SB0297 96TH GENERAL ASSEMBLY

LRB096 03731 AJT 13760 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB0297

Introduced 2/6/2009, by Sen. Martin A. Sandoval

SYNOPSIS AS INTRODUCED:

New Act

Creates the Design-Build for Highway Construction Demonstration Act. Authorizes the Department of Transportation and the Illinois State Toll Highway Authority to use a design-build method of source selection for highway construction projects. Sets forth procedures for using the design-build method. Requires the agencies to submit an evaluation report concerning the design-build method no later than December 31, 2012. Repeals the Act on June 30, 2013. Effective July 1, 2009.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning highways.

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 Design-Build for Highway Construction Demonstration Act.

Section 5. Legislative intent. Design-bid-build has been the traditional and preferred method of delivering completed highway construction projects since the inception of the system of state highways under the jurisdiction and management of state government authorities. Design-bid-build has relied on a qualifications-based selection of engineering expertise for the design function and a sealed competitive bid selection for the build function. The existing process is intended to secure a quality project at the lowest cost while avoiding fraud, corruption, and abuse in the contracting process.

Design-build combines the design and construction functions in one contract with the intention of saving time and money by taking advantage of innovation in both design and construction and by realizing the benefits of a single contract. The design-build method of project delivery has been used with success in private sector construction and has been attempted by other states for highway construction with mixed results. The civil engineering and highway construction industries in Illinois have developed over a considerable time working in the traditional method of contracting and project delivery.

Adoption of design-build carries with it risks that should be assessed and potential rewards that should be identified before the method is fully adopted for highway construction. The State agencies responsible for the construction and maintenance of State highways also need to adapt to the changes that such an adoption would bring. The General Assembly therefore believes that a period of study and evaluation is appropriate before the design-build method is adopted for general use. It is the policy of the State that design-bid-build remains the preferred delivery method of highway construction projects, but that design-build should be authorized and evaluated as an alternative method for selected projects.

Section 10. Authority for use.

(a) The Illinois Department of Transportation and the Illinois State Toll Highway Authority, as the State highway construction agencies, may provide for use of a design-build method of source selection for highway construction projects, on highways subject to their jurisdiction, in order to demonstrate and evaluate the use, advantages, and disadvantages of that method of source selection for highway construction projects. It is the policy of the State for the use of this method to publicly announce all requirements for design-build services and to procure those services on the basis of demonstrated competence and qualifications with due regard for the principles of competitive selection. The State highway construction agency undertaking demonstration projects selected under the authority of this Act must evaluate the design-build method compared to the traditional method by considering the following factors:

(1) The relative advantages and disadvantages, considering time, cost, and the resources of the agency to achieving the final completion of the project;

(2) The type, size, and suitability of projects to the design-build method of source selection; and

(3) The ability of the agency to define and provide comprehensive scope and performance criteria for the construction project as required by this Act, as well as what may be possible under a design-build contract providing for greater conceptual responsibility for the design-build entity.

(b) Projects selected by the Illinois Department of Transportation for demonstration under this Act must be identified in the annual highway construction program document published by the Department under Section 2705-200 of the Department of Transportation Law of the Civil Administrative Code of Illinois.

Section 15. Definitions. As used in this Act:

"Design-bid-build" means the traditional method of source selection used on public projects in this State that incorporates the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act, and the Illinois Procurement Code.

"Design-build" means a method of source selection that provides responsibility within a single contract for the furnishing of engineering, land surveying and related design services, and the labor, materials, equipment, and other construction services for the project.

"Design-build contract" means a contract for a public project procured under this Act between a State highway construction agency and a design-build entity to furnish engineering, land surveying and related design services as required and to furnish the labor, materials, equipment, and other construction services for the project. The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the State highway construction agency to make modifications in the project scope and contract price without invalidating the design-build contract.

"Design-build entity" means any entity organized in a manner recognized in law that proposes to design and build a public project under this Act.

"Design professional" means any entity recognized by law to offer services under the Professional Engineering Practice Act of 1989, the Structural Engineering Practice Act of 1989, the Illinois Professional Land Surveyor Act of 1989, or the Illinois Architecture Practice Act of 1989.

"Evaluation criteria" means the requirements to be used for the selection process as defined in this Act including any specialized experience, technical qualifications and competence, financial capacity to perform, past performance or experience, personnel resources, cost, and other appropriate factors. The manner of judging qualifications in relation to the proposed costs must be clearly defined as provided in this Act.

"Proposal" means the offer to enter into a design-build contract as submitted by a design-build entity in accordance with this Act.

"Request for proposals" means the document used by a State highway construction agency to solicit proposals for a design-build contract.

