1.1                          A bill for an act 
  1.2             relating to transportation; providing for design-build 
  1.3             contracts for transportation projects; proposing 
  1.4             coding for new law in Minnesota Statutes, chapter 161. 
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [161.54] [DEFINITIONS.] 
  1.7      Subdivision 1.  [APPLICABILITY.] The terms in sections 
  1.8   161.54 to 161.61 have the meanings given them in this section 
  1.9   and section 160.02. 
  1.10     Subd. 2.  [BEST VALUE.] "Best value" describes a result 
  1.11  intended in acquiring design-build services.  Best value 
  1.12  determination must include price and must measure a responder's 
  1.13  qualifications, experience, prior performance, and responses to 
  1.14  technical and qualitative criteria. 
  1.15     Subd. 3.  [DEPARTMENT.] "Department" means the department 
  1.16  of transportation. 
  1.17     Subd. 4.  [DESIGN-BUILD CONTRACT.] "Design-build contract" 
  1.18  means a contract to procure both the design and the construction 
  1.19  of a transportation project.  It is a single contract with a 
  1.20  person or combination of persons capable of providing the 
  1.21  necessary design, engineering, and construction services.  
  1.22     Subd. 5.  [DESIGN CRITERIA PACKAGE.] "Design criteria 
  1.23  package" means a description of the budget, design standards, 
  1.24  and site for the project containing sufficient information to 
  1.25  permit responders to prepare a response to the request for 
  2.1   proposals. 
  2.2      Subd. 6.  [LOW BID SELECTION.] "Low bid selection" means a 
  2.3   selection method that compares the bid price offered by 
  2.4   qualified responders and awards the contract to the lowest 
  2.5   responsible responder or bidder. 
  2.6      Subd. 7.  [PERSON.] "Person" means an individual, 
  2.7   proprietorship, partnership, limited liability partnership, 
  2.8   joint venture, corporation, professional corporation, limited 
  2.9   liability company, business association, or other legal entity, 
  2.10  however organized. 
  2.11     Subd. 8.  [REQUEST FOR PROPOSALS.] "Request for proposals" 
  2.12  means the document by which the commissioner solicits proposals 
  2.13  for a design-build contract. 
  2.14     Subd. 9.  [REQUEST FOR QUALIFICATIONS.] "Request for 
  2.15  qualifications" means the document by which the commissioner 
  2.16  solicits interest and qualifications of responders. 
  2.17     Subd. 10.  [RESPONSE.] "Response" means the offer received 
  2.18  from a responder in response to a solicitation.  A response 
  2.19  includes submissions commonly referred to as offers, bids, 
  2.20  quotes, or proposals. 
  2.21     Subd. 11.  [SEALED.] "Sealed" means a method determined by 
  2.22  the commissioner to prevent the contents of a package or 
  2.23  envelope from being revealed or known before the deadline for 
  2.24  submission of responses. 
  2.25     Subd. 12.  [SHORT LIST.] "Short list" means a group of 
  2.26  responders that the technical review committee judges to be the 
  2.27  best qualified to complete a project based on criteria defined 
  2.28  in a request for qualifications. 
  2.29     Subd. 13.  [TECHNICAL REVIEW COMMITTEE.] "Technical review 
  2.30  committee" means the persons appointed by the commissioner to 
  2.31  review, evaluate, and score technical, qualification, and 
  2.32  qualitative documents submitted by design-builders. 
  2.33     Sec. 2.  [161.55] [AUTHORITY.] 
  2.34     Notwithstanding section 161.32 or any other law to the 
  2.35  contrary, the commissioner may solicit and award design-build 
  2.36  contracts for transportation projects on the basis of low bid or 
  3.1   best value selection.  In any fiscal year, the number of 
  3.2   design-build contracts awarded may not exceed ten percent of the 
  3.3   total number of contracts awarded for transportation 
  3.4   construction projects during the previous fiscal year.  The 
  3.5   commissioner shall notify the chairs of the house and senate 
  3.6   transportation policy committees each time the commissioner 
  3.7   decides to use the design-build method of procurement and 
  3.8   explain why that method was chosen. 
