proposers must receive the new text end 5.33 new text begin stipulated fee. If the municipality cancels the contract before reviewing the technical new text end 5.34 new text begin proposals, the municipality shall award each design-builder on the short list a stipulated new text end 5.35 new text begin fee of not less than two-tenths of one percent of the municipality's estimated cost of new text end 5.36 new text begin design and construction. The municipality shall pay the stipulated fee to each proposer new text end 6.1 new text begin within 90 days after the award of the contract or the decision not to award a contract. new text end 6.2 new text begin In consideration for paying the stipulated fee, the municipality may use any ideas or new text end 6.3 new text begin information contained in the proposals in connection with any contract awarded for the new text end 6.4 new text begin project or in connection with a subsequent procurement, without any obligation to pay new text end 6.5 new text begin any additional compensation to the unsuccessful proposers. Notwithstanding the other new text end 6.6 new text begin provisions of this subdivision, an unsuccessful short-list proposer may elect to waive new text end 6.7 new text begin the stipulated fee. If an unsuccessful short-list proposer elects to waive the stipulated new text end 6.8 new text begin fee, the municipality may not use ideas and information contained in that proposer's new text end 6.9 new text begin proposal. Upon the request of the municipality, a proposer who waived a stipulated fee new text end 6.10 new text begin may withdraw the waiver, in which case the municipality shall pay the stipulated fee to the new text end 6.11 new text begin proposer and thereafter may use ideas and information in the proposer's proposal. new text end 6.12     new text begin Subd. 11. new text end new text begin Low-bid design-build process. new text end new text begin (a) The municipality may also use new text end 6.13 new text begin low-bid, design-build procedures to award a design-build contract where the scope of new text end 6.14 new text begin the work can be clearly defined. new text end 6.15 new text begin (b) Low-bid design-build projects may require an RFQ and short-listing, and must new text end 6.16 new text begin require an RFP. new text end 6.17 new text begin (c) Submitted proposals under this subdivision must include separately a technical new text end 6.18 new text begin proposal and a price proposal. The low-bid, design-build procedures must follow a new text end 6.19 new text begin two-step process for review of the responses to the RFP as follows: new text end 6.20 new text begin (1) the first step is the review of the technical proposal by the Technical Review new text end 6.21 new text begin Committee as provided in subdivision 5. The Technical Review Committee must open new text end 6.22 new text begin the technical proposal first and must determine if it complies with the requirements of the new text end 6.23 new text begin RFP and is responsive. The Technical Review Committee may not perform any ranking new text end 6.24 new text begin or scoring of the technical proposals; and new text end 6.25 new text begin (2) the second step is the determination of the low bidder based on the price new text end 6.26 new text begin proposal. The municipality may not open the price proposal until the review of the new text end 6.27 new text begin technical proposal is complete. new text end 6.28 new text begin (d) The contract award under low-bid, design-build procedures must be made to the new text end 6.29 new text begin proposer whose sealed bid is responsive to the technical requirements as determined by new text end 6.30 new text begin the Technical Review Committee and that is also the lowest bid. new text end 6.31 new text begin (e) A stipulated fee may be paid for unsuccessful bids on low-bid, design-build new text end 6.32 new text begin projects only when the municipality has required an RFQ and short-listed the most highly new text end 6.33 new text begin qualified responsive bidders. new text end 6.34     new text begin Subd. 12. new text end new text begin Legislative report. new text end new text begin By December 15, 2011, the commissioner shall new text end 6.35 new text begin submit a report on the pilot program to the chairs and ranking minority members of the new text end 7.1 new text begin house of representatives and senate committees with jurisdiction over transportation new text end 7.2 new text begin policy and finance. The report must, at a minimum: new text end 7.3 new text begin (1) summarize each pilot project, including the contracting process and project costs; new text end 7.4 new text begin (2) evaluate the process and results applying the performance-based measures with new text end 7.5 new text begin which the commissioner evaluates trunk highway design-build projects; and new text end 7.6 new text begin (3) identify any recommendations for future legislation. new text end 7.7 new text begin EFFECTIVE DATE. new text end new text begin This section is effective the day following final enactment. new text end