SF 2752

2nd Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to Hennepin county; providing for 
  1.3             design-build contracts; requiring a report; proposing 
  1.4             coding for new law in Minnesota Statutes, chapter 383B.
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [383B.158] [DESIGN-BUILD CONTRACTS.] 
  1.7      Subdivision 1.  [DEFINITIONS.] (a) In sections 1 to 7, the 
  1.8   definitions in this subdivision apply. 
  1.9      (b) "Best value" describes a result intended in acquiring 
  1.10  design-build services.  Best value determination must include 
  1.11  price and must measure a responder's qualifications, experience, 
  1.12  prior performance, and responses to technical and qualitative 
  1.13  criteria. 
  1.14     (c) "County board" means the Hennepin county board of 
  1.15  commissioners. 
  1.16     (d) "Designer selection committee" means the designer 
  1.17  selection committee appointed by the county to advise the county 
  1.18  administrator and county board in preparing and conducting the 
  1.19  design-build selection process.  At least three members of the 
  1.20  committee must be individuals who are not county employees, a 
  1.21  minimum of two members must be professionally licensed under 
  1.22  chapter 326, and at least one must be or must have been a 
  1.23  commercial contractor.  No committee member shall have personal 
  1.24  financial interest in the project or with any of the 
  1.25  design-build proposals. 
  2.1      (e) "Design-build contract" means a single contract between 
  2.2   the county and a design-builder to furnish the architectural, 
  2.3   engineering, and related design services as well as the labor, 
  2.4   materials, supplies, equipment, and construction services for a 
  2.5   project. 
  2.6      (f) "Design-build firm" means a proprietorship, 
  2.7   partnership, limited liability partnership, joint venture, 
  2.8   corporation, or any type of limited liability company, 
  2.9   professional corporation, or any legal entity. 
  2.10     (g) "Design-builder" means the design-build firm that 
  2.11  proposes to design and build a project governed by the 
  2.12  procedures of this section. 
  2.13     (h) "Design professional" means a person who holds or 
  2.14  employs individuals who hold a license under chapter 326 and who 
  2.15  is required to be registered under Minnesota law. 
  2.16     (i) "Project" means an undertaking for the county to 
  2.17  design, construct, erect, or remodel a building or facility, or 
  2.18  to design, construct, or reconstruct a county road, bridge, or 
  2.19  other infrastructure relating to a county roadway. 
  2.20     (j) "Proposal" means an offer by a design-builder to enter 
  2.21  into a design-build contract for a project in response to a 
  2.22  request for proposals, including a phase-one or phase-two 
  2.23  proposal. 
  2.24     (k) "Request for proposals" or "RFP" means the document or 
  2.25  publication through which the county solicits proposals from 
  2.26  prequalified design-builders to design and construct a 
  2.27  design-build project. 
  2.28     (l) "Request for qualifications" or "RFQ" means a document 
  2.29  to prequalify and short-list potential design-builders for a 
  2.30  project. 
  2.31     Subd. 2.  [AUTHORITY.] Notwithstanding section 471.345 or 
  2.32  any other law to the contrary, the county board may solicit and 
  2.33  award a design-build contract for a project on the basis of a 
  2.34  best value selection process as provided in this section. 
  2.35     Subd. 3.  [RESTRICTION.] (a) The authority granted in 
  2.36  sections 383B.158 to 383B.1586 shall be to evaluate the 
  3.1   effectiveness of the design-build process for county projects.  
  3.2   The county shall select a sufficient variety of projects to 
  3.3   appropriately evaluate the process under varying circumstances, 
  3.4   provided that no more than five projects may be undertaken under 
  3.5   this section. 
  3.6      (b) The board may not enter into a design-build contract 
  3.7   under this section unless the county has as employees at least 
  3.8   one of each of the following, each of whom must be licensed and 
  3.9   registered under state law:  an architect, a mechanical 
  3.10  engineer, and a civil engineer.  In addition, the county must 
  3.11  employ a full-time project manager with at least five years of 
  3.12  construction management experience. 
  3.13     Subd. 4.  [PROCEDURES.] (a) The county board shall, by 
  3.14  resolution, adopt implementation procedures consistent with this 
  3.15  section for the award of design-build contracts.  
  3.16     (b) The implementation procedures must, at a minimum, 
  3.17  govern: 
  3.18     (1) the establishment of a designer selection committee 
  3.19  appointed by the county to advise the county administrator and 
  3.20  the county board in preparing and conducting the design-build 
  3.21  selection process, including a recommendation for the selection 
  3.22  of a design-build proposal it considers to be of best value to 
  3.23  the public; 
  3.24     (2) preparing requests for proposals, including procedures 
  3.25  for determining the appropriate content for each request for 
  3.26  proposal; 
  3.27     (3) standards to be used to qualify or prequalify 
  3.28  design-builders; 
  3.29     (4) preparing and submitting proposals; 
  3.30     (5) establishing procedures for evaluating proposals in as 
  3.31  objective a manner as possible; 
  3.32     (6) establishing safeguards to preserve confidential 
  3.33  information and proprietary information supplied by those 
  3.34  submitting proposals including, but not limited to, an offeror's 
  3.35  price, technical solutions, innovative or unique technology, and 
  3.36  innovative or unique use of commercially available items; and 
  4.1      (7) awarding and executing design-build contracts. 
