Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2005, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 78-S.F.No. 1335
An act relating to state government; regulating state
construction contracts; amending Minnesota Statutes
2004, sections 16B.31, subdivision 1; 16B.33,
subdivision 1; 16C.26, subdivisions 3, 4; 16C.28,
subdivision 2; proposing coding for new law in
Minnesota Statutes, chapter 16C.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 2004, section 16B.31,
subdivision 1, is amended to read:
Subdivision 1. [CONSTRUCTION PLANS AND SPECIFICATIONS;
DESIGN-BUILD, CONSTRUCTION MANAGER AT RISK, OR JOB ORDER
CONTRACTING.] (a) The commissioner shall (1) have plans and
specifications prepared for the construction, alteration, or
enlargement of all state buildings, structures, and other
improvements except highways and bridges, and except for
buildings and structures under the control of the Board of
Regents of the University of Minnesota or of the Board of
Trustees of the Minnesota State Colleges and Universities; (2)
approve those plans and specifications; (3) advertise for bids
and award all contracts in connection with the improvements; (4)
supervise and inspect all work relating to the improvements; (5)
approve all lawful changes in plans and specifications after the
contract for an improvement is let; and (6) approve estimates
for payment. This subdivision does not apply to the
construction of the Zoological Gardens.
(b) MS 2002 (Expired)
(c) MS 2002 (Expired)
(b) Notwithstanding any other law to the contrary, the
commissioner may:
(1) use a design-build method of project delivery and award
a design-build contract as provided in sections 16C.32 and
16C.33;
(2) use a construction manager at risk method of project
delivery and award a construction manager at risk contract on
the basis of the selection criteria described in section 16C.34;
or
(3) use a job order contracting contractor selection as
described in section 16C.35.
(c) The commissioner may require a primary designer and a
construction manager at risk, by contract, to cooperate in the
design, planning and scheduling, and construction process. The
contract must not make the primary designer or construction
manager at risk a subcontractor or joint venture partner to the
other or limit the primary designer's or construction manager at
risk's independent obligations to the commissioner.
(d) For projects undertaken by the Minnesota State Colleges
and Universities system, the powers and duties granted in
paragraphs (b) and (c) may be exercised by its board of trustees.
(e) The commissioner, the board, the Board of Regents of
the University of Minnesota, and the Board of Trustees of the
Minnesota State Colleges and Universities shall create a panel
of representatives, including representatives of the
construction industry and the architecture and engineering
professions, to evaluate the use of design-build and the
procedures for design-builder selection under section 16C.31,
and shall report to the legislature on or before January 1,
2004, as to the success of design-build as a method of
construction and the need and desirability for any changes in
the selection procedure.
Sec. 2. Minnesota Statutes 2004, section 16B.33,
subdivision 1, is amended to read:
Subdivision 1. [DEFINITIONS.] As used in this section, the
following terms have the meanings given them:
(a) "Agency" has the meaning given in section 16B.01.
(b) "Architect" means an architect or landscape architect
registered to practice under sections 326.02 to 326.15.
(c) "Board" means the state Designer Selection Board.
(d) "Design-build" means the process of entering into and
managing a single contract between the commissioner and the
design-builder in which the design-builder agrees to both design
and construct a project as specified in the contract at a
guaranteed maximum or a fixed price.
(e) "Design-builder" means a person who proposes to design
and construct a project in accordance with the requirements of
section 16C.33.
(f) "Designer" means an architect or engineer, or a
partnership, association, or corporation comprised primarily of
architects or engineers or of both architects and engineers.
(e) (g) "Engineer" means an engineer registered to practice
under sections 326.02 to 326.15.
(f) (h) "Person" includes an individual, corporation,
partnership, association, or any other legal entity.
(g) (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 user agency
and do not have substantial design responsibility, or designers
who will or may be employed or consulted by the primary designer.
(h) (j) "Project" means an undertaking to construct, erect,
or remodel a building by or for the state or an agency.
(i) (k) "User agency" means the agency undertaking a
specific project. For projects undertaken by the state of
Minnesota, "user agency" means the Department of Administration
or a state agency with an appropriate delegation to act on
behalf of the Department of Administration.
