SB1312 97TH GENERAL ASSEMBLY

LRB097 05251 PJG 45302 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1312

Introduced 2/8/2011, by Sen. Jeffrey M. Schoenberg

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 500/30-45
30 ILCS 535/85 new

Creates the Design-Build for Highway Construction Act. Allows the Department of Transportation to use the design-build delivery method for public projects if it is shown to be in the State's best interest. Requires the Department to prepare a request for qualifications and a request for proposal for each project. Requires the Department to issue a notice of intent to receive requests for qualifications or proposals. Provides for requirements for qualifications and proposals. Provides for a committee to evaluate and select the design-build entity. Provides procedures for the selection of the design-build entity. Amends the Illinois Procurement Code and the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act to make them subject to the Design-Build for Highway Construction Act. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning finance.

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 Act.

Section 5. Legislative policy; procedures. It is the intent of the General Assembly that the Illinois Department of Transportation be allowed to use the design-build delivery method for public projects if it is shown to be in the State's best interest for that particular project. It shall be the policy of the Illinois Department of Transportation in the procurement of design-build services to publicly announce all requirements for design-build services and to procure these services on the basis of demonstrated competence and qualifications and with due regard for the principles of competitive selection.

The Illinois Department of Transportation shall, prior to issuing requests for proposals, promulgate and publish procedures for the solicitation and award of contracts pursuant to this Act.

The Illinois Department of Transportation shall, for each public project or projects permitted under this Act, make a written determination that it is in the best interests of this State to enter into a design-build contract for the project or projects, including a description as to the particular advantages of the design-build procurement method. In making that determination, each of the following factors shall be considered:

(1) the probability that the design-build procurement method will be in the best interests of the State by providing a material savings of time or cost over the design-bid-build or other delivery system;

(2) the type and size of the project and its suitability to the design-build procurement method; and

(3) the ability of the Illinois Department of Transportation to define and provide comprehensive scope and performance criteria for the project.

The Illinois Department of Transportation may not use a design-build procurement method unless the Department determines in writing that the project will comply with the disadvantaged business and equal employment practices of the State as established by federal law and Section 2-105 of the Illinois Human Rights Act.

The Illinois Department of Transportation shall, within 15 days after the initial determination, provide an advisory copy of the determination to the Procurement Policy Board. The Department shall maintain the full record of the determination for 5 years.

Section 10. Definitions. As used in this Act:

"Department" means the Illinois Department of Transportation.

"Delivery system" means the design and construction approach used to develop and construct a project.

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

"Design-build" means a delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying, and related services as required, and the labor, materials, equipment, and other construction services for the project.

"Design-build contract" means a contract for a public project under this Act between the Department and a design-build entity to furnish architecture, engineering, land surveying, and related 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 Department to make modifications in the project scope without invalidating the design-build contract.

"Design-build entity" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under this Act. A design-build entity and associated design-build professionals shall conduct themselves in accordance with the laws of this State and the related provisions of the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State.

"Design professional" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that offers services under the Illinois Architecture Practice Act of 1989, the Professional Engineering Practice Act of 1989, the Structural Engineering Practice Act of 1989, or the Illinois Professional Land Surveyor Act of 1989.

"Evaluation criteria" means the requirements for the separate phases of the selection process as defined in this Act and may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors. Price may not be used as a factor in the evaluation of Phase I proposals.

"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 proposal" means the document used by the Department to solicit proposals for a design-build contract.

"Request for qualifications" means the document issued by the Department in Phase I of a two-phased selection process. It typically describes the project in sufficient detail to let potential offerors determine if they wish to compete and forms the basis for requesting qualifications submissions from which the mostly highly qualified offerors can be identified.

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

Section 15. Notice of intent. When the Department elects to use the design-build delivery method, it must issue a notice of intent to receive requests for qualifications or proposals for the project at least 14 days before issuing the request for the qualifications or proposal. The Department must publish the advance notice in the official procurement bulletin of the State or the professional services bulletin of the Department. The Department is encouraged to use publication of the notice in related construction industry service publications. A brief description of the proposed procurement must be included in the notice. The Department must provide a copy of the request for qualifications or request for proposal to any party requesting a copy.

Section 20. Development of scope and performance criteria.

(a) The Department shall develop, with the assistance of a licensed design professional, a request for proposal, which shall include scope and performance criteria. The scope and performance criteria must be in sufficient detail and contain adequate information to reasonably apprise the qualified design-build entities of the Department's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule, and delivery requirements.

(b) Each request for proposal shall also include a description of the level of design to be provided in the proposals. This description must include the scope and type of renderings, drawings, and specifications that, at a minimum, will be required by the Department to be produced by the design-build entities.

(c) The scope and performance criteria shall be prepared by a design professional who is an employee of the Department, or the Department may contract with an independent design professional selected under the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act to provide these services.

