HB3289 100TH GENERAL ASSEMBLY

LRB100 10503 MLM 20718 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3289

Introduced , by Rep. Jay Hoffman

SYNOPSIS AS INTRODUCED:

New Act

Creates the Innovative Project Delivery Act. Sets forth provisions for the procurement of certain design-build and other services under either a single-phase or 2-phase selection process. Sets forth qualification and prequalification procedures. Sets forth various requirements concerning procurement under either selection process. Sets forth disclosure requirements and protest requirements. Requires the application of the Act to certain subcontracts.

A BILL FOR

AN ACT concerning finance.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Innovative Project Delivery Act.

Section 5. Purposes. The purposes of this Act include:

(1) Authorizing agencies to use the construction-manager-at-risk, and design-build project delivery methods in addition to their existing authority to use the design-bid-build project delivery method.

(2) Authorizing agencies to select contractors to perform design-build construction services using qualifications based selection or a combination of qualifications based selection and best-value selection and to select contractors to perform construction-manager-at-risk construction services using qualifications based selection.

(3) Authorizing agencies to use 2 selection processes:

(A) Single-phase (one-step) selection to select contractors for construction-manager-at-risk and design-build construction services. This procurement process consists of an agency issuing a request for qualifications, offerors making qualifications submissions, interviews of selected offerors if the agency elects to conduct interviews, and qualifications-based selection of the winning offeror.

(B) Two-phase (2-step) selection to select contractors for design-build or job-order-contacting construction services. In this procurement process, the first step consists of agency issuance of a request for qualifications, qualifications submissions, interviews of selected offerors if the agency elects to conduct interviews, and qualifications-based selection of a final list of offerors. The second step consists of agency issuance of a request for proposals to the offerors on the final list, submissions of proposals, and best-value selection of the winning offeror.

Section 10. Definitions. As used in this Act:

"Agency" means the State, any agency, board or commission of the State, any State university, any State college, any community college or community college district, any school district, any county, city or town, or board or commission of any county, city or town, and any special taxing district, including, without limitation, any irrigation, power, electrical, drainage, flood protection or flood control district, any tax levying public improvement district, and any county or city improvement districts.

"Best-value selection" means a selection process in which proposals contain both price and qualitative components and award is based upon a combination of price and qualitative factors.

"Construction" means the process of improving real property through physically altering its state or adding improvements to the real property to meet an intended need.

"Construction-manager-at-risk" means a project delivery method in which:

(A) The agency contracts with one individual or entity for design services and contracts with a different individual or entity for construction services.

(B) The agency may contract for construction services at the same time as the agency contracts for design services or at a later time.

(C) Design and construction of the project may be either:

(i) Sequential with the entire design complete before construction commences.

(ii) Concurrent with the design produced in 2 or more phases and construction of some phases commencing before the entire design is complete.

(D) Finance services, maintenance services, operations services, preconstruction services, and other related services may be included.

(E) Selection is a single-phase (one-step) selection process using qualifications-based selection.

"Construction services" means either of the following for construction-manager-at-risk and design-build and project delivery methods:

(A) Construction, excluding services, through the construction-manager-at-risk project delivery method.

(B) A combination of construction and, as elected by the agency, one or more related services, such as finance services, maintenance services, operations services, design services, and preconstruction services, as those services are authorized in the definitions of construction manager-at-risk or design-build.

"Contractor" means an individual or an entity that contracts with an agency to provide construction services under this Act.

"Design-build" means a project delivery method in which:

(A) The agency contracts with a single individual or entity for both design services and construction services.

(B) Design and construction of the project may be either:

(i) Sequential with the entire design complete before construction commences.

(ii) Concurrent with the design produced in 2 or more phases and construction of some phases commencing before the entire design is complete.

(C) Finance services, maintenance services, operations services, design services, preconstruction services, and other related services may be included.

(D) Selection is either a single-phase (one-step) selection using qualifications-based selection or a 2-phase (2-step) selection using qualifications-based selection in the first phase and using best-value selection in the second phase.

"Design-builder" means an entity that desires to provide or contracts with an agency to provide design-build construction services. Qualified design-builders must have employees certified in Design-Build by the Design-Build Institute of America or any other national design-build accreditation program.

"Design professional" means an individual or entity properly licensed or authorized in this State to perform architectural, engineering, landscape architectural, or other regulated design services.

"Maintenance services" means routine maintenance, repair, and replacement of existing facilities, structures, buildings, or real property.

