Minnesota Legislature
SF 1351
1st Engrossment - 88th Legislature (2013 - 2014) Posted on 05/10/2013 08:36am
Current Version - 1st Engrossment
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A bill for an act
relating to Hennepin County; updating and making technical corrections to
county contract provisions; amending Minnesota Statutes 2012, sections
383B.158, subdivisions 1, 2, 5; 383B.1581, subdivisions 2, 3; 383B.1582;
383B.1584; repealing Minnesota Statutes 2012, section 383B.1585.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2012, section 383B.158, subdivision 1, is amended to
read:
Subdivision 1.
Definitions.
(a) In sections 383B.158 to 383B.1585, the definitions
in this subdivision apply.
(b) "Best value" describes a result intended in acquiring design-build services. Best
value determination must include price and must measure a responder's qualifications,
experience, prior performance, and responses to technical and qualitative criteria.
(c) "County board" means the Hennepin County Board of Commissioners.
(d) "Design-build selection panel" means the individuals appointed by the county
to advise the county administrator and county board in preparing and conducting
the design-build selection process. At least three members of the committee must
be individuals who are not county employees, a minimum of two members must be
professionally licensed under chapter 326, and at least one must be or must have been a
commercial contractor. No committee member shall have personal financial interest in the
project or with any of the design-build proposals.
(e) "Design-build contract" means a single contractnew text begin , which may be in phases,
new text end between the county and a design-builder to furnish the architecturaldeleted text begin ,deleted text end new text begin ornew text end engineeringdeleted text begin ,
deleted text end and related design services as well as the labor, materials, supplies, equipment, and
construction services for a project.
(f) "Design-build firm" means a proprietorship, partnership, limited liability
partnership, joint venture, corporation, or any type of limited liability company,
professional corporation, or any legal entity.
(g) "Design-builder" means the design-build firm that proposes to design and build a
project governed by the procedures of this section.
(h) "Design professional" means a person who holds or employs individuals who
hold a license under chapter 326 and who is required to be registered under Minnesota law.
(i) "Primary designer" means the designer who is to have primary design
responsibility for a project, and does not include designers who are merely consulted by
the county and do not have substantial design responsibility, or designers who will or may
be employed or consulted by the primary designer.
(j) "Project" means an undertaking for the county to design, construct, erect, or
remodel a building or facility, or to design, construct, or reconstruct a county road, bridge,
new text begin or multimodal transportation facility new text end or other infrastructure relating to a county roadway
new text begin or multimodal transportationnew text end .
(k) "Proposal" means an offer by a design-builder to enter into a design-build
contract for a project in response to a request for proposals, including a phase-one or
phase-two proposal.
(l) "Request for proposals" or "RFP" means the document or publication through
which the county solicits proposals from prequalified design-builders to design and
construct a design-build project.
(m) "Request for qualifications" or "RFQ" means a document to prequalify and
short-list potential design-builders for a project.
Sec. 2.
Minnesota Statutes 2012, section 383B.158, subdivision 2, is amended to read:
Subd. 2.
Authority.
Notwithstanding section 471.345 or any other law to the
contrary, the county board may solicit and award a design-build contract for a project on
the basis of a best value selection process as provided in this section.new text begin In exercising the
authority granted in this section and sections 383B.1581 to 383B.1584, the county may
also utilize the design-build procedures available to the Department of Transportation.
new text end
Sec. 3.
Minnesota Statutes 2012, section 383B.158, subdivision 5, is amended to read:
Subd. 5.
Licensing requirements.
(a) A design-builder deleted text begin must bedeleted text end new text begin shall employ, or
have as a partner, member, officer, coventurer, or subcontractor, a person dulynew text end licensed
and registered to provide thenew text begin designnew text end services required to complete the project and do
business in this state.
(b) A design-builder may enter into a contract with the county to provide professional
or construction services that the design-builder is not licensed, registered, or qualified to
perform, so long as the design-builder provides the services through subcontracts with
licensed, registered, or otherwise qualified persons in accordance with this section.
(c) This section does not intend to limit or eliminate the responsibility or liability
owed by a professional on a design-build project to the county or other parties under
other law.
