HF 3301

3rd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to transportation; modifying provisions relating to design-build projects;
requiring a report; amending Minnesota Statutes 2006, sections 161.3412,
subdivision 3; 161.3420, subdivisions 2, 3, 4; 161.3426, subdivisions 1, 3;
repealing Minnesota Statutes 2006, section 161.3426, subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 161.3412, subdivision 3, is amended to
read:

Subd. 3.

Restriction; reports.

(a) The number of design-build contracts awarded
by the commissioner in any fiscal year may not exceed ten percent of the total number
of transportation construction contracts awarded by the commissioner in the previous
fiscal year.

(b) The commissioner shall notify the chairs of the senate and house of
representatives committees with jurisdiction over transportation policy and transportation
finance each time the commissioner decides to use the design-build method of procurement deleted text begin
and deleted text end new text begin . new text end new text begin The notification must new text end explain why that method was chosen new text begin , and provide the initial
cost estimate, the expected date of release for the RFP, and the expected stipulated fee new text end .

new text begin (c) The commissioner shall notify the chairs of the senate and house of
representatives committees with jurisdiction over transportation policy and transportation
finance within three days of any change to the cost estimate or to the stipulated fee of a
design-build project.
new text end

Sec. 2.

Minnesota Statutes 2006, section 161.3420, subdivision 2, is amended to read:

Subd. 2.

Technical Review Committee.

During the phase-one request for
qualifications (RFQ) and before solicitation, the commissioner shall appoint a Technical
Review Committee of at least five individuals. The Technical Review Committee must
include an individual whose name and qualifications are submitted to the commissioner
by the Minnesota chapter of the Associated General Contractors, after consultation with
other commercial contractor associations in the state. Members of the Technical Review
Committee who are not state employees are subject to the Minnesota Government Data
Practices Act and section 16C.06 to the same extent that state agencies are subject to those
provisions. new text begin The commissioner shall pay reasonable compensation to Technical Review
Committee members who are not public employees for their services. A minimum of
one state employee on the Technical Review Committee must be at the level of senior
administrative engineer or above. new text end A Technical Review Committee member may not
participate in the review or discussion of responses to an RFQ or request for proposals
(RFP) when the member has a financial interest in any of the design-build firms that
respond to that RFQ or RFP. "Financial interest" includes, but is not limited to, being
or serving as an owner, employee, partner, limited liability partner, shareholder, joint
venturer, family member, officer, or director of a design-build firm responding to an RFQ
or RFP for a specific project, or having any other economic interest in that design-build
firm. The members of the Technical Review Committee must be treated as state
employees in the event of litigation resulting from any action arising out of their service
on the committee.

Sec. 3.

Minnesota Statutes 2006, section 161.3420, subdivision 3, is amended to read:

Subd. 3.

Contents.

The commissioner shall prepare or have prepared an RFQ. The
RFQ must include the following:

(1) the minimum qualifications of design-builders necessary to meet the requirements
for acceptance;

(2) a scope of work statement and schedule;

(3) documents defining the project requirements;

(4) the form of contract to be awarded;

(5) the weighted selection criteria for compiling a short list and the number of firms
to be included in the short list, which must be at least two but not more than five;

(6) a description of the request for proposals (RFP) requirements;

(7) the maximum time allowed for design and construction;

(8) the commissioner's estimated cost of design and construction;

(9) requirements for construction experience, design experience, financial,
personnel, and equipment resources available from potential design-builders for the
project and experience in other design-build transportation projects or similar projects,
provided that these requirements may not unduly restrict competition; and

(10) a statement that "past performance new text begin , new text end " deleted text begin or deleted text end "experience new text begin , new text end " new text begin or other criteria used in the
RFQ evaluation process new text end does not include the exercise or assertion of a person's legal rights.

Sec. 4.

Minnesota Statutes 2006, section 161.3420, subdivision 4, is amended to read:

Subd. 4.

Evaluation.

The deleted text begin selection team deleted text end new text begin Technical Review Committee new text end shall
evaluate the design-build qualifications of responding firms and shall compile a short list
of no more than five most highly qualified firms in accordance with qualifications criteria
described in the request for qualifications (RFQ). If only one design-build firm responds
to the RFQ or remains on the short list, the commissioner may readvertise or cancel the
project as the commissioner deems necessary.

Sec. 5.

Minnesota Statutes 2006, section 161.3426, subdivision 1, is amended to read:

Subdivision 1.