Sec. 3. Minnesota Statutes 2004, section 16C.26,
subdivision 3, is amended to read:
Subd. 3. [PUBLICATION OF NOTICE; EXPENDITURES OVER
$15,000 $25,000.] If the amount of an expenditure is estimated
to exceed $15,000 $25,000, sealed bids must be solicited by
public notice inserted at least once in a newspaper or trade
journal not less than seven days before the final date of
submitting bids in a manner designated by the commissioner. The
commissioner shall designate the newspaper or trade journal for
that publication and may designate different newspapers or
journals according to the nature of the purchase or
contract. To the extent practical, this must include posting on
a state Web site. For expenditures over $50,000, the
commissioner shall also solicit sealed bids by sending providing
notices by mail to all prospective bidders known to the
commissioner and by posting notice on a public bulletin board in
the commissioner's office a state Web site at least five seven
days before the final date of submitting bids. All bids over
$50,000 must be sealed when they are received and must be opened
in public at the hour stated in the notice. All original bids
and all documents pertaining to the award of a contract must be
retained and made a part of a permanent file or record and
remain open to public inspection.
Sec. 4. Minnesota Statutes 2004, section 16C.26,
subdivision 4, is amended to read:
Subd. 4. [BUILDING AND CONSTRUCTION CONTRACTS;
$15,000 $50,000 OR LESS.] All contracts, the amount of which is
estimated to be $15,000 or less, may be made either upon
competitive bids or in the open market, in the discretion of the
commissioner. So far as practicable, however, they must be
based on at least three competitive bids which must be
permanently recorded. An informal bid may be used for building,
construction, and repair contracts that are estimated at less
than $50,000. Informal bids must be authenticated by the bidder
in a manner specified by the commissioner.
Sec. 5. Minnesota Statutes 2004, section 16C.28,
subdivision 2, is amended to read:
Subd. 2. [ALTERATIONS AND ERASURES.] A bid containing an
alteration or erasure of any price contained in the bid which is
used in determining the lowest responsible bid must be rejected
unless the alteration or erasure is corrected under this
subdivision in a manner that is clear and authenticated by an
authorized representative of the responder. An alteration or
erasure may be crossed out and the correction printed in ink or
typewritten adjacent to it and initialed in ink by the person
signing the bid by an authorized representative of the responder.
Sec. 6. [16C.32] [DESIGN-BUILD, CONSTRUCTION MANAGER AT
RISK, AND JOB ORDER CONTRACTING CONTRACTS.]
Subdivision 1. [DEFINITIONS.] As used in sections 16C.32
to 16C.35, the following terms have the meanings given them,
unless the context clearly indicates otherwise:
(1) "acceptance" means a formal resolution of the
commissioner authorizing the execution of a design-build,
construction manager at risk, or job order contracting contract;
(2) "agency" means any state officer, employee, board,
commission, authority, department, or other agency of the
executive branch of state government. Unless specifically
indicated otherwise, as used in sections 16C.32 to 16C.35,
agency also includes the Minnesota State Colleges and
Universities;
(3) "architect" means an architect or landscape architect
registered to practice under sections 326.02 to 326.15;
(4) "board" means the state Designer Selection Board,
unless the estimated cost of the project is less than
$2,000,000, in which case the commissioner may act as the board;
(5) "Capitol Area Architectural and Planning Board" means
the board established to govern the capitol area under chapter
15B;
(6) "commissioner" means the commissioner of administration
or the Board of Trustees of the Minnesota State Colleges and
Universities, whichever controls a project;
(7) "construction manager at risk" means a person who is
selected by the commissioner to act as a construction manager to
manage the construction process, which includes, but is not
limited to, responsibility for the price, schedule, and
workmanship of the construction performed in accordance with the
procedures of section 16C.34;
(8) "construction manager at risk contract" means a
contract for construction of a project between a construction
manager at risk and the commissioner, which contract shall
include a guaranteed maximum price, construction schedule, and
workmanship of the construction performed;
(9) "design-build contract" means a contract between the
commissioner and a design-builder to furnish the architectural,
engineering, and related design services as well as the labor,
materials, supplies, equipment, and construction services for a
project;
(10) "design and price-based proposal" means the proposal
to be submitted by a design-builder in the design and
price-based selection process, as described in section 16C.33,
which proposal meets the requirements of section 16C.33,
subdivision 7, paragraph (c), in such detail as required in the
request for proposals;
(11) "design and price-based selection" means the selection
of a design-builder as described in section 16C.33, subdivision
8;
(12) "design criteria package" means performance criteria
prepared by a design criteria professional who shall be either
an employee of the commissioner or shall be selected in
compliance with section 16B.33, 16C.08, or 16C.095;
(13) "design criteria professional" means a person licensed
under chapter 326, or a person who employs an individual or
individuals licensed under chapter 326, required to design a
project, and who is employed by or under contract to the
commissioner to provide professional, architectural, or
engineering services in connection with the preparation of the
design criteria package;
(14) "guaranteed maximum price" means the maximum amount
that a design-builder, construction manager at risk, or
subcontractor will be paid pursuant to a contract to perform a
defined scope of work;
(15) "guaranteed maximum price contract" means a contract
under which a design-builder, construction manager, or
subcontractor is paid on the basis of their actual cost to
perform the work specified in the contract plus an amount for
overhead and profit, the sum of which must not exceed the
guaranteed maximum price set forth in the contract;
(16) "job order contracting" means a project delivery
method that requests a limited number of bids from a list of
qualified contractors, selected from a registry of qualified
contractors who have been prescreened and who have entered into
master contracts with the commissioner, as provided in section
16C.35;
(17) "past performance" or "experience" does not include
the exercise or assertion of a person's legal rights;
(18) "person" includes an individual, corporation,
partnership, association, or any other legal entity;
(19) "project" means an undertaking to construct, alter, or
enlarge a building, structure, or other improvements, except
highways and bridges, by or for the state or an agency;
(20) "qualifications-based selection" means the selection
of a design-builder as provided in section 16C.33;
(21) "request for qualifications" means the document or
publication soliciting qualifications for a design-build,
construction manager at risk, or job order contracting contract
as provided in sections 16C.33 to 16C.35;
(22) "request for proposals" means the document or
publication soliciting proposals for a design-build or
construction manager at risk contract as provided in sections
16C.33 and 16C.34; and
(23) "trade contract work" means the furnishing of labor,
materials, or equipment by contractors or vendors that are
incorporated into the completed project or are major components
of the means of construction. Work performed by trade
contractors involves specific portions of the project, but not
the entire project.