Sec. 4.
Minnesota Statutes 2012, section 383B.1581, subdivision 2, is amended to read:
Subd. 2.
Contents.
The county, after considering recommendations from the
design-build selection panel, 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 deleted text begin threedeleted text end new text begin twonew text end 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 county board's estimated cost deleted text begin rangedeleted text end 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 projects or similar projects, provided that
these requirements may not unduly restrict competition; and
(10) the requirement that the primary designer be designated in the response to
the RFQ; and
(11) a statement that "past performance" or "experience" does not include the
exercise or assertion of a person's legal rights.
Sec. 5.
Minnesota Statutes 2012, section 383B.1581, subdivision 3, is amended to read:
Subd. 3.
Evaluation.
(a) The county shall solicit and evaluate proposals and select
a design-builder in two phases.
(b) In phase one, the county board, after considering the recommendations from the
design-build selection panel, shall adopt a short list of deleted text begin at least three butdeleted text end no more than five
of the most highly qualified firms in accordance with qualifications criteria described in
the RFQ. Prior to adoption of the short listnew text begin by the county boardnew text end , the designer selection
committee deleted text begin or the county boarddeleted text end may require clarification from the design-builders to
ensure conformance of proposals to the RFQ. The county must not consider cost-related
or price-related evaluation factors in phase one.
(c) In phase two, the design-build selection panel deleted text begin and the countydeleted text end shall use
the evaluation criteria in the RFP to determine the design-build proposal to be the
most advantageous and the best value to the public. Prior to award of a contract, the
design-build selection panel and, if necessary, the county board may require clarification
from the design-builders to ensure conformance of proposals to the RFP.
Sec. 6.
Minnesota Statutes 2012, section 383B.1582, is amended to read:
383B.1582 RFP FOR DESIGN-BUILD.
During phase two, the county shall issue an RFP to the design-builders on the short
list. The requestnew text begin for proposals (RFP)new text end must include:
(1) the scope of work, including (i) performance and technical requirements, (ii)
conceptual design, (iii) minimum specifications, and (iv) functional and operational
elements for the delivery of the completed project, which must be prepared by a design
professional qualified to prepare the necessary documents;
(2) a description of the qualifications required of the design-builder;
(3) a description of the selection criteria, including the deleted text begin weightingdeleted text end new text begin weight or relative
order, or both,new text end of each criterion;
(4) copies of the contract documents that the successful proposer will be expected to
sign;
(5) the maximum time allowable for design and construction;
(6) the county's estimated deleted text begin range ofdeleted text end cost for design and construction;
(7) the requirement that a submitted proposal be segmented into two parts, a
technical proposal and a price proposal;
(8) the requirement that each proposal be in a separately sealed, clearly identified
package and include the date and time of the submittal deadline;
(9) the requirement that the technical proposal include a critical path methoddeleted text begin ,deleted text end new text begin ;
new text end 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;
(10) the requirement that the price proposal contain all design, construction,
engineering, inspection, and construction-related costs, and all other costs of any kind
of the proposed project;
(11) the date, time, and location of the public opening of the sealed price proposals;
(12) a statement that "past performance" or "experience" does not include the
exercise or assertion of a person's legal rights; and
(13) other information relevant to the project.
Sec. 7.
Minnesota Statutes 2012, section 383B.1584, is amended to read:
383B.1584 DESIGN-BUILD AWARD.
new text begin Subdivision 1. new text end
new text begin Award; computation; announcement. new text end
deleted text begin
The county board, after
considering the recommendations of the design-build selection panel, shall award the
design-build contract to the proposer with the highest scored proposal based on the
evaluation criteria in the RFP. The rationale for the selection of the proposal must be stated
at the time of the contract award. The county board may reject any or all proposals, but
must not do so to evade the other provisions and policies of this section. If the county
board rejects all proposals, it may then solicit new proposals after making appropriate
modifications to performance criteria, budget constraints, or qualifications.
deleted text end
new text begin
Except as
provided in subdivision 2, a design-build contract shall be awarded as follows:
new text end
new text begin
(a) The design-build selection panel shall score the technical proposals using the
selection criteria in the request for proposals (RFP). The panel shall then submit a
technical proposal score for each design-builder to the county board or its designee. The
panel shall reject any proposal it deems nonresponsive.
