SF 2983

1st Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to Hennepin county; providing that the 
  1.3             design-build method of construction may be used for 
  1.4             certain county contracts; proposing coding for new law 
  1.5             in Minnesota Statutes, chapter 383B. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  [383B.160] [DESIGN-BUILD CONTRACTS.] 
  1.8      Subdivision 1.  [DEFINITIONS.] (a) For purposes of this 
  1.9   section, the following terms have the meanings given them, 
  1.10  unless the context clearly indicates otherwise. 
  1.11     (b) "Acceptance" means a formal resolution of the county 
  1.12  board authorizing the execution of a design-build contract. 
  1.13     (c) "Designer selection committee" means the designer 
  1.14  selection committee appointed by the county board to advise the 
  1.15  county administrator and county board in preparing and 
  1.16  conducting the design-build selection process. 
  1.17     (d) "Design-build contract" means a contract between the 
  1.18  county and a design-builder to furnish the architectural, 
  1.19  engineering, and related design services as well as the labor, 
  1.20  materials, supplies, equipment, and construction services for a 
  1.21  project.  A design-build contract may be conditioned upon later 
  1.22  refinements in scope and price, and may permit the county to 
  1.23  make changes in the scope of the project without invalidating 
  1.24  the design-build contract.  
  1.25     (e) "Design-builder" means the person that proposes to 
  2.1   design and build a project governed by the procedures of this 
  2.2   section. 
  2.3      (f) "Design criteria package" means a performance-oriented 
  2.4   description of the budget, program, and site for the project 
  2.5   containing sufficient information to permit design-build firms 
  2.6   to prepare a response to the requests for proposals.  The design 
  2.7   criteria package must specify performance-based criteria for the 
  2.8   project; legal description of the site; survey, soil, and 
  2.9   environmental information concerning the site; interior space 
  2.10  requirements, including adjacency diagrams; material quality 
  2.11  standards; conceptual design criteria; cost or budget estimates; 
  2.12  design and construction schedules; site development 
  2.13  requirements; provisions for utilities; stormwater retention and 
  2.14  disposal; and parking requirements applicable to the project and 
  2.15  any other information required to adequately describe the 
  2.16  project.  
  2.17     (g) "Design criteria professional" means a person who holds 
  2.18  or employs individuals who hold the license or licenses under 
  2.19  chapter 326 that would be required to design the design-build 
  2.20  project and who is employed by or under contract with the county 
  2.21  to provide professional architecture and engineering services in 
  2.22  connection with the preparation of the design criteria package.  
  2.23     (h) "Design proposal" means the phase-two proposal to be 
  2.24  submitted by a design-builder in a design-based selection 
  2.25  process, which includes the building and site design, design and 
  2.26  construction schedule, and the construction cost, in such detail 
  2.27  as the county may require in the request for proposals.  
  2.28     (i) "Past performance" or "experience" shall not include 
  2.29  the exercise or assertion of a person's legal rights. 
  2.30     (j) "Person" means an individual, partnership, joint 
  2.31  venture, corporation, professional corporation, business 
  2.32  association, or any other legal entity.  
  2.33     (k) "Project" means an undertaking to design, construct, 
  2.34  erect, or remodel a facility, building, road, highway, or bridge.
  2.35     (l) "Proposal" means an offer by a design-builder to enter 
  2.36  into a design-build contract for a project in response to a 
  3.1   request for proposals, including a phase-one or phase-two 
  3.2   proposal. 
  3.3      (m) "Request for proposals" means the document or 
  3.4   publication through which the county solicits proposals for a 
  3.5   design-build contract. 
  3.6      Subd. 2.  [AUTHORITY.] Notwithstanding section 471.345 or 
  3.7   any other law to the contrary, the county board may solicit and 
  3.8   award a design-build contract for a project on the basis of a 
  3.9   best value selection process without competitive bids as 
  3.10  provided in this section.  