"Offeror" means an individual or entity responding to a request for qualifications or a request for proposals issued by an agency.

"Operations services" means routine operation of facilities, structures, buildings, or real property in accordance with the contract specifications including, without limitation, provision of any needed personnel and equipment.

"Performance specification" means a specification expressed in terms of an expected outcome or acceptable performance standard.

"Preconstruction services" means services as determined by the agency to be rendered by the construction contractor during the design phase to assist in development of the design, the schedule, costs, and price. "Preconstruction services" may include estimating, cost models, scheduling, value engineering, and constructability review and other technical consulting services phase.

"Price proposal" means that portion of a proposal that stipulates the price at which the offeror will provide the requested construction services. The price proposal is one part of an offeror's proposal submitted in response to the request for proposals in the second phase (second step) of a 2-phase (two-step) selection.

"Proposal" means the written documentation submitted by an offeror in response to a request for proposals in the second phase (second step) of a 2-phase (2-step) selection. The proposal includes a qualitative and technical proposal and a separate price proposal.

"Qualifications-based selection" means a form of procurement selection based solely upon the qualifications and demonstrated competence of the offerors. Price is not a factor in the selection.

"Qualifications submission" means a written submission by an offeror in response to a request for qualifications describing the qualifications of the offeror. This submission is made in a single-phase (one-step) selection or in the first phase (first step) of a 2-phase (2-step) selection.

"Qualitative and technical proposal" means that portion of an offeror's proposal that describes the offeror's qualifications to perform the construction services and, in a proposal for design-build construction services, also contains the offeror's technical proposal concerning schedule and design. The qualitative and technical proposal is one part of an offeror's proposal submitted in response to the request for proposals in the second phase (second step) of a 2-phase (2-step) selection.

"Single-phase (one-step) selection" means a procurement process that consists of an agency issuing a request for qualifications, offerors making qualifications submissions, interviews of selected offerors, if the agency elects to conduct interviews, and qualifications based selection of the winning offeror, as provided in Section 30 of this Act.

"Stipend" means an award by an agency to an unsuccessful offeror in a design-build request for proposals competition as provided in Section 30 of this Act.

"2-phase (2-step) selection" means a procurement process in which the first phase (first step) consists of issuance of a request for qualifications, qualifications submissions, interviews of selected offerors, if the agency elects to conduct interviews, and qualifications-based selection of a final list of offerors. The second phase (second step) consists of the issuance of a request for proposals to offerors on the final list, submissions of proposals, and best-value selection of the winning offeror, all as provided in Section 30 of this Act.

Section 15. Authorization.

(a) Notwithstanding any other law or procedure governing the procurement of construction, an agency is authorized to procure construction services to be performed under the construction-management-at-risk, and design-build project delivery methods in accordance with the requirements in this Act and subject to the following:

(1) The agency shall, prior to issuing any request for qualifications or any request for proposals, adopt rules consistent with this Act for the procurement of contracts for construction services and shall adhere to this Act and those procedures.

(2) The agency is required to comply with the requirements of other laws governing public construction contracts only to the extent compatible with use of the design-build and construction-management-at risk project delivery methods and with the provisions of this Act.

(b) The rules adopted by the agency under paragraph (1) of subsection (a) of this Section shall include, at a minimum, the following:

(1) The procedure to select or designate a performance specification developer and prepare the performance specification, consistent with comparable State procedures.

(2) The procedures for the preparation and contents of requests for qualifications.

(3) The procedures for the preparation and contents of requests for proposals.

(4) The procedure and standards to be used to prequalify design-builders for participation in a procurement of design-build construction services under this Act.

(5) The procedures for preparing and submitting qualifications submissions and proposals.

(6) The procedures for evaluating qualifications submissions and proposals.

(7) The procedures for discussions between the agency and offerors in the second phase (second step) of a 2-phase (2-step) selection as provided in Section 30 of this Act. The procedure shall contain safeguards to prevent disclosure of information included in an offeror's preliminary qualifications and technical proposal that an offeror has requested be kept confidential because it contains trade secrets or other proprietary information and the agency has agreed to keep confidential and to prevent disclosure to competing offerors of information derived from an offeror's preliminary qualitative and technical proposal. The procedures shall also contain safeguards to prevent price or any element of price from being included in any preliminary qualitative and technical proposal and from being any part of the discussions.

(8) The procedures for awarding and executing construction-manager-at-risk and design-build.

