HF 3218

as introduced - 82nd Legislature (2001 - 2002) 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 and preselection construction 
  1.4             contracts; amending Minnesota Statutes 2000, sections 
  1.5             16B.31, subdivision 1; 16B.33, by adding a 
  1.6             subdivision; proposing coding for new law in Minnesota 
  1.7             Statutes, chapter 16C. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 2000, section 16B.31, 
  1.10  subdivision 1, is amended to read: 
  1.11     Subdivision 1.  [CONSTRUCTION PLANS AND SPECIFICATIONS.] (a)
  1.12  The commissioner shall (1) have plans and specifications 
  1.13  prepared for the construction, alteration, or enlargement of all 
  1.14  state buildings, structures, and other improvements except 
  1.15  highways and bridges, and except for buildings and structures 
  1.16  under the control of the board of trustees of the Minnesota 
  1.17  state colleges and universities; (2) approve those plans and 
  1.18  specifications; (3) advertise for bids and award all contracts 
  1.19  in connection with the improvements; (4) supervise and inspect 
  1.20  all work relating to the improvements; (5) approve all lawful 
  1.21  changes in plans and specifications after the contract for an 
  1.22  improvement is let; and (6) approve estimates for payment.  This 
  1.23  subdivision does not apply to the construction of the zoological 
  1.24  gardens.  
  1.25     (b) Notwithstanding any law to the contrary, the 
  1.26  commissioner and the board of trustees for the Minnesota state 
  2.1   colleges and universities may: 
  2.2      (1) solicit and award a design-build contract for a project 
  2.3   as provided in section 16C.30; or 
  2.4      (2) solicit and award a preselected general construction 
  2.5   contract for a project as provided in section 16C.31. 
  2.6      (c) Paragraph (b) expires August 1, 2007. 
  2.7      Sec. 2.  Minnesota Statutes 2000, section 16B.33, is 
  2.8   amended by adding a subdivision to read: 
  2.9      Subd. 5.  [DESIGN-BUILD AND CONTRACTOR PRESELECTION.] (a) 
  2.10  The board shall select design-builders pursuant to section 
  2.11  16C.30 and preselection contractors pursuant to section 16C.31 
  2.12  for all such projects undertaken with an estimated cost greater 
  2.13  than $750,000.  In the event a project is undertaken with an 
  2.14  estimated cost of less than $750,000, the commissioner or board, 
  2.15  in the commissioner's sole discretion, may select the 
  2.16  design-builder following the requirements in section 16C.30 or 
  2.17  the preselection contractor following the requirements in 
  2.18  section 16C.31.  If the commissioner elects to make the 
  2.19  selection, the commissioner shall perform the duties prescribed 
  2.20  for the board in section 16C.30 or 16C.31, respectively.  This 
  2.21  paragraph does not apply to projects under the control of the 
  2.22  board of trustees for the Minnesota state colleges and 
  2.23  universities. 
  2.24     (b) Upon written request by the board of trustees for the 
  2.25  Minnesota state colleges and universities, the board shall 
  2.26  select the design-builder or preselection contractor following 
  2.27  the requirements in section 16C.30 or 16C.31, respectively, for 
  2.28  any such project under the control of the board of trustees. 
  2.29     (c) The commissioner and the board of trustees for the 
  2.30  Minnesota state colleges and universities shall forward to the 
  2.31  board a written report describing each instance in which the 
  2.32  performance of a design-builder or a preselection contractor has 
  2.33  been less than satisfactory for projects under their supervision.
  2.34     (d) This subdivision expires August 1, 2007. 
  2.35     Sec. 3.  [16C.29] [DEFINITIONS.] 
  2.36     Subdivision 1.  [SCOPE.] For purposes of sections 16C.30 
  3.1   and 16C.31, the terms in this section have the meanings given 
  3.2   them, unless the context clearly indicates otherwise. 
  3.3      Subd. 2.  [BOARD.] "Board" means the designer selection 
  3.4   board, as described in section 16B.33. 
  3.5      Subd. 3.  [CLARIFICATIONS.] "Clarifications" means a 
  3.6   written or oral exchange of information that takes place after 
  3.7   the receipt of proposals to ensure conformance with the request 
  3.8   for proposals and to address minor, clerical revisions in a 
  3.9   proposal. 