Subd. 2. [AUTHORITY.] (a) Subject to limitations in
sections 16B.31, subdivision 1; 16B.33, subdivision 1; 16C.16;
and 16C.32 to 16C.34, and notwithstanding any other law to the
contrary, the commissioner may:
(1) solicit and award a design-build contract on the basis
of either a qualifications based or a design and price-based
selection process provided in section 16C.33 if the conditions
in clause (4) are met;
(2) select a construction manager at risk as provided in
section 16C.34, and award a guaranteed maximum price contract
for a construction manager at risk if the conditions of clause
(5) are met;
(3) select a contractor by a job order contracting delivery
method as provided in section 16C.35;
(4) the commissioner may not utilize design-build contracts
for more than five percent of its total projects let, by number,
in each of the fiscal years 2006 and 2007, and ten percent of
its total projects let, by number, in each fiscal year
thereafter, that are funded in whole or in part with proceeds
from the sale of state general obligation bonds; and
(5) the commissioner may not utilize construction manager
at risk contracts for more than five percent of its total
projects let, by number, in each of the fiscal years 2006 and
2007, and ten percent of its total projects let, by number, in
each fiscal year thereafter, that are funded in whole or in part
with proceeds from the sale of state general obligation bonds.
(b) Pursuant to section 16B.31, subdivision 4, if the
project is within the Capitol area, the project shall comply
with sections 15B.03, subdivision 3; 15B.08, subdivision 2;
15B.10; and 15B.15, subdivision 4.
(c) The commissioner shall, for each design-build or
construction manager at risk contract, make a written
determination, including specific findings, indicating whether
use of the design-build or construction manager at risk
procurement serves the public interest.
(d) The solicitation of requests for qualifications or
proposals does not obligate the commissioner to enter into a
design-build or construction manager at risk contract. In
accordance with the stated criteria and subcriteria for
evaluating qualifications or proposals, the commissioner may
accept or reject any or all responses received as a result of
the request. The solicitation for qualifications or proposals
may be canceled at any time in the commissioner's sole
discretion if it is considered to be in the public's best
interest. If the commissioner rejects all responses or cancels
the solicitation for proposals, the commissioner may resolicit a
request for qualifications or proposals using the same or
different requirements or request selection of a primary
designer pursuant to section 16B.33, 16C.08, or 16C.095 and
proceed with competitive bidding pursuant to sections 16C.25 to
16C.29.
Subd. 3. [REPORT TO THE LEGISLATURE.] The commissioner
shall report to the legislature by January 15, 2010, the number
of projects and the total cost of those projects that were
delivered under contracts authorized under subdivision 2 of this
section.
Sec. 7. [16C.33] [DESIGN-BUILD.]
Subdivision 1. [CONFLICT OF INTEREST.] A board member may
not participate in the review, discussion, or selection of a
primary designer, a design-builder, or a firm in which the
member has a financial interest.
Subd. 2. [DESIGN BUILDER LICENSING REQUIREMENTS.] (a) Each
design-builder must be, employ, or have as a partner, member,
coventurer, or subcontractor, persons or a firm with persons who
are duly licensed and registered to provide the services
required to complete the project and do business in this state.
(b) A design-builder may contract with the commissioner to
provide professional or construction services for which the
design-builder is not itself licensed, registered, or qualified
to perform, so long as the design-builder provides such services
through subcontracts with duly licensed, registered, or
otherwise qualified persons in accordance with this section.