"Scope and performance criteria" means the requirements for the project, including, but not limited to, the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, and other programmatic criteria that are expressed in performance-oriented and quantifiable specifications and drawings that can be reasonably inferred and are suitable to allow a design-build entity to develop a proposal.

Section 20. Scope and performance criteria. The State highway construction agency must develop the scope and performance criteria. The scope and performance criteria must be in reasonably sufficient detail and contain reasonably adequate information to inform the qualified design-build entities of the State highway construction agency's overall needs and goals, including, but not limited to, applicable standards adopted by the agency governing the work of the project, preliminary design plans, anticipated schedules, and delivery requirements. The scope and performance criteria must also include a description of the level of design to be provided in the proposals. The description must include the scope and type of renderings, drawings, and specifications that, at a minimum, will be required to be produced by the design-build entity. The scope and performance criteria must be prepared by an appropriately licensed design professional who may be an employee of the agency, or the agency may contract with an independent design professional selected in accordance with the Architectural, Engineering, and Land Surveying Qualification Based Selection Act to provide these services. The design professional that prepares the scope and performance criteria is prohibited from participating in any design-build entity proposal for the project.

Section 25. Solicitation of design-build proposals. Design-build contracts must be procured by a request for proposals process conforming to this Act. A request for proposals must be prepared for each project and must contain, at a minimum, all of the following information:

(1) The State transportation construction agency that will award the design-build contract;

(2) The desired schedule for the completion of the project;

(3) The qualification criteria for design-build entities desiring to submit proposals incorporating any established prequalification, registration, or other requirements that are relevant to the needs of the individual project;

(4) The terms and conditions of the contract that will govern the performance of the project;

(5) The scope and performance criteria governing the contract;

(6) The selection criteria to evaluate the design-build entity proposal;

(7) The date, time, and place that proposals are due that in no case may be less than 30 calendar days after the date of the issuance of the request for proposals;

(8) The requirements for identification of the design-build team members; and

(9) The date, time, and place that the cost component of accepted proposals will be publicly opened and read.

Section 30. Publication of requests for proposals. All requests for design-build proposals must be published in the volume of the Illinois Procurement Bulletin used by the State highway construction agency for its regular construction contract lettings under the Illinois Procurement Code.

Section 35. Submission of proposals. Proposals must be properly identified and sealed. Proposals may not be reviewed until after the deadline for submission has passed as set forth in the request for proposals. All design-build entities submitting proposals must be disclosed after the deadline for submission. Proposals must include a bid bond in the form and security as designated in the request for proposals. Proposals must contain a separate sealed envelope containing the cost component within the overall proposal submission. Proposals must conform in all material respects to the request for proposal or they may be rejected as non-responsive. The State transportation construction agency may reject any and all proposals and may waive technicalities. Any drawings and specifications contained in proposals not selected remain the property of the design-build entity unless otherwise provided for in the request for proposals. Proposals may be withdrawn prior to evaluation for any reason.

Section 40. Selection committee. The State highway construction agency must establish a selection committee to evaluate the technical components of the proposals. The selection committee must consist of 5 members, 3 of whom are professionally licensed officers or employees of the agency, and 2 of whom are public members. The public members may not be employed or associated with any firm holding a contract with the State highway construction agency and must be nominated, one each, by the American Council of Engineering Companies of Illinois, and, in the following order on a rotating basis, the Associated General Contractors of Illinois, the Illinois Road and Transportation Builders Association, the Illinois Asphalt Pavement Association, and the Illinois chapter of the American Concrete Pavement Association. The selection committee and individual members may be designated for a set term or for a particular project. Each member of the selection committee must certify, for each request for proposal, that no conflict of interest exists between the member and each of the design-build entities submitting proposals. If a conflict exists, the member must be replaced before any review of proposals.

Section 45. Procedures for selection and award.

(a) For highway construction projects estimated to cost $10,000,000 or less, all proposals received by the date and time due must be opened and recorded. The cost component must remain sealed and retained by the chief contracting official responsible for the conduct of lettings in accordance with the regular procedures of the agency. The chief contracting official must transmit all technical components for evaluation to the selection committee. The chief contracting official must serve as recording secretary to the selection committee. The selection committee must evaluate each proposal for responsiveness to the request, qualifications of the design-build team, proposed methods of achieving the scope and performance criteria, and achievement of any other evaluation factors set forth in the request. The selection committee may require clarification of any element contained in the technical component in order to determine whether the proposal conforms to the request. The proposals may not be ranked, except that after evaluation, the selection committee must mark and record each proposal as either "accepted" or "not accepted." The time for evaluation must be no less than 24 hours unless a longer period is specified in the request. After evaluation, the chief contracting official must reseal and retain all accepted and unaccepted proposals. The cost component of each accepted proposal must be opened and publicly read at the date, time, and place specified in the request. The right to reject any and all proposals, to waive technicalities, and to solicit new proposals must be reserved. The design-build contract may be awarded to the lowest accepted proposal by the State highway construction agency provided the cost component is responsive to the request. After the award, all proposals not accepted and non-low proposals must be returned.