  4.2      Subd. 5.  [LICENSING REQUIREMENTS.] (a) A design-builder 
  4.3   must be licensed and registered to provide the services required 
  4.4   to complete the project and do business in this state. 
  4.5      (b) A design-builder may enter into a contract with the 
  4.6   county to provide professional or construction services that the 
  4.7   design-builder is not licensed, registered, or qualified to 
  4.8   perform, so long as the design-builder provides the services 
  4.9   through subcontracts with licensed, registered, or otherwise 
  4.10  qualified persons in accordance with this section. 
  4.11     (c) This section does not intend to limit or eliminate the 
  4.12  responsibility or liability owed by a professional on a 
  4.13  design-build project to the county or other parties under other 
  4.14  law. 
  4.15     Sec. 2.  [383B.1581] [DESIGN-BUILD PROCESS.] 
  4.16     Subdivision 1.  [TWO-PHASE PROCEDURE.] If the county board 
  4.17  determines that the design-build best value method of project 
  4.18  delivery is appropriate for a project, the county board shall 
  4.19  establish a two-phase procedure for awarding the design-build 
  4.20  contract. 
  4.21     Subd. 2.  [CONTENTS.] The county, after considering 
  4.22  recommendations from the designer selection committee, shall 
  4.23  prepare or have prepared an RFQ.  The RFQ must include the 
  4.24  following: 
  4.25     (1) the minimum qualifications of design-builders necessary 
  4.26  to meet the requirements for acceptance; 
  4.27     (2) a scope of work statement and schedule; 
  4.28     (3) documents defining the project requirements; 
  4.29     (4) the form of contract to be awarded; 
  4.30     (5) the weighted selection criteria for compiling a short 
  4.31  list and the number of firms to be included in the short list, 
  4.32  which must be at least two but not more than five; 
  4.33     (6) a description of the request for proposals (RFP) 
  4.34  requirements; 
  4.35     (7) the maximum time allowed for design and construction; 
  4.36     (8) the county board's estimated cost range of design and 
  5.1   construction; 
  5.2      (9) requirements for construction experience, design 
  5.3   experience, financial, personnel, and equipment resources 
  5.4   available from potential design-builders for the project and 
  5.5   experience in other design-build projects or similar projects, 
  5.6   provided that these requirements may not unduly restrict 
  5.7   competition; and 
  5.8      (10) a statement that "past performance" or "experience" 
  5.9   does not include the exercise or assertion of a person's legal 
  5.10  rights. 
  5.11     Subd. 3.  [EVALUATION.] (a) The county shall solicit and 
  5.12  evaluate proposals and select a design-builder in two phases. 
  5.13     (b) In phase one, the county board, after considering the 
  5.14  recommendations from the designer selection committee, shall 
  5.15  adopt a short list of at least two but no more than five of the 
  5.16  most highly qualified firms in accordance with qualifications 
  5.17  criteria described in the RFQ.  Prior to adoption of the short 
  5.18  list, the designer selection committee or the county board may 
  5.19  require clarification from the design-builders to ensure 
  5.20  conformance of proposals to the RFQ.  The county must not 
  5.21  consider cost-related or price-related evaluation factors in 
  5.22  phase one. 
  5.23     (c) In phase two, the designer selection committee and the 
  5.24  county shall use the evaluation criteria in the RFP to determine 
  5.25  the design-build proposal to be the most advantageous and the 
  5.26  best value to the public.  Prior to award of a contract, the 
  5.27  designer selection committee and, if necessary, the county board 
  5.28  may require clarification from the design-builders to ensure 
  5.29  conformance of proposals to the RFP. 
  5.30     Sec. 3.  [383B.1582] [RFP FOR DESIGN-BUILD.] 
  5.31     During phase two, the county shall issue an RFP to the 
  5.32  design-builders on the short list.  The request must include: 
  5.33     (1) the scope of work, including (i) performance and 
  5.34  technical requirements, (ii) conceptual design, (iii) minimum 
  5.35  specifications, and (iv) functional and operational elements for 
  5.36  the delivery of the completed project, which must be prepared by 
  6.1   a design professional qualified to prepare the necessary 
  6.2   documents; 
  6.3      (2) a description of the qualifications required of the 
  6.4   design-builder; 
  6.5      (3) a description of the selection criteria, including the 
  6.6   weighting of each criterion; 
  6.7      (4) copies of the contract documents that the successful 
  6.8   proposer will be expected to sign; 
  6.9      (5) the maximum time allowable for design and construction; 
  6.10     (6) the county's estimated range of cost for design and 
  6.11  construction; 
  6.12     (7) the requirement that a submitted proposal be segmented 
  6.13  into two parts, a technical proposal and a price proposal; 
  6.14     (8) the requirement that each proposal be in a separately 
  6.15  sealed, clearly identified package and include the date and time 
  6.16  of the submittal deadline; 
  6.17     (9) the requirement that the technical proposal include a 
  6.18  critical path method, bar schedule of the work to be performed, 
  6.19  or similar schematic; design plans and specifications; technical 
  6.20  reports; calculations; permit requirements; applicable 
  6.21  development fees; and other data requested in the RFP; 
  6.22     (10) the requirement that the price proposal contain all 
  6.23  design, construction, engineering, inspection, and 
  6.24  construction-related costs, and all other costs of any kind of 
  6.25  the proposed project; 
  6.26     (11) the date, time, and location of the public opening of 
  6.27  the sealed price proposals; 
  6.28     (12) a statement that "past performance" or "experience" 
  6.29  does not include the exercise or assertion of a person's legal 
  6.30  rights; and 
  6.31     (13) other information relevant to the project. 