(c) Nothing in this section or section 16C.32 is intended
to limit or eliminate the responsibility or liability owed by an
architect or engineer on a design-build project to the
commissioner and third parties under existing law. The design
service portion of a design-build contract is considered a
service and not a product.
Subd. 3. [SOLICITATION OF QUALIFICATIONS OR PROPOSALS.] (a)
Every user agency, except the Capitol Area Architectural and
Planning Board, shall submit a written request for a
design-builder for its project to the commissioner who shall
forward the request to the board, consistent with section
16B.33, subdivision 3a. The University of Minnesota shall
follow the process in subdivision 4 to select design-builders
for projects that are subject to section 16B.33. The written
request must include a description of the project, the total
project cost, a description of any special requirements or
unique features of the proposed project, and other information
requested by the board which will assist the board in carrying
out its duties and responsibilities set forth in this section.
(b) A request for qualifications or proposals soliciting
design-builders shall be prepared for each design-build contract
pursuant to subdivision 5 or 7. The request for qualifications
or proposals shall contain, at a minimum, the following elements:
(1) the identity of the agency for which the project will
be built and that will award the design-build contract;
(2) procedures for submitting qualifications or proposals,
the criteria for evaluation of qualifications or proposals and
the relative weight for each criterion and subcriterion, and the
procedures for making awards according to the stated criteria
and subcriteria, including a reference to the requirements of
this section;
(3) the proposed terms and conditions for the contract;
(4) the desired qualifications of the design-builder and
the desired or permitted areas of construction to be performed
by named members of the design-build team, if applicable. The
primary designer shall be a named member of the design-build
team;
(5) the schedule for commencement and completion of the
project;
(6) any applicable budget limits for the project;
(7) the requirements for insurance and statutorily required
performance and payment bonds;
(8) the identification and location of any other
information in the possession or control of the agency that the
user agency determines is material, which may include surveys,
soils reports, drawings or models of existing structures,
environmental studies, photographs, or references to public
records;
(9) for a design-build design and price-based selection
process, the request shall also include the design criteria
package, including the performance and technical requirements
for the project, and the functional and operational elements for
the delivery of the completed project. The request shall also
contain a description of the drawings, specifications, or other
submittals to be included with the proposal, with guidance as to
the form and level of completeness of the drawings,
specifications or submittals that will be acceptable, and the
stipend to be paid to the design-builders selected to submit the
above described information; and
(10) the criteria shall not impose unnecessary conditions
beyond reasonable requirements to ensure maximum participation
of qualified design-builders. The criteria shall not consider
the collective bargaining status of the design-builder.
(c) Notice of requests for qualifications or proposals must
be advertised in the State Register.
Subd. 4. [UNIVERSITY OF MINNESOTA PROJECTS.] (a) The
University of Minnesota may elect to use the design-build method
of project delivery for projects involving construction or major
remodeling, as defined in section 16B.335, subdivision 1, with
an estimated cost greater than $2,000,000, in which case the
University of Minnesota shall submit a written request for a
design-builder to the commissioner of administration, who shall
forward the request to the board, as provided in subdivision 3.
For design-build projects undertaken by the University of
Minnesota under this subdivision, the Board of Regents shall
exercise the powers and duties of the commissioner granted in
subdivisions 5, 6, 7, and 8.
(b) When the University of Minnesota undertakes any other
project involving construction, renovation, repair, replacement,
or rehabilitation, the Board of Regents may, in addition to any
other method of project delivery available to the University of
Minnesota, submit a written request for a design-builder to the
commissioner of administration, who shall forward the request to
the board, as provided in subdivision 3.
(c) For projects for which the University of Minnesota
requests a design-builder, the University of Minnesota may use
either the design-build qualification-based selection process
under subdivision 5 or the design-build design and price-based
selection process under subdivision 7. The board shall score
proposals in accordance with subdivision 5 or 7, as applicable,
and narrow the selection to the two highest scoring proposers
for recommendation to the Board of Regents. The Board of
Regents shall make the final selection and shall notify the
board of the selection. Meeting records or written evaluations
that document the final selection are public records.
(d) The University of Minnesota may not utilize
design-build contracts for more than five percent of its total
projects let, by number, in each of the fiscal years 2006 and
2007, and ten percent of its total projects let, by number, in
each fiscal year thereafter, that are funded in whole or in part
with proceeds from the sale of state general obligation bonds.
