HF 3301

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to transportation; changing provisions relating to disclosure of
construction project cost estimates and proposal scoring; amending design-build
transportation project provisions; requiring compensation for certain Technical
Review Committee members; modifying provisions relating to design-build
requests for proposals, scoring, project awards, and protests; requiring disclosure
of reasons for change in stipulated fee; requiring rejection of nonresponsive
proposals; amending Minnesota Statutes 2006, sections 13.72, subdivisions 1,
11; 161.3420, subdivisions 2, 3, 4; 161.3422; 161.3426, subdivisions 1, 3, 4;
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 13.72, subdivision 1, is amended to read:

Subdivision 1.

Estimates for construction projects.

An estimate of the cost
of a construction project of the Minnesota Department of Transportation prepared by
department employees is nonpublic data deleted text begin and is not available to the public from the time of
final design until the project is awarded deleted text end new text begin until the solicitation documents for the project are
issued, at which time the estimate becomes public data new text end .

Sec. 2.

Minnesota Statutes 2006, section 13.72, subdivision 11, is amended to read:

Subd. 11.

Design-build transportation project.

When the Department of
Transportation undertakes a design-build transportation project as defined in section
161.3410, subdivision 6, the statement of qualification evaluation criteria and scoring
methodology, statement of qualification evaluations, technical proposal evaluation
criteria and scoring methodology, and technical proposal evaluations are classified as
protected nonpublic data with regard to data not on individuals and as confidential
data on individuals. The statement of qualification evaluation criteria and scoring
methodology and statement of qualification evaluations are public when the Department
of Transportation announces the short list of qualified contractors. The technical proposal
evaluation criteria deleted text begin , deleted text end new text begin and new text end scoring methodology deleted text begin , and deleted text end new text begin are public data when the request for
proposals is issued. The new text end technical proposal evaluations are public when the deleted text begin project is
awarded deleted text end new text begin cost proposals are opened as described in section 161.3426, subdivision 1,
paragraph (b) new text end .

Sec. 3.

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 state employees for their services. The majority
of state employees on the Technical Review Committee must be at the level of senior
administration 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.
new text begin All oral communications between the Department of Transportation and proposers must
be promptly summarized in writing by the department and sent to the proposer.
new text end

Sec. 4.

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. 5.

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. 6.

Minnesota Statutes 2006, section 161.3422, is amended to read:

161.3422 RFP FOR DESIGN-BUILD.

During phase two, the commissioner shall issue a request for proposals (RFP) to the
design-builders on the short list. The request must include:

(1) the scope of work, including (i) performance and technical requirements, (ii)
conceptual design, (iii) specifications, and (iv) functional and operational elements for
the delivery of the completed project, which must be prepared by a registered or licensed
professional engineer;

(2) a description of the qualifications required of the design-builder and the selection
criteria, including the weight deleted text begin or relative order, or both, deleted text end of each criterion new text begin and subcriterion new text end ;

(3) copies of the contract documents that the successful proposer will be expected to
sign;

(4) the maximum time allowable for design and construction;

(5) the road authority's estimated cost of design and construction;

(6) the requirement that a submitted proposal be segmented into two parts, a
technical proposal and a price proposal;

(7) the requirement that each proposal be in a separately sealed, clearly identified
package and include the date and time of the submittal deadline;

(8) the requirement that the technical proposal include a critical path method;
bar schedule of the work to be performed, or similar schematic; design plans and
specifications; technical reports; calculations; permit requirements; applicable
development fees; and other data requested in the RFP;

(9) the requirement that the price proposal contain all design, construction,
engineering, inspection, and construction costs of the proposed project;

(10) the date, time, and location of the public opening of the sealed price proposals;
deleted text begin and
deleted text end

(11) other information relevant to the project new text begin ; and
new text end

new text begin (12) a statement that "past performance," "experience," or other criteria used in the
RFP evaluation process does not include the exercise or assertion of a person's legal rights new text end .

Sec. 7.

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

Subdivision 1.

Award; computation; announcement.

Except as provided in
subdivision 2, 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). new text begin Criteria other than price or project
duration must have a weighted total no greater than 20 percent of the total scoring points
possible. new text end 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 deleted text begin proposal it deems deleted text end nonresponsive new text begin proposal new text end .

(b) The commissioner shall announce the technical proposal score for each
design-builder and shall publicly open the sealed price proposals deleted text begin 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 deleted text end . new text begin Each proposal's price score must be calculated by
dividing the lowest proposed price by that proposal's price and then multiplying that factor
by the weight assigned to price. The adjusted score for each proposal must be calculated
by multiplying that proposal's technical score by the weight assigned to technical merit
and adding the price score. new text end The design-builder selected must be that responsive and
responsible design-builder whose adjusted score is the deleted text begin lowest deleted text end new text begin highest new text end .

(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. deleted text begin An adjusted deleted text end new text begin Each
proposal's time-adjusted price new text end score deleted text begin must then be obtained deleted text end new text begin must be calculated new text end by dividing
deleted text begin each design-builder's time-adjusted price by the score given by the technical review team deleted text end new text begin
the lowest proposed time-adjusted price by that proposal's time-adjusted price and then
multiplying that factor by the weight assigned to price. The adjusted score for each
proposal must be calculated by multiplying that proposal's technical score by the weight
assigned to technical merit and adding the time-adjusted price score new text end . The commissioner
shall select the responsive and responsible design-builder whose adjusted score is the
deleted text begin lowest deleted text end new text begin highest new text end .

(d) Unless all proposals are rejected, the commissioner shall award the contract to
the responsive and responsible design-builder with the deleted text begin lowest deleted text end new text begin highest new text end 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. The commissioner shall wait at least seven days after the 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. 8.

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. 9.

Minnesota Statutes 2006, section 161.3426, subdivision 4, is amended to read:

Subd. 4.

Low-bid design-build process.

(a) The commissioner may also use
low-bid, design-build procedures to award a design-build contract where the scope of
the work can be clearly defined.

(b) Low-bid design-build projects may require a request for qualifications (RFQ)
and short-listing, and must require a request for proposals (RFP).

(c) Submitted proposals under this subdivision must include separately a technical
proposal and a price proposal. The low-bid, design-build procedures must follow a
two-step process for review of the responses to the RFP as follows:

(1) The first step is the review of the technical proposal by the Technical Review
Committee as provided in section 161.3420, subdivision 2. The Technical Review
Committee must open the technical proposal first and must determine if it complies with
the requirements of the RFP and is responsive. new text begin The Technical Review Committee shall
reject any nonresponsive proposal. new text end The Technical Review Committee may not perform
any ranking or scoring of the technical proposals.

(2) The second step is the determination of the low bidder based on the price
proposal. The commissioner may not open the price proposal until the review of the
technical proposal is complete.

(d) The contract award under low-bid, design-build procedures must be made to the
proposer whose sealed bid is responsive to the technical requirements deleted text begin as determined by
the Technical Review Committee deleted text end and deleted text begin that deleted text end is also the lowest bid.

(e) A stipulated fee may be paid for unsuccessful bids on low-bid, design-build
projects only when the commissioner has required an RFQ and short-listed the most
highly qualified responsive bidders.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 10. 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