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 SB1497 Engrossed -2- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -3- LRB093 08420 BDD 08642 b 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. SB1497 Engrossed -4- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -5- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -6- LRB093 08420 BDD 08642 b 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. SB1497 Engrossed -7- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -8- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -9- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -10- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -11- LRB093 08420 BDD 08642 b 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 SB1497 Engrossed -12- LRB093 08420 BDD 08642 b 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.