HF 3121

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to public administration; providing for 
  1.3             design-build contracts; requiring rulemaking; amending 
  1.4             Minnesota Statutes 1996, sections 16B.31, subdivision 
  1.5             1; and 16B.33, subdivisions 1, 2, and by adding a 
  1.6             subdivision; proposing coding for new law in Minnesota 
  1.7             Statutes, chapter 16B. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  [16B.071] [DESIGN-BUILD CONTRACTS.] 
  1.10     Subdivision 1.  [DEFINITIONS.] (a) For purposes of this 
  1.11  section, the following terms have the meanings given them, 
  1.12  unless the context clearly indicates otherwise. 
  1.13     (b) "Acceptance" means a formal resolution of the 
  1.14  commissioner authorizing the execution of a design-build 
  1.15  contract. 
  1.16     (c) "Board" means the designer selection board as described 
  1.17  in section 16B.33. 
  1.18     (d) "Design-build contract" means a state contract between 
  1.19  an agency and a design-builder to furnish the architectural, 
  1.20  engineering, and related design services as well as the labor, 
  1.21  materials, supplies, equipment, and construction services for a 
  1.22  project.  A design-build contract may be conditioned upon later 
  1.23  refinements in scope and price, and may permit the agency to 
  1.24  make changes in the scope of the project without invalidating 
  1.25  the contract. 
  1.26     (e) "Design-builder" means the person that proposes to 
  2.1   design and build a project governed by the procedures of this 
  2.2   section. 
  2.3      (f) "Design criteria professional" means a person who holds 
  2.4   or employs individuals who hold the license or licenses under 
  2.5   chapter 326 that would be required to design the design-build 
  2.6   project and who is employed by or under contract to the 
  2.7   commissioner for the provision of professional architecture and 
  2.8   engineering services in connection with the preparation of the 
  2.9   design criteria package described in subdivision 5. 
  2.10     (g) "Design proposal" means the phase-two proposal to be 
  2.11  submitted by a design-builder in a design-based selection 
  2.12  process, including the building and site design, design and 
  2.13  construction schedule, and construction cost, in such detail as 
  2.14  the board may require in the request for proposals. 
  2.15     (h) "Person" means an individual, partnership, joint 
  2.16  venture, corporation, professional corporation, business 
  2.17  association, or any other legal entity. 
  2.18     (i) "Project" means an undertaking to design, construct, 
  2.19  erect, or remodel a building by or for the state or an agency 
  2.20  under the supervision and control of the commissioner pursuant 
  2.21  to section 16B.30. 
  2.22     (j) "Proposal" means an offer by a design-builder to enter 
  2.23  into a design-build contract for a project in response to a 
  2.24  request for proposals, including a phase-one or phase-two 
  2.25  proposal pursuant to subdivisions 8, 9, and 10. 
  2.26     (k) "Request for proposals" means the document or 
  2.27  publication through which the commissioner solicits proposals 
  2.28  for a design-build contract. 
  2.29     Subd. 2.  [AUTHORITY.] (a) Notwithstanding section 16B.07, 
  2.30  the commissioner may solicit and award a design-build contract 
  2.31  on the basis of a qualification-based or design-based selection 
  2.32  process as described in subdivisions 9 and 10 without 
  2.33  competitive bids if the commissioner meets the conditions in 
  2.34  paragraphs (b) and (c). 
  2.35     (b) The commissioner shall adopt rules establishing 
  2.36  procedures consistent with this section for the solicitation and 
  3.1   award of design-build contracts. 
  3.2      (c) The commissioner shall, for each project for which the 
  3.3   commissioner intends to use the design-build method, make a 
  3.4   written determination that it is in the best interest of the 
  3.5   public to enter into a design-build contract to complete the 
  3.6   project.  
  3.7      (d) The board may not solicit phase-two proposals, as 
  3.8   described in subdivision 7, unless it receives phase-one 
  3.9   proposals, as described in subdivision 7, from at least three 
  3.10  qualified design-builders.  If the board receives fewer than 
  3.11  three phase-one proposals from qualified design-builders, the 
  3.12  commissioner shall either ask the board to revise the request 
  3.13  for proposals and solicit new proposals or request selection of 
  3.14  a designer pursuant to section 16B.33 and proceed with 
  3.15  competitive bidding pursuant to section 16B.07. 