  3.10     Subd. 4.  [COMMISSIONER.] "Commissioner" means the 
  3.11  commissioner of administration. 
  3.12     Subd. 5.  [DESIGNER.] "Designer" means an architect, 
  3.13  landscape architect, or engineer licensed or certified under 
  3.14  sections 326.02 to 326.15 or a partnership, association, or 
  3.15  corporation comprised primarily of registered architects, 
  3.16  landscape architects, or engineers or of all three. 
  3.17     Subd. 6.  [DISCUSSIONS.] "Discussions" means written or 
  3.18  oral exchanges that take place with the offeror of the top 
  3.19  ranked proposal with the intent of allowing the offeror to 
  3.20  revise its proposal. 
  3.21     Subd. 7.  [OWNER'S REPRESENTATIVE.] "Owner's 
  3.22  representative" means a qualified professional who may oversee 
  3.23  scheduling, cost control, constructability, project management, 
  3.24  quality control, life-cycle costing, and building technology. 
  3.25     Subd. 8.  [PERSON.] "Person" means an individual, 
  3.26  partnership, corporation, association, or any other legal entity.
  3.27     Subd. 9.  [PHASE-ONE SUBMITTAL.] "Phase-one submittal" 
  3.28  means statements of qualifications from design-builders pursuant 
  3.29  to section 16C.30, subdivision 5. 
  3.30     Subd. 10.  [PHASE-TWO PROPOSAL.] "Phase-two proposal" means 
  3.31  an offer by a design-builder to enter into a design-build 
  3.32  contract for a project pursuant to section 16C.30, subdivision 
  3.33  6, in response to a request for proposals. 
  3.34     Subd. 11.  [PROJECT.] "Project" means an undertaking to 
  3.35  design and construct, erect, or remodel a building by or for the 
  3.36  state or an agency under the supervision and control of the 
  4.1   commissioner pursuant to section 16B.30 or the board of trustees 
  4.2   for the Minnesota state colleges and universities. 
  4.3      Subd. 12.  [EXPIRATION.] This section expires August 1, 
  4.4   2007. 
  4.5      Sec. 4.  [16C.30] [DESIGN-BUILD CONTRACTS.] 
  4.6      Subdivision 1.  [GENERAL AUTHORITY.] (a) Notwithstanding 
  4.7   any law to the contrary, the commissioner may solicit and award 
  4.8   a design-build contract between the department of administration 
  4.9   and a design-builder utilizing the competitive acquisition 
  4.10  process described in subdivisions 5 through 9 if the 
  4.11  commissioner meets the conditions in paragraph (b).  A 
  4.12  design-build contract may provide the architectural, 
  4.13  engineering, and related design services as well as the labor, 
  4.14  materials, supplies, equipment, and construction services for a 
  4.15  project.  A design-build contract may include telecommunications 
  4.16  cabling but must not include acquisition of personal property 
  4.17  related to the operations of the occupants.  The commissioner 
  4.18  may make changes to the project without invalidating the 
  4.19  design-build contract. 
  4.20     (b) The commissioner shall, for each project for which the 
  4.21  commissioner intends to use the design-build method, make a 
  4.22  written determination that it is in the best interest of the 
  4.23  state to use the design-build method to complete the project.  
  4.24  In making this determination, the commissioner shall use the 
  4.25  following criteria as the minimum basis for the determination: 
  4.26     (1) the extent to which the project requirements can be 
  4.27  adequately defined in a request for proposal prior to completing 
  4.28  the design process; 
  4.29     (2) the suitability of the delivery method with respect to 
  4.30  scope, schedule, cost, and quality factors; 
  4.31     (3) the suitability of the delivery method to minimize 
  4.32  life-cycle costs to the extent available within the project 
  4.33  budget; 
  4.34     (4) the suitability of the delivery method to efficiently 
  4.35  achieve functionality requirements; 
  4.36     (5) the impact of the project schedule on the agency's 
  5.1   delivery of services and project cost; 
  5.2      (6) the resources of the department of administration to 
  5.3   manage the project through employment of experienced personnel 
  5.4   or hiring of consultants; 
  5.5      (7) the resources of the department of administration to 
  5.6   oversee the project with persons who are familiar and 
  5.7   experienced with the design-build method of project delivery or 
  5.8   similar experience; and 
  5.9      (8) other criteria that the commissioner deems relevant and 
  5.10  that are included in the written determination. 
