2002 Minnesota Statutes

     16C.31 Design-build contracts. 

    Subdivision 1.    General authority.  (a) 
 Notwithstanding section 16C.03, subdivision 3, the commissioner 
 may solicit and award a design-build contract between the 
 commissioner and a design-builder utilizing the competitive 
 acquisition process described in subdivisions 5 through 9 if the 
 commissioner meets the conditions in paragraph (b).  A 
 design-build contract may provide the architectural, 
 engineering, and related design services as well as the labor, 
 materials, supplies, equipment, and construction services for a 
 project.  A design-build contract may include telecommunications 
 cabling but must not include acquisition of personal property 
 related to the operations of the occupants.  The commissioner 
 may make changes to the project without invalidating the 
 design-build contract. 

    (b) The commissioner shall, for each project for which the 
 commissioner intends to use the design-build method, make a 
 written determination that it is in the best interest of the 
 state to use the design-build method to complete the project.  
 In making this determination, the commissioner shall use the 
 following criteria as the minimum basis for the determination: 

    (1) the extent to which the project requirements can be 
 adequately defined in a request for proposal before completing 
 the design process; 

    (2) the suitability of the delivery method with respect to 
 scope, schedule, cost, and quality factors; 

    (3) the suitability of the delivery method to minimize 
 life-cycle costs to the extent available within the project 
 budget; 

    (4) the suitability of the delivery method to efficiently 
 achieve functionality requirements; 

    (5) the impact of the project schedule on the agency's 
 delivery of services and project cost; 

    (6) the resources of the department of administration to 
 manage the project through employment of experienced personnel 
 or hiring of consultants; 

    (7) the resources of the department of administration to 
 oversee the project with persons who are familiar and 
 experienced with the design-build method of project delivery or 
 similar experience; and 

    (8) other criteria that the commissioner deems relevant and 
 that are included in the written determination. 

    (c) The authority and duties prescribed for the board, the 
 commissioner, and department of administration under this 
 section are granted to and must be performed by the board of 
 regents of the University of Minnesota and the board of trustees 
 of the Minnesota state colleges and universities on projects 
 under their control. 

    Subd. 2.    Licensing requirements.  (a) Each 
 design-builder shall be, employ, or have as a partner, member, 
 coventurer, or subcontractor, persons duly licensed, certified, 
 or 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 that the 
 design-builder is not itself licensed, certified, registered, or 
 qualified to perform, so long as the design-builder provides the 
 services through subcontracts with duly licensed, certified, or 
 registered, or otherwise qualified persons in accordance with 
 this section. 

    (c) Nothing in this section authorizing design-build 
 contracts is intended to limit or eliminate the responsibility 
 or liability owed by a professional on a design-build project to 
 the state or other third parties under existing law.  The design 
 service portion of a design-build contract is considered a 
 service and not a product. 

    Subd. 3.    University of Minnesota and Minnesota state 
 colleges and universities selection process.  (a) The board of 
 regents of the University of Minnesota and the board of trustees 
 of the Minnesota state colleges and universities shall select 
 design-builders for all design-build projects under their 
 supervision and control and funded by the state following the 
 procedures and performing the duties prescribed for the board 
 and commissioner in subdivisions 5 through 9.  The board of 
 regents and the board of trustees shall either use the board or 
 establish an evaluation team of at least seven persons to 
 evaluate and recommend design-builders under this section to 
 include three persons selected as provided in paragraph (b).  
 The final selection must be made by the board of regents or the 
 board of trustees. 

    (b) Upon written request from the board of regents or the 
 board of trustees, each of the following three organizations 
 shall nominate one individual whose name and qualifications must 
 be submitted to the board of trustees for consideration:  the 
 Consulting Engineers Council of Minnesota after consultation 
 with other professional engineering societies in the state; the 
 AIA Minnesota; and the Minnesota chapter of the Associated 
 General Contractors after consultation with other commercial 
 contractor associations in the state.  The board of regents or 
 the board of trustees may appoint the three named individuals to 
 the evaluation team or reject a nominated individual and request 
 another nomination.  The board of regents or the board of 
 trustees shall determine the term of the appointment.  The other 
 members of the evaluation team must be representatives of the 
 University of Minnesota or the Minnesota state colleges and 
 universities.  The interviews are public meetings and a video or 
 audio recording of the meetings must be made and is public 
 information.  The final recommendations and rankings must be in 
 writing. 

    Subd. 4.    Development of design criteria.  (a) Each 
 request for proposals for a design-build contract must contain 
 design criteria prepared by a design criteria professional who 
 holds licenses or certifications under sections 326.02 to 326.15 
 and is either an employee of the state, the University of 
 Minnesota, or a consultant hired by the commissioner.  If the 
 design criteria professional is a consultant hired by the state, 
 the licensure requirement may be met by employing individuals 
 who hold a license or licenses under sections 326.02 to 326.15.  
 The commissioner may elect to designate the board to select the 
 consultant in compliance with section 16B.33.  

