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SF 1684

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:22am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to transportation; modifying provisions relating to design-build projects;
amending Minnesota Statutes 2008, sections 161.3410, by adding a subdivision;
161.3412, subdivision 3; 161.3420, subdivision 3; 161.3422; 161.3426,
subdivisions 1, 3, 4; repealing Minnesota Statutes 2008, section 161.3426,
subdivision 2.

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

Section 1.

Minnesota Statutes 2008, section 161.3410, is amended by adding a
subdivision to read:


new text begin Subd. 10. new text end

new text begin Responsive proposal. new text end

new text begin "Responsive proposal" means a technical proposal
of which no major component contradicts the goals of the project, significantly violates
an RFP requirement, or places conditions on a proposal.
new text end

Sec. 2.

Minnesota Statutes 2008, 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 anddeleted text end new text begin . The notification must new text end explain why that method was chosennew text begin , provide the initial cost
estimate, and state the expected date of release for the RFP
new text end .

Sec. 3.

Minnesota Statutes 2008, 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 2008, 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. 5.

Minnesota Statutes 2008, 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)new text begin The Technical Review Committee shall evaluate each proposal for
responsiveness. A proposal found to be nonresponsive by a minimum of two-thirds of the
members of the committee must be referred to the commissioner. After the proposer's
name is concealed, the commissioner shall evaluate the proposal on the sole issue of
responsiveness. Notwithstanding a finding of nonresponsiveness by the Technical Review
Committee, if the commissioner, after evaluation, finds the proposal to be responsive, the
commissioner shall prepare a written explanation of the finding, and transmit the proposal
and the explanation to the Technical Review Committee, which shall treat the proposal
as a responsive proposal for the remainder of the award process. A proposal found by
the commissioner to be nonresponsive must be finally rejected, and the proposer must be
informed of the rejection before price proposals are opened.
new text end

new text begin (b) new text end 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.
deleted text begin The Technical Review Committee shall reject any proposal it deems nonresponsive.
deleted text end

deleted text begin (b)deleted text end new text begin (c) new text end 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.

deleted text begin (c)deleted text end new text begin (d) new text end If a time factor is included with the selection criteria in the RFP package, the
commissioner may deleted text begin also adjust the bids usingdeleted text end new text begin use new text end a value of the time factor established by
the commissionernew text begin as a criterion in 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. 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.
deleted text end

deleted text begin (d)deleted text end new text begin (e) new text end 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 (f) 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, or attempting to change the
judicial standard of review. 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 2008, 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. 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 subdivisionnew 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.

Minnesota Statutes 2008, 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 A technical proposal deemed
nonresponsive by a minimum of two-thirds of the members of the committee must be
referred to the commissioner. After the proposer's name is concealed, the commissioner
shall evaluate the proposal on the sole issue of responsiveness. A technical proposal
deemed by the commissioner to be responsive must be treated as a responsive proposal
for the remainder of the award process. A proposal deemed by the commissioner to be
nonresponsive must be finally rejected, and the proposer must be informed of the rejection
before price proposals are opened.
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.

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

new text begin Minnesota Statutes 2008, section 161.3426, subdivision 2, new text end new text begin is repealed.
new text end

Sec. 9. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 8 are effective the day following final enactment.
new text end