  5.11     (c) The authority and duties prescribed for the 
  5.12  commissioner and department of administration under this section 
  5.13  are granted to and shall be performed by the board of trustees 
  5.14  for the Minnesota state colleges and universities on projects 
  5.15  under its control. 
  5.16     Subd. 2.  [LICENSING REQUIREMENTS.] (a) Each design-builder 
  5.17  shall be, employ, or have as a partner, member, coventurer, or 
  5.18  subcontractor, persons duly licensed, certified, or registered 
  5.19  to provide the services required to complete the project and do 
  5.20  business in this state. 
  5.21     (b) A design-builder may contract with the commissioner to 
  5.22  provide professional or construction services that the 
  5.23  design-builder is not itself licensed, certified, registered, or 
  5.24  qualified to perform, so long as the design-builder provides the 
  5.25  services through subcontracts with duly licensed, certified, or 
  5.26  registered, or otherwise qualified persons in accordance with 
  5.27  this section. 
  5.28     (c) Nothing in this section authorizing design-build 
  5.29  contracts is intended to limit or eliminate the responsibility 
  5.30  or liability owed by a professional on a design-build project to 
  5.31  the state or other third parties under existing law.  The design 
  5.32  service portion of a design-build contract shall be considered a 
  5.33  service and not a product. 
  5.34     Subd. 3.  [MINNESOTA STATE COLLEGES AND UNIVERSITIES 
  5.35  SELECTION PROCESS.] (a) The board of trustees for the Minnesota 
  5.36  state colleges and universities shall select design-builders for 
  6.1   all design-build projects under its supervision and control 
  6.2   following the procedures and performing the duties prescribed 
  6.3   for the board and commissioner in subdivisions 5 through 9.  The 
  6.4   board of trustees shall establish an evaluation team of at least 
  6.5   seven persons to evaluate and recommend design-builders under 
  6.6   this section to include three persons selected as provided in 
  6.7   paragraph (b).  The final selection must be made by the board of 
  6.8   trustees. 
  6.9      (b) Upon written request from the board of trustees, each 
  6.10  of the following three organizations shall nominate one 
  6.11  individual whose name and qualifications shall be submitted to 
  6.12  the board of trustees for consideration:  the Consulting 
  6.13  Engineers Council of Minnesota after consultation with other 
  6.14  professional engineering societies in the state; the AIA 
  6.15  Minnesota; and the Minnesota chapter of the Associated General 
  6.16  Contractors after consultation with other commercial contractor 
  6.17  associations in the state.  The board of trustees may appoint 
  6.18  the three named individuals to the evaluation team but may 
  6.19  reject a nominated individual and request another nomination.  
  6.20  The board of trustees shall determine the term of the 
  6.21  appointment.  The other members of the evaluation team shall be 
  6.22  representatives of the Minnesota state colleges and universities.
  6.23     Subd. 4.  [DEVELOPMENT OF DESIGN CRITERIA.] (a) Each 
  6.24  request for proposals for a design-build contract must contain 
  6.25  design criteria prepared by a design criteria professional who 
  6.26  holds licenses or certifications under sections 326.02 to 326.15 
  6.27  and is either an employee of the state or a consultant hired by 
  6.28  the commissioner.  If the design criteria professional is a 
  6.29  consultant hired by the state, the licensure requirement may be 
  6.30  met by employing individuals who hold a license or licenses 
  6.31  under sections 326.02 to 326.15.  The commissioner may elect to 
  6.32  designate the board to select the consultant in compliance with 
  6.33  section 16B.33.  