Award; computation; announcement.

deleted text begin Except as provided in
subdivision 2, deleted text end A design-build contract shall be awarded as follows:

(a) The Technical Review Committee shall score the technical proposals using the
selection criteria in the request for proposals (RFP). The Technical Review Committee
shall then submit a technical proposal score for each design-builder to the commissioner.
The Technical Review Committee shall reject any proposal it deems nonresponsive.

(b) The commissioner shall announce the technical proposal score for each
design-builder and shall publicly open the sealed price proposals and shall divide each
design-builder's price by the technical score that the Technical Review Committee has
given to it to obtain an adjusted score. The design-builder selected must be that responsive
and responsible design-builder whose adjusted score is the lowest.

(c) If a time factor is included with the selection criteria in the RFP package, the
commissioner may also adjust the bids using a value of the time factor established
by the commissioner. The value of the time factor must be expressed as a value per
day. The adjustment must be based on the total time value. The total time value is the
design-builder's total number of days to complete the project multiplied by the factor. The
time-adjusted price is the total time value plus the bid amount. This adjustment must be
used for selection purposes only, and must not affect the Department of Transportation's
liquidated damages schedule or incentive or disincentive program. An adjusted score
must then be obtained by dividing each design-builder's time-adjusted price by the score
given by the technical review team. The commissioner shall select the responsive and
responsible design-builder whose adjusted score is the lowest.

(d) Unless all proposals are rejected, the commissioner shall award the contract
to the responsive and responsible design-builder with the lowest adjusted score. The
commissioner shall reserve the right to reject all proposals.

new text begin (e) The commissioner shall not limit the ability of design-builders that have
submitted proposals to protest a contemplated or actual award by the commissioner
by, among other things, unreasonably restricting the time to protest, restricting the
right to seek judicial review of the commissioner's actions, attempting to change the
judicial standard of review, or attempting to shift the commissioner's costs or damages
from a protest to a protestor. Unless all design-builders that have submitted proposals
agree to execution of a contract for the project without a waiting period beforehand, the
commissioner shall wait at least seven days after both the award of the project and public
disclosure of the Technical Review Committee's scoring data and the successful proposal
before executing a contract for the project.
new text end

Sec. 6.

Minnesota Statutes 2006, section 161.3426, subdivision 3, is amended to read:

Subd. 3.

Stipulated fee.

The commissioner shall award a stipulated fee not less than
two-tenths of one percent of the department's estimated cost of design and construction
to each short-listed, responsible proposer who provides a responsive but unsuccessful
proposal. new text begin Any increases to the stipulated fee must be made only by the commissioner and
the reasons for those changes must be publicly announced at the time of the change. new text end If
the commissioner does not award a contract, all short-listed proposers must receive the
stipulated fee. If the commissioner cancels the contract before reviewing the technical
proposals, the commissioner shall award each design-builder on the short list a stipulated
fee of not less than two-tenths of one percent of the commissioner's estimated cost of
design and construction. The commissioner shall pay the stipulated fee to each proposer
within 90 days after the award of the contract or the decision not to award a contract new text begin
without conditions other than those stated in this subdivision new text end . In consideration for paying
the stipulated fee, the commissioner may use any ideas or information contained in the
proposals in connection with any contract awarded for the project or in connection with a
subsequent procurement, without any obligation to pay any additional compensation to
the unsuccessful proposers. Notwithstanding the other provisions of this subdivision, an
unsuccessful short-list proposer may elect to waive the stipulated fee. If an unsuccessful
short-list proposer elects to waive the stipulated fee, the commissioner may not use
ideas and information contained in that proposer's proposal. Upon the request of the
commissioner, a proposer who waived a stipulated fee may withdraw the waiver, in which
case the commissioner shall pay the stipulated fee to the proposer and thereafter may use
ideas and information in the proposer's proposal.

Sec. 7. new text begin REPORT ON DESIGN-BUILD CHANGE IMPACTS.
new text end

new text begin The commissioner of transportation shall submit a report by February 15, 2010,
to the chairs and ranking minority members of the senate and house of representatives
committees with jurisdiction over transportation finance and policy, on the impacts
of design-build changes. The report must include, but is not limited to, an analysis
of financial savings or costs to the state due to design-build changes under this act; a
summary of use and effectiveness of the design-build process, including identification of
concerns raised with the process; and, any recommendations for legislative changes.
new text end

Sec. 8. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 161.3426, subdivision 2, new text end new text begin is repealed.
new text end