  3.16     (e) For all design-based selection design-build projects, 
  3.17  the commissioner shall award a stipend to each design-builder 
  3.18  who submits a phase-two proposal, as described in subdivision 7, 
  3.19  in an amount determined by the board, but not less than one 
  3.20  percent of the construction budget for the project.  The stipend 
  3.21  paid to the design-builder selected to complete the project 
  3.22  shall be applied to the design-build contract. 
  3.23     Subd. 3.  [RULES.] The commissioner shall adopt rules 
  3.24  consistent with this section for the award of design-build 
  3.25  contracts.  The rules shall include, at a minimum, procedures 
  3.26  governing the following: 
  3.27     (1) preparing requests for proposals, including determining 
  3.28  the appropriate content of each request for proposal; 
  3.29     (2) standards to be used to qualify or prequalify 
  3.30  design-builders; 
  3.31     (3) preparing and submitting proposals; 
  3.32     (4) evaluating proposals; 
  3.33     (5) negotiations, if they occur, between the board or 
  3.34  commissioner and those submitting proposals prior to the 
  3.35  acceptance of a proposal, including safeguards to preserve 
  3.36  confidential information and proprietary information supplied by 
  4.1   those submitting proposals; 
  4.2      (6) awarding and executing design-build contracts; and 
  4.3      (7) acting on formal protests relating to the solicitation 
  4.4   of proposals or award of design-build contracts. 
  4.5      Subd. 4.  [LICENSING REQUIREMENTS.] (a) Each design-builder 
  4.6   shall be, employ, or have as a partner, member, coventurer, or 
  4.7   subcontractor, persons duly licensed and registered to provide 
  4.8   the services required to complete the project and do business in 
  4.9   this state. 
  4.10     (b) The design-builder may contract with the commissioner 
  4.11  to provide professional service or construction services that 
  4.12  the design-builder is not itself licensed, registered, or 
  4.13  qualified to perform, so long as the design-builder provides 
  4.14  such services through subcontracts with duly licensed, 
  4.15  registered, or otherwise qualified persons in accordance with 
  4.16  this section. 
  4.17     (c) Nothing in this section authorizing design-build 
  4.18  contracts is intended to limit or eliminate the responsibility 
  4.19  or liability owed by a professional on a design-build project to 
  4.20  the state or other third parties under existing law. 
  4.21     Subd. 5.  [DEVELOPMENT OF DESIGN CRITERIA PACKAGE.] Each 
  4.22  request for proposals shall contain performance criteria 
  4.23  prepared by a design criteria professional who is either an 
  4.24  employee of the commissioner or selected and engaged by the 
  4.25  board in compliance with section 16B.33.  The commissioner, in 
  4.26  consultation with the board, agency, and design criteria 
  4.27  professional, shall determine the scope and level of detail 
  4.28  required for the design criteria package.  It must include at 
  4.29  least: 
  4.30     (1) a performance-oriented description of the budget, 
  4.31  program, and site for the project, containing sufficient 
  4.32  information to permit design-build firms to prepare a response 
  4.33  to the request for proposals and must specify performance-based 
  4.34  criteria for the project; and 
  4.35     (2) for a design-based selection process, the legal 
  4.36  description of the site, survey, soil, and environmental 
  5.1   information concerning the site, interior space requirements, 
  5.2   including adjacency diagrams, material quality standards, 
  5.3   conceptual design criteria, cost or budget estimates, design and 
  5.4   construction schedules, site development requirements, 
  5.5   provisions for utilities, stormwater retention and disposal, and 
  5.6   parking requirements applicable to the project and other 
  5.7   information required to adequately describe the project. 