  6.34     (b) Design criteria set forth in the request for proposals 
  6.35  must specify all information needed to adequately describe the 
  6.36  project including performance-based criteria such as 
  7.1   sustainability and life-cycle costing requirements; interior 
  7.2   space requirements, including adjacency diagrams; material 
  7.3   quality standards; architectural image and building form 
  7.4   standards; building air quality requirements; commissioning 
  7.5   requirements; building burn-in requirements; cost estimates; 
  7.6   design and construction schedules; site development 
  7.7   requirements; utility requirements; storm water retention and 
  7.8   disposal requirements; and parking requirements.  If necessary 
  7.9   to adequately describe the project, the design criteria must 
  7.10  include a boundary and topographic survey of the site, with the 
  7.11  legal description and geotechnical and environmental information 
  7.12  available concerning the site.  
  7.13     (c) There must be an owner's representative for each 
  7.14  design-build project.  The owner's representative must be either 
  7.15  an employee of the state or a consultant hired by the 
  7.16  commissioner.  The commissioner, in consultation with the 
  7.17  agency, the owner's representative, and the design criteria 
  7.18  professional, shall determine the scope and level of detail 
  7.19  required for the design criteria to be included in the request 
  7.20  for proposals. 
  7.21     Subd. 5.  [SOLICITATION OF PROPOSALS.] (a) The commissioner 
  7.22  shall prepare a request for proposals, which must contain, at a 
  7.23  minimum, the following elements: 
  7.24     (1) the identity of the agency that will utilize the 
  7.25  completed project; 
  7.26     (2) the procedures for submitting proposals, the criteria 
  7.27  for evaluation of proposals and their relative weight for each 
  7.28  phase, how those criteria will be scored, and the procedures for 
  7.29  making awards; 
  7.30     (3) the terms and conditions for the design-build contract; 
  7.31     (4) the design criteria; 
  7.32     (5) the qualifications the design builder will be required 
  7.33  to have; 
  7.34     (6) a critical path method schedule for commencement and 
  7.35  completion of the project; 
  7.36     (7) budget limits for the project; 
  8.1      (8) affirmative action, disadvantaged businesses, small 
  8.2   business, or set-aside goals or requirements for the 
  8.3   design-build contract; 
  8.4      (9) requirements for insurance, required performance and 
  8.5   payment bonds, and bid bonds, and/or cash deposit; 
  8.6      (10) a description of the drawings, specifications, or 
  8.7   other submittals to be submitted with the phase-two proposal, 
  8.8   with guidance as to the form and level of completeness of the 
  8.9   drawings, specifications, or submittals that will be acceptable; 
  8.10     (11) the professional/technical contract to be entered into 
  8.11  with the design-builders selected to submit phase-two proposals, 
  8.12  including scope of work, use of ideas or information, and 
  8.13  compensation; and 
  8.14     (12) identification of any other material information 
  8.15  available from the commissioner or board, including, without 
  8.16  limitation, surveys, soils reports, drawings or models of 
  8.17  existing structures, environmental studies, photographs, or 
  8.18  references to public records. 
  8.19     (b) The solicitation of request for proposals does not 
  8.20  obligate the commissioner to enter into a design-build 
  8.21  contract.  The commissioner may accept or reject any or all 
  8.22  proposals or parts of proposals received as a result of this 
  8.23  request.  The notification of rejection of all proposals must 
  8.24  include an explanation for all proposals being rejected.  The 
  8.25  solicitation for proposals may be canceled at any time if it is 
  8.26  considered to be in the state's best interest in the 
  8.27  commissioner's sole discretion.  If the commissioner rejects all 
  8.28  proposals or cancels the solicitation for proposals, the 
  8.29  commissioner may resolicit a request for proposals using the 
  8.30  same or different requirements or request the board to select a 
  8.31  designer pursuant to section 16B.33 and proceed with the 
  8.32  design-bid-build or contractor preselect delivery method. 
  8.33     Subd. 6.  [QUALIFICATION; PHASE-ONE SUBMITTAL.] (a) In 
  8.34  phase one, the board and commissioner shall evaluate the 
  8.35  design-build qualifications of the design-builders who responded 
  8.36  to the request for proposals with phase-one submittals based on 
  9.1   each design-builder's experience, technical competence, and 
  9.2   capability to perform; the past performance of the 
  9.3   design-builder and its employees, quality control organization 
  9.4   and system, sustainability, and life-cycle costing methodology; 
  9.5   and other appropriate facts submitted by each design-builder in 
  9.6   response to the request for proposals all pursuant to the 
  9.7   weighted criteria that are stated for phase-one evaluations in 
  9.8   the request for proposals.  The phase-one or phase-two 
  9.9   evaluation of the "past performance" or "experience" of a 
  9.10  proposer must not include the exercise or assertion of a 
  9.11  person's legal rights.  The board or commissioner may require 
  9.12  clarifications or further information from design-builders to 
  9.13  ensure conformance of proposals with the request for proposals 
  9.14  and the design criteria. 