Subd. 5. [DESIGN-BUILD QUALIFICATION-BASED SELECTION
PROCESS.] In a design-build qualification-based selection
process, the following shall apply:
(a)(1) the commissioner shall establish procedures for
determining the appropriate content of each request for
qualifications, the weighted criteria and subcriteria to be used
to evaluate the design-builders, and the procedures for
evaluating qualifications in an open, competitive, and objective
manner; (2) the criteria and subcriteria shall include, but are
not limited to, the proposer's experience as a constructor or
primary designer, including capacity of key personnel, technical
competence and capability to perform, the past performance of
the proposer and its employees, its safety record and compliance
with state and federal law, and availability to and familiarity
with the project locale; (3) the commissioner may include in the
request for qualifications criteria a requirement that the
proposer include the overhead and fee that the design-builder
proposes to charge for its construction services; and (4) the
commissioner shall issue a request for qualifications that
includes the information as described in subdivision 3.
(b) After obtaining and evaluating qualifications from each
design-builder, in accordance with the weighted criteria and
subcriteria and procedures set forth in the request for
qualifications, the board shall select a short list of at least
three and no more than five proposals. The board must receive
at least three proposals from design-builders or the
commissioner shall either:
(1) solicit new proposals;
(2) revise the request for qualifications and thereafter
solicit new proposals using the revised request for
qualifications; or
(3) request selection of a primary designer pursuant to
section 16B.33, 16C.08, or 16C.095 and proceed with competitive
bidding pursuant to sections 16C.25 to 16C.29.
(c) The board shall conduct formal interviews with the
short list of proposers, but shall not disclose any proprietary
or confidential information contained in one proposal to another
proposer.
(d) The board shall select the design-builder that scores
the highest on the evaluation criteria and subcriteria. The
commissioner shall make the award to the design-builder who
scores the highest score pursuant to the weighted criteria and
subcriteria as determined by the board, unless the commissioner
rejects all proposals or proceeds pursuant to paragraphs (f) and
(g). In the case of the Minnesota State Colleges and
Universities, the board shall narrow the selection to the two
design-builders that score the highest on the evaluation
criteria and subcriteria for recommendation to the respective
commissioner, and the commissioner shall make the final
selection and shall notify the board of the selection.
(e) The commissioner shall conduct fee and contract
negotiations with the selected design-builder and shall enter
into the contract consistent with subdivision 6.
(f) If the selected design-builder declines the appointment
or is unable to reach agreement with the commissioner on the
terms of the contract, the commissioner may, within 60 days
after the first selection, request the board to make another
selection.
(g) If the board fails to make a selection and forward its
recommendation to the commissioner within 60 days of the request
for a second selection, the commissioner may appoint a
design-builder without the recommendation of the board.
(h) If a project for which a design-builder has been
selected by the board becomes inactive, lapses, or changes as
the result of a project phasing, insufficient appropriations, or
other reasons, the commissioner may, if the project is
reactivated, retain the same design-builder to complete the
project.
Subd. 6. [DESIGN-BUILD QUALIFICATIONS-BASED ACCEPTANCE BY
COMMISSIONER.] The contract between the commissioner and the
design-builder selected under subdivision 5 shall require the
following:
(a) The design-builder shall develop design documents of
the project for review and approval by the commissioner prior to
project bidding.
(b) The design-builder shall competitively bid all trade
contract work for the project from a list of qualified firms,
subject to availability of such qualified firms for the specific
work. The list of qualified firms shall be based upon an open,
competitive, and objective prequalification process in which the
selection criteria includes, in addition to the proposed price,
the firm's experience as a constructor or primary designer,
including capacity of key personnel, technical competence,
capability to perform, the past performance of the firm and its
employees, including its safety record and compliance with state
and federal law, availability to and familiarity with the
project locale, and other considerations as defined by the
design-builder and the commissioner. The design-builder and the
commissioner shall jointly determine the composition of the list
of qualified firms. The criteria shall not impose unnecessary
conditions beyond reasonable requirements to ensure maximum
participation of qualified contractors.
(c) With the approval of the commissioner, the
design-builder may name either or both a mechanical and
electrical subcontractor or subcontractors as a named member of
the design-builder's team, and if either or both a mechanical
and electrical subcontractor or subcontractors is so named, the
design-builder is not required to competitively bid the
mechanical or electrical trade contract work. A named
mechanical or electrical subcontractor member of a
design-builder's team shall competitively bid all subcontracted
portions of the mechanical or electrical subcontractor's work
from a list of qualified firms. Such qualified firms shall be
determined as described in paragraph (b). The commissioner and
the design-builder shall agree to a list of labor, materials,
and equipment that shall be competitively bid.
(d) With the commissioner's approval or request, team
members of the design-builder, including the design-builder, may
also submit bids for trade contract work.
(e) Either or both the mechanical or electrical
subcontractor or subcontractors who are named subcontractor
members of the design-builder's team shall enter into guaranteed
maximum price contracts with the design-builder.