  5.8      Subd. 6.  [SOLICITATION OF PROPOSALS.] (a) A request for 
  5.9   proposals shall be prepared for each design-build contract 
  5.10  soliciting design-builders to respond in two phases pursuant to 
  5.11  subdivision 7.  A request for proposals shall contain, at a 
  5.12  minimum, the following elements: 
  5.13     (1) the identity of the agency for which the project will 
  5.14  be built and that will award the design-build contract; 
  5.15     (2) procedures for submitting proposals, the criteria for 
  5.16  evaluation of proposals and their relative weight, and the 
  5.17  procedures for making awards, including a reference to the 
  5.18  requirements of this section and the rules of the commissioner; 
  5.19     (3) the proposed terms and conditions for the design-build 
  5.20  contract; 
  5.21     (4) the design criteria package; 
  5.22     (5) the minimum qualifications the design-builder will be 
  5.23  required to have; 
  5.24     (6) a schedule for planned commencement and completion of 
  5.25  the project; 
  5.26     (7) budget limits for the project; 
  5.27     (8) affirmative action, disadvantaged business, small 
  5.28  business, or set-aside goals or requirements for the 
  5.29  design-build contract, if any; 
  5.30     (9) requirements for performance bonds, payment bonds, and 
  5.31  insurance; 
  5.32     (10) for a design-based selection process, a description of 
  5.33  the drawings, specifications, or other submittals to be 
  5.34  submitted with the design proposal, with guidance as to the form 
  5.35  and level of completeness of the drawings, specifications, or 
  5.36  submittals that will be acceptable and the stipend to be paid to 
  6.1   the three design-builders who are selected to submit phase-two 
  6.2   proposals; and 
  6.3      (11) any other information that the commissioner or board 
  6.4   in its discretion chooses to supply, including without 
  6.5   limitation, surveys, soils reports, drawings or models of 
  6.6   existing structures, environmental studies, photographs, or 
  6.7   references to public records. 
  6.8      (b) Notice of requests for proposals must be advertised in 
  6.9   the same manner in which bids are solicited under section 
  6.10  16B.07, subdivision 3. 
  6.11     Subd. 7.  [EVALUATION OF PROPOSALS.] (a) The board shall 
  6.12  solicit and evaluate proposals and select a design-builder in 
  6.13  two phases. 
  6.14     (b) In phase one, the board shall evaluate each 
  6.15  design-builder's experience, technical competence and capability 
  6.16  to perform, the past performance of the design-builder and its 
  6.17  members, and other appropriate facts submitted by it in response 
  6.18  to the request for proposals.  The board shall not consider 
  6.19  cost-related or price-related evaluation factors.  The board 
  6.20  shall qualify three potential design-builders for phase two of 
  6.21  the selection process. 
  6.22     (c) In phase two, the board shall evaluate design-builders 
  6.23  as described in subdivision 9 for qualification-based selection 
  6.24  or subdivision 10 for design-based selection. 
  6.25     (d) In phase one and phase two, the board may require 
  6.26  clarifications or further information from design-builders to 
  6.27  ensure conformance of proposals with the design criteria package.
  6.28     Subd. 8.  [ACCEPTANCE OF PROPOSALS.] After obtaining and 
  6.29  evaluating proposals from each design-builder according to the 
  6.30  criteria and procedures set forth in the request for proposals, 
  6.31  the board shall select the proposal it considers most 
  6.32  advantageous to the public.  The commissioner has the right to 
  6.33  reject any and all proposals, except for the purpose of evading 
  6.34  the provisions and policies of this section.  The commissioner 
  6.35  may thereafter solicit new proposals using the same or different 
  6.36  performance criteria, budget constraints, or qualifications.  No 
  7.1   proposal or design-build contract may be accepted unless the 
  7.2   board receives at least three qualifying phase-two proposals 
  7.3   unless the board determines that there was otherwise adequate 
  7.4   competition for the contract. 
  7.5      Subd. 9.  [QUALIFICATION-BASED SELECTION.] (a) The 
  7.6   requirements in this subdivision apply to all design-build 
  7.7   contracts to be awarded by qualification-based selection. 
  7.8      (b) The design criteria package for a project to be awarded 
  7.9   by a qualification-based selection process must be in sufficient 
  7.10  detail to allow qualified persons to respond to the request for 
  7.11  proposals with materials that will demonstrate experience and 
  7.12  abilities relevant to the project. 
  7.13     (c) For each proposed project, the board shall evaluate 
  7.14  phase-one proposals consisting of statements of qualifications 
  7.15  and performance data submitted by design-builders regarding the 
  7.16  proposed project. 