    (b) Design criteria set forth in the request for proposals 
 must specify all information needed to adequately describe the 
 project, including performance-based criteria such as 
 sustainability and life-cycle costing requirements; interior 
 space requirements, including adjacency diagrams; material 
 quality standards; architectural image and building form 
 standards; building air quality requirements; commissioning 
 requirements; building burn-in requirements; cost estimates; 
 design and construction schedules; site development 
 requirements; utility requirements; storm water retention and 
 disposal requirements; and parking requirements.  If necessary 
 to adequately describe the project, the design criteria must 
 include a boundary and topographic survey of the site, with the 
 legal description and geotechnical and environmental information 
 concerning the site.  

    (c) There must be an owner's representative for each 
 design-build project.  The owner's representative must be either 
 an employee of the state, University of Minnesota, or a 
 consultant hired by the commissioner.  Subject to the minimum 
 requirements of paragraphs (a) and (b), the commissioner, in 
 consultation with the agency, the owner's representative, and 
 the design criteria professional, shall determine the scope and 
 level of detail required for the design criteria to be included 
 in the request for proposals. 

    Subd. 5.    Solicitation of proposals.  (a) The 
 commissioner shall prepare a request for proposals, which must 
 contain, at a minimum, the following elements: 

    (1) the identity of the agency that will utilize the 
 completed project; 

    (2) the procedures for submitting proposals, the criteria 
 for evaluation of proposals and their relative weight for each 
 phase, how those criteria will be scored, and the procedures for 
 making awards; 

    (3) the terms and conditions for the design-build contract; 

    (4) the design criteria; 

    (5) the qualifications the design builder will be required 
 to have; 

    (6) a request for a critical path method schedule for 
 commencement and completion of the project; 

    (7) budget limits for the project; 

    (8) affirmative action, disadvantaged businesses, small 
 business, or set-aside goals or requirements for the 
 design-build contract; 

    (9) requirements for insurance, performance and payment 
 bonds, bid bonds, and cash deposits; 

    (10) a description of the drawings, specifications, or 
 other submittals to be submitted with the phase-two proposal, 
 with guidance as to the form and level of completeness of the 
 drawings, specifications, or submittals that will be acceptable; 

    (11) the professional and technical services contract to be 
 entered into with the design-builders selected to submit 
 phase-two proposals, including scope of work, use of ideas or 
 information, and compensation; and 

    (12) identification of any other material information 
 available from the commissioner or board, including, without 
 limitation, surveys, soils reports, drawings or models of 
 existing structures, environmental studies, photographs, or 
 references to public records. 

    (b) The solicitation of request for proposals does not 
 obligate the commissioner to enter into a design-build 
 contract.  In accordance with the stated criteria for evaluating 
 proposals, the commissioner may accept or reject any or all 
 proposals received as a result of the request.  The notification 
 of rejection of all proposals must include an explanation for 
 all proposals being rejected.  The solicitation for proposals 
 may be canceled at any time in the commissioner's sole 
 discretion if it is considered to be in the state's best 
 interest.  If the commissioner rejects all proposals or cancels 
 the solicitation for proposals, the commissioner may resolicit a 
 request for proposals using the same or different requirements 
 or request the board to select a designer under section 16B.33 
 and proceed with the design-bid-build delivery method. 

    Subd. 6.    Qualification; phase-one submittal.  (a) In 
 phase one, the board and commissioner shall evaluate the 
 design-build qualifications of the design-builders who responded 
 to the request for proposals with phase-one submittals based on 
 each design-builder's experience, technical competence, and 
 capability to perform; the past performance of the 
 design-builder and its employees, quality control organization 
 and system, sustainability, and life-cycle costing methodology; 
 and other appropriate facts submitted by each design-builder in 
 response to the request for proposals all in accordance with the 
 weighted criteria that are stated for phase-one evaluations in 
 the request for proposals.  The phase-one or phase-two 
 evaluation of the "past performance" or "experience" of a 
 proposer must not include the exercise or assertion of a 
 person's legal rights.  The board or commissioner may require 
 clarifications from design-builders. 

    (b) If the project is within the capitol area, the capitol 
 area architecture and planning board, as defined in section 
 15.50, shall participate in the evaluation of phase-one 
 submittals. 

    (c) The board shall select to a short list the most 
 qualified design-builders that have responded with phase-one 
 submittals based on the weighted criteria for phase-one 
 evaluations stated in the request for proposals.  For projects 
 involving only renovation, in the discretion of the 
 commissioner, the design-builder may be selected only on the 
 phase-one submissions, or after a phase-two submission.  For all 
 other projects, the board shall prepare a list of at least three 
 potential design-builders to submit phase-two proposals.  The 
 board shall not proceed to obtain phase-two proposals or make a 
 selection, as applicable, unless it receives phase-one 
 submittals from at least three qualified design-builders.  If 
 the board receives fewer than three phase-one submittals from 
 qualified design-builders, the commissioner may cancel the 
 solicitation for proposals, revise the request for proposals, 
 and solicit new proposals or request the board to select a 
 designer under section 16B.33 and proceed with the 
 design-bid-build delivery method. 

    (d) The commissioner shall enter into the professional and 
 technical services contract included in the request for 
 proposals with each of the design-builders qualified by the 
 board to submit phase-two proposals. 

    Subd. 7.    Phase-two proposals.  (a) The professional 
 and technical services contract with the design-builders 
 selected to submit phase-two proposals provided in the request 
 for proposals must require at least the following: 

    (1) preliminary plans and specifications, renderings, and 
 models as may be required in the request for proposals in 
 sufficient detail, to describe the character, quality, and scope 
 of the project; 

    (2) a design and construction schedule; 

    (3) the all-inclusive fixed price at which the 
 design-builder will complete the project if the phase-two 
 proposal is accepted, including a total development cost budget 
 in detail by building component with all soft costs, allowances, 
 and design fees; and 

    (4) other materials the board or commissioner determines 
 are necessary to fix the design, schedule, and cost of the 
 project. 

    (b) Phase-two proposals must be sealed and may not be 
 opened until expiration of the time established for making 
 proposals as set forth in the request for proposals. 

    (c) Phase-two proposals must identify each person with whom 
 the design-builder proposes to enter into subcontracts for 
 primary design and construction obligations under the 
 design-build contract.  Persons so identified may not be 
 replaced without the approval of the commissioner, or the award 
 may be revoked. 

    (d) The design-builder must submit a written statement that 
 the phase-two proposal meets all requirements of the request for 
 proposals. 

    (e) The commissioner may require each design-builder to 
 submit with its phase-one or phase-two proposal, as applicable, 
 a cash deposit or bid bond in the amount of five percent of the 
 budget for the design-build contract.  If the phase-one or 
 phase-two proposal, as applicable, is accepted but the 
 design-builder fails to execute the design-build contract, the 
 deposit or bond is forfeited to the extent allowable under law, 
 including the cost to the state of delays, resolicitation, and 
 other results of the failure of the selected design-builder to 
 enter into the design-build contract. 

    Subd. 8.    Stipulated fee.  The commissioner may award 
 a stipulated fee not less than two-tenths of one percent of the 
 department's estimated cost of design and construction to each 
 short-listed, responsible proposer who provides a responsive but 
 unsuccessful proposal.  If the commissioner does not award a 
 contract, all short-listed proposers may receive the stipulated 
 fee.  If the commissioner cancels the contract before reviewing 
 the technical proposals, the commissioner may award each 
 design-builder on the short list a stipulated fee of not less 
 than two-tenths of one percent of the commissioner's estimated 
 cost of design and construction.  The commissioner shall pay the 
 stipulated fee, if any, to each proposer within 90 days after 
 the award of the contract or the decision not to award a 
 contract.  In consideration for paying the stipulated fee, the 
 commissioner may use any ideas or information contained in the 
 proposals in connection with any contract awarded for the 
 project or in connection with a subsequent procurement, without 
 any obligation to pay any additional compensation to the 
 unsuccessful proposers.  Notwithstanding the other provisions of 
 this subdivision, an unsuccessful short-list proposer may elect 
 to waive the stipulated fee.  If an unsuccessful short-list 
 proposer elects to waive the stipulated fee, the commissioner 
 may not use ideas and information contained in that proposer's 
 proposal.  Upon the request of the commissioner, a proposer who 
 waived a stipulated fee may withdraw the waiver, in which case 
 the commissioner shall pay the stipulated fee, if any, to the 
 proposer and thereafter may use ideas and information in the 
 proposer's proposal. 

    Subd. 9.    Design-builder selection.  (a) After 
 obtaining and evaluating proposals from each design-builder 
 according to the criteria and procedures in the request for 
 proposals, the board shall rank the phase-one or phase-two 
 proposals, as applicable, and select the proposal that is rated 
 the highest based on the weighted evaluation criteria in the 
 request for proposal.  The board or commissioner may require 
 clarifications from design-builders during the evaluation 
 process.  Selection according to this method may result in an 
 award not being made to the lowest cost proposal. 

    (b) If the project is within the capitol area, the capitol 
 area architectural and planning board shall participate in the 
 evaluation of phase-two proposals. 

    Subd. 10.    Award of design-build contract.  If the 
 commissioner decides not to reject all proposals, the 
 commissioner shall award and enter into the design-build 
 contract with the design-builder that submitted the phase-one or 
 phase-two proposal, as applicable, rated highest based on the 
 weighted evaluation criteria as evaluated under the request for 
 qualifications or request for proposals as applicable. 

    Subd. 11.    Expiration.  This section expires January 
 1, 2004. 

    HIST: 2002 c 393 s 41