  3.9      Sec. 3.  [161.56] [SOLICITING AND EVALUATING 
  3.10  QUALIFICATIONS.] 
  3.11     Subdivision 1.  [REQUEST FOR QUALIFICATIONS.] Before 
  3.12  issuing a design-build request for proposals, the commissioner 
  3.13  may issue a request for qualifications to prequalify potential 
  3.14  responders. 
  3.15     Subd. 2.  [QUALIFICATION CRITERIA.] The request for 
  3.16  qualifications must contain the following information: 
  3.17     (1) scope of work statement and project schedule; 
  3.18     (2) description of the qualifications required for 
  3.19  performance of the work; 
  3.20     (3) selection criteria for compiling a short list; 
  3.21     (4) selection method for awarding the design-build 
  3.22  contract; 
  3.23     (5) maximum time allowed for design and construction; 
  3.24     (6) estimated project cost; and 
  3.25     (7) other applicable information or documents that define 
  3.26  the project requirements. 
  3.27     Subd. 3.  [TECHNICAL REVIEW COMMITTEE.] Before requests for 
  3.28  qualifications are received, the commissioner shall appoint a 
  3.29  technical review committee of at least five persons.  The 
  3.30  technical review committee may include department of 
  3.31  transportation employees and employees of other government 
  3.32  entities.  The technical review committee must include an 
  3.33  individual whose name and qualifications shall be submitted to 
  3.34  the commissioner by the Minnesota chapter of the associated 
  3.35  general contractors after consultation with other commercial 
  3.36  contractor associations in the state.  The name submitted by the 
  4.1   Minnesota chapter of the associated general contractors must be 
  4.2   submitted to the commissioner within seven days after the 
  4.3   commissioner requests it.  Members of the technical review 
  4.4   committee who are not state employees are subject to chapter 13 
  4.5   and section 16C.06 to the same extent that state agencies are 
  4.6   subject to those provisions.  A technical review committee 
  4.7   member may not participate in the review or discussion of 
  4.8   responses to a request for qualifications or request for 
  4.9   proposals when the member has a financial interest in any of the 
  4.10  persons who respond to that request for qualifications or 
  4.11  request for proposals.  "Financial interest" includes, but is 
  4.12  not limited to, being or serving as an owner, employee, partner, 
  4.13  limited liability partner, shareholder, joint venturer, family 
  4.14  member, officer, or director or a person responding to a request 
  4.15  for qualifications or request for proposals for a specific 
  4.16  project, or having any other economic interest in that person.  
  4.17  The members of the technical review committee must be treated as 
  4.18  state employees in the event of litigation resulting from any 
  4.19  action arising out of their service on the committee. 
  4.20     Subd. 4.  [EVALUATING RESPONSES TO REQUEST FOR 
  4.21  QUALIFICATIONS.] The technical review committee shall evaluate 
  4.22  the qualifications of responders and compile a short list of 
  4.23  responders in accordance with criteria defined in the request 
  4.24  for qualifications.  Prequalification must be based on an 
  4.25  evaluation of the response to the criteria described in the 
  4.26  request for qualifications. 
  4.27     Subd. 5.  [SHORT LIST.] After evaluating the responses to 
  4.28  the request for qualifications, the technical review committee 
  4.29  shall identify no more than five most highly qualified 
  4.30  responders.  The technical review committee shall recommend the 
  4.31  most highly qualified responders to the commissioner.  These 
  4.32  responders will comprise the short list and will be the only 
  4.33  responders eligible to respond to a request for proposals for a 
  4.34  design-build contract. 
  4.35     Subd. 6.  [MINIMUM NUMBER OF RESPONDERS.] If there is only 
  4.36  one response to the solicitation or if one or more of the 
  5.1   responders on the short list drop out so that only one responder 
  5.2   remains on the short list, the commissioner may reissue the 
  5.3   request for qualifications, may modify and reissue the request 
  5.4   for qualifications, or may cancel the project. 