new text end
new text begin
(b) The county board or its designee 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 panel has given to it to obtain
an adjusted score.
new text end
new text begin
(c) If a time factor is included with the selection criteria in the RFP package, the
county board or its designee may also adjust the bids using a value of the time factor
established by the panel. 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 county'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.
new text end
new text begin
(d) Unless all proposals are rejected, the county board shall award the contract to
the responsive and responsible design-builder with the lowest adjusted score. The county
board shall reserve the right to reject all proposals.
new text end
new text begin Subd. 2. new text end
new text begin Alternative process for certain contracts. new text end
new text begin
The county board may elect to
use the process under this subdivision for a design-build contract for a project with an
estimated project cost of less than $5,000,000. The county board shall give the lowest
cost proposal the full number of price points defined in the request for proposals (RFP).
The county board shall award each of the other proposals a percentage of the price points
based on a ratio of the lowest price divided by the responder's price. The county board
shall add the technical score and price score and award the contract to the responder
with the highest total score.
new text end
new text begin Subd. 3. new text end
new text begin Stipulated fee. new text end
new text begin
The county board shall award a stipulated fee of not less
than two-tenths of one percent of the county's estimated cost of design and construction
to each short-listed, responsible proposer who provides a responsive but unsuccessful
proposal. When the request for proposals specifies a maximum price, the stipend shall
be awarded if the proposal is responsive in all other aspects but comes in above the
maximum price. If the county board does not award a contract, all short-listed proposers
must receive the stipulated fee. If the county board cancels the contract before reviewing
the technical proposals, the county board shall award each design-builder on the short list
a stipulated fee of not less than two-tenths of one percent of the county's estimated cost of
design and construction. The county board 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. In
consideration for paying the stipulated fee, the county 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 county may not
use ideas and information contained in that proposer's proposal. Upon the request of
the county, a proposer who waived a stipulated fee may withdraw the waiver, in which
case the county shall pay the stipulated fee to the proposer and thereafter may use ideas
and information in the proposer's proposal.
new text end
new text begin Subd. 4. new text end
new text begin Low-bid design-build process. new text end
new text begin
(a) The county board may also use
low-bid, design-build procedures to award a design-build contract where the scope of
the work can be clearly defined.
new text end
new text begin
(b) Low-bid design-build projects may require a request for qualifications (RFQ)
and short-listing, and must require a request for proposals (RFP).
new text end
new text begin
(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:
new text end
new text begin
(1) The first step is the review of the technical proposal by the design-build selection
panel. The panel must open the technical proposal first and must determine if it complies
with the requirements of the RFP and is responsive. The panel may not perform any
ranking or scoring of the technical proposals.
new text end
new text begin
(2) The second step is the determination of the low bidder based on the price
proposal. The county board or its designee may not open the price proposal until the
review of the technical proposal is complete.
new text end
new text begin
(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 as determined by
the panel and that is also the lowest bid.
new text end
new text begin
(e) A stipulated fee may be paid for unsuccessful bids on low-bid, design-build
projects only when the county board has required an RFQ and short-listed the most highly
qualified responsive bidders.
new text end
new text begin Subd. 5. new text end
new text begin Rejection of bids. new text end
new text begin
The county board may reject all bids under this section.
new text end
new text begin Subd. 6. new text end
new text begin Reissue of request for proposals. new text end
new text begin
If the county board rejects all bids or does
not execute the contract, the county board may reissue the request for proposals and allow
only short-listed teams to resubmit proposals. The county board shall then pay a reasonable
stipulated fee to each short-listed, responsible proposer who provides a responsive but
unsuccessful proposal in response to the reissued request for proposals. When the reissued
request for proposals specifies a maximum price, the stipend shall be awarded if the
proposal is responsive in all other aspects but comes in above the maximum price.
new text end
Sec. 8. new text begin REPEALER.
new text end
new text begin
Minnesota Statutes 2012, section 383B.1585,
new text end
new text begin
is repealed.
new text end