(f) The design-builder and the commissioner shall enter
into a guaranteed maximum price contract.
Subd. 7. [DESIGN-BUILD DESIGN AND PRICE-BASED
PROPOSALS.] (a) In a design and price-based selection process
the following shall apply:
(1) selection must be based on best value, which includes
an evaluation of price and design, and may include other
criteria including, but not limited to, the proposer's
experience as a constructor or primary designer;
(2) the commissioner shall establish procedures for
determining the appropriate content of each request for
qualifications, and the weighted criteria and subcriteria to be
used to evaluate the design-builders including, but not limited
to, the proposer's experience as a constructor or primary
designer, including capacity of key personnel, technical
competence, capability to perform and the past performance of
the proposer and its employees, its safety record and compliance
with state and federal law, quality and past performance, and
the procedures for evaluating qualifications in an open,
competitive, and objective manner; and
(3) the commissioner shall issue a request for
qualifications that includes the information as described in
subdivision 3.
(b) After obtaining and evaluating qualifications from each
design-builder, in accordance with the weighted criteria and
subcriteria and procedures set forth in the request for
qualifications, the board shall select a short list of three
proposers. The board must receive at least three proposals from
design-builders or the commissioner shall either:
(1) solicit new proposals;
(2) revise the request for qualifications and thereafter
solicit new proposals using the revised request for
qualifications; or
(3) request selection of a primary designer pursuant to
section 16B.33, 16C.08, or 16C.095 and proceed with competitive
bidding pursuant to sections 16C.25 to 16C.29.
(c) The commissioner shall issue a request for proposals to
the selected design-builders. The submitted proposals shall
consist of, at a minimum, the following elements:
(1) preliminary plans and specifications and other
information in sufficient detail to describe the character,
quality, and scope of the project;
(2) a design and construction critical path schedule;
(3) the price at which the design-builder will complete all
design and construction requested in the proposal for the
project if selected; and
(4) other materials the board determines are necessary to
fix the design, schedule, and cost of the project.
(d) Proposals must be sealed and may not be opened until
the expiration of the time established for making proposals as
set forth in the request for proposals.
(e) Proposals must identify the primary designer and the
primary construction contracting entity that are members of the
design-builders team.
(f) The amount and type of design services requested by the
board shall not be exceeded by those submitting proposals.
Proposals exceeding the amount and type of design services
requested by the board may be rejected by the board. Unless
compensated in excess of the minimum stipend for their effort,
design-builders must not be required to submit detailed
architectural or engineering design or construction documents as
part of the proposal.
(g) Except as described in paragraph (h), the commissioner
shall award to each design-builder that submits a responsive
design-build proposal under this subdivision, a stipend in an
amount of not less than 0.3 percent of the commissioner's
estimated cost of design and construction. If the request for
proposals requires extensive design services beyond preliminary
plans and specifications as requested as part of the proposal,
the stipend shall be adjusted to an amount commensurate with the
amount of design services requested for each proposal.
(h) No stipend shall be awarded to the design-builder
selected to complete the project.
(i) For projects where the design-builder accepts the
stipend offered by the board, the commissioner shall be deemed
the owner of the design, subject to the rights of the proposer
to such design for publication and use in other projects.
However, the use of the design in its totality, or near
totality, by the commissioner is prohibited.
(j) The commissioner may require each design-builder to
submit with its proposal a cash deposit, letter of credit in a
form acceptable to the commissioner, or bid bond not to exceed
five percent of the maximum cost of the design-builder's
proposal. If the proposal is accepted but the design-builder
fails, without good cause to execute the design-build contract,
the deposit or bond is forfeited in an amount not to exceed the
difference between the proposal in question and the next highest
proposal.
Subd. 8. [DESIGN-BUILD DESIGN AND PRICE-BASED SELECTION
PROCESS.] (a) The board shall review submissions as described in
subdivision 7; conduct formal interviews with all three
proposers but not allow the disclosure of any price,
proprietary, or confidential information contained in one
proposal to another proposer; and select the proposal that
scores the highest based on the weighted evaluation criteria and
subcriteria, except for projects under the control of Minnesota
State Colleges and Universities. The commissioner shall make
the award to the design-builder who scores the highest score
pursuant to the weighted criteria and subcriteria as determined
by the board, unless the commissioner rejects all proposals or
proceeds pursuant to paragraph (c) or (d). For Minnesota State
Colleges and Universities projects, the board shall narrow the
selection to the two highest scoring proposers for
recommendation to the commissioner, and the commissioner shall
review the submissions as described in subdivision 7; conduct
formal interviews with both proposers recommended by the board,
but not allow the disclosure of any price, proprietary, or
confidential information contained in one proposal to another
proposer; and select the proposal that scores the highest based
on the commissioner's application of the weighted evaluation
criteria and subcriteria; and shall notify the board of the
selection.