(9) The procedures for awarding construction-manager-at-risk and design-build in the event of public emergencies.

(10) The procedures for acting on formal protests relating to the solicitation or award of construction-manager-at-risk and design-build.

Section 20. Design-builder minimum qualifications; prequalifications; rights.

(a) An agency may elect to conduct a prequalification process to assure that each design-builder making a submission in a design-build construction services procurement under this Act has the minimum qualification set forth in this Section. If an agency does this, only design-builders determined by the agency as satisfying the minimum qualifications shall be permitted to make submissions in the procurement. Regardless of whether an agency conducts a prequalification process, each design-builder shall have, at a minimum, the following qualifications:

(1) Each design-builder shall be duly licensed and registered to do business in this State as an architect, an engineer, and a general contractor.

(2) To the extent a design builder is not duly licensed and registered to do business in this State as an architect, an engineer, and a general contractor, the design builder shall have a contract with an architect, an engineer, or a general contractor duly licensed and registered in this State to perform the architectural, engineering, or construction, respectively.

(3) The contractor for construction-manager-at-risk construction services construction services shall be licensed to perform construction in the State.

(4) For each project under a construction-manager-at-risk construction services contract, the licensed contractor performing the contract shall perform, with the contractor's own organization, construction work that amounts to not more than 40% of the total contract price for construction. For the purposes of this paragraph (4), the total contract price for construction does not include the cost of preconstruction services, design services, or any other related services or the cost to procure any right-of-way or other cost of condemnation.

(b) Each design-builder shall have the following rights and powers:

(1) As long the design-builder satisfies the requirements in this Section, the design-builder may have any organizational structure it elects including, without limitation, an individual or entity possessing design and construction resources in-house, a joint venture between a designer and a contractor, a contractor-led team with the designer in a subcontractor role or a designer-led team with the constructor in a subcontractor role.

(2) The design-builder may subcontract design services to individuals or entities duly licensed and registered to provide design services in this State.

(3) The design-builder may contract with the agency to provide design services, construction or other services that the design-builder is not itself licensed, registered, or otherwise qualified to perform, subject to any statutory limits applicable to the agency on types and amounts of design services, construction, or other services the agency is permitted to perform for itself.

Section 25. Development of performance specifications.

(a) The design requirements in each request for proposals for design-build construction services shall contain a performance specification prepared by a design professional who is the performance specification developer. This performance specification developer shall be disqualified from submitting a proposal to enter into the design-build contract and the design-builder shall not be permitted to delegate services under the design-build contract to the performance specification developer.

(b) The performance specification developer shall be either an employee of the agency or the agency to the extent allowed by law may procure the development of specific aspects of the performance specification from other consultants.

(c) The agency, in consultation with the performance specification developer, shall determine the scope and level of detail required for the performance specification. The performance specification should be detailed enough to permit qualified individuals and entities to submit proposals in accordance with the request for proposals, given the nature of the public project and the level of design to be provided in the proposal.

Section 30. Procurement process.

(a) In a procurement of construction-manager-at-risk or design-build construction services pursuant to this Section:

(1) The following requirements apply:

(A) The agency and the selection committee shall not request or consider fees, price, man-hours, or any other cost information at any point in the selection process under this subsection (a), including, without limitation, the selection of offerors to be interviewed, the selection of offerors to be on the final list, in determining the order of preference of offerors on the final list or for any other purpose in the selection process in this subsection (a).

(B) In determining the offerors to participate in any interviews and in determining the offerors to be on the final list and their order on the final list, the selection committee shall use and shall consider only the criteria and weighting of criteria specified by the agency for that purpose as provided in this subsection (a). No other factors or criteria may be used in the evaluation, determinations and other actions.

(C) The agency may elect not to use a single contract for construction-manager-at-risk or design-build construction services to be awarded in a single-phase (one-step) selection and contracted for under subsection (e) of Section 30 of this Act and the agency may elect separate contracts with the single contractor for preconstruction services during the design phase, for construction during the construction phase, and for any other construction services included in the request for qualifications.

(D) Once the agency enters into the first contract with an offeror for preconstruction services or other construction services as the result of a procurement, the procurement under this Section ends. After execution of that first contract the agency may not use the procurement or the existing final list in the procurement as the basis for entering into a contract with any other offeror that participated in the procurement.