  3.11     Subd. 3.  [PROCEDURES.] The county board shall, by 
  3.12  resolution, adopt implementation procedures consistent with this 
  3.13  section for the award of design-build contracts.  The 
  3.14  implementation procedures must, at a minimum, govern the 
  3.15  following: 
  3.16     (1) the establishment of a designer selection committee 
  3.17  appointed by the county board to advise the county administrator 
  3.18  and the county board in preparing and conducting the 
  3.19  design-build selection process, including a recommendation for 
  3.20  the selection of a design-build proposal it considers to be of 
  3.21  best value to the public.  The county board may not select a 
  3.22  design-builder in which a member of the designer selection 
  3.23  committee has a current financial interest; 
  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) negotiations between the county, including the designer 
  3.33  selection committee, and those submitting proposals prior to the 
  3.34  acceptance of a proposal if negotiations are contemplated, 
  3.35  including safeguards to preserve confidential information and 
  3.36  propriety information supplied by those submitting proposals 
  4.1   such as an offeror's price, technical solutions, innovative or 
  4.2   unique technology, and innovative or unique use of commercially 
  4.3   available items; and 
  4.4      (7) awarding and executing design-build contracts.  
  4.5      Subd. 4.  [LICENSING REQUIREMENTS. ] (a) Each 
  4.6   design-builder shall be, employ, or have as a partner, member, 
  4.7   coventurer, or subcontractor persons duly licensed and 
  4.8   registered to provide the services required to complete the 
  4.9   project and do business in the state.  
  4.10     (b) A design-builder may enter into a contract with the 
  4.11  county to provide professional or construction services that the 
  4.12  design-builder is not licensed, registered, or qualified to 
  4.13  perform, so long as the design-builder provides such services 
  4.14  through subcontracts with duly licensed, registered, or 
  4.15  otherwise qualified persons in accordance with this section.  
  4.16     (c) Nothing in this section authorizing design-build 
  4.17  contracts is intended to limit or eliminate the responsibility 
  4.18  or liability owed by a professional on a design-build project to 
  4.19  the county or other third parties under existing law.  
  4.20     Subd. 5.  [DEVELOPMENT OF DESIGN CRITERIA PACKAGE.] Each 
  4.21  request for proposal shall contain performance criteria prepared 
  4.22  by a design criteria professional employed by or under contract 
  4.23  with the county.  The county administrator, in consultation with 
  4.24  the designer selection committee and the design criteria 
  4.25  professional, shall determine the scope and level of detail 
  4.26  required for the design criteria package beyond that required in 
  4.27  subdivision 1, paragraph (f).  The criteria shall not impose 
  4.28  unnecessary criteria beyond the reasonable requirements to 
  4.29  ensure maximum participation of qualified design-builders.  
  4.30     Subd. 6.  [SOLICITATION OF PROPOSALS.] (a) A request for 
  4.31  proposals shall be prepared for each design-build contract 
  4.32  soliciting design-builders to respond in two phases under 
  4.33  subdivision 7.  A request for proposals shall contain, at a 
  4.34  minimum, the following elements: 
  4.35     (1) procedures for submitting proposals, the criteria for 
  4.36  evaluation of proposals and their relative weight for each 
  5.1   phase, and the procedures for making awards, including a 
  5.2   reference to the requirements of this section and any 
  5.3   implementation procedures adopted by the county board under 
  5.4   subdivision 3; 
  5.5      (2) the proposed terms and conditions for the design-build 
  5.6   contract; 
  5.7      (3) the design criteria package; 
  5.8      (4) the qualifications the design-builder will be required 
  5.9   to have; 
  5.10     (5) a schedule for commencement and completion of the 
  5.11  project; 
  5.12     (6) budget limits for the project; 
  5.13     (7) affirmative action, disadvantaged business, small 
  5.14  business, or set-aside goals or requirements for the 
  5.15  design-build contract, if any; 
  5.16     (8) requirements for performance bonds, payment bonds, 
  5.17  insurance, and statutorily required performance and payment 
  5.18  bonds; 
  5.19     (9) a description of the drawings, specifications, or other 
  5.20  submittals to be submitted with the design proposal, with 
  5.21  guidance as to the form and level of completeness of the 
  5.22  drawings, specifications, or submittals that will be acceptable; 
  5.23  and 
  5.24     (10) identification of any other material information 
  5.25  available from the county or designer selection committee, 
  5.26  including, without limitation, surveys, soil reports, drawings 
  5.27  or models of existing structures, environmental studies, 
  5.28  photographs, and public records.  
  5.29     (b) Notice of requests for proposals must be advertised in 
  5.30  the same manner in which bids are solicited under section 
  5.31  471.345.  
  5.32     Subd. 7.  [EVALUATION OF PROPOSALS.] (a) The county board 
  5.33  shall solicit and evaluate proposals and select a design-builder 
  5.34  in two phases.  
