093_SB1497eng

 
SB1497 Engrossed                     LRB093 08420 BDD 08642 b

 1        AN ACT concerning procurement.

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

 4        Section  1.  Short  title.   This Act may be cited as the
 5    Design-Build Procurement Act.

 6        Section 5.  Legislative policy. It is the intent  of  the
 7    General  Assembly that State construction agencies be allowed
 8    to use the design-build delivery method for  public  projects
 9    if  it  is  shown to be in the State's best interest for that
10    particular  project.  It  shall  be  the  policy   of   State
11    construction  agencies  in  the  procurement  of design-build
12    services  to   publicly   announce   all   requirements   for
13    design-build  services  and  to procure these services on the
14    basis of demonstrated competence and qualifications and  with
15    due regard for the principles of competitive selection.
16        A  State  construction  agency  shall,  prior  to issuing
17    requests for proposals, promulgate and publish procedures for
18    the solicitation and award of contracts pursuant to this Act.
19        A  State  construction  agency  shall,  for  each  public
20    project or projects permitted under this Act, make a  written
21    determination,  including  a description as to the particular
22    advantages of the design-build procurement method, that it is
23    in  the  best  interests  of  this  State  to  enter  into  a
24    design-build contract for the project or projects. In  making
25    that   determination,   the   following   factors   shall  be
26    considered:
27             (1)  The   probability   that    the    design-build
28        procurement  method  will be in the best interests of the
29        State by providing a material savings  of  time  or  cost
30        over the design-bid-build or other delivery system.
31             (2)  The  type  and  size  of  the  project  and its
 
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 1        suitability to the design-build procurement method.
 2             (3)  The ability of the State construction agency to
 3        define and provide comprehensive  scope  and  performance
 4        criteria for the project.
 5        The  State construction agency shall within 15 days after
 6    the initial determination provide an  advisory  copy  to  the
 7    Procurement  Policy  Board  and  maintain  the full record of
 8    determination for 5 years.

 9        Section 10.  Definitions. As used in this Act:
10        "State construction  agency"  means  and  includes  those
11    agencies  as  defined  in  Section  1-15.25  of  the Illinois
12    Procurement Code, as amended, but does not mean the  Illinois
13    Department  of  Transportation  and  the  Illinois State Toll
14    Highway Authority.
15        "Delivery  system"  means  the  design  and  construction
16    approach used to develop and construct a project.
17        "Design-bid-build" means the traditional delivery  system
18    used  on  public projects in this State that incorporates the
19    Architectural, Engineering, and Land Surveying  Qualification
20    Based  Selection  Act  (30  ILCS  535/) and the principles of
21    competitive selection in the Illinois  Procurement  Code  (30
22    ILCS 500/).
23        "Design-build"  means  a  delivery  system  that provides
24    responsibility within a single contract for the furnishing of
25    architecture,  engineering,  land   surveying   and   related
26    services  as  required,  and the labor, materials, equipment,
27    and other construction services for the project.
28        "Design-build contract" means a  contract  for  a  public
29    project  under  this  Act between a State construction agency
30    and  a   design-build   entity   to   furnish   architecture,
31    engineering,   land   surveying,   and  related  services  as
32    required, and to furnish the labor, materials, equipment, and
33    other construction services for the project. The design-build
 
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 1    contract may be conditioned upon  subsequent  refinements  in
 2    scope  and  price and may allow the State construction agency
 3    to  make  modifications  in   the   project   scope   without
 4    invalidating the design-build contract.
 5        "Design-build   entity"   means   any   individual,  sole
 6    proprietorship,    firm,    partnership,    joint    venture,
 7    corporation, professional corporation, or other  entity  that
 8    proposes  to  design  and  construct any public project under
 9    this Act. A design-build entity and  associated  design-build
10    professionals shall conduct themselves in accordance with the
11    laws of this State and the related provisions of the Illinois
12    Administrative  Code,  as  referenced  by the licensed design
13    professional  Acts  of  this  State,  with  respect  to   the
14    solicitation and contracting of design-build services.
15        "Design   professional"   means   any   individual,  sole
16    proprietorship,    firm,    partnership,    joint    venture,
17    corporation, professional corporation, or other  entity  that
18    offers  services under the Illinois Architecture Practice Act
19    of  1989  (225  ILCS  305/),  the  Professional   Engineering
20    Practice   Act  of  1989  (225  ILCS  325/),  the  Structural
21    Engineering Licensing Act of 1989 (225  ILCS  340/),  or  the
22    Illinois  Professional  Land  Surveyor  Act of 1989 (225 ILCS
23    330/).
24        "Evaluation criteria"  means  the  requirements  for  the
25    separate  phases  of the selection process as defined in this
26    Act and may include  the  specialized  experience,  technical
27    qualifications  and  competence,  capacity  to  perform, past
28    performance, experience with similar projects, assignment  of
29    personnel  to  the  project,  and  other appropriate factors.
30    Price may not be used as a factor in the evaluation of  Phase
31    I proposals.
32        "Proposal"  means  the offer to enter into a design-build
33    contract as submitted by a design-build entity in  accordance
34    with this Act.
 
