Sen. Terry Link

Filed: 4/11/2005

 

 


 

 


 
09400SB0766sam002 LRB094 08758 RSP 44673 a

1
AMENDMENT TO SENATE BILL 766

2     AMENDMENT NO. ______. Amend Senate Bill 766, AS AMENDED, by
3 replacing everything after the enacting clause with the
4 following:
 
5     "Section 1. Short title. This Act may be cited as the
6 Design-Build Procurement Act.
 
7     Section 5. Legislative policy. It is the intent of the
8 General Assembly that the Capital Development Board be allowed
9 to use the design-build delivery method for public projects if
10 it is shown to be in the State's best interest for that
11 particular project. It shall be the policy of the Capital
12 Development Board in the procurement of design-build services
13 to publicly announce all requirements for design-build
14 services and to procure these services on the basis of
15 demonstrated competence and qualifications and with due regard
16 for the principles of competitive selection.
17     The Capital Development Board shall, prior to issuing
18 requests for proposals, promulgate and publish procedures for
19 the solicitation and award of contracts pursuant to this Act.
20     The Capital Development Board shall, for each public
21 project or projects permitted under this Act, make a written
22 determination, including a description as to the particular
23 advantages of the design-build procurement method, that it is
24 in the best interests of this State to enter into a

 

 

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1 design-build contract for the project or projects. In making
2 that determination, the following factors shall be considered:
3         (1) The probability that the design-build procurement
4     method will be in the best interests of the State by
5     providing a material savings of time or cost over the
6     design-bid-build or other delivery system.
7         (2) The type and size of the project and its
8     suitability to the design-build procurement method.
9         (3) The ability of the State construction agency to
10     define and provide comprehensive scope and performance
11     criteria for the project.
12     No State construction agency may use a design-build
13 procurement method unless the agency determines in writing that
14 the project will comply with the disadvantaged business and
15 equal employment practices of the State as established in the
16 Business Enterprise for Minorities, Females, and Persons with
17 Disabilities Act and Section 2-105 of the Illinois Human Rights
18 Act.
19     The Capital Development Board shall within 15 days after
20 the initial determination provide an advisory copy to the
21 Procurement Policy Board and maintain the full record of
22 determination for 5 years.
 
23     Section 10. Definitions. As used in this Act:
24     "State construction agency" means the Capital Development
25 Board.
26     "Delivery system" means the design and construction
27 approach used to develop and construct a project.
28     "Design-bid-build" means the traditional delivery system
29 used on public projects in this State that incorporates the
30 Architectural, Engineering, and Land Surveying Qualification
31 Based Selection Act (30 ILCS 535/) and the principles of
32 competitive selection in the Illinois Procurement Code (30 ILCS
33 500/).

 

 

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1     "Design-build" means a delivery system that provides
2 responsibility within a single contract for the furnishing of
3 architecture, engineering, land surveying and related services
4 as required, and the labor, materials, equipment, and other
5 construction services for the project.
6     "Design-build contract" means a contract for a public
7 project under this Act between the State construction agency
8 and a design-build entity to furnish architecture,
9 engineering, land surveying, and related services as required,
10 and to furnish the labor, materials, equipment, and other
11 construction services for the project. The design-build
12 contract may be conditioned upon subsequent refinements in
13 scope and price and may allow the State construction agency to
14 make modifications in the project scope without invalidating
15 the design-build contract.
16     "Design-build entity" means any individual, sole
17 proprietorship, firm, partnership, joint venture, corporation,
18 professional corporation, or other entity that proposes to
19 design and construct any public project under this Act. A
20 design-build entity and associated design-build professionals
21 shall conduct themselves in accordance with the laws of this
22 State and the related provisions of the Illinois Administrative
23 Code, as referenced by the licensed design professionals Acts
24 of this State.
25     "Design professional" means any individual, sole
26 proprietorship, firm, partnership, joint venture, corporation,
27 professional corporation, or other entity that offers services
28 under the Illinois Architecture Practice Act of 1989 (225 ILCS
29 305/), the Professional Engineering Practice Act of 1989 (225
30 ILCS 325/), the Structural Engineering Licensing Act of 1989
31 (225 ILCS 340/), or the Illinois Professional Land Surveyor Act
32 of 1989 (225 ILCS 330/).
33     "Evaluation criteria" means the requirements for the
34 separate phases of the selection process as defined in this Act

 

 