(E) Notwithstanding any other provision of this Section specifying the number of offerors to be interviewed, the number of offerors to be on a final list, or any other numerical specification as to the number of offerors participating in the selection process in this Section:

(i) If a smaller number of offerors respond to the request for qualifications or if one or more offerors drop out of the procurement so that there is a smaller number of offerors participating in the procurement, the agency may elect to proceed with the procurement with the participating offerors if there are at least two participating responsive and responsible offerors. Alternatively, the agency may elect to terminate the procurement.

(ii) As to a request for qualifications for construction services to be negotiated pursuant to subsection (c) of this Section only, if only one responsive and responsible offeror responds to the request for qualifications or, if one or more offerors drop out of the procurement so that only one responsive and responsible offeror remains in the procurement, the agency may elect to proceed with the procurement with only one offeror if the agency determines in writing that the fee negotiated pursuant to subsection (c) of this Section is fair and reasonable and that either other prospective offerors had reasonable opportunity to respond or there is not adequate time for a re-solicitation.

(iii) If an offeror on the final list withdraws or is removed from the procurement and the selection committee determines that it is in the best interest of the agency, the selection committee may replace that offeror on the final list with another offeror that submitted qualifications in the procurement and that is selected by the selection committee as the next most qualified offeror.

(2) An agency shall issue a request for qualifications for each procurement and publish notice of the request for qualifications. This notice shall be published by advertising in a newspaper of general circulation in the county in which the agency is located for 2 consecutive publications if it is a weekly newspaper or for 2 publications that are at least 6 but no more than 10 days apart if it is a daily newspaper. The request for qualifications shall:

(A) State that one contract may or will be awarded, describe the construction services to be performed under the contract and state that one offeror may or will be awarded the contract.

(B) In a procurement of a contract to be negotiated under subsection (d) of this Section, state that there will be a single final list of at least 3 and not more than 5 offerors. In a procurement in which the contract will be awarded under subsection (e) of this Section, state that there will be a single final list and that the number of offerors on the final list will be 3.

(C) As prescribed below, state the selection criteria and relative weight of the selection criteria to be used by the selection committee. One of the criteria shall be the offeror's subcontractor selection plan or procedures to implement the agency's subcontractor selection plan. All selection criteria under this subparagraph (C) shall be factors that demonstrate competence and qualifications for the type of construction services included in the procurement. If:

(i) Interviews will be held, the request for qualifications shall state the selection criteria and relative weight of the selection criteria to be used in selecting the offerors to be interviewed and the request for qualifications may state the selection criteria and relative weight of the selection criteria to be used in selecting the offerors on the final list and in determining their order on the final list. The final list selection criteria and relative weights may be different than the selection criteria and relative weights used to determine the offerors to be interviewed. The request for qualifications shall also state whether the agency will select the offerors on the final list and their order on the final list solely through the results of the interview process or through the combined results of both the interview process and the evaluation of qualifications submissions submitted in response to the agency's request for qualifications.

(ii) Interviews will not be held, the request for qualifications shall state the selection criteria and relative weight of the selection criteria to be used in selecting the offerors on the final list and in determining their order on the final list.

(D) Include either:

(i) A requirement that each offeror submit a proposed subcontractor selection plan and a requirement that the proposed subcontractor selection plan must select subcontractors based on qualifications alone or on a combination of qualifications and price and shall not select subcontractors based on price alone.

(ii) A subcontractor selection plan adopted by the agency that applies to the offeror that is selected to perform the construction services and that requires subcontractors to be selected based on qualifications alone or on a combination of qualifications and price and not based on price alone and a requirement that each offeror must submit a description of the procedures it proposes to use to implement the agency's subcontractor selection plan.

(E) Include information about the protest policy and procedures applicable to the procurement:

(i) If the agency has a procurement protest policy and procedures that have been formally adopted and published by the agency for protests relating to procurements under this Section, the agency shall include a description of the publicly available location of the agency's protest policy and procedures.

(ii) If the agency does not have a procurement protest policy and procedures that have been formally adopted and published by the agency for protests relating to procurements under this Section, the agency shall include in the request for qualifications:

(I) A statement that the agency will follow the procurement protest policy and procedures of consistent with the Department of Central Management Services; and

(II) A description of the publicly available location of the Department of Central Management Services protest policy and procedures.

(F) In a procurement of design-build or construction-manager-at-risk construction services to be performed at multiple locations, include:

(i) A brief description of the construction services to be performed at each location.

(ii) The estimated budget for the construction services to be performed at each location.

(iii) A schedule for the construction services to be performed at each location that shows the agency's intent to commence all construction at each location within 30 months after execution of the first contract for preconstruction services or other construction services at any of the locations.