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 1        "Request for proposal" means the document used by a State
 2    construction  agency  to solicit proposals for a design-build
 3    contract.
 4        "Scope and performance criteria" means  the  requirements
 5    for  the  public  project,  including but not limited to, the
 6    intended  usage,   capacity,   size,   scope,   quality   and
 7    performance    standards,   life-cycle   costs,   and   other
 8    programmatic    criteria    that     are     expressed     in
 9    performance-oriented   and  quantifiable  specifications  and
10    drawings that can be reasonably inferred and  are  suited  to
11    allow a design-build entity to develop a proposal.

12        Section 15.  Solicitation of proposals.
13        (a)  A  State  construction agency that elects to use the
14    design-build delivery method must issue a notice of intent to
15    receive requests for proposals for the project  at  least  14
16    days  before  issuing the request for the proposal. The State
17    construction agency must publish the advance  notice  in  the
18    official   procurement   bulletin   of   the   State  or  the
19    professional services  bulletin  of  the  State  construction
20    agency,  if  any. The agency is encouraged to use publication
21    of  the  notice  in  related  construction  industry  service
22    publications. A brief description of the proposed procurement
23    must be included in the notice. The State construction agency
24    must provide a copy of the request for proposal to any  party
25    requesting a copy.
26        (b)  The  request for proposal shall be prepared for each
27    project and must contain, without limitation,  the  following
28    information:
29             (1)  The  State  construction agency that will award
30        the design-build contract.
31             (2)  A preliminary schedule for  the  completion  of
32        the contract.
33             (3)  The proposed budget for the project, the source
 
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 1        of funds, and the currently available funds.
 2             (4)  Prequalification   criteria   for  design-build
 3        entities  wishing  to   submit   proposals.   The   State
 4        construction  agency  shall  include,  at  a minimum, its
 5        normal  prequalification,  licensing,  registration,  and
 6        other  requirements,   but   nothing   contained   herein
 7        precludes the use of additional prequalification criteria
 8        by the State construction agency.
 9             (5)  Material    requirements   of   the   contract,
10        including but not limited  to,  the  proposed  terms  and
11        conditions,   required  performance  and  payment  bonds,
12        insurance,    affirmative    action,    and     workforce
13        requirements, if any.
14             (6)  The performance criteria.
15             (7)  The  evaluation  criteria for each phase of the
16        solicitation.
17             (8)  The number of entities that will be  considered
18        for the technical and cost evaluation phase.
19        (c)  The  State construction agency may include any other
20    relevant  information  that  it  chooses   to   supply.   The
21    design-build  entity  shall  be  entitled  to  rely  upon the
22    accuracy of this documentation  in  the  development  of  its
23    proposal.
24        (d)  The  date that proposals are due must be at least 21
25    calendar days after the date of the issuance of  the  request
26    for  proposal.  In  the  event  the  cost  of  the project is
27    estimated to exceed $10 million, then the proposal  due  date
28    must  be  at  least  28  calendar  days after the date of the
29    issuance of the request for proposal. The State  construction
30    agency shall include in the request for proposal a minimum of
31    30  days  to  develop  the  Phase  II  submissions  after the
32    selection  of  entities  from  the  Phase  I  evaluation   is
33    completed.
34        (e)  Each  design-build entity whose proposal proceeds to
 
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 1    the technical and cost evaluation phase may be reimbursed  by
 2    the State construction agency to defray costs associated with
 3    the  proposal  preparation.  If the State construction agency
 4    elects to provide reimbursement,  it  shall  specify  in  the
 5    request for proposal the basis or overall reimbursement to be
 6    provided.

 7        Section   20.  Development   of   scope  and  performance
 8    criteria.
 9        (a)  The State construction agency shall develop, at  the
10    direction  of  a  licensed design professional, a request for
11    proposal, which shall include scope and performance criteria.
12    The scope and performance  criteria  must  be  in  sufficient
13    detail and contain adequate information to reasonably apprise
14    the qualified design-build entities of the State construction
15    agency's  overall  programmatic  needs  and  goals, including
16    criteria  and  preliminary  design  plans,   general   budget
17    parameters, schedule, and delivery requirements.
18        (b)  Each  request  for  proposal  shall  also  include a
19    description of the level of design  to  be  provided  in  the
20    proposals.  This  description must include the scope and type
21    of  renderings,  drawings,  and  specifications  that,  at  a
22    minimum, will be required by the State construction agency to
23    be produced by the design-build entities.
24        (c)  The scope and performance criteria shall be prepared
25    by a design professional who is  an  employee  of  the  State
26    construction  agency,  or  the  State construction agency may
27    contract with an  independent  design  professional  selected
28    under  the  Architectural,  Engineering  and  Land  Surveying
29    Qualification  Based  Selection Act (30 ILCS 535/) to provide
30    these services.
31        (d)  The design professional that prepares the scope  and
32    performance  criteria is prohibited from participating in any
33    design-build entity proposal for the project.
 