  9.15     (b) If the project is within the capitol area, the capitol 
  9.16  area architecture and planning board, as defined in section 
  9.17  15.50, shall participate in the evaluation of phase-one 
  9.18  submittals. 
  9.19     (c) The board shall select to a short list the most 
  9.20  qualified design-builders that have responded with phase-one 
  9.21  submittals based on the weighted criteria for phase-one 
  9.22  evaluations stated in the request for proposals.  The board 
  9.23  shall short-list at least three potential design-builders to 
  9.24  submit phase-two proposals.  The board shall not proceed to 
  9.25  obtain phase-two proposals unless it receives phase-one 
  9.26  submittals from at least three qualified design-builders.  If 
  9.27  the board receives fewer than three phase-one submittals from 
  9.28  qualified design-builders, the commissioner may cancel the 
  9.29  solicitation for proposals, revise the request for proposals, 
  9.30  and solicit new proposals or request the board to select a 
  9.31  designer pursuant to section 16B.33 and proceed with the 
  9.32  design-bid-build or contractor preselect delivery method. 
  9.33     (d) The commissioner shall enter into the professional and 
  9.34  technical services contract included in the request for 
  9.35  proposals with each of the design-builders qualified by the 
  9.36  board to submit phase-two proposals. 
 10.1      Subd. 7.  [PHASE-TWO PROPOSALS.] (a) The professional and 
 10.2   technical services contract with the design-builders selected to 
 10.3   submit phase-two proposals provided in the request for proposals 
 10.4   must require at least the following: 
 10.5      (1) preliminary plans and specifications, renderings, and 
 10.6   models as may be required in the request for proposals in 
 10.7   sufficient detail, to describe the character, quality, and scope 
 10.8   of the project; 
 10.9      (2) a design and construction schedule; 
 10.10     (3) the all-inclusive fixed price at which the 
 10.11  design-builder will complete the project if the phase-two 
 10.12  proposal is accepted, including a total development cost budget 
 10.13  in detail by building component with all soft costs, allowances, 
 10.14  and design fees; and 
 10.15     (4) other materials the board or commissioner determines 
 10.16  are necessary to fix the design, schedule, and cost of the 
 10.17  project. 
 10.18     (b) Phase-two proposals must be sealed and may not be 
 10.19  opened until expiration of the time established for making 
 10.20  proposals as set forth in the request for proposals. 
 10.21     (c) Phase-two proposals must identify each person with whom 
 10.22  the design-builder proposes to enter into subcontracts for 
 10.23  primary design and construction obligations under the 
 10.24  design-build contract.  Persons so identified may not be 
 10.25  replaced without the approval of the commissioner, or the award 
 10.26  may be revoked. 
 10.27     (d) A written statement must be provided indicating that 
 10.28  the phase-two proposal meets all requirements of the request for 
 10.29  proposals. 
 10.30     (e) The commissioner may require each design-builder to 
 10.31  submit with its phase-two proposal a cash deposit or bid bond in 
 10.32  the amount of five percent of the budget for the design-build 
 10.33  contract.  If the phase-two proposal is accepted but the 
 10.34  design-builder fails to execute the design-build contract, the 
 10.35  deposit or bond is forfeited to the extent allowable under law 
 10.36  including the cost to the state of delays, resolicitation, and 
 11.1   other results of the failure of the selected design-builder to 
 11.2   enter into the design-build contract. 
 11.3      Subd. 8.  [DESIGN-BUILDER SELECTION.] (a) After obtaining 
 11.4   and evaluating proposals from each design-builder according to 
 11.5   the criteria and procedures in the request for proposals, the 
 11.6   board shall rank the phase-two proposals and select the proposal 
 11.7   that is rated the highest based on the weighted evaluation 
 11.8   criteria in the request for proposal.  The board or commissioner 
 11.9   may require clarifications or further information from 
 11.10  design-builders during the evaluation process.  Selection 
 11.11  according to this method may result in an award not being made 
 11.12  to the lowest cost proposal. 