  5.5      Sec. 4.  [161.57] [REPLACING TEAM MEMBERS.] 
  5.6      Persons identified in a response to a request for 
  5.7   qualifications or a request for proposals may not be replaced 
  5.8   without the written approval of the commissioner.  The 
  5.9   commissioner may revoke an awarded contract if subcontractors or 
  5.10  firms are replaced without the commissioner's written approval.  
  5.11  To qualify for the commissioner's approval, the written request 
  5.12  must document that the proposed replacement person will be equal 
  5.13  to or better than that described in the response to the request 
  5.14  for qualifications or request for proposal.  The commissioner 
  5.15  shall use the criteria specified in the request for 
  5.16  qualifications or request for proposals to evaluate the request. 
  5.17     Sec. 5.  [161.58] [REQUEST FOR PROPOSALS.] 
  5.18     The commissioner shall publish a request for proposals for 
  5.19  each design-build contract.  A request for proposals must 
  5.20  include, but is not limited to, the following: 
  5.21     (1) procedures to be followed for submitting proposals; 
  5.22     (2) criteria for evaluation of technical proposals and 
  5.23  their relative weights; 
  5.24     (3) relative weight or value of the price proposal; 
  5.25     (4) method or formula that the department will use to 
  5.26  measure and evaluate the price proposal and integrate the price 
  5.27  and technical proposals for overall ranking of the proposals; 
  5.28     (5) design criteria package, which may include, but is not 
  5.29  limited to, preliminary design concepts; design criteria, needs, 
  5.30  and objectives; warranty and quality control requirements; 
  5.31  survey, soil, and environmental documents; applicable standards; 
  5.32  building space requirements; provisions for utilities; storm 
  5.33  water retention and disposal; and any other information required 
  5.34  to adequately describe the project; 
  5.35     (6) description of the drawings, specifications, or other 
  5.36  information that responders must submit; 
  6.1      (7) schedule expectations or limitations; 
  6.2      (8) the maximum allowable cost for the design-build 
  6.3   contract, if any; 
  6.4      (9) affirmative action, disadvantaged business, or 
  6.5   set-aside goals or requirements for the design-build contract, 
  6.6   if any; 
  6.7      (10) qualifications the design-builder will be required to 
  6.8   have for projects that do not provide a solicitation of 
  6.9   qualifications, as described in section 161.56; 
  6.10     (11) requirements for proposal guarantee, performance 
  6.11  bonds, payment bonds, and insurance; 
  6.12     (12) bid proposal forms; and 
  6.13     (13) the name of each person with whom the design-builder 
  6.14  proposes to subcontract obligations under the design-build 
  6.15  contract. 
  6.16     Sec. 6.  [161.59] [SEPARATE TECHNICAL AND PRICE PROPOSALS.] 
  6.17     Responders shall submit price proposals that define the 
  6.18  price at which the responder will complete the project if 
  6.19  selected.  The cost proposal must include all costs to design, 
  6.20  construct, engineer, and control the quality of the proposed 
  6.21  project.  The price proposal and technical proposal must be 
  6.22  submitted at the same time but in separate, sealed packages. 
  6.23     Sec. 7.  [161.60] [DESIGN-BUILD EVALUATION METHODS.] 
  6.24     Subdivision 1.  [LOW BID SELECTION.] (a) The technical 
  6.25  review committee shall evaluate all technical proposals before 
  6.26  any price proposals are opened and determine whether individual 
  6.27  technical proposals comply with the requirements of the request 
  6.28  for proposals.  The committee shall mark proposals that satisfy 
  6.29  the requirements as "pass" and proposals that do not satisfy the 
  6.30  requirements as "fail." 
  6.31     (b) The commissioner shall open the price proposals that 
  6.32  correspond to the technical proposals that the technical review 
  6.33  committee has marked "pass" in accordance with paragraph (a).  
  6.34  The commissioner shall award the design-build contract to the 
  6.35  responder whose proposal satisfies technical requirements and is 
  6.36  the lowest bid price. 
