1.1 	A bill for an act
1.2 	relating to transportation; modifying provisions relating to design-build projects; 
1.3 	amending Minnesota Statutes 2008, sections 161.3410, by adding a subdivision; 
1.4 	161.3412, subdivision 3; 161.3420, subdivision 3; 161.3422; 161.3426, 
1.5 	subdivisions 1, 3, 4; repealing Minnesota Statutes 2008, section 161.3426, 
1.6 	subdivision 2.
1.7 	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.8 	Section 1. Minnesota Statutes 2008, section 161.3410, is amended by adding a 
1.9 	subdivision to read:
1.10 		Subd. 10.Responsive proposal. "Responsive proposal" means a technical proposal 
1.11 	of which no major component contradicts the goals of the project, significantly violates 
1.12 	an RFP requirement, or places conditions on a proposal.

1.13 	Sec. 2. Minnesota Statutes 2008, section 161.3412, subdivision 3, is amended to read:
1.14 		Subd. 3.Restriction; reports. (a) The number of design-build contracts awarded 
1.15 	by the commissioner in any fiscal year may not exceed ten percent of the total number 
1.16 	of transportation construction contracts awarded by the commissioner in the previous 
1.17 	fiscal year.
1.18 	(b) The commissioner shall notify the chairs of the senate and house of 
1.19 	representatives committees with jurisdiction over transportation policy and transportation 
1.20 	finance each time the commissioner decides to use the design-build method of procurement 
1.21 	~~and~~. The notification must  explain why that method was chosen, provide the initial cost 
1.22 	estimate, and state the expected date of release for the RFP.

1.23 	Sec. 3. Minnesota Statutes 2008, section 161.3420, subdivision 3, is amended to read:
2.1 		Subd. 3.Contents. The commissioner shall prepare or have prepared an RFQ. The 
2.2 	RFQ must include the following:
2.3 	(1) the minimum qualifications of design-builders necessary to meet the requirements 
2.4 	for acceptance;
2.5 	(2) a scope of work statement and schedule;
2.6 	(3) documents defining the project requirements;
2.7 	(4) the form of contract to be awarded;
2.8 	(5) the weighted selection criteria for compiling a short list and the number of firms 
2.9 	to be included in the short list, which must be at least two but not more than five;
2.10 	(6) a description of the request for proposals (RFP) requirements;
2.11 	(7) the maximum time allowed for design and construction;
2.12 	(8) the commissioner's estimated cost of design and construction;
2.13 	(9) requirements for construction experience, design experience, financial, 
2.14 	personnel, and equipment resources available from potential design-builders for the 
2.15 	project and experience in other design-build transportation projects or similar projects, 
2.16 	provided that these requirements may not unduly restrict competition; and
2.17 	(10) a statement that "past performance," ~~or~~ "experience,"  or other criteria used in the 
2.18 	RFQ evaluation process does not include the exercise or assertion of a person's legal rights.

2.19 	Sec. 4. Minnesota Statutes 2008, section 161.3422, is amended to read:
2.20 	161.3422 RFP FOR DESIGN-BUILD.
2.21 	During phase two, the commissioner shall issue a request for proposals (RFP) to the 
2.22 	design-builders on the short list. The request must include:
2.23 	(1) the scope of work, including (i) performance and technical requirements, (ii) 
2.24 	conceptual design, (iii) specifications, and (iv) functional and operational elements for 
2.25 	the delivery of the completed project, which must be prepared by a registered or licensed 
2.26 	professional engineer;
2.27 	(2) a description of the qualifications required of the design-builder and the selection 
2.28 	criteria, including the weight ~~or relative order, or both,~~ of each criterion and subcriterion;
2.29 	(3) copies of the contract documents that the successful proposer will be expected to 
2.30 	sign;
2.31 	(4) the maximum time allowable for design and construction;
2.32 	(5) the road authority's estimated cost of design and construction;
2.33 	(6) the requirement that a submitted proposal be segmented into two parts, a 
2.34 	technical proposal and a price proposal;
3.1 	(7) the requirement that each proposal be in a separately sealed, clearly identified 
3.2 	package and include the date and time of the submittal deadline;
3.3 	(8) the requirement that the technical proposal include a critical path method; 
3.4 	bar schedule of the work to be performed, or similar schematic; design plans and 
3.5 	specifications; technical reports; calculations; permit requirements; applicable 
3.6 	development fees; and other data requested in the RFP;
3.7 	(9) the requirement that the price proposal contain all design, construction, 
3.8 	engineering, inspection, and construction costs of the proposed project;
3.9 	(10) the date, time, and location of the public opening of the sealed price proposals; 
3.10 	~~and~~
3.11 	(11) other information relevant to the project; and
3.12 	(12) a statement that "past performance," "experience," or other criteria used in the 
3.13 	RFP evaluation process does not include the exercise or assertion of a person's legal rights.