 11.13     (b) Prior to final selection, the board or commissioner may 
 11.14  conduct discussions with the design-builder offering the top 
 11.15  ranked phase-two proposal to insure selection of the proposal 
 11.16  that is the best value based on the weighted evaluation criteria 
 11.17  in the request for proposal.  The board or commissioner may 
 11.18  remove the top-ranked proposal from consideration and proceed to 
 11.19  consider the next ranked proposal at any time. 
 11.20     (c) If the project is within the capitol area, the capitol 
 11.21  area architecture and planning board shall participate in the 
 11.22  evaluation of phase-two proposals. 
 11.23     Subd. 9.  [AWARD OF DESIGN-BUILD CONTRACT.] (a) The 
 11.24  commissioner may award and enter into the design-build contract 
 11.25  with the design-builder that submitted the phase-two proposal 
 11.26  rated highest based on the weighted evaluation criteria as 
 11.27  evaluated by the board after any clarifications and/or 
 11.28  discussions. 
 11.29     (b) The commissioner may negotiate additional provisions to 
 11.30  the design-build contract awarded under the request for 
 11.31  proposals. 
 11.32     Subd. 10.  [EXPIRATION.] This section expires August 1, 
 11.33  2007. 
 11.34     Sec. 5.  [16C.31] [CONTRACTOR PRESELECTION CONTRACTS.] 
 11.35     Subdivision 1.  [GENERAL AUTHORITY.] (a) Notwithstanding 
 11.36  any law to the contrary, the commissioner may solicit and award 
 12.1   a preselection construction contract utilizing the competitive 
 12.2   acquisition process described in this section if the 
 12.3   commissioner meets the conditions in paragraph (c).  The 
 12.4   contract may require competitive bidding of suitable components, 
 12.5   with cost savings shared with the state receiving not less than 
 12.6   one-half of all savings.  A preselection construction contract 
 12.7   may be conditioned upon later refinements in scope and price, 
 12.8   and may permit the commissioner to make changes in the scope of 
 12.9   the project and the fixed price without invalidating the 
 12.10  preselection construction contract. 
 12.11     (b) The commissioner shall enter into a contract with the 
 12.12  designer and a preselection construction contract with the 
 12.13  contractor.  Within those contracts, the commissioner shall 
 12.14  require the designer and the contractor to function as a team in 
 12.15  the design, planning, scheduling, and construction process.  
 12.16  Nothing in such contracts may make the designer a subcontractor 
 12.17  to the contractor or limit either party's independent 
 12.18  obligations to the commissioner as owner.  
 12.19     (c) The commissioner shall, for each project for which the 
 12.20  commissioner intends to use the preselection construction 
 12.21  method, make a written determination that it is in the best 
 12.22  interest of the state to use the preselection construction 
 12.23  method to complete the project.  In making this determination, 
 12.24  the commissioner shall use the following criteria as the minimum 
 12.25  basis for the determination: 
 12.26     (1) the extent to which the project requirements can be 
 12.27  adequately defined in a request for proposal prior to completing 
 12.28  the design process; 
 12.29     (2) the suitability of the delivery method with respect to 
 12.30  scope, schedule, cost, and quality factors; 
 12.31     (3) the suitability of the delivery method to minimize 
 12.32  life-cycle costs to the extent available within the project 
 12.33  budget; 
 12.34     (4) the suitability of the delivery method to efficiently 
 12.35  achieve functionality requirements; 
 12.36     (5) the impact of the project schedule on the agency's 
 13.1   delivery of services and project cost; 
 13.2      (6) the resources of the department of administration to 
 13.3   manage the project through employment of experienced personnel 
 13.4   or hiring of consultants; 
 13.5      (7) the resources of the department to oversee the project 
 13.6   with persons who are familiar and experienced with the 
 13.7   preselection construction method of project delivery or similar 
 13.8   experience; and 
 13.9      (8) other criteria the commissioner deems relevant and 
 13.10  includes in the written determination. 