(b) After a proposal is accepted, the commissioner is
deemed the owner of the design, subject to the rights of the
proposer to such design for publication and use in other
projects.
(c) After a proposal is accepted, the commissioner and the
design-builder shall enter into a fixed-price contract.
(d) If the design-builder selected for a project declines
the appointment or is unable to reach agreement with the
commissioner concerning the terms of the contract, the
commissioner may, within 60 days after the first selection,
request the board to make another selection.
(e) If the design-builder selected for a project, prior to
executing a design-build contract, replaces either the primary
designer or the primary construction contracting entity, the
commissioner shall notify the board of the replacement and
request the board to either approve the new design-builder or to
select another design-builder.
(f) If the board fails to make a second selection as
described in paragraph (d) or (e) and forward its recommendation
to the commissioner within 60 days of the commissioner's request
for a second selection, the commissioner may appoint a
design-builder to the project without the recommendation of the
board.
Sec. 8. [16C.34] [CONSTRUCTION MANAGER AT RISK.]
Subdivision 1. [SOLICITATION OF QUALIFICATIONS.] (a) Every
user agency, except the Capitol Area Architectural and Planning
Board, shall submit a written request for proposals for a
construction manager at risk for its project to the
commissioner. The written request for proposals must include a
description of the project, the estimated cost of completing the
project, a description of any special requirements or unique
features of the proposed project, and other information which
will assist the commissioner in carrying out its duties and
responsibilities set forth in this section.
(b) The commissioner may include in the request for
qualifications criteria a requirement that the proposer include
the overhead and fee that the construction manager at risk
proposes to charge for its services.
(c) A request for qualifications shall be prepared for each
construction manager at risk contract as provided in this
section. The request for qualifications shall contain, at a
minimum, the following elements:
(1) the identity of the agency for which the project will
be built and that will award the construction manager at risk
contract;
(2) procedures for submitting qualifications, the criteria
and subcriteria for evaluation of qualifications and the
relative weight for each criteria and subcriteria, and the
procedures for making awards in an open, competitive, and
objective manner, and according to the stated criteria and
subcriteria, including a reference to the requirements of this
section;
(3) the terms and conditions for the contract;
(4) the qualifications that the construction manager at
risk shall be desired to have;
(5) a schedule for commencement and completion of the
project;
(6) any applicable budget limits for the project;
(7) requirements for insurance, statutorily required
performance and payment bonds;
(8) identification and location of any other information in
the possession or control of the agency that the user agency
determines is material, which may include surveys, soils
reports, drawings or models of existing structures,
environmental studies, photographs, or references to public
records; and
(9) criteria shall not impose unnecessary conditions beyond
reasonable requirements to ensure maximum participation of
construction managers at risk. The criteria shall not consider
the collective bargaining status of the construction manager at
risk.
(d) Notice of requests for qualifications must be
advertised in the State Register.
Subd. 2. [CONSTRUCTION MANAGER AT RISK SELECTION PROCESS.]
In a construction manager at risk selection process, the
following shall apply:
(a)(i) Upon receipt of a written request from a user agency
for a construction manager at risk for its project, the
commissioner shall create a selection committee composed of a
minimum of three persons, at least one of whom has construction
industry expertise; (ii) the selection committee shall establish
procedures for determining the appropriate content of each
request for qualifications, the weighted criteria and
subcriteria to be used to score the proposals of the
construction managers at risk, and shall establish procedures
for evaluating qualifications in an open, competitive, and
objective manner; and (iii) the commissioner shall issue a
request for qualifications that includes the information as
described in subdivision 1.
(b) In accordance with the criteria and procedures set
forth in the request for qualifications, the selection committee
shall evaluate the construction manager at risk's experience as
a constructor, including, but not limited to, capacity of key
personnel, technical competence, capability to perform, the past
performance of the construction manager at risk and its
employees, its safety record and compliance with state and
federal law, availability to and familiarity with the project
locale, and other appropriate facts submitted by the
construction manager at risk in response to the request for
qualifications. The commissioner must receive at least three
proposals from construction managers or the commissioner may
either (i) solicit new proposals; (ii) request the selection
committee to revise the request for qualifications and
thereafter solicit new proposals using the revised request for
qualifications; (iii) select another allowed procurement method;
or (iv) reject all proposals.
(c)(i) The selection committee shall review the proposers'
qualifications and create a short list of three to five
proposals of construction managers at risk; (ii) the
commissioner shall issue a request for proposal requiring fee
and expense proposals and other information as desired from the
short-listed construction managers at risk; (iii) the selection
committee shall conduct formal interviews with the short-listed
construction managers at risk but shall not disclose any
proprietary or confidential information contained in one
proposal to another proposer; (iv) the selection committee shall
recommend the construction manager at risk achieving the highest
score on the evaluation criteria as described in subdivision 1,
paragraph (b).
