093_SB1497sam003

 










                                     LRB093 08420 BDD 13903 a

 1                    AMENDMENT TO SENATE BILL 1497

 2        AMENDMENT NO.     .  Amend Senate Bill 1497, AS  AMENDED,
 3    by replacing everything after Section 1 with the following:

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

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

18        Section 15.  Solicitation of proposals.
19        (a)  A State construction agency that elects to  use  the
20    design-build delivery method must issue a notice of intent to
21    receive  requests  for  proposals for the project at least 14
22    days before issuing the request for the proposal.  The  State
23    construction  agency  must  publish the advance notice in the
24    official  procurement  bulletin   of   the   State   or   the
25    professional  services  bulletin  of  the  State construction
26    agency, if any. The agency is encouraged to  use  publication
27    of  the  notice  in  related  construction  industry  service
28    publications. A brief description of the proposed procurement
29    must be included in the notice. The State construction agency
30    must  provide a copy of the request for proposal to any party
31    requesting a copy.
32        (b)  The request for proposal shall be prepared for  each
33    project  and  must contain, without limitation, the following
 
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 1    information:
 2             (1)  The State construction agency that  will  award
 3        the design-build contract.
 4             (2)  A  preliminary  schedule  for the completion of
 5        the contract.
 6             (3)  The proposed budget for the project, the source
 7        of funds, and the currently available funds.
 8             (4)  Prequalification  criteria   for   design-build
 9        entities   wishing   to   submit   proposals.  The  State
10        construction agency shall  include,  at  a  minimum,  its
11        normal  prequalification,  licensing,  registration,  and
12        other   requirements,   but   nothing   contained  herein
13        precludes the use of additional prequalification criteria
14        by the State construction agency.
15             (5)  Material   requirements   of   the    contract,
16        including  but  not  limited  to,  the proposed terms and
17        conditions,  required  performance  and  payment   bonds,
18        insurance,     affirmative    action,    and    workforce
19        requirements, if any.
20             (6)  The performance criteria.
21             (7)  The evaluation criteria for each phase  of  the
22        solicitation.
23             (8)  The  number of entities that will be considered
24        for the technical and cost evaluation phase.
25        (c)  The State construction agency may include any  other
26    relevant   information   that   it  chooses  to  supply.  The
27    design-build entity  shall  be  entitled  to  rely  upon  the
28    accuracy  of  this  documentation  in  the development of its
29    proposal.
30        (d)  The date that proposals are due must be at least  21
31    calendar  days  after the date of the issuance of the request
32    for proposal. In  the  event  the  cost  of  the  project  is
33    estimated  to  exceed $10 million, then the proposal due date
34    must be at least 28 calendar  days  after  the  date  of  the
 
                            -6-      LRB093 08420 BDD 13903 a
 1    issuance  of the request for proposal. The State construction
 2    agency shall include in the request for proposal a minimum of
 3    30 days  to  develop  the  Phase  II  submissions  after  the
 4    selection   of  entities  from  the  Phase  I  evaluation  is
 5    completed.
 6        (e)  Each design-build entity whose proposal proceeds  to
 7    the  technical and cost evaluation phase may be reimbursed by
 8    the State construction agency to defray costs associated with
 9    the proposal preparation. If the  State  construction  agency
10    elects  to  provide  reimbursement,  it  shall specify in the
11    request for proposal the basis or overall reimbursement to be
12    provided.

13        Section  20.  Development  of   scope   and   performance
14    criteria.
15        (a)  The  State construction agency shall develop, at the
16    direction of a licensed design professional,  a  request  for
17    proposal, which shall include scope and performance criteria.
18    The  scope  and  performance  criteria  must be in sufficient
19    detail and contain adequate information to reasonably apprise
20    the qualified design-build entities of the State construction
21    agency's overall  programmatic  needs  and  goals,  including
22    criteria   and   preliminary  design  plans,  general  budget
23    parameters, schedule, and delivery requirements.
24        (b)  Each request  for  proposal  shall  also  include  a
25    description  of  the  level  of  design to be provided in the
26    proposals. This description must include the scope  and  type
27    of  renderings,  drawings,  and  specifications  that,  at  a
28    minimum, will be required by the State construction agency to
29    be produced by the design-build entities.
30        (c)  The scope and performance criteria shall be prepared
31    by  a  design  professional  who  is an employee of the State
32    construction agency, or the  State  construction  agency  may
33    contract  with  an  independent  design professional selected
 
                            -7-      LRB093 08420 BDD 13903 a
 1    under  the  Architectural,  Engineering  and  Land  Surveying
 2    Qualification Based Selection Act (30 ILCS 535/)  to  provide
 3    these services.
 4        (d)  The  design professional that prepares the scope and
 5    performance criteria is prohibited from participating in  any
 6    design-build entity proposal for the project.