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 1        Section 25.  Selection Committee.
 2        (a)  Each State construction agency that  elects  to  use
 3    the  design-build delivery method shall establish a committee
 4    to  evaluate  and  select  the   design-build   entity.   The
 5    committee,  under  the  discretion  of the State construction
 6    agency, shall consist of 3, 5, or 7 members and shall include
 7    at least one licensed design professional and one  member  of
 8    the  public.  The  public  member  may  not  be  employed  or
 9    associated  with  any  firm holding a contract with the State
10    construction agency and  shall  be  nominated  by  design  or
11    construction  industry  associations. The selection committee
12    may be designated for  a  set  term  or  for  the  particular
13    project subject to the request for proposal.
14        (b)  The  members of the selection committee must certify
15    for each request for proposal that no  conflict  of  interest
16    exists  between  the  members  and  the design-build entities
17    submitting proposals. If a conflict exists, the  member  must
18    be replaced before any review of proposals.

19        Section 30.  Procedures for Selection.
20        (a)  The  State  construction agency must use a two-phase
21    procedure for the selection of  the  successful  design-build
22    entity.  Phase I of the procedure will evaluate and shortlist
23    the design-build entities based on qualifications, and  Phase
24    II will evaluate the technical and cost proposals.
25        (b)  The  State  construction agency shall include in the
26    request for proposal the evaluating factors  to  be  used  in
27    Phase   I.   These   factors   are   in   addition   to   any
28    prequalification  requirements  of design-build entities that
29    the agency has set forth. Each  request  for  proposal  shall
30    establish the relative importance assigned to each evaluation
31    factor  and subfactor, including any weighting of criteria to
32    be employed by  the  State  construction  agency.  The  State
33    construction  agency must maintain a record of the evaluation
 
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 1    scoring to be disclosed in event of a protest  regarding  the
 2    solicitation.
 3        The State construction agency shall include the following
 4    criteria   in   every  Phase  I  evaluation  of  design-build
 5    entities:  (1)  experience  of  personnel;   (2)   successful
 6    experience   with   similar   project  types;  (3)  financial
 7    capability;  (4)  timeliness   of   past   performance;   (5)
 8    experience  with  similarly  sized  projects;  (6) successful
 9    reference checks of the firm; and (7)  commitment  to  assign
10    personnel  for the duration of the project and qualifications
11    of the entity's consultants. The  State  construction  agency
12    may  include any additional relevant criteria in Phase I that
13    it deems necessary for a proper qualification review.
14        The  State  construction  agency  may  not  consider  any
15    design-build entity for evaluation or award if the entity has
16    any  pecuniary  interest  in  the  project   or   has   other
17    relationships or circumstances, including but not limited to,
18    long-term   leasehold,  mutual  performance,  or  development
19    contracts with the State construction agency, that  may  give
20    the  design-build  entity  a  financial or tangible advantage
21    over  other  design-build  entities   in   the   preparation,
22    evaluation,  or  performance  of the design-build contract or
23    that create the appearance of impropriety.
24        Upon completion of  the  qualifications  evaluation,  the
25    State  construction  agency  shall  create a shortlist of the
26    most  highly  qualified  design-build  entities.  The   State
27    construction  agency,  in  its discretion, is not required to
28    shortlist the maximum number of entities  as  identified  for
29    Phase  II  evaluation,  provided  however,  no  less  than  2
30    design-build  entities nor more than 6 are selected to submit
31    Phase II proposals.
32        The State construction agency shall notify  the  entities
33    selected  for  the  shortlist  in  writing. This notification
34    shall commence the period for the preparation of the Phase II
 