(d) The board shall select the primary designer as
described in section 16B.33 or in the case of the commissioner,
section 16C.08 or 16C.095.
Subd. 3. [CONSTRUCTION MANAGER AT RISK CONTRACT.] (a) The
commissioner shall conduct contract negotiations with the
recommended construction manager at risk.
(b) If the construction manager at risk selected for the
project declines the appointment or is unable to reach agreement
with the commissioner concerning the fee or terms of the
contract, the commissioner shall, within 60 days after the first
selection, request the selection committee to make another
recommendation.
(c) If the selection committee fails to make a second
recommendation and forward it to the commissioner within 60 days
of the commissioner's request for a second recommendation, the
commissioner may select a construction manager at risk without
the recommendation of the selection committee.
(d) The primary designer selected by the board shall
develop various design documents for review and approval by the
commissioner.
(e) The construction manager at risk shall competitively
bid all trade contract work for the project from a list of
qualified firms, subject to availability of such qualified firms
for the specific work. The list of qualified firms shall be
based upon an open, competitive, and objective prequalification
process in which the selection criteria includes the firm's
experience as a constructor, including capacity of key
personnel, technical competence, capability to perform, the past
performance of the firm and its employees, including its safety
record and compliance with state and federal law, availability
to and familiarity with the project locale, and other
considerations as defined by the construction manager at risk
and the commissioner. The construction manager at risk and the
commissioner shall jointly determine the composition of the list
of qualified firms. The criteria shall not impose unnecessary
conditions beyond reasonable requirements to ensure maximum
participation of qualified contractors. With the commissioner's
approval or request, the construction manager at risk may also
submit bids for trade contract work.
(f) The construction manager at risk and the commissioner
shall enter into a guaranteed maximum price contract for the
project.
Sec. 9. [16C.35] [JOB ORDER CONTRACTING.]
Subdivision 1. [AUTHORITY.] The commissioner may undertake
construction utilizing job order contracting for projects that
do not exceed a construction cost of $250,000.
Subd. 2. [JOB ORDER CONTRACTING REQUEST FOR
QUALIFICATIONS.] (a) The commissioner is authorized to issue a
request for qualifications that includes the criteria that will
be used for the projects, provided that these criteria do not
unduly restrict competition, nor impose conditions beyond
reasonable requirements to ensure maximum participation of all
qualified contractors, and does not relate to the collective
bargaining status of the contractor.
(b) The request for qualifications must be publicized in a
manner designated by the commissioner that ensures open and
unrestricted access for any potential responder. To the extent
practical, this must include posting on a state Web site. To
the extent practical, the commissioner must give notice to
representatives of targeted group businesses designated under
section 16C.16.
Subd. 3. [QUALIFIED CONTRACTORS.] (a) The commissioner
shall review the responses to the request for qualifications and
determine responder's ability to enter into the master contract
that will be utilized for the projects. The commissioner shall
establish a list of qualified contractors based on the
proposers' ability to enter into a master contract as described
in the request for qualifications.
(b) The commissioner shall enter into master contracts with
all qualified contractors.
(c) The commissioner shall establish procedures to allow
firms to submit qualifications at least annually to allow
placement on the list of contractors qualified to enter into a
master contract.
Subd. 4. [CONSTRUCTION SERVICES BIDDING.] The commissioner
shall request bids for construction services for any project
using job order contracting from qualified contractors as
follows:
(1) for construction projects up to a maximum cost of
$50,000, the commissioner shall request a minimum of two bids;
(2) for construction projects with a cost greater than
$50,000 but less than or equal to $100,000 the commissioner
shall request a minimum of three bids;
(3) for construction projects with a cost greater than
$100,000 but less than or equal to $250,000, the commissioner
shall request a minimum of four bids.
Subd. 5. [QUALIFIED CONTRACTOR SELECTION.] The
commissioner shall select the contractor who submits the lowest
price bid for the construction services proposed.
Subd. 6. [REASONABLE DISTRIBUTION OF BID REQUESTS AMONG
QUALIFIED CONTRACTORS.] The commissioner in requesting bidding
for projects using job order contracting as described in this
section shall develop a system to ensure a reasonable
opportunity for all qualified contractors to bid on construction
services on a periodic basis.
Sec. 10. [EFFECTIVE DATE.]
Sections 1 to 9 are effective the day following final
enactment.
Presented to the governor May 20, 2005
Signed by the governor May 24, 2005, 1:17 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes