2007 Minnesota Statutes

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 3, paragraph (a). 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 qualifications-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 qualifications-based selection process. In a design-build
qualifications-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-builder's 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.
History: 2005 c 78 s 7; 2006 c 212 art 3 s 1