(3) An agency shall initiate an appropriately-qualified selection committee for each request for qualifications. The agency shall ensure that the selection committee members are competent to serve on the selection committee. Each selection committee must include one employee of the agency or an agency representative who is appointed by the agency. The selection committee shall not have more than 7 members, except that, if the contract involves the agency and additional governmental or private participants, the number of members of the selection committee shall be increased by one for each additional participant, except that the maximum number of members of the selection committee is 9. The selection committee shall include at least 2 of the following professionals (1) a licensed construction contractor; (2) a licensed architect or (3) a professional engineer. These members may be employees of the agency or outside consultants. A person who is a member of a selection committee shall not be a contractor under a contract awarded under the procurement or provide any design services, construction, construction services, equipment, materials or other services under the contract to be awarded in the procurement. The selection committee and the agency shall do the following:

(A) If interviews are specified in the request for qualifications:

(i) The selection committee shall determine the offerors to be interviewed by evaluating the qualifications submissions that are submitted in response to the agency's request for qualifications based only on the selection criteria and relative weight of the selection criteria stated in the request for qualifications to be used to determine the offerors to be interviewed. Promptly after determining the list of offerors to be interviewed, the agency shall send actual notice to all other offerors that they are not on the interview list or that others are on the interview list.

(ii) If the selection criteria and relative weight of the selection criteria to be used by the selection committee to select the offerors on the final list and to determine their order on the final list are not included in the request for qualifications, before the interviews are held the agency shall distribute to the offerors to be interviewed the selection criteria and relative weight of the selection criteria to be used to select the offerors on the final list and to determine their order on the final list. These selection criteria and relative weight may be different than the selection criteria and relative weight used to determine the offerors to be interviewed.

(iii) The selection committee shall conduct interviews with the number of offerors to be interviewed as stated in the request for qualifications regarding the construction services and the relative methods of approach for furnishing the requested construction services.

(B) Based only on the selection criteria and relative weight of the selection criteria specified as provided in this subsection (a) for selection of the offerors on the final list and their order on the final list, the selection committee shall select the offerors for the final list and, in the case of a final list for a contract that will be negotiated under subsection (c) of this Section, rank the offerors on the final list in order of preference.

(C) The agency shall notify each offeror on the final list that it is on the final list and, if the contract will be negotiated under subsection (c), its rank on the final list. Before or at the same time as the agency notifies the final list offerors, the agency shall send actual notice to each of the following that it is not on the final list or that other offerors are on the final list.

(i) If interviews were held, the offerors interviewed and not included in the final list.

(ii) If interviews were not held, all offerors that made qualifications submissions and not included in the final list.

(b) An agency shall award the single contract under the procurement to a single offeror as provided in subsections (d) or (e) of this Section.

(c) The agency shall conduct negotiations with offerors on the final list as follows:

(1) The procurement is for a single contract for construction services and there is one final list.

(2) The negotiations shall include consideration of compensation and other contract terms that the agency determines to be fair and reasonable to the agency. In making this decision, the agency shall take into account the estimated value, the scope, the complexity and the nature of the construction services to be rendered.

(3) The agency shall enter into negotiations with the highest qualified offeror on the final list.

(4) If the agency is not able to negotiate a satisfactory contract with the highest qualified offeror on the final list, at compensation and on other contract terms the agency determines to be fair and reasonable to the agency, the agency shall formally terminate negotiations with that offeror. The agency may then undertake negotiations with the next most qualified offeror on the final list in sequence until an agreement is reached or a determination is made to reject all offerors on the final list.

(5) If in a procurement under this Section the agency terminates negotiations with an offeror on the final list and commences negotiations with another offeror on the final list, the agency shall not in that procurement recommence negotiations or enter into a contract for the construction services covered by the final list with any offeror on the final list with whom the agency has terminated negotiations.

(d) As an alternative to subsection (c) of this Section, an agency may award a single contract for design-build construction services using a request for proposals process as follows:

(1) The agency shall use the selection committee appointed for the request for qualifications pursuant to paragraph (3) of subsection (a) of this Section.

(2) The agency shall issue a request for proposals to the offerors on the final list developed pursuant to paragraph (3) of subsection (a) of this Section.

(3) The request for proposals shall include:

(A) A statement that one contract may or will be awarded and that one offeror may or will be awarded the contract.

(B) A description of the construction services to be performed under the contract.