(b) For highway construction projects exceeding an estimate of $10,000,000, the procedures and rights are the same as subsection (a) of this Section, except that accepted proposals must be graded by the selection committee for quality of the proposal and achievement of the scope and performance criteria. The scoring is from 1 through 100 points. Any accepted proposal scoring less than 76 points must be marked unacceptable. The time for evaluation must be no less than 72 hours unless a longer period is specified in the request. The design-build contract may be awarded to the responsive best value proposal determined by adjusting the as read cost component by the technical component score as follows:

(1) The cost component for a proposal scored 97-100 must be divided by 1;

(2) The cost component for a proposal scored 93-96 must be divided by 0.99;

(3) The cost component for a proposal scored 89-92 must be divided by 0.98;

(4) The cost component for a proposal scored 85-88 must be divided by 0.97;

(5) The cost component for a proposal scored 81-84 must be divided by 0.96; and

(6) The cost component for a proposal scored 77-80 must be divided by 0.95.

Section 50. Confidentiality. The status of a proposal as accepted or not accepted and proposal scores may not be disclosed for any reason before the cost element is publicly opened and read.

Section 55. Conditions. Projects selected for procurement under the terms of this Act are subject to the following conditions:

(1) Department of Transportation projects must be selected that have been designed through at least the completion of Phase I preliminary engineering, as defined by the design policies and procedures of the Department. On any project selected for this demonstration program, the design-build components may be initiated only after all necessary approvals have been obtained from the department and, as applicable, the Federal Highway Administration for an engineering study and report that establishes the location and scope of the project, and for environmental documentation that analyzes the environmental impacts of the project alternatives considered.

(2) All necessary rights-of-way, permanent and temporary, must be acquired prior to the commencement of construction by the design-build entity. Nothing in this paragraph (2) prohibits the design-build entity from securing any additional temporary interests or rights of access deemed necessary to accomplish the project.

(3) The State highway construction agency must secure all necessary permits.

(4) The State highway construction agency must secure any necessary relocation of utilities located on existing or acquired rights-of-way unless the request for proposals provides that existing utilities will be planned for and adjusted during construction. Notwithstanding any provision contained in Section 9-113 of the Illinois Highway Code concerning the provision of final engineering plans prior to notice given to permitted utilities to relocate, a permitted utility must proceed to relocate and adjust permitted facilities pursuant to Section 9-113 of the Illinois Highway Code upon notice with preliminary plans showing the final or adjusted position of the utilities.

Section 60. Procurement and contract mandates. Design-build contracts procured under this Act are subject to all applicable federal and State laws governing the performance of public contracts and all applicable ethical and conflict of interest disclosures and prohibitions mandated by law. The design-build entity must certify that no state appropriated funds have been or will be paid, by or on behalf of the design-build entity, to any person for influencing or attempting to influence an officer or employee of a State agency or the Governor's office, a member of the General Assembly, an officer or employee of the General Assembly, or an employee of a member of the General Assembly in connection with the awarding of any design-build contract.

Section 65. Design professional seal. Nothing in this Act may be deemed to eliminate, reduce, or affect the requirements of the Structural Engineering Practice Act of 1989, Professional Engineering Practice Act of 1989, the Illinois Professional Land Surveyor Act of 1989, and the Illinois Architecture Practice Act of 1989, including, but not limited to, the preparation and sealing of plans and documents.

Section 70. Rules and regulations. The State highway construction agencies are not required to adopt rules and regulations pursuant to the Illinois Administrative Procedure Act in order to implement this Act. All policies and procedures adopted to implement this Act must be identified and published in the web site maintained by the Department of Transportation.

Section 75. Report. The State highway construction agencies must, jointly or severally, submit an evaluation report as required by Section 10 of this Act. The agencies must solicit, accept, and respond to comments provided by the industry groups or associations providing appointed public members to the selection committee, and must incorporate the comments and responses into the report. The report is due and must be filed with the Procurement Policy Board no later than December 31, 2012.

Section 80. Sunset. This Act is repealed on June 30, 2013.

Section 99. Effective date. This Act is effective July 1, 2009.