 7        Section 25.  Selection Committee.
 8        (a)  Each  State  construction  agency that elects to use
 9    the design-build delivery method shall establish a  committee
10    to   evaluate   and   select  the  design-build  entity.  The
11    committee, under the discretion  of  the  State  Construction
12    Agency, shall consist of 3, 5, or 7 members and shall include
13    at  least  one licensed design professional and one member of
14    the  public.  The  public  member  may  not  be  employed  or
15    associated with any firm holding a contract  with  the  State
16    construction  agency  and  shall  be  nominated  by design or
17    construction industry associations. The  selection  committee
18    may  be  designated  for  a  set  term  or for the particular
19    project subject to the request for proposal.
20        (b)  The members of the selection committee must  certify
21    for  each  request  for proposal that no conflict of interest
22    exists between the  members  and  the  design-build  entities
23    submitting  proposals.  If a conflict exists, the member must
24    be replaced before any review of proposals.

25        Section 30.  Procedures for Selection.
26        (a)  The State construction agency must use  a  two-phase
27    procedure  for  the  selection of the successful design-build
28    entity. Phase I of the procedure will evaluate and  shortlist
29    the  design-build  entities  based on qualifications, and the
30    Phase II will evaluate the technical and cost proposals.
31        (b)  The State construction agency shall include  in  the
32    request  for  proposal  the  evaluating factors to be used in
 
                            -8-      LRB093 08420 BDD 13903 a
 1    Phase   I.   These   factors   are   in   addition   to   any
 2    prequalification requirements of design-build  entities  that
 3    the  agency  has  set  forth. Each request for proposal shall
 4    establish the relative importance assigned to each evaluation
 5    factor and subfactor, including any weighting of criteria  to
 6    be  employed  by  the  State  construction  agency. The State
 7    construction agency must maintain a record of the  evaluation
 8    scoring  to  be disclosed in event of a protest regarding the
 9    solicitation.
10        The State construction agency shall include the following
11    criteria  in  every  Phase  I  evaluation   of   design-build
12    entities:   (1)   experience  of  personnel;  (2)  successful
13    experience  with  similar  project   types;   (3)   financial
14    capability;   (4)   timeliness   of   past  performance;  (5)
15    experience with  similarly  sized  projects;  (6)  successful
16    reference  checks  of  the firm; and (7) commitment to assign
17    personnel for the duration of the project and  qualifications
18    of  the  entity's  consultants. The State construction agency
19    may include any additional relevant criteria in Phase I  that
20    it deems necessary for a proper qualification review.
21        The  State  construction  agency  may  not  consider  any
22    design-build entity for evaluation or award if the entity has
23    any   pecuniary   interest   in  the  project  or  has  other
24    relationships or circumstances, including but not limited to,
25    long  term  leasehold,  mutual  performance,  or  development
26    contracts with the State construction agency, that  may  give
27    the  design-build  entity  a  financial or tangible advantage
28    over  other  design-build  entities   in   the   preparation,
29    evaluation,  or  performance  of the design-build contract or
30    that create the appearance of impropriety.
31        Upon completion of  the  qualifications  evaluation,  the
32    State  construction  agency  shall  create a shortlist of the
33    most  highly  qualified  design-build  entities.  The   State
34    construction  agency,  in  its discretion, is not required to
 