(C) For design-build construction services only:

(i) The agency's project schedule, including, start, duration and completion, and project final budget for design and construction or life cycle budget for a procurement that includes maintenance services or operations services.

(ii) The design requirements.

(iii) A statement that each offeror's price proposal must be a fixed price or a statement that each offeror's price proposal must be a guaranteed maximum price.

(D) A requirement that each offeror submit separately a qualitative and technical proposal and a price proposal and that the offeror's entire proposal is responsive to the requirements in the request for proposals.

(E) A statement that in applying the scoring method the selection committee will evaluate and score the qualitative and technical proposals before opening the price proposals.

(F) A statement that the agency will use the scoring method described in the request for proposals to determine the winning offeror.

(G) A description of the scoring method. In a request for proposals for design-build construction services, the scoring method shall be one of the following:

(i) The fixed price/highest score method is a form of best-value selection in which a fixed contract price is established by the agency and stated in the request for proposals. In the request for proposals the agency shall also specify the qualitative and technical factors to be used to score the qualitative and technical proposals and the number of points allocated to each factor. All offeror price proposals must be for the specified fixed price. The selection committee shall evaluate and score the offeror qualitative and technical proposals using the specified scoring factors and allocated numbers of points. The winner will be the responsive and responsible offeror with the highest total number of points on its qualitative and technical proposal.

(ii) The proposed price plus time factor/technical score method is a form of best-value selection in which the agency provides the value of time on a daily basis. The number of days in each offeror's proposed schedule is multiplied by the agency's daily rate and the result is added to the offeror's price to create a total. The total is divided by the offeror's qualifications and technical proposal score to determine the offeror's final score, which is a dollars of price per point rating. The responsive and responsible offeror with the lowest score wins. The agency shall include in the request for proposals the qualitative and technical factors to be used to score the qualitative and technical proposals and the number of points allocated to each factor. The selection committee shall evaluate and score the offeror qualitative and technical proposals using the specified scoring factors and allocated numbers of points. The selection committee shall not open the offerors' price proposals until after scoring the offerors' qualitative and technical proposals.

(iii) The proposed price/technical score method is a form of best-value selection in which the agency specifies in the request for proposals the qualitative and technical factors to be used to score the qualitative and technical proposals and the number of points allocated to each factor. The selection committee shall evaluate and score the offeror qualitative and technical proposals using the specified scoring factors and allocated numbers of points. The selection committee shall not open the offerors' price proposals until after scoring the offerors' qualitative and technical proposals. After evaluating and scoring the qualitative and technical proposals, each offeror's price proposal is opened and each offeror's proposed price is divided by the offeror' score on its qualitative and technical proposal to determine the offeror's final score, which is a dollars of price per-point rating. The responsive and responsible offeror with the lowest final score is the winner.

(4) In evaluating and scoring the offerors' proposals the selection committee shall use one of the four scoring methods in subparagraph (G) of paragraph (2) of subsection (d) of this Section as specified in the request for proposals.

(5) Before opening any price proposal, the selection committee shall open the final qualitative and technical proposals, evaluate the final qualitative and technical proposals and score the final qualitative and technical proposals using the scoring method in the request for proposals. No other factors or criteria may be used in the evaluation and scoring.

(6) After completion of the evaluation and scoring of all final qualitative and technical proposals, the selection committee shall open the price proposals.

(A) For the fixed price/highest score method, price is not a competitive factor, price will not be evaluated or scored and the winner will be the responsive and responsible offeror with the highest score on its qualitative and technical proposal.

(B) For the proposed price plus time factor/technical score method, the selection committee multiplies the number of days in the proposed schedule provided by each offeror by the agency's daily rate as stated in the request for proposals and the result is added to the offeror's price to create a total. The total is divided by the offeror's qualitative and technical proposal score to determine the overall score. The responsive and responsible offeror with the lowest overall score is the winner.

(C) For the proposed price/technical score method, each offeror's proposed price is divided by the offeror's qualitative and technical proposal score to determine the offeror's final score. The responsive and responsible offeror with the lowest final score is the winner.

(7) The agency shall promptly notify the winning offeror that it is the winner. Before or at the same time as the agency notifies the winning offeror that it is the winner, the agency shall send actual notice to each other offeror either that the offeror is not the winner or that another offeror is the winner.

(8) The contract or contracts file shall contain the basis on which the award is made, including at a minimum the information and documents required under subsection (f) of this Section.