3.14 	Sec. 5. Minnesota Statutes 2008, section 161.3426, subdivision 1, is amended to read:
3.15 		Subdivision 1.Award; computation; announcement. ~~Except as provided in~~ 
3.16 	~~subdivision 2,~~ A design-build contract shall be awarded as follows:
3.17 	(a) The Technical Review Committee shall evaluate each proposal for 
3.18 	responsiveness. A proposal found to be nonresponsive by a minimum of two-thirds of the 
3.19 	members of the committee must be referred to the commissioner. After the proposer's 
3.20 	name is concealed, the commissioner shall evaluate the proposal on the sole issue of 
3.21 	responsiveness. Notwithstanding a finding of nonresponsiveness by the Technical Review 
3.22 	Committee, if the commissioner, after evaluation, finds the proposal to be responsive, the 
3.23 	commissioner shall prepare a written explanation of the finding, and transmit the proposal 
3.24 	and the explanation to the Technical Review Committee, which shall treat the proposal 
3.25 	as a responsive proposal for the remainder of the award process. A proposal found by 
3.26 	the commissioner to be nonresponsive must be finally rejected, and the proposer must be 
3.27 	informed of the rejection before price proposals are opened.
3.28 	(b) The Technical Review Committee shall score the technical proposals using the 
3.29 	selection criteria in the request for proposals (RFP). The Technical Review Committee 
3.30 	shall then submit a technical proposal score for each design-builder to the commissioner. 
3.31 	~~The Technical Review Committee shall reject any proposal it deems nonresponsive.~~
3.32 	~~(b)~~(c) The commissioner shall announce the technical proposal score for each 
3.33 	design-builder and shall publicly open the sealed price proposals and shall divide each 
3.34 	design-builder's price by the technical score that the Technical Review Committee has 
4.1 	given to it to obtain an adjusted score. The design-builder selected must be that responsive 
4.2 	and responsible design-builder whose adjusted score is the lowest.
4.3 	~~(c)~~(d) If a time factor is included with the selection criteria in the RFP package, the 
4.4 	commissioner may ~~also adjust the bids using~~use a value of the time factor established by 
4.5 	the commissioner as a criterion in the RFP. ~~The value of the time factor must be expressed~~ 
4.6 	~~as a value per day. The adjustment must be based on the total time value. The total time~~ 
4.7 	~~value is the design-builder's total number of days to complete the project multiplied by~~ 
4.8 	~~the factor. The time-adjusted price is the total time value plus the bid amount. This~~ 
4.9 	~~adjustment must be used for selection purposes only, and must not affect the Department~~ 
4.10 	~~of Transportation's liquidated damages schedule or incentive or disincentive program. An~~ 
4.11 	~~adjusted score must then be obtained by dividing each design-builder's time-adjusted~~ 
4.12 	~~price by the score given by the technical review team. The commissioner shall select the~~ 
4.13 	~~responsive and responsible design-builder whose adjusted score is the lowest.~~
4.14 	~~(d)~~(e) Unless all proposals are rejected, the commissioner shall award the contract 
4.15 	to the responsive and responsible design-builder with the lowest adjusted score. The 
4.16 	commissioner shall reserve the right to reject all proposals.
4.17 	(f) The commissioner shall not limit the ability of design-builders that have 
4.18 	submitted proposals to protest a contemplated or actual award by the commissioner 
4.19 	by, among other things, unreasonably restricting the time to protest, restricting the 
4.20 	right to seek judicial review of the commissioner's actions, or attempting to change the 
4.21 	judicial standard of review. Unless all design-builders that have submitted proposals 
4.22 	agree to execution of a contract for the project without a waiting period beforehand, the 
4.23 	commissioner shall wait at least seven days after both the award of the project and public 
4.24 	disclosure of the Technical Review Committee's scoring data and the successful proposal 
4.25 	before executing a contract for the project.

