Full Text of SB1312 97th General Assembly
SB1312 97TH GENERAL ASSEMBLY |
| | 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 | |
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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.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning finance.
| 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 for Highway Construction Act. | 6 | | Section 5. Legislative policy; procedures. It is the intent | 7 | | of the General Assembly that the Illinois Department of | 8 | | Transportation be allowed to use the design-build delivery | 9 | | method for public projects if it is shown to be in the State's | 10 | | best interest for that particular project. It shall be the | 11 | | policy of the Illinois Department of Transportation in the | 12 | | procurement of design-build services to publicly announce all | 13 | | requirements for design-build services and to procure these | 14 | | services on the basis of demonstrated competence and | 15 | | qualifications and with due regard for the principles of | 16 | | competitive selection. | 17 | | The Illinois Department of Transportation shall, prior to | 18 | | issuing requests for proposals, promulgate and publish | 19 | | procedures for the solicitation and award of contracts pursuant | 20 | | to this Act. | 21 | | The Illinois Department of Transportation shall, for each | 22 | | public project or projects permitted under this Act, make a | 23 | | written determination that it is in the best interests of this |
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| 1 | | State to enter into a design-build contract for the project or | 2 | | projects, including a description as to the particular | 3 | | advantages of the design-build procurement method. In making | 4 | | that determination, each of the following factors shall be | 5 | | considered: | 6 | | (1) the probability that the design-build procurement | 7 | | method will be in the best interests of the State by | 8 | | providing a material savings of time or cost over the | 9 | | design-bid-build or other delivery system; | 10 | | (2) the type and size of the project and its | 11 | | suitability to the design-build procurement method; and | 12 | | (3) the ability of the Illinois Department of | 13 | | Transportation to define and provide comprehensive scope | 14 | | and performance criteria for the project. | 15 | | The Illinois Department of Transportation may not use a | 16 | | design-build procurement method unless the Department | 17 | | determines in writing that the project will comply with the | 18 | | disadvantaged business and equal employment practices of the | 19 | | State as established by federal law and Section 2-105 of the | 20 | | Illinois Human Rights Act. | 21 | | The Illinois Department of Transportation shall, within 15 | 22 | | days after the initial determination, provide an advisory copy | 23 | | of the determination to the Procurement Policy Board. The | 24 | | Department shall maintain the full record of the determination | 25 | | for 5 years. |
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| 1 | | Section 10. Definitions. As used in this Act: | 2 | | "Department" means the Illinois Department of | 3 | | Transportation. | 4 | | "Delivery system" means the design and construction | 5 | | approach used to develop and construct a project. | 6 | | "Design-bid-build" means the traditional delivery system | 7 | | used on public projects in this State that incorporates the | 8 | | Architectural, Engineering, and Land Surveying Qualifications | 9 | | Based Selection Act and the principles of competitive bidding | 10 | | in the Illinois Procurement Code. | 11 | | "Design-build" means a delivery system that provides | 12 | | responsibility within a single contract for the furnishing of | 13 | | architecture, engineering, land surveying, and related | 14 | | services as required, and the labor, materials, equipment, and | 15 | | other construction services for the project. | 16 | | "Design-build contract" means a contract for a public | 17 | | project under this Act between the Department and a | 18 | | design-build entity to furnish architecture, engineering, land | 19 | | surveying, and related services as required, and to furnish the | 20 | | labor, materials, equipment, and other construction services | 21 | | for the project. The design-build contract may be conditioned | 22 | | upon subsequent refinements in scope and price and may allow | 23 | | the Department to make modifications in the project scope | 24 | | without invalidating the design-build contract. | 25 | | "Design-build entity" means any individual, sole | 26 | | proprietorship, firm, partnership, joint venture, corporation, |
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| 1 | | professional corporation, or other entity that proposes to | 2 | | design and construct any public project under this Act. A | 3 | | design-build entity and associated design-build professionals | 4 | | shall conduct themselves in accordance with the laws of this | 5 | | State and the related provisions of the Illinois Administrative | 6 | | Code, as referenced by the licensed design professionals Acts | 7 | | of this State. | 8 | | "Design professional" means any individual, sole | 9 | | proprietorship, firm, partnership, joint venture, corporation, | 10 | | professional corporation, or other entity that offers services | 11 | | under the Illinois Architecture Practice Act of 1989, the | 12 | | Professional Engineering Practice Act of 1989, the Structural | 13 | | Engineering Practice Act of 1989, or the Illinois Professional | 14 | | Land Surveyor Act of 1989. | 15 | | "Evaluation criteria" means the requirements for the | 16 | | separate phases of the selection process as defined in this Act | 17 | | and may include the specialized experience, technical | 18 | | qualifications and competence, capacity to perform, past | 19 | | performance, experience with similar projects, assignment of | 20 | | personnel to the project, and other appropriate factors. Price | 21 | | may not be used as a factor in the evaluation of Phase I | 22 | | proposals. | 23 | | "Proposal" means the offer to enter into a design-build | 24 | | contract as submitted by a design-build entity in accordance | 25 | | with this Act. | 26 | | "Request for proposal" means the document used by the |
