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HF 3301

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to transportation; modifying provisions related to design-build project
requests for proposals, scoring, project awards, protests, and stipulated fees;
modifying provisions relating to Technical Review Committee; amending
Minnesota Statutes 2006, sections 13.72, subdivision 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 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, deleted text begin anddeleted text end technical proposal evaluationsnew text begin , and audio recordings of
meetings with proposers
new text end 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, scoring methodology, deleted text begin anddeleted text end
technical proposal evaluationsnew text begin , and audio recordings of meetings with proposersnew text end are
public when the project is awarded.

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
two state employees 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.new text begin The commissioner shall create an audio recording of each meeting that is
scheduled or described in the RFP with a proposer.
new text end

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 performancenew text begin ,new text end " deleted text begin ordeleted text end "experiencenew 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 teamdeleted 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 161.3422, 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 criterionnew text begin and subcriterionnew 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 projectnew 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. 6.

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). 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 deemsdeleted text end nonresponsivenew 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 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 lowestnew text begin score that does not
exceed 110 percent of the lowest adjusted price, within the meaning of paragraph (c), that
is submitted by a responsive, responsible design-builder
new text end .

(c) If a time factor is included with the selection criteria in the RFP package, the
commissioner deleted text begin may also adjust the bids using adeleted text end new text begin shall include the new text end value of the time factor
established by the commissionernew text begin as a criterion within the RFPnew text end . deleted text begin 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.
deleted text end This new text begin time new text end adjustment new text begin to the bids new text end 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 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.
deleted text end

(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. 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. 7.

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 contractnew 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. 8.

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 thatdeleted 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. 9. 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