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 1    shortlist the maximum number of entities  as  identified  for
 2    Phase  II  evaluation,  provided  however,  no  less  than  2
 3    design-build  entities nor more than 6 are selected to submit
 4    Phase II proposals.
 5        The State construction agency shall notify  the  entities
 6    selected  for  the  shortlist  in  writing. This notification
 7    shall commence the period for the preparation of the Phase II
 8    technical and cost evaluations. The State construction agency
 9    must allow sufficient time  for  the  shortlist  entities  to
10    prepare  their  Phase II submittals considering the scope and
11    detail requested by the State agency.
12        (c)  The State construction agency shall include  in  the
13    request for proposal the evaluating factors to be used in the
14    technical  and  cost submission components of Phase II.  Each
15    request for proposal shall establish, for both the  technical
16    and  cost  submission  components  of  Phase II, the relative
17    importance assigned to each evaluation factor and  subfactor,
18    including  any  weighting  of  criteria to be employed by the
19    State construction agency. The State construction agency must
20    maintain a record of the evaluation scoring to  be  disclosed
21    in event of a protest regarding the solicitation.
22        The State construction agency shall include the following
23    criteria   in   every   Phase   II  technical  evaluation  of
24    design-build entities: (1) compliance with objectives of  the
25    project;  (2)  compliance of proposed services to the request
26    for  proposal  requirements;  (3)  quality  of  products   or
27    materials  proposed;  (4)  quality  of design parameters; (5)
28    design concepts; (6) innovation  in  meeting  the  scope  and
29    performance   criteria;   and  (7)  constructability  of  the
30    proposed project. The State construction agency  may  include
31    any additional relevant technical evaluation factors it deems
32    necessary for proper selection.
33        The State construction agency shall include the following
34    criteria  in every Phase II cost evaluation the total project
 
                            -10-     LRB093 08420 BDD 13903 a
 1    cost, the construction costs, and the time of completion. The
 2    State construction agency may include any additional relevant
 3    technical evaluation factors it deems  necessary  for  proper
 4    selection.  In no event shall the total project cost criteria
 5    in this subsection exceed a  weighting  factor  greater  than
 6    25%.
 7        The  State  construction  agency shall directly employ or
 8    retain  a  licensed  design  professional  to  evaluate   the
 9    technical  and cost submissions to determine if the technical
10    submissions  are  in  accordance  with   generally   accepted
11    industry standards.
12        Upon  completion  of  the  technical submissions and cost
13    submissions evaluation, the  State  construction  agency  may
14    award  the  design-build  contract  to highest overall ranked
15    entity.

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

22        Section  40.  Submission  of proposals. Proposals must be
23    properly identified and sealed. Proposals may not be reviewed
24    until after the deadline for submission  has  passed  as  set
25    forth in the request for proposals. All design-build entities
26    submitting  proposals  shall  be disclosed after the deadline
27    for  submission,  and  all  design-build  entities  who   are
28    selected  for  Phase II evaluation shall also be disclosed at
29    the time of that determination.
30        Proposals shall include  a  bid  bond  in  the  form  and
31    security   as   designated  in  the  request  for  proposals.
32    Proposals shall also contain a separate sealed envelope  with
 
                            -11-     LRB093 08420 BDD 13903 a
 1    the  cost information within the overall proposal submission.
 2    Proposals shall include a list of  all  design  professionals
 3    and  other  entities  to  which any work may be subcontracted
 4    during the performance of the  contract.  In  the  event  the
 5    request  for proposal so designates, these entities must meet
 6    prequalification standards of the State construction agency.
 7        Proposals must meet  all  material  requirements  of  the
 8    request   for   proposal   or   they   may   be  rejected  as
 9    non-responsive. The State construction agency shall have  the
10    right to reject any and all proposals.
11        The  drawings  and  specifications  of the proposal shall
12    remain the property of the design-build entity.
13        The State construction agency shall review the  proposals
14    for  compliance  with the performance criteria and evaluation
15    factors.
16        Proposals may be withdrawn prior to  evaluation  for  any
17    cause.  After  evaluation  begins  by  the State construction
18    agency, clear and convincing evidence of  error  is  required
19    for withdrawal.

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

31        Section 50.  Administrative Procedure Act.  The  Illinois
32    Administrative  Procedure  Act  (5  ILCS 100/) applies to all
 
                            -12-     LRB093 08420 BDD 13903 a
 1    administrative rules and procedures of the State construction
 2    agency under this Act.

 3        Section 53.  Federal requirements.  In the procurement of
 4    design-build contracts,  State  construction  agencies  shall
 5    comply   with  federal  law  and  regulations  and  take  all
 6    necessary  steps  to  adapt  their   rules,   policies,   and
 7    procedures to remain eligible for federal aid.

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

10        Section  99.  Effective  date. This Act takes effect upon
11    becoming law.".