  7.17     (d) The board shall solicit phase-two proposals from and 
  7.18  conduct interviews with no fewer than three design-builders 
  7.19  regarding their qualifications, approach to the project, and 
  7.20  ability to furnish the required services.  The board's 
  7.21  requirements for phase-two proposals for the qualification-based 
  7.22  selection process must include written statements of the 
  7.23  design-builder's proposed approach to the design and 
  7.24  construction of the project, may include graphic materials 
  7.25  illustrating the proposed approach to design and construction, 
  7.26  but may not include proposed design solutions or project cost 
  7.27  proposals. 
  7.28     (e) The board shall select in order of preference no fewer 
  7.29  than three design-builders deemed to be the most highly 
  7.30  qualified to perform the required services.  In determining 
  7.31  whether a design-builder is qualified, the board shall consider 
  7.32  such factors as the ability of professional personnel; past 
  7.33  performance; ability to meet time and budget requirements; 
  7.34  location; recent, current, and projected workloads of the 
  7.35  design-builders; and the volume of work previously awarded to 
  7.36  each design-builder by the commissioner, with the object of 
  8.1   effecting an equitable distribution of contracts among qualified 
  8.2   design-builders, provided this distribution does not violate the 
  8.3   principle of selection of the most highly qualified 
  8.4   design-builder. 
  8.5      (f) The commissioner shall negotiate a two-part 
  8.6   design-build contract with the design-builder selected by the 
  8.7   board at compensation which the commissioner determines is fair, 
  8.8   competitive, and reasonable.  The first part must be a fixed fee 
  8.9   contract for the preliminary design of the project, under which 
  8.10  the design-builder will prepare a written and graphic 
  8.11  description of the project, containing all information 
  8.12  reasonably required to establish a cost and schedule for 
  8.13  completion of the design and construction of the project.  The 
  8.14  second part must provide for preparation of final plans, and 
  8.15  specifications and construction of the project, with 
  8.16  compensation for design and construction services on the basis 
  8.17  of the actual cost of the work plus a negotiated fee. 
  8.18     (g) If the commissioner is unable to negotiate a 
  8.19  satisfactory design-build contract with the design-builder 
  8.20  considered by the board to be the most qualified at a price the 
  8.21  commissioner determines to be fair, competitive, and reasonable, 
  8.22  the commissioner may terminate negotiations with that 
  8.23  design-builder.  The commissioner may then undertake 
  8.24  negotiations with the second most qualified firm.  If the 
  8.25  commissioner is unable to negotiate a satisfactory contract with 
  8.26  the second most qualified design-builder, the commissioner may 
  8.27  undertake negotiations with the third most qualified 
  8.28  design-builder. 
  8.29     (h) If the commissioner is unable to negotiate a 
  8.30  satisfactory contract with any of the selected design-builders, 
  8.31  the commissioner may either revise the request for proposals and 
  8.32  solicit new proposals or request selection of a designer 
  8.33  pursuant to section 16B.33 and proceed with competitive bidding 
  8.34  pursuant to section 16B.07. 
  8.35     Subd. 10.  [DESIGN-BASED SELECTION.] (a) The requirements 
  8.36  in this subdivision apply to all design-build projects to be 
  9.1   awarded on the basis of design proposals. 
  9.2      (b) The design criteria package for a project to be awarded 
  9.3   by a design-based selection process shall be in sufficient 
  9.4   detail to allow qualified persons to submit design proposals in 
  9.5   accordance with the request for proposals, given the nature of 
  9.6   the project and the level of design to be provided in the 
  9.7   proposal. 
  9.8      (c) Design-builders selected to submit phase-two proposals 
  9.9   shall submit design proposals as required by the request for 
  9.10  proposals, consisting of:  (1) preliminary plans and 
  9.11  specifications, renderings, and models as may be required in the 
  9.12  request for proposals in sufficient detail to describe the 
  9.13  character, quality, and scope of the project; (2) a construction 
  9.14  schedule; (3) the price at which the design-builder will 
  9.15  complete the project if selected; and (4) other materials the 
  9.16  board determines are necessary to fix the design, schedule, and 
  9.17  cost of the project. 