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1 and may include the specialized experience, technical
2 qualifications and competence, capacity to perform, past
3 performance, experience with similar projects, assignment of
4 personnel to the project, and other appropriate factors. Price
5 may not be used as a factor in the evaluation of Phase I
6 proposals.
7     "Proposal" means the offer to enter into a design-build
8 contract as submitted by a design-build entity in accordance
9 with this Act.
10     "Request for proposal" means the document used by the State
11 construction agency to solicit proposals for a design-build
12 contract.
13     "Scope and performance criteria" means the requirements
14 for the public project, including but not limited to, the
15 intended usage, capacity, size, scope, quality and performance
16 standards, life-cycle costs, and other programmatic criteria
17 that are expressed in performance-oriented and quantifiable
18 specifications and drawings that can be reasonably inferred and
19 are suited to allow a design-build entity to develop a
20 proposal.
 
21     Section 15. Solicitation of proposals.
22     (a) When the State construction agency elects to use the
23 design-build delivery method, it must issue a notice of intent
24 to receive requests for proposals for the project at least 14
25 days before issuing the request for the proposal. The State
26 construction agency must publish the advance notice in the
27 official procurement bulletin of the State or the professional
28 services bulletin of the State construction agency, if any. The
29 agency is encouraged to use publication of the notice in
30 related construction industry service publications. A brief
31 description of the proposed procurement must be included in the
32 notice. The State construction agency must provide a copy of
33 the request for proposal to any party requesting a copy.

 

 

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1     (b) The request for proposal shall be prepared for each
2 project and must contain, without limitation, the following
3 information:
4         (1) The name of the State construction agency.
5         (2) A preliminary schedule for the completion of the
6     contract.
7         (3) The proposed budget for the project, the source of
8     funds, and the currently available funds at the time the
9     request for proposal is submitted.
10         (4) Prequalification criteria for design-build
11     entities wishing to submit proposals. The State
12     construction agency shall include, at a minimum, its normal
13     prequalification, licensing, registration, and other
14     requirements, but nothing contained herein precludes the
15     use of additional prequalification criteria by the State
16     construction agency.
17         (5) Material requirements of the contract, including
18     but not limited to, the proposed terms and conditions,
19     required performance and payment bonds, insurance, and the
20     entity's plan to comply with the utilization goals for
21     business enterprises established in the Business
22     Enterprise for Minorities, Females, and Persons with
23     Disabilities Act, and with Section 2-105 of the Illinois
24     Human Rights Act.
25         (6) The performance criteria.
26         (7) The evaluation criteria for each phase of the
27     solicitation.
28         (8) The number of entities that will be considered for
29     the technical and cost evaluation phase.
30     (c) The State construction agency may include any other
31 relevant information that it chooses to supply. The
32 design-build entity shall be entitled to rely upon the accuracy
33 of this documentation in the development of its proposal.
34     (d) The date that proposals are due must be at least 21

 

 

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1 calendar days after the date of the issuance of the request for
2 proposal. In the event the cost of the project is estimated to
3 exceed $10 million, then the proposal due date must be at least
4 28 calendar days after the date of the issuance of the request
5 for proposal. The State construction agency shall include in
6 the request for proposal a minimum of 30 days to develop the
7 Phase II submissions after the selection of entities from the
8 Phase I evaluation is completed.
 
9     Section 20. Development of scope and performance criteria.
10     (a) The State construction agency shall develop, with the
11 assistance of a licensed design professional, a request for
12 proposal, which shall include scope and performance criteria.
13 The scope and performance criteria must be in sufficient detail
14 and contain adequate information to reasonably apprise the
15 qualified design-build entities of the State construction
16 agency's overall programmatic needs and goals, including
17 criteria and preliminary design plans, general budget
18 parameters, schedule, and delivery requirements.
19     (b) Each request for proposal shall also include a
20 description of the level of design to be provided in the
21 proposals. This description must include the scope and type of
22 renderings, drawings, and specifications that, at a minimum,
23 will be required by the State construction agency to be
24 produced by the design-build entities.
25     (c) The scope and performance criteria shall be prepared by
26 a design professional who is an employee of the State
27 construction agency, or the State construction agency may
28 contract with an independent design professional selected
29 under the Architectural, Engineering and Land Surveying
30 Qualification Based Selection Act (30 ILCS 535/) to provide
31 these services.
32     (d) The design professional that prepares the scope and
33 performance criteria is prohibited from participating in any

 

 

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1 design-build entity proposal for the project.
 