(9) For design-build construction services only, the agency shall award a stipend equal to a percentage, as prescribed in the request for proposals, of the agency's project final budget for design and construction, as prescribed in the request for proposals, but not less than 0.3% of the project final budget for design and construction to each final list offeror who provides a responsive, but unsuccessful, proposal. If the agency does not award a contract, all responsive final list offerors shall receive the stipend based on the agency's project final budget for design and construction as included in the request for proposals. The agency shall pay the stipend to each offeror within 90 days after the award of the initial contract or the decision not to award a contract. In consideration for paying the stipend, the agency 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 offerors. Notwithstanding the other provisions of this paragraph (9), an offeror may elect to waive the stipend. If an offeror elects to waive the stipend, the agency may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agency from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipend.

(e) At a minimum, the agency shall retain the following for each procurement under this Section:

(1) For each request for qualifications procurement process under subsection (d) of this Section:

(A) If interviews were not held:

(i) The submittal of the offeror listed first on the final list and, if different, the submittal of the offeror with which the agency enters into a contract.

(ii) The final list.

(iii) A list of the selection criteria and relative weight of selection criteria used to select the offerors for the final list and to determine their order on the final list.

(iv) A list that contains the name of each offeror that submitted qualifications and that shows the offeror's final overall rank or score.

(v) A document or documents that show the final score or rank on each selection criteria of each offeror that made qualifications submissions and that support the final overall rankings and scores of the offerors that made qualifications submissions. At the election of the agency, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members or any other form as determined by the agency.

(B) If interviews were held:

(i) All submittals of the offeror listed first on the final list and, if different, all submittals of the offeror with which the agency enters into a contract.

(ii) The final list.

(iii) A list of the selection criteria and relative weight of selection criteria used to select the offerors for the final list and to determine their order on the final list.

(iv) A list that contains the name of each offeror that was interviewed and that shows the offeror's final overall rank or score.

(v) A document or documents that shows the final score or rank on each selection criteria of each offeror that was interviewed and that support the final overall rankings and scores of the offerors that were interviewed. At the election of the agency, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members, or any other form as determined by the agency.

(vi) A list of the selection criteria and relative weight of the selection criteria used to select the offerors for the short list to be interviewed.

(vii) A list that contains the name of each offeror that made a qualifications submission and that shows the offeror's final overall rank or score in the selection of the offerors to be on the short list to be interviewed.

(viii) A document or documents that show the final score or rank on each selection criteria of each offeror that made a qualifications submission and that support the final overall rankings and scores of the offerors that made qualifications submissions in the selection of the offerors to be on the short list to be interviewed. At the election of the agency, this documentation may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for the individual selection committee members or any other form as determined by the agency.

(2) For each request for proposals procurement process under subsection (d) of this Section:

(A) The entire proposal submitted by the winning offeror and, if different, the entire proposal submitted by the offeror with which the agency enters into a contract.

(B) The description of the scoring method, the list of factors in the scoring method and the number of points allocated to each factor, all as included in the request for proposals.

(C) A list that contains the name of each offeror that submitted a proposal and that shows the offeror's final overall score.

(D) A document or documents that show the final score on each factor in the scoring method in the request for proposals of each offeror that submitted a proposal, that show the calculation of the final overall score of each offeror, and that support the final overall scores of the offerors that submitted proposals. At the election of the agency, the documentation of each offeror's final score on each factor may be in the form of a consolidated scoring sheet for the entire selection committee, in the form of individual scoring sheets for individual selection committee members or any other form as determined by the agency.

(f) Information relating to each procurement under this Section shall be made available to the public as follows:

(1) Notwithstanding any other provision of law, until the agency awards a contract or terminates the procurement, only the name of each offeror on the final list developed pursuant to subsection (d) of this Section may be made available to the public. All other information received by the agency in response to the request for qualifications pursuant to subsection (d) of this Section or contained in proposals submitted pursuant to subsection (a) of this Section shall be confidential in order to avoid disclosure of the contents that may be prejudicial to competing offerors during the selection process.

(2) After the agency awards the contract or terminates the procurement, the agency shall make available to the public at a minimum all of the items that the agency is required to retain under subsection (e) of this Section, except the proposals submitted in response to a request for proposals under subsection (d) of this Section and the document or documents prescribed in item (v) of subparagraph (A) of paragraph (1) of subsection (e) of this Section, items (v) and (viii) of subparagraph (B) of paragraph (1) of subsection (e) of this Section, and subparagraph (D) of paragraph (2) of subsection (e) of this Section.