(d) 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. Solicitations.

(a) The request for qualifications shall be prepared for each project, other than small projects as defined in Section 45 of this Act, and may contain, without limitation, the following information:

(1) scope of the work;

(2) Phase I evaluation factors and their relative weights, including:

(A) technical approach;

(B) technical qualifications, such as specialized experience and technical competence, capability to perform, and past performance; and

(C) other appropriate factors;

(3) identification of key personnel;

(4) prequalification criteria for design-build entities wishing to submit proposals; the Department shall include, at a minimum, its normal prequalification, licensing, registration, and other requirements, but nothing contained herein precludes the use of additional prequalification criteria by the Department;

(5) Phase II evaluation factors; and

(6) the maximum number of offerors that will be short listed to submit Phase II proposals.

(b) The request for proposal shall be prepared for each project and may contain, without limitation, the following information:

(1) a preliminary schedule for the completion of the contract;

(2) the proposed budget for the project and the source of funds at the time the request for proposal is submitted;

(3) material requirements of the contract, including but not limited to, the proposed terms and conditions, required performance and payment bonds, insurance, and the entity's plan to comply with disadvantaged business enterprises requirements and with Section 2-105 of the Illinois Human Rights Act;

(4) the performance criteria;

(5) the requirements for the technical and price proposals, including factors that will affect contract award; and

(6) criteria for Phase II technical evaluation:

(A) compliance with objectives of the project;

(B) compliance of proposed services to the request for proposal requirements;

(C) quality of products or materials proposed;

(D) quality of design parameters;

(E) design concepts;

(F) innovation in meeting the scope and performance criteria; and

(G) constructability of the proposed project.

(c) The Department may include any other relevant information that it chooses to supply. The additional information may include the payment of a stipend to assist design-build entities in the preparation of proposals. The Department may limit the amount of the stipend and may limit the payment of a stipend to those design-build entities who agree that their proposal will become the property of the Department, notwithstanding the provisions of Section 30. The design-build entity shall be entitled to rely upon the accuracy of this documentation in the development of its proposal.

(d) The date that proposals are due must be at least 21 calendar days after the date of the issuance of the request for proposal. In the event the cost of the project is estimated to exceed $10,000,000, then the proposal due date must be at least 28 calendar days after the date of the issuance of the request for proposal. The Department shall include in the request for proposal a minimum of 30 days to develop the Phase II submissions after the selection of entities from the Phase I evaluation is completed.

Section 30. Submission of qualifications or proposals. Qualifications and proposals must be properly identified and sealed. Qualifications and proposals may not be reviewed until after the deadline for submission has passed as set forth in the request for qualifications or proposals. All design-build entities submitting qualifications shall be disclosed after the deadline for submission, and all design-build entities who are selected for Phase II evaluation shall also be disclosed at the time of that determination.

Proposals shall include a bid bond in the form and security as designated in the request for proposals. Proposals shall also contain a separate sealed envelope with the cost information within the overall proposal submission. Proposals shall include a list of all design professionals and other entities to which any work may be subcontracted during the performance of the contract.

Proposals must meet all material requirements of the request for proposal or they may be rejected as non-responsive. The Department shall have the right to reject any and all qualifications or proposals.

The drawings and specifications of the proposal shall remain the property of the design-build entity.

The Department shall review the proposal for compliance with the performance criteria and evaluation factors.

Qualifications or proposals may be withdrawn prior to evaluation for any cause. After evaluation begins by the Department, clear and convincing evidence of error is required for withdrawal.

Section 35. Selection committee.

(a) When the Department elects to use the design-build delivery method, it shall establish a committee to evaluate and select the design-build entity. The committee, under the discretion of the Department, shall consist of 7 members and shall include at least 6 licensed design professionals. Two of the members shall be members of the public and shall both be licensed design professionals. Public members may not be employed or associated with any firm associated with a design-build entity proposing on the public project being evaluated. One public member shall be nominated by associations representing the general design or construction industry, and one member shall be nominated by associations that represent minority or female-owned design or construction industry businesses. The selection committee may be designated for a set term or for the particular project subject to the request for proposal.

(b) The members of the selection committee must certify for each request for proposal that no conflict of interest exists between the members and the design-build entities submitting proposals. If a conflict exists, the member must be replaced before any review of proposals.

Section 40. Procedures for selection.

(a) The Department must use a two-phase procedure for the selection of the successful design-build entity unless it is a small project as set forth in Section 45 of this Act. Phase I of the procedure shall evaluate and shortlist the design-build entities based on qualifications, and Phase II shall evaluate the technical and cost proposals. In a two-phase procedure, a request for qualifications shall be used by the Department to solicit offerors for Phase I, and a request for proposals shall be used for Phase II.