2     Section 25. Selection Committee.
3     (a) When the State construction agency elects to use the
4 design-build delivery method, it shall establish a committee to
5 evaluate and select the design-build entity. The committee,
6 under the discretion of the State construction agency, shall
7 consist of 5 or 7 members and shall include at least one
8 licensed design professional and 2 members of the public.
9 Public members may not be employed or associated with any firm
10 holding a contract with the State construction agency. One
11 public member shall be nominated by associations representing
12 the general design or construction industry and one member
13 shall be nominated by associations that represent minority or
14 female-owned design or construction industry businesses. The
15 selection committee may be designated for a set term or for the
16 particular project subject to the request for proposal.
17     (b) The members of the selection committee must certify for
18 each request for proposal that no conflict of interest exists
19 between the members and the design-build entities submitting
20 proposals. If a conflict exists, the member must be replaced
21 before any review of proposals.
 
22     Section 30. Procedures for Selection.
23     (a) The State construction agency must use a two-phase
24 procedure for the selection of the successful design-build
25 entity. Phase I of the procedure will evaluate and shortlist
26 the design-build entities based on qualifications, and Phase II
27 will evaluate the technical and cost proposals.
28     (b) The State construction agency shall include in the
29 request for proposal the evaluating factors to be used in Phase
30 I. These factors are in addition to any prequalification
31 requirements of design-build entities that the agency has set
32 forth. Each request for proposal shall establish the relative

 

 

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1 importance assigned to each evaluation factor and subfactor,
2 including any weighting of criteria to be employed by the State
3 construction agency. The State construction agency must
4 maintain a record of the evaluation scoring to be disclosed in
5 event of a protest regarding the solicitation.
6     The State construction agency shall include the following
7 criteria in every Phase I evaluation of design-build entities:
8 (1) experience of personnel; (2) successful experience with
9 similar project types; (3) financial capability; (4)
10 timeliness of past performance; (5) experience with similarly
11 sized projects; (6) successful reference checks of the firm;
12 (7) commitment to assign personnel for the duration of the
13 project and qualifications of the entity's consultants; and (8)
14 ability or past performance in meeting or exhausting good faith
15 efforts to meet the utilization goals for business enterprises
16 established in the Business Enterprise for Minorities,
17 Females, and Persons with Disabilities Act and with Section
18 2-105 of the Illinois Human Rights Act. The State construction
19 agency may include any additional relevant criteria in Phase I
20 that 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 the
27 design-build entity a financial or tangible advantage over
28 other design-build entities in the preparation, evaluation, or
29 performance of the design-build contract or that create the
30 appearance of impropriety. No proposal shall be considered that
31 does not include an entity's plan to comply with the
32 requirements established in the Business Enterprise for
33 Minorities, Females, and Persons with Disabilities Act and with
34 Section 2-105 of the Illinois Human Rights Act.

 

 

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1     Upon completion of the qualifications evaluation, the
2 State construction agency shall create a shortlist of the most
3 highly qualified design-build entities. The State construction
4 agency, in its discretion, is not required to shortlist the
5 maximum number of entities as identified for Phase II
6 evaluation, provided however, no less than 2 design-build
7 entities nor more than 6 are selected to submit Phase II
8 proposals.
9     The State construction agency shall notify the entities
10 selected for the shortlist in writing. This notification shall
11 commence the period for the preparation of the Phase II
12 technical and cost evaluations. The State construction agency
13 must allow sufficient time for the shortlist entities to
14 prepare their Phase II submittals considering the scope and
15 detail requested by the State agency.
16     (c) The State construction agency shall include in the
17 request for proposal the evaluating factors to be used in the
18 technical and cost submission components of Phase II. Each
19 request for proposal shall establish, for both the technical
20 and cost submission components of Phase II, the relative
21 importance assigned to each evaluation factor and subfactor,
22 including any weighting of criteria to be employed by the State
23 construction agency. The State construction agency must
24 maintain a record of the evaluation scoring to be disclosed in
25 event of a protest regarding the solicitation.
26     The State construction agency shall include the following
27 criteria in every Phase II technical evaluation of design-build
28 entities: (1) compliance with objectives of the project; (2)
29 compliance of proposed services to the request for proposal
30 requirements; (3) quality of products or materials proposed;
31 (4) quality of design parameters; (5) design concepts; (6)
32 innovation in meeting the scope and performance criteria; and
33 (7) constructability of the proposed project. The State
34 construction agency may include any additional relevant

 

 

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1 technical evaluation factors it deems necessary for proper
2 selection.
3     The State construction agency shall include the following
4 criteria in every Phase II cost evaluation: the total project
5 cost, the construction costs, and the time of completion. The
6 State construction agency may include any additional relevant
7 technical evaluation factors it deems necessary for proper
8 selection. The total project cost criteria weighing factor
9 shall be 25%.
10     The State construction agency shall directly employ or
11 retain a licensed design professional to evaluate the technical
12 and cost submissions to determine if the technical submissions
13 are in accordance with generally accepted industry standards.
14     Upon completion of the technical submissions and cost
15 submissions evaluation, the State construction agency may
16 award the design-build contract to the highest overall ranked
17 entity.
 