 13.11     (d) The authority and duties prescribed for the 
 13.12  commissioner and department of administration under this section 
 13.13  are granted to and shall be performed by the board of trustees 
 13.14  for the Minnesota state colleges and universities on projects 
 13.15  under its control.  
 13.16     Subd. 2.  [LICENSING REQUIREMENTS.] (a) Each preselection 
 13.17  contractor shall be, employ, or have as a partner, member, 
 13.18  coventurer, or subcontractor, persons duly licensed and 
 13.19  registered to provide the services required to complete the 
 13.20  project and do business in this state. 
 13.21     (b) A contractor may contract with the commissioner to 
 13.22  provide professional or construction services that the 
 13.23  contractor is not itself licensed, registered, or qualified to 
 13.24  perform, so long as the contractor provides the services through 
 13.25  subcontracts with duly licensed, registered, or otherwise 
 13.26  qualified persons in accordance with this section.  
 13.27     (c) Nothing in this section authorizing preselection 
 13.28  construction contracts is intended to limit or eliminate the 
 13.29  responsibility or liability owed by a professional on a 
 13.30  preselection construction project to the state or other third 
 13.31  parties under existing law. 
 13.32     Subd. 3.  [SCHEMATIC DESIGN; DESIGN CRITERIA PACKAGE.] Each 
 13.33  request for proposals for a preselection construction contract 
 13.34  must contain a schematic design and design criteria prepared by 
 13.35  the designer selected by the board in compliance with section 
 13.36  16B.33.  There must be an owner's representative for each 
 14.1   preselection construction contract.  The owner's representative 
 14.2   must be either an employee of the state or a consultant hired by 
 14.3   the commissioner.  The commissioner, in consultation with the 
 14.4   agency, the designer, and the owner's representative, shall 
 14.5   determine the scope and level of detail required for the design 
 14.6   criteria. 
 14.7      Subd. 4.  [MINNESOTA STATE COLLEGES AND UNIVERSITIES 
 14.8   SELECTION PROCESS.] (a) The board of trustees for the Minnesota 
 14.9   state colleges and universities shall select contractors for all 
 14.10  preselection construction projects under its supervision and 
 14.11  control following the procedures and performing the duties 
 14.12  prescribed for the board and commissioner in subdivisions 5 
 14.13  through 8.  The board of trustees shall establish an evaluation 
 14.14  team of at least seven persons to evaluate and recommend 
 14.15  contractors under this section to include three persons selected 
 14.16  as provided in paragraph (b).  The final selection must be made 
 14.17  by the board of trustees. 
 14.18     (b) Upon written request from the board of trustees, each 
 14.19  of the following three organizations shall nominate one 
 14.20  individual whose name and qualifications shall be submitted to 
 14.21  the board of trustees for consideration:  the Consulting 
 14.22  Engineers Council of Minnesota after consultation with other 
 14.23  professional engineering societies in the state; the AIA 
 14.24  Minnesota; and the Minnesota chapter of the Associated General 
 14.25  Contractors after consultation with other commercial contractor 
 14.26  associations in the state.  The board of trustees may appoint 
 14.27  the three named individuals to the evaluation team but may 
 14.28  reject a nominated individual and request another nomination.  
 14.29  The board of trustees shall determine the term of the 
 14.30  appointment.  The other members of the evaluation team must be 
 14.31  representatives of the Minnesota state colleges and universities.
 14.32     Subd. 5.  [SOLICITATION OF PROPOSALS.] (a) The commissioner 
 14.33  shall prepare a request for proposals for each preselection 
 14.34  construction contract soliciting proposals from contractors.  A 
 14.35  request for proposals must contain, at a minimum, the following 
 14.36  elements: 
 15.1      (1) the identity of the agency that will utilize the 
 15.2   completed project; 
 15.3      (2) the procedures for submitting proposals, the criteria 
 15.4   for evaluation of proposals and their relative weight, how those 
 15.5   criteria will be scored, and the procedures for making awards; 
 15.6      (3) the terms and conditions for the preselection contract; 
 15.7      (4) the design criteria; 
 15.8      (5) a critical path method schedule for commencement and 
 15.9   completion of the project; 
 15.10     (6) budget limits for the project; 
 15.11     (7) affirmative action, disadvantaged business, small 
 15.12  business, or set-aside goals or requirements for the 
 15.13  design-build contract; 
 15.14     (8) requirements for insurance and required performance and 
 15.15  payment bonds; 
 15.16     (9) the schematic design; and 
 15.17     (10) identification of any other material information 
 15.18  available from the commissioner, including, without limitation, 
 15.19  surveys, soils reports, drawings or models of existing 
 15.20  structures, environmental studies, photographs, or references to 
 15.21  public records. 