  6.32     Sec. 4.  [383B.1583] [REPLACING TEAM MEMBERS.] 
  6.33     An individual or a design-build firm identified in a 
  6.34  response to an RFQ or RFP may not be replaced without the 
  6.35  written approval of the county board.  The county board may 
  6.36  revoke an awarded contract if an individual or a design-build 
  7.1   firm identified in a response to an RFQ or RFP is replaced 
  7.2   without the county board's written approval.  To qualify for the 
  7.3   approval, the written request must document that the proposed 
  7.4   replacement individual or design-build firm will be equal to or 
  7.5   better than that described in the response to the RFQ or RFP.  
  7.6   The county board shall use the criteria specified in the RFQ or 
  7.7   RFP to evaluate the request. 
  7.8      Sec. 5.  [383B.1584] [DESIGN-BUILD AWARD.] 
  7.9      The county board, after considering the recommendations of 
  7.10  the designer selection committee, shall award the design-build 
  7.11  contract to the proposer with the highest scored proposal based 
  7.12  on the evaluation criteria in the RFP.  The rationale for the 
  7.13  selection of the proposal must be stated at the time of the 
  7.14  contract award.  The county board may reject any or all 
  7.15  proposals, but must not do so to evade the other provisions and 
  7.16  policies of this section.  If the county board rejects all 
  7.17  proposals, it may then solicit new proposals after making 
  7.18  appropriate modifications to performance criteria, budget 
  7.19  constraints, or qualifications.  
  7.20     Sec. 6.  [383B.1585] [STIPULATED FEE.] 
  7.21     The county board, depending on the project's complexity and 
  7.22  scope and at the board's discretion for each project, may 
  7.23  determine that a stipulated fee be paid to each short-listed 
  7.24  responsible proposer who provides a responsive but unsuccessful 
  7.25  proposal.  If a stipulated fee is to be paid, it must be clearly 
  7.26  identified in the RFQ or RFP.  If the county board does not 
  7.27  award a contract, all short-listed proposers must receive the 
  7.28  stipulated fee.  If the county board cancels the contract before 
  7.29  reviewing the technical proposals, the county board shall award 
  7.30  each design-builder on the short list a stipulated minimum fee 
  7.31  as set out in the RFP.  The county board shall pay the 
  7.32  stipulated fee to each proposer within 90 days after the award 
  7.33  of the contract or the decision not to award a contract.  In 
  7.34  consideration for paying the stipulated fee, the county board 
  7.35  may use any ideas or information contained in the proposals in 
  7.36  connection with any contract awarded for the project or in 
  8.1   connection with a subsequent procurement, without any obligation 
  8.2   to pay any additional compensation to the unsuccessful 
  8.3   proposers.  Notwithstanding the other provisions of this 
  8.4   subdivision, an unsuccessful short-list proposer may elect to 
  8.5   waive the stipulated fee.  If an unsuccessful short-list 
  8.6   proposer elects to waive the stipulated fee, the county may not 
  8.7   use ideas and information contained in that proposer's 
  8.8   proposal.  Upon the request of the county, a proposer who waived 
  8.9   a stipulated fee may withdraw the waiver, in which case the 
  8.10  county board shall pay the stipulated fee to the proposer and 
  8.11  thereafter may use ideas and information in the proposer's 
  8.12  proposal. 
  8.13     Sec. 7.  [383B.1586] [EXPIRATION.] 
  8.14     Sections 383B.158 to 383B.1586 expire December 31, 2007, 
  8.15  and apply to design-build contracts entered into on or before 
  8.16  January 1, 2008. 
  8.17     Sec. 8.  [REPORT TO LEGISLATURE.] 
  8.18     Hennepin county must report to the legislature after the 
  8.19  completion of up to five projects, but no later than June 1, 
  8.20  2007, on its evaluation of the effectiveness of the design-build 
  8.21  process as applied to the varying circumstances of the projects. 
  8.22     Sec. 9.  [EFFECTIVE DATE; LOCAL APPROVAL.] 
  8.23     This act is effective the day after the governing body of 
  8.24  Hennepin county and its chief clerical officer timely complete 
  8.25  their compliance with Minnesota Statutes, section 645.021, 
  8.26  subdivisions 2 and 3.