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 1    technical and cost evaluations. The State construction agency
 2    must allow sufficient time  for  the  shortlist  entities  to
 3    prepare  their  Phase II submittals considering the scope and
 4    detail requested by the State agency.
 5        (c)  The State construction agency shall include  in  the
 6    request for proposal the evaluating factors to be used in the
 7    technical  and  cost submission components of Phase II.  Each
 8    request for proposal shall establish, for both the  technical
 9    and  cost  submission  components  of  Phase II, the relative
10    importance assigned to each evaluation factor and  subfactor,
11    including  any  weighting  of  criteria to be employed by the
12    State construction agency. The State construction agency must
13    maintain a record of the evaluation scoring to  be  disclosed
14    in event of a protest regarding the solicitation.
15        The State construction agency shall include the following
16    criteria   in   every   Phase   II  technical  evaluation  of
17    design-build entities: (1) compliance with objectives of  the
18    project;  (2)  compliance of proposed services to the request
19    for  proposal  requirements;  (3)  quality  of  products   or
20    materials  proposed;  (4)  quality  of design parameters; (5)
21    design concepts; (6) innovation  in  meeting  the  scope  and
22    performance   criteria;   and  (7)  constructability  of  the
23    proposed project. The State construction agency  may  include
24    any additional relevant technical evaluation factors it deems
25    necessary for proper selection.
26        The State construction agency shall include the following
27    criteria in every Phase II cost evaluation: the total project
28    cost, the construction costs, and the time of completion. The
29    State construction agency may include any additional relevant
30    technical  evaluation  factors  it deems necessary for proper
31    selection. In no event shall the total project cost  criteria
32    in  this  subsection  exceed  a weighting factor greater than
33    25%.
34        The State construction agency shall  directly  employ  or
 
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 1    retain   a  licensed  design  professional  to  evaluate  the
 2    technical and cost submissions to determine if the  technical
 3    submissions   are   in  accordance  with  generally  accepted
 4    industry standards.
 5        Upon completion of the  technical  submissions  and  cost
 6    submissions  evaluation,  the  State  construction agency may
 7    award the design-build contract to the highest overall ranked
 8    entity.

 9        Section 35.  Small projects. In any case where the  total
10    overall  cost  of the project is estimated to be less than $5
11    million,  the  State  construction  agency  may  combine  the
12    two-phase procedure for selection  described  in  Section  30
13    into one combined step, provided that all the requirements of
14    evaluation are performed in accordance with Section 30.

15        Section  40.  Submission  of proposals. Proposals must be
16    properly identified and sealed. Proposals may not be reviewed
17    until after the deadline for submission  has  passed  as  set
18    forth in the request for proposals. All design-build entities
19    submitting  proposals  shall  be disclosed after the deadline
20    for  submission,  and  all  design-build  entities  who   are
21    selected  for  Phase II evaluation shall also be disclosed at
22    the time of that determination.
23        Proposals shall include  a  bid  bond  in  the  form  and
24    security   as   designated  in  the  request  for  proposals.
25    Proposals shall also contain a separate sealed envelope  with
26    the  cost information within the overall proposal submission.
27    Proposals shall include a list of  all  design  professionals
28    and  other  entities  to  which any work may be subcontracted
29    during the performance of the  contract.  In  the  event  the
30    request  for proposal so designates, these entities must meet
31    prequalification standards of the State construction agency.
32        Proposals must meet  all  material  requirements  of  the
 
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 1    request   for   proposal   or   they   may   be  rejected  as
 2    non-responsive. The State construction agency shall have  the
 3    right to reject any and all proposals.
 4        The  drawings  and  specifications  of the proposal shall
 5    remain the property of the design-build entity.
 6        The State construction agency shall review the  proposals
 7    for  compliance  with the performance criteria and evaluation
 8    factors.
 9        Proposals may be withdrawn prior to  evaluation  for  any
10    cause.  After  evaluation  begins  by  the State construction
11    agency, clear and convincing evidence of  error  is  required
12    for withdrawal.

13        Section  45.  Award.  The  State  construction agency may
14    award the contract to  the  highest  overall  ranked  entity.
15    Notice  of  award  shall  be  made  in  writing. Unsuccessful
16    entities  shall  also  be  notified  in  writing.  The  State
17    construction agency may not request a best  and  final  offer
18    after the receipt of proposals. The State construction agency
19    may  negotiate  with  the  selected design-build entity after
20    award but prior to contract  execution  for  the  purpose  of
21    securing better terms than originally proposed, provided that
22    the  salient  features  of  the  request for proposal are not
23    diminished.

24        Section 50.  Administrative Procedure Act.  The  Illinois
25    Administrative  Procedure  Act  (5  ILCS 100/) applies to all
26    administrative rules and procedures of the State construction
27    agency under this Act.

28        Section 53.  Federal requirements.  In the procurement of
29    design-build contracts,  State  construction  agencies  shall
30    comply   with  federal  law  and  regulations  and  take  all
31    necessary  steps  to  adapt  their   rules,   policies,   and
 
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 1    procedures to remain eligible for federal aid.

 2        Section 55.  Severability. The provisions of this Act are
 3    severable under Section 1.31 of the Statute on Statutes.

 4        Section  99.  Effective  date. This Act takes effect upon
 5    becoming law.