  7.1      Subd. 2.  [BEST VALUE SELECTION.] (a) The technical review 
  7.2   committee shall reject any proposal that is nonresponsive 
  7.3   according to criteria established in the request for proposals.  
  7.4   The technical review committee shall evaluate and assign a score 
  7.5   to each technical proposal using the criteria defined in the 
  7.6   request for proposals.  The committee shall then submit a 
  7.7   technical score for each responder to the commissioner. 
  7.8      (b) If a time factor is included with the selection 
  7.9   criteria in the request for proposals package, the commissioner 
  7.10  shall adjust the bids using the time factor.  The value of the 
  7.11  time factor must be expressed as a value per day.  The 
  7.12  adjustment to a responder's price proposal must be based on the 
  7.13  total time value.  The total time value is the responder's total 
  7.14  number of days to complete the project multiplied by the value 
  7.15  of time factor.  The time-adjusted price is the total time value 
  7.16  plus the design-build price. 
  7.17     (c) The commissioner shall use one of two methods to 
  7.18  establish a best value selection: 
  7.19     (1) For an adjusted score selection, the commissioner shall 
  7.20  divide each responder's price, or time-adjusted price if 
  7.21  applicable, by the technical score assigned by the technical 
  7.22  review committee.  The commissioner shall award the contract to 
  7.23  the responder with the lowest adjusted score. 
  7.24     (2) For a scored selection, the commissioner shall give the 
  7.25  lowest cost proposal the full number of price points defined in 
  7.26  the request for proposals.  The commissioner shall award each of 
  7.27  the other proposals a percentage of the price points based on a 
  7.28  ratio of the lowest price divided by the responder's price.  The 
  7.29  commissioner shall add the technical score and price score and 
  7.30  award the contract to the responder with the highest total score.
  7.31     Subd. 3.  [REJECTION.] The commissioner may reject any or 
  7.32  all responses. 
  7.33     Sec. 8.  [161.61] [SELECTING AND AWARDING DESIGN-BUILD 
  7.34  CONTRACTS.] 
  7.35     Subdivision 1.  [STIPENDS.] (a) This subdivision applies 
  7.36  only to design-build contracts where the commissioner has 
  8.1   prequalified the responders.  The commissioner shall award a 
  8.2   stipend to each short-listed responder, as identified in section 
  8.3   161.56, subdivision 6, that provides a responsive but 
  8.4   unsuccessful proposal.  If a contract is not awarded, the 
  8.5   commissioner shall award a stipend to each short-listed 
  8.6   responder.  If the commissioner cancels the contract before 
  8.7   reviewing the technical proposals, the commissioner shall award 
  8.8   each short-listed responder a stipend.  The commissioner shall 
  8.9   not award a stipend to a responder that withdraws its proposal. 
  8.10     (b) In consideration for paying the stipend, the 
  8.11  commissioner shall have the unlimited right to use any ideas, 
  8.12  technical solutions, design concepts, or information contained 
  8.13  in the proposals without any obligation to pay any additional 
  8.14  compensation to the unsuccessful responders. 
  8.15     (c) Notwithstanding paragraphs (a) and (b), an 
  8.16  unsuccessful, short-listed responder may elect to waive the 
  8.17  stipend.  If an unsuccessful, short-listed responder elects to 
  8.18  waive the stipend, the commissioner may not use any ideas, 
  8.19  technical solutions, design concepts, or information contained 
  8.20  in that responder's proposal. 
  8.21     Subd. 2.  [WITHDRAWING PROPOSALS.] A responder may withdraw 
  8.22  its proposal at any time for any reason before award by the 
  8.23  commissioner. 
  8.24     Subd. 3.  [NOTICE OF AWARD.] The commissioner shall send 
  8.25  written notice of award to the responder that submitted the 
  8.26  awarded proposal.  At the same time notice of award is sent, the 
  8.27  commissioner shall also inform, in writing, the other responders 
  8.28  that their proposals were not selected. 
  8.29     Sec. 9.  [EFFECTIVE DATE.] 
  8.30     Sections 1 to 8 are effective the day following final 
  8.31  enactment.