 15.22     (b) The solicitation of request for proposals does not 
 15.23  obligate the commissioner to enter into a preselection 
 15.24  construction contract.  The commissioner may accept or reject 
 15.25  any or all proposals or parts of proposals received as a result 
 15.26  of this request.  The solicitation for proposals may be canceled 
 15.27  at any time if it is considered to be in the state's best 
 15.28  interest in the commissioner's sole discretion.  If the 
 15.29  commissioner rejects all proposals or cancels the solicitation 
 15.30  for proposals, the commissioner may resolicit a request for 
 15.31  proposals using the same or different requirements or proceed 
 15.32  with the design-bid-build or design-build delivery method. 
 15.33     Subd. 6.  [PROPOSALS.] (a) The proposals submitted by the 
 15.34  contractors must include: 
 15.35     (1) a construction schedule; 
 15.36     (2) the maximum all-inclusive fixed price at which the 
 16.1   contractor will complete the project if the proposal is 
 16.2   accepted, including a total development of cost budget in detail 
 16.3   by building component with all soft costs, allowances, and 
 16.4   design fees; 
 16.5      (3) the contractor's qualifications for the project, 
 16.6   including experience, technical competence, capability to 
 16.7   perform, and other relevant facts; 
 16.8      (4) a written statement that the proposal meets all 
 16.9   requirements of the request for proposal; and 
 16.10     (5) other materials the commissioner determines are 
 16.11  necessary. 
 16.12     (b) The commissioner may require each contractor to submit 
 16.13  with its proposal a cash deposit or bid bond in the amount of 
 16.14  five percent of the budget for the preselection construction 
 16.15  contract.  If the proposal is accepted but the contractor fails 
 16.16  to execute the preselection construction contract, the deposit 
 16.17  or bond is forfeited to the extent allowable under law including 
 16.18  the cost to the state of delays, resolicitation, and other 
 16.19  results of the failure of the selected contractor to execute the 
 16.20  preselection construction contract. 
 16.21     Subd. 7.  [SELECTION.] (a) After obtaining and evaluating 
 16.22  proposals from each contractor according to the criteria and 
 16.23  procedures in the request for proposals, the board shall rank 
 16.24  and select the proposal that is rated the highest based on the 
 16.25  weighted evaluation criteria in the request for proposal.  
 16.26  Selection according to this method may result in an award not 
 16.27  being made to the lowest cost proposal. 
 16.28     (b) Prior to final selection, the board or commissioner may 
 16.29  conduct discussions with the contractor offering the top ranked 
 16.30  proposal to insure selection of the proposal that is the best 
 16.31  value based on the weighted evaluation criteria in the request 
 16.32  for proposal.  The board or commissioner may remove the 
 16.33  top-ranked proposal from consideration and proceed to consider 
 16.34  the next ranked proposal at any time. 
 16.35     (c) If the project is within the capitol area, the capitol 
 16.36  area architecture and planning board shall participate in the 
 17.1   evaluation of proposals. 
 17.2      Subd. 8.  [AWARD OF PRESELECTION CONSTRUCTION CONTRACT.] (a)
 17.3   The commissioner may award and enter into the preselection 
 17.4   construction contract with the contractor who submitted the 
 17.5   proposal rated highest based on the weighted evaluation criteria 
 17.6   as evaluated by the board after any clarifications and/or 
 17.7   discussions. 
 17.8      (b) The commissioner may negotiate additional provisions to 
 17.9   the preselection construction contract awarded under the request 
 17.10  for proposals. 
 17.11     Subd. 9.  [EXPIRATION.] This section expires August 1, 2007.