4.26 	Sec. 6. Minnesota Statutes 2008, section 161.3426, subdivision 3, is amended to read:
4.27 		Subd. 3.Stipulated fee. The commissioner shall award a stipulated fee not less than 
4.28 	two-tenths of one percent of the department's estimated cost of design and construction 
4.29 	to each short-listed, responsible proposer who provides a responsive but unsuccessful 
4.30 	proposal. If the commissioner does not award a contract, all short-listed proposers must 
4.31 	receive the stipulated fee. If the commissioner cancels the contract before reviewing the 
4.32 	technical proposals, the commissioner shall award each design-builder on the short list a 
4.33 	stipulated fee of not less than two-tenths of one percent of the commissioner's estimated 
4.34 	cost of design and construction. The commissioner shall pay the stipulated fee to each 
4.35 	proposer within 90 days after the award of the contract or the decision not to award a 
5.1 	contract without conditions other than those stated in this subdivision. In consideration 
5.2 	for paying the stipulated fee, the commissioner may use any ideas or information 
5.3 	contained in the proposals in connection with any contract awarded for the project or in 
5.4 	connection with a subsequent procurement, without any obligation to pay any additional 
5.5 	compensation to the unsuccessful proposers. Notwithstanding the other provisions of this 
5.6 	subdivision, an unsuccessful short-list proposer may elect to waive the stipulated fee. If an 
5.7 	unsuccessful short-list proposer elects to waive the stipulated fee, the commissioner may 
5.8 	not use ideas and information contained in that proposer's proposal. Upon the request of 
5.9 	the commissioner, a proposer who waived a stipulated fee may withdraw the waiver, in 
5.10 	which case the commissioner shall pay the stipulated fee to the proposer and thereafter 
5.11 	may use ideas and information in the proposer's proposal.

5.12 	Sec. 7. Minnesota Statutes 2008, section 161.3426, subdivision 4, is amended to read:
5.13 		Subd. 4.Low-bid design-build process. (a) The commissioner may also use 
5.14 	low-bid, design-build procedures to award a design-build contract where the scope of 
5.15 	the work can be clearly defined.
5.16 	(b) Low-bid design-build projects may require a request for qualifications (RFQ) 
5.17 	and short-listing, and must require a request for proposals (RFP).
5.18 	(c) Submitted proposals under this subdivision must include separately a technical 
5.19 	proposal and a price proposal. The low-bid, design-build procedures must follow a 
5.20 	two-step process for review of the responses to the RFP as follows:
5.21 	(1) The first step is the review of the technical proposal by the Technical Review 
5.22 	Committee as provided in section 161.3420, subdivision 2. The Technical Review 
5.23 	Committee must open the technical proposal first and must determine if it complies 
5.24 	with the requirements of the RFP and is responsive. A technical proposal deemed 
5.25 	nonresponsive by a minimum of two-thirds of the members of the committee must be 
5.26 	referred to the commissioner. After the proposer's name is concealed, the commissioner 
5.27 	shall evaluate the proposal on the sole issue of responsiveness. A technical proposal 
5.28 	deemed by the commissioner to be responsive must be treated as a responsive proposal 
5.29 	for the remainder of the award process. A proposal deemed by the commissioner to be 
5.30 	nonresponsive must be finally rejected, and the proposer must be informed of the rejection 
5.31 	before price proposals are opened. The Technical Review Committee may not perform 
5.32 	any ranking or scoring of the technical proposals.  
5.33 	(2) The second step is the determination of the low bidder based on the price 
5.34 	proposal. The commissioner may not open the price proposal until the review of the 
5.35 	technical proposal is complete.
6.1 	(d) The contract award under low-bid, design-build procedures must be made to the 
6.2 	proposer whose sealed bid is responsive to the technical requirements ~~as determined by~~ 
6.3 	~~the Technical Review Committee~~ and ~~that~~ is also the lowest bid.
6.4 	(e) A stipulated fee may be paid for unsuccessful bids on low-bid, design-build 
6.5 	projects only when the commissioner has required an RFQ and short-listed the most 
6.6 	highly qualified responsive bidders.

6.7 	Sec. 8.  REPEALER.
 6.8 	Minnesota Statutes 2008, section 161.3426, subdivision 2, is repealed.

6.9 	Sec. 9. EFFECTIVE DATE.
 6.10 	Sections 1 to 8 are effective the day following final enactment.