18     Section 35. Small projects. In any case where the total
19 overall cost of the project is estimated to be less than $10
20 million, the State construction agency may combine the
21 two-phase procedure for selection described in Section 30 into
22 one combined step, provided that all the requirements of
23 evaluation are performed in accordance with Section 30.
 
24     Section 40. Submission of proposals. Proposals must be
25 properly identified and sealed. Proposals may not be reviewed
26 until after the deadline for submission has passed as set forth
27 in the request for proposals. All design-build entities
28 submitting proposals shall be disclosed after the deadline for
29 submission, and all design-build entities who are selected for
30 Phase II evaluation shall also be disclosed at the time of that
31 determination.
32     Proposals shall include a bid bond in the form and security

 

 

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1 as designated in the request for proposals. Proposals shall
2 also contain a separate sealed envelope with the cost
3 information within the overall proposal submission. Proposals
4 shall include a list of all design professionals and other
5 entities as defined in Section 30-30 of the Illinois
6 Procurement Code to which any work may be subcontracted during
7 the performance of the contract. Any entity that will perform
8 any of the 5 subdivisions of work defined in Section 30-30 of
9 the Illinois Procurement Code must meet prequalification
10 standards of the State construction agency.
11     Proposals must meet all material requirements of the
12 request for proposal or they may be rejected as non-responsive.
13 The State construction agency shall have the right to reject
14 any and all proposals.
15     The drawings and specifications of the proposal shall
16 remain the property of the design-build entity.
17     The State construction agency shall review the proposals
18 for compliance with the performance criteria and evaluation
19 factors.
20     Proposals may be withdrawn prior to evaluation for any
21 cause. After evaluation begins by the State construction
22 agency, clear and convincing evidence of error is required for
23 withdrawal.
 
24     Section 45. Award. The State construction agency may award
25 the contract to the highest overall ranked entity. Notice of
26 award shall be made in writing. Unsuccessful entities shall
27 also be notified in writing. The State construction agency may
28 not request a best and final offer after the receipt of
29 proposals. The State construction agency may negotiate with the
30 selected design-build entity after award but prior to contract
31 execution for the purpose of securing better terms than
32 originally proposed, provided that the salient features of the
33 request for proposal are not diminished.
 

 

 

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1     Section 46. Reports and evaluation. At the end of every 6
2 month period following the contract award, and again prior to
3 final contract payout and closure, a selected design-build
4 entity shall detail, in a written report submitted to the State
5 agency, its efforts and success in implementing the entity's
6 plan to comply with the utilization goals for business
7 enterprises established in the Business Enterprise for
8 Minorities, Females, and Persons with Disabilities Act and the
9 provisions of Section 2-105 of the Illinois Human Rights Act.
10 If the entity's performance in implementing the plan falls
11 short of the performance measures and outcomes set forth in the
12 plans submitted by the entity during the proposal process, the
13 entity shall, in a detailed written report, inform the General
14 Assembly and the Governor whether and to what degree each
15 design-build contract authorized under this Act promoted the
16 utilization goals for business enterprises established in the
17 Business Enterprise for Minorities, Females, and Persons with
18 Disabilities Act and the provisions of Section 2-105 of the
19 Illinois Human Rights Act.
 
20     Section 50. Administrative Procedure Act. The Illinois
21 Administrative Procedure Act (5 ILCS 100/) applies to all
22 administrative rules and procedures of the State construction
23 agency under this Act except that nothing herein shall be
24 construed to render any prequalification or other
25 responsibility criteria as a "license" or "licensing" under
26 that Act.
 
27     Section 53. Federal requirements. In the procurement of
28 design-build contracts, the State construction agency shall
29 comply with federal law and regulations and take all necessary
30 steps to adapt their rules, policies, and procedures to remain
31 eligible for federal aid.
 

 

 

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1     Section 90. Repealer. This Act is repealed on July 1, 2009.
 
2     Section 95. 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.".