  9.18     (d) Design proposals must be sealed and may not be opened 
  9.19  until expiration of the time established for making proposals as 
  9.20  set forth in the request for proposals. 
  9.21     (e) Design proposals must identify each person with whom 
  9.22  the design-builder proposes to enter into subcontracts for 
  9.23  primary design and construction obligations under the 
  9.24  design-build contract.  Persons identified may not be replaced 
  9.25  without the approval of the commissioner or the award may be 
  9.26  revoked. 
  9.27     (f) Design proposals must establish a cost that will not be 
  9.28  exceeded if the design proposal is accepted without change.  
  9.29  After a design proposal is accepted, the maximum cost in the 
  9.30  design proposal may be converted to fixed prices by negotiated 
  9.31  agreement between the commissioner and the design-builder.  The 
  9.32  stipend paid to the design-builder pursuant to subdivision 2, 
  9.33  paragraph (e), must be applied to the design-build contract. 
  9.34     (g) Design-builders may not be required to submit detailed 
  9.35  engineering or architectural designs as part of the proposal. 
  9.36     (h) The commissioner may require each design-builder to 
 10.1   submit with its phase-two design-based proposal a cash deposit, 
 10.2   letter of credit, or bid bond not to exceed five percent of the 
 10.3   maximum cost of the design-build contract, as established by the 
 10.4   proposal.  The deposit or bond must be forfeited if the proposal 
 10.5   is accepted but the design-builder fails to execute the 
 10.6   design-builder contract. 
 10.7      (i) The board shall accept the proposal that best meets the 
 10.8   requirements of the design criteria package, considering the 
 10.9   competence and qualifications of the design-builder, the 
 10.10  design-builder's ability to meet schedules, and the feasibility 
 10.11  of implementing the project as proposed and provides the state 
 10.12  with the best value.  The board is not required to select the 
 10.13  lowest cost proposal. 
 10.14     Sec. 2.  Minnesota Statutes 1996, section 16B.31, 
 10.15  subdivision 1, is amended to read: 
 10.16     Subdivision 1.  [CONSTRUCTION PLANS AND SPECIFICATIONS.] (a)
 10.17  The commissioner shall (1) have plans and specifications 
 10.18  prepared for the construction, alteration, or enlargement of all 
 10.19  state buildings, structures, and other improvements except 
 10.20  highways and bridges, and except for buildings and structures 
 10.21  under the control of the board of trustees of the Minnesota 
 10.22  state colleges and universities; (2) approve those plans and 
 10.23  specifications; (3) advertise for bids and award all contracts 
 10.24  in connection with the improvements; (4) supervise and inspect 
 10.25  all work relating to the improvements; (5) approve all lawful 
 10.26  changes in plans and specifications after the contract for an 
 10.27  improvement is let; and (6) approve estimates for payment.  This 
 10.28  subdivision does not apply to the construction of the zoological 
 10.29  gardens.  
 10.30     (b) The commissioner may use a design-build method of 
 10.31  project development and construction and award a design-build 
 10.32  contract on the basis of qualification-based selection or 
 10.33  design-based selection without bids as provided in section 
 10.34  16B.071. 
 10.35     Sec. 3.  Minnesota Statutes 1996, section 16B.33, 
 10.36  subdivision 1, is amended to read: 
 11.1      Subdivision 1.  [DEFINITIONS.] As used in this section, the 
 11.2   following terms have the meanings given them:  
 11.3      (a) "Agency" has the meaning given in section 16B.01.  
 11.4      (b) "Architect" means an architect or landscape architect 
 11.5   registered to practice under sections 326.02 to 326.15.  
 11.6      (c) "Board" means the state designer selection board.  
 11.7      (d) "Designer" means an architect or engineer, or a 
 11.8   partnership, association, or corporation comprised primarily of 
 11.9   architects or engineers or of both architects and engineers.  
 11.10     (e) "Design-builder" means the person that proposes to 
 11.11  design and construct a project governed by the procedures of 
 11.12  section 16B.071. 
 11.13     (f) "Engineer" means an engineer registered to practice 
 11.14  under sections 326.02 to 326.15.  
 11.15     (f) (g) "Person" includes an individual, corporation, 
 11.16  partnership, association, or any other legal entity.  