(b) The Department shall include in the request for qualifications the evaluating factors to be used in Phase I. These factors are in addition to any prequalification requirements of design-build entities that the Department has set forth. Each request for qualifications shall establish the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the Department. The Department must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The Department may not consider any design-build entity for evaluation or award if the entity has any pecuniary interest in the project or has other relationships or circumstances, including but not limited to, long-term leasehold, mutual performance, or development contracts with the Department, that may give the design-build entity a financial or tangible advantage over other design-build entities in the preparation, evaluation, or performance of the design-build contract or that create the appearance of impropriety. No proposal shall be considered that does not include an entity's utilization plan to comply with the requirements of the Department's disadvantaged business enterprises program, for both the design and construction areas of performance, and with Section 2-105 of the Illinois Human Rights Act.

Upon completion of the qualifications evaluation, the Department shall create a shortlist of the most highly qualified design-build entities. The Department, in its discretion, is not required to shortlist the maximum number of entities as identified for Phase II evaluation, provided however, no less than 2 design-build entities nor more than 5 are selected to submit Phase II proposals.

The Department shall notify the entities selected for the shortlist in writing. This notification shall commence the period for the preparation of the Phase II technical and cost evaluations. The Department must allow sufficient time for the shortlist entities to prepare their Phase II submittals considering the scope and detail requested by the Department.

(c) The Department shall include in the request for proposal the evaluating factors to be used in the technical and cost submission components of Phase II. Each request for proposal shall establish, for both the technical and cost submission components of Phase II, the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the Department. The Department must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The Department shall directly employ or retain a licensed design professional to evaluate the technical and cost submissions to determine if the technical submissions are in accordance with generally accepted industry standards.

Upon completion of the technical submissions and cost submissions evaluation, the Department may award the design-build contract to the highest overall ranked entity.

Section 45. Small projects. In any case where the total overall cost of the project is estimated to be less than $10,000,000, the Department may combine the two-phase procedure for selection described in Section 40 into one combined step, provided that all the requirements of evaluation are performed in accordance with Section 40. The Department will solicit small projects with a request for proposals.

Section 50. Acquisition of property.

(a) The Department may exercise any and all powers for acquisition of property rights granted to it in the Illinois Highway Code or otherwise granted to the Department for the purpose of acquiring any lands or estates or interests in land for a transportation project as provided in the design-build contract or otherwise to the extent that the Department finds that the action serves the public purpose of this Act and it deems the action appropriate in the exercise of its powers under this Act.

(b) The Department and a design-build entity may enter into the leases, licenses, easements, and other grants of property interests that the Department determines necessary to carry out this Act.

Section 55. Award. The Department may award the contract to the highest overall ranked entity. If the highest overall ranked entity is unable to perform at the time of award, the Department may award to the next highest ranked entity. Notice of award shall be made in writing. Unsuccessful entities shall also be notified in writing. The Department may not request a best and final offer after the receipt of proposals. The Department may negotiate with the selected design-build entity after award but prior to contract execution for the purpose of securing better terms than originally proposed, provided that the salient features of the request for proposal are not diminished.

Section 60. Disadvantaged Business Enterprises. Disadvantaged Business Enterprises program compliance, enforcement, and monitoring shall be as established by federal law and Section 2-105 of the Illinois Human Rights Act.

Section 65. Administrative Procedure Act. The Illinois Administrative Procedure Act applies to all administrative rules and procedures of the Department under this Act except that nothing herein shall be construed to render any prequalification or other responsibility criteria as a "license" or "licensing" under that Act.

Section 70. Federal requirements. In the procurement of design-build contracts, the Department shall comply with federal law and regulations and take all necessary steps to adapt their rules, policies, and procedures to remain eligible for federal aid.

Section 75. Repealer. This Act is repealed on July 1, 2015.

Section 100. The Illinois Procurement Code is amended by changing Section 30-45 as follows:

(30 ILCS 500/30-45)

Sec. 30-45. Other Acts. This Article is subject to applicable provisions of the following Acts:

(1) the Prevailing Wage Act;

(2) the Public Construction Bond Act;

(3) the Public Works Employment Discrimination Act;

(4) the Public Works Preference Act (repealed on June 16, 2010 by Public Act 96-929);

(5) the Employment of Illinois Workers on Public Works Act;

(6) the Public Contract Fraud Act; and

(7) the Illinois Construction Evaluation Act; and

(8) the Design-Build for Highway Construction Act.

(Source: P.A. 90-572, eff. date - See Sec. 99-5; revised 10-19-10.)

Section 105. The Architectural, Engineering, and Land Surveying Qualifications Based Selection Act is amended by adding Section 85 as follows:

(30 ILCS 535/85 new)

Sec. 85. Design-Build for Highway Construction Act. This Act is subject to applicable provisions of the Design-Build for Highway Construction Act.

Section 997. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 999. Effective date. This Act takes effect upon becoming law.