(3) The proposals submitted under subsection (d) of this Section and the document or documents prescribed in item (v) of subparagraph (A) of paragraph (1) subsection (e) and items (v) and (viii) of subparagraph (B) of paragraph (2) of subsection (e) shall not be made available to the public until after the agency has entered into a contract or terminated the procurement and shall be made available to the public after the agency has entered into a contract or terminated the procurement.

(4) To the extent that the offeror designates and the agency concurs, trade secrets and other proprietary data contained in a proposal remain confidential.

(g) An agency may cancel a request for qualifications or a request for proposals, reject in whole or in part any or all qualifications submissions or proposals, or determine not to enter into a contract as specified in the solicitation if the agency determines in the agency's absolute and sole discretion that the action is in the best interest of the agency. The agency shall make the reasons for cancellation, rejection or determination not to enter into a contract part of the contract file.

(h) If the agency does not have a procurement protest policy and procedures that have been formally adopted and published by the agency for protests relating to procurements under this Section, the agency shall follow the procurement protest policy and procedures of the Department of Central Management Service and the agency shall process all protests relating to procurements under this Section in accordance with that policy and procedure. If the agency is required to use the Department of Central Management Services protest policy and procedures or if the agency has a procurement protest policy and procedures that the agency has formally adopted, the agency may choose to make information relating to each procurement available earlier than required under subsection (f) of this Section if the agency determines the release of the information is necessary to adequately follow and manage the applicable procurement protest policy and procedures.

Section 35. Contracts and operations.

(a) The requirements in this Section apply to each contract entered into as the result of procurement under this chapter and to the provision of construction-manager-at-risk, design-build construction services.

(b) If a procurement under this Act is for construction-manager-at-risk construction services or design-build construction services to be contracted pursuant to subsection (a) of Section 30 of this Act, the agency shall enter into a written contract with the contractor for preconstruction services under which the agency shall pay the contractor a fee for preconstruction services in an amount agreed by the agency and the contractor, and the agency shall not request or obtain a fixed price or a guaranteed maximum price for the construction from the contractor or enter into a construction contract with the contractor until after the agency has entered into the written contract for preconstruction services and a preconstruction services fee.

(c) If a contract for construction services is entered into as the result of a procurement under this chapter, construction shall not commence until the agency and contractor agree in writing on either a fixed price that the agency will pay for the construction to be commenced or a guaranteed maximum price for the construction to be commenced. The construction to be commenced may be the entire project or may be one or more phased parts of the project.

(d) The following provisions apply to all construction services procured under this Act:

(1) The contractor performing the construction services is permitted to self-perform part of the construction work if and to the extent agreed in writing by the agency and the contractor. The agency may use methods other than competitive bidding to assure itself that the price the agency pays to the contractor for self-performed work is fair and reasonable. Permitted methods to evaluate fairness and reasonableness of the price of self-performed work include evaluation of the contractor's proposed scope of work and price for self-performed work by an estimator who is hired and paid by the agency, who is independent of the contractor, and who may be an employee of the agency. Although the agency may elect to so require, nothing in this Act or any other law shall be construed or interpreted to require the agency to require a contractor desiring to self-perform part of the construction work to competitively bid that part of the construction work against other contractors in a bid competition.

(2) The following requirements apply to the construction work to be performed by subcontractors and do not apply to construction work that the agency and the contractor agree in writing will be self-performed by the contractor:

(A) The offerors selected to perform the construction services shall select subcontractors based on qualifications alone or on a combination of qualifications and price and shall not select subcontractors based on price alone. A qualifications and price selection may be a single-step selection based on a combination of qualifications and price or a 2-step selection. In a 2-step selection, the first step shall be based on qualifications alone and the second step may be based on a combination of qualifications and price or on price alone.

(B) The agency shall include in each contract:

(i) If the agency included its subcontractor selection plan in the request for qualifications, the agency's subcontractor selection plan and the procedures to implement the agency's subcontractor selection plan proposed by the selected offeror in submitting its qualifications with those modifications to the procedures as the agency and the selected offeror agree.

(ii) If the agency did not include its subcontractor selection plan in the request for qualifications, the subcontractor selection plan proposed by the selected offeror in submitting its qualifications with those modifications as the agency and the selected offeror agree.

(3) In making the selection of subcontractors, each offeror contracted to perform construction services shall use the subcontractor selection plan and any procedures included in its contract.