 11.17     (g) (h) "Primary designer" means the designer who is to 
 11.18  have primary design responsibility for a project, and does not 
 11.19  include designers who are merely consulted by the user agency 
 11.20  and do not have substantial design responsibility, or designers 
 11.21  who will or may be employed or consulted by the primary designer.
 11.22     (h) (i) "Project" means an undertaking to construct, erect, 
 11.23  or remodel a building by or for the state or an agency.  
 11.24     (i) (j) "User agency" means the agency undertaking a 
 11.25  specific project.  
 11.26     Sec. 4.  Minnesota Statutes 1996, section 16B.33, 
 11.27  subdivision 2, is amended to read: 
 11.28     Subd. 2.  [ORGANIZATION OF BOARD.] (a) [MEMBERSHIP.] The 
 11.29  state designer selection board consists of five seven 
 11.30  individuals, the majority of whom must be Minnesota residents.  
 11.31  Each of the following three four organizations shall nominate 
 11.32  one individual whose name and qualifications shall be submitted 
 11.33  to the commissioner of administration for consideration:  the 
 11.34  consulting engineers council of Minnesota after consultation 
 11.35  with other professional engineering societies in the state; the 
 11.36  AIA Minnesota society of architects; the Minnesota chapter of 
 12.1   the Associated General Contractors, after consultation with 
 12.2   other commercial contractor associations in the state, and the 
 12.3   Minnesota board of the arts.  The commissioner may appoint 
 12.4   the three four named individuals to the board but may reject a 
 12.5   nominated individual and request another nomination.  The 
 12.6   remaining two members shall also be appointed by the 
 12.7   commissioner shall be a voting member of the board and shall 
 12.8   appoint remaining members from the public at large.  
 12.9      (b) [NONVOTING MEMBERS.] In addition to the five members of 
 12.10  the board, two nonvoting members shall participate in the 
 12.11  interviewing and selection of designers pursuant to this section 
 12.12  and design-builders pursuant to section 16B.071.  One shall be a 
 12.13  representative of the commissioner and shall participate in the 
 12.14  interviewing and selection of designers for all projects.  The 
 12.15  other shall be a representative of the user agency, who shall 
 12.16  participate in the interviewing and selection of the designers 
 12.17  for the project being undertaken by the user agency.  The 
 12.18  commissioner shall appoint the representative of the user agency 
 12.19  in consultation with the user agency.  
 12.20     (c) [TERMS; COMPENSATION; REMOVAL; VACANCIES.] The 
 12.21  membership terms, compensation, removal of members, and filling 
 12.22  of vacancies on the board are as provided in section 15.0575.  
 12.23  No individual may serve for more than two consecutive terms.  
 12.24     (d) [OFFICERS, RULES.] At its first meeting, the board 
 12.25  shall elect a voting member of the board as chair.  The board 
 12.26  shall also elect other officers necessary for the conduct of its 
 12.27  affairs.  The board shall adopt rules governing its operations 
 12.28  and the conduct of its meetings.  The rules shall provide for 
 12.29  the terms of the chair and other officers.  
 12.30     (e) [MEETINGS.] The board shall meet as often as is 
 12.31  necessary, not less than twice annually, in order to act 
 12.32  expeditiously on requests submitted to it for selection of 
 12.33  primary designers.  
 12.34     (f) [OFFICE, STAFF, RECORDS.] The department of 
 12.35  administration shall provide the board with suitable quarters to 
 12.36  maintain an office, hold meetings, and keep records.  The 
 13.1   commissioner shall designate an employee of the department of 
 13.2   administration to serve as executive secretary to the board and 
 13.3   shall furnish a secretarial staff to the board as necessary for 
 13.4   the expeditious conduct of the board's duties and 
 13.5   responsibilities.  
 13.6      Sec. 5.  Minnesota Statutes 1996, section 16B.33, is 
 13.7   amended by adding a subdivision to read: 
 13.8      Subd. 4a.  [DESIGN-BUILDER SELECTION PROCESS.] The board 
 13.9   shall select design-builders pursuant to section 16B.071.  The 
 13.10  board may not select a design-builder in which a member of the 
 13.11  board has a current financial interest.