  5.35     (b) In phase one, the county board shall evaluate and 
  5.36  qualify potential design-builders for phase two of the selection 
  6.1   process based on each design-builder's experience, technical 
  6.2   competence, capability to perform, the past performance of the 
  6.3   design-builder and its employees and proposed subcontractors for 
  6.4   the project, and other appropriate facts submitted by it in 
  6.5   response to the request for proposals.  The county board shall 
  6.6   not consider cost-related or price-related evaluation factors in 
  6.7   phase one.  
  6.8      (c) In phase two, the county board shall evaluate 
  6.9   design-builders as described in subdivision 9 for best value 
  6.10  selection.  
  6.11     (d) In both phase one and phase two, the county board may 
  6.12  require clarifications or further information from 
  6.13  design-builders to ensure conformance of proposals with the 
  6.14  design criteria package.  
  6.15     Subd. 8.  [ACCEPTANCE OF PROPOSALS.] After obtaining and 
  6.16  evaluating proposals from each design-builder according to the 
  6.17  criteria and procedures set forth in the requests for proposals, 
  6.18  the county board shall evaluate all proposals for the most 
  6.19  advantageous and best value to the public.  The county board may 
  6.20  reject any or all proposals, except for the purpose of evading 
  6.21  the provisions and policies of this section.  If the county 
  6.22  board rejects all proposals, it may thereafter solicit new 
  6.23  proposals using the same or different performance criteria, 
  6.24  budget constraints, or qualifications. 
  6.25     Subd. 9.  [BEST VALUE SELECTION.] (a) The requirements of 
  6.26  subdivisions 1 to 8 apply to all design-build contracts.  
  6.27     (b) The design criteria package for a project to be awarded 
  6.28  by a best value selection process shall be in sufficient detail 
  6.29  to allow qualified persons to submit design proposals in 
  6.30  accordance with the request for proposals, given the nature of 
  6.31  the project and the level of design to be provided in the 
  6.32  proposal.  
  6.33     (c) Design-builders selected to submit phase-two proposals 
  6.34  shall submit design proposals as required by the request for 
  6.35  proposals, consisting of: 
  6.36     (1) plans and specifications, renderings, and models as may 
  7.1   be required in the request for proposals in sufficient detail to 
  7.2   describe the character, quality, and scope of the project; 
  7.3      (2) a design and construction schedule; 
  7.4      (3) the price at which the design-builder will complete the 
  7.5   project if selected; and 
  7.6      (4) other materials the county determines are necessary to 
  7.7   fix the design, schedule, and cost of the project.  
  7.8      (d) Design proposals must be sealed and may not be opened 
  7.9   until the expiration time established for making proposals as 
  7.10  set forth in the request for proposals.  
  7.11     (e) Design proposals shall identify each person with whom 
  7.12  the design-builder proposes to enter into subcontracts for 
  7.13  primary design and construction obligations under the 
  7.14  design-build contract.  Persons so identified may not be 
  7.15  replaced without the approval of the county, or the award may be 
  7.16  revoked.  
  7.17     (f) Design proposals must establish a cost that will not be 
  7.18  exceeded if the design proposal is accepted without change.  
  7.19  After a design proposal is accepted, the maximum cost in the 
  7.20  design proposal shall be converted to fixed prices by negotiated 
  7.21  agreement between the county and the design-builder.  
  7.22     (g) The amount and type of design services submitted to the 
  7.23  county for phase-two proposals shall not exceed those requested 
  7.24  by the county in order to facilitate the evaluation process. 
  7.25     (h) The county may require each design-builder to submit 
  7.26  with its phase-two proposal, a cash deposit, letter of credit, 
  7.27  or bid bond not to exceed five percent of the maximum cost of 
  7.28  the design-build contract as established by the proposal.  
  7.29     (i) The county board shall accept the proposal it considers 
  7.30  to be the most advantageous and best value to the public based 
  7.31  on the evaluation criteria set forth in the request for 
  7.32  proposal.  Selection according to this method may result in a 
  7.33  contract award not being made to the lowest cost proposal.  The 
  7.34  perceived benefits of the higher priced proposal shall merit the 
  7.35  additional cost and the rationale for such a departure shall be 
  7.36  stated at the time of the contract award.  
  8.1      Sec. 2.  [EFFECTIVE DATE.] 
  8.2      Section 1 is effective the day following final enactment.