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| 1 | | Department to solicit proposals for a design-build contract. | 2 | | "Request for qualifications" means the document issued by | 3 | | the Department in Phase I of a two-phased selection process. It | 4 | | typically describes the project in sufficient detail to let | 5 | | potential offerors determine if they wish to compete and forms | 6 | | the basis for requesting qualifications submissions from which | 7 | | the mostly highly qualified offerors can be identified. | 8 | | "Scope and performance criteria" means the requirements | 9 | | for the public project, including but not limited to, the | 10 | | intended usage, capacity, size, scope, quality and performance | 11 | | standards, life-cycle costs, preliminary engineering, and | 12 | | other programmatic criteria that are expressed in | 13 | | performance-oriented and quantifiable specifications and | 14 | | drawings that can be reasonably inferred and are suited to | 15 | | allow a design-build entity to develop a proposal. | 16 | | Section 15. Notice of intent. When the Department elects to | 17 | | use the design-build delivery method, it must issue a notice of | 18 | | intent to receive requests for qualifications or proposals for | 19 | | the project at least 14 days before issuing the request for the | 20 | | qualifications or proposal. The Department must publish the | 21 | | advance notice in the official procurement bulletin of the | 22 | | State or the professional services bulletin of the Department. | 23 | | The Department is encouraged to use publication of the notice | 24 | | in related construction industry service publications. A brief | 25 | | description of the proposed procurement must be included in the |
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| 1 | | notice. The Department must provide a copy of the request for | 2 | | qualifications or request for proposal to any party requesting | 3 | | a copy. | 4 | | Section 20. Development of scope and performance criteria. | 5 | | (a) The Department shall develop, with the assistance of a | 6 | | licensed design professional, a request for proposal, which | 7 | | shall include scope and performance criteria. The scope and | 8 | | performance criteria must be in sufficient detail and contain | 9 | | adequate information to reasonably apprise the qualified | 10 | | design-build entities of the Department's overall programmatic | 11 | | needs and goals, including criteria and preliminary design | 12 | | plans, general budget parameters, schedule, and delivery | 13 | | requirements. | 14 | | (b) Each request for proposal shall also include a | 15 | | description of the level of design to be provided in the | 16 | | proposals. This description must include the scope and type of | 17 | | renderings, drawings, and specifications that, at a minimum, | 18 | | will be required by the Department to be produced by the | 19 | | design-build entities. | 20 | | (c) The scope and performance criteria shall be prepared by | 21 | | a design professional who is an employee of the Department, or | 22 | | the Department may contract with an independent design | 23 | | professional selected under the Architectural, Engineering, | 24 | | and Land Surveying Qualifications Based Selection Act to | 25 | | provide these services. |
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| 1 | | (d) The design professional that prepares the scope and | 2 | | performance criteria is prohibited from participating in any | 3 | | design-build entity proposal for the project. | 4 | | Section 25. Solicitations. | 5 | | (a) The request for qualifications shall be prepared for | 6 | | each project, other than small projects as defined in Section | 7 | | 45 of this Act, and may contain, without limitation, the | 8 | | following information: | 9 | | (1) scope of the work; | 10 | | (2) Phase I evaluation factors and their relative | 11 | | weights, including: | 12 | | (A) technical approach; | 13 | | (B) technical qualifications, such as specialized | 14 | | experience and technical competence, capability to | 15 | | perform, and past performance; and | 16 | | (C) other appropriate factors; | 17 | | (3) identification of key personnel; | 18 | | (4) prequalification criteria for design-build | 19 | | entities wishing to submit proposals; the Department shall | 20 | | include, at a minimum, its normal prequalification, | 21 | | licensing, registration, and other requirements, but | 22 | | nothing contained herein precludes the use of additional | 23 | | prequalification criteria by the Department; | 24 | | (5) Phase II evaluation factors; and | 25 | | (6) the maximum number of offerors that will be short |
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| 1 | | listed to submit Phase II proposals. | 2 | | (b) The request for proposal shall be prepared for each | 3 | | project and may contain, without limitation, the following | 4 | | information: | 5 | | (1) a preliminary schedule for the completion of the | 6 | | contract; | 7 | | (2) the proposed budget for the project and the source | 8 | | of funds at the time the request for proposal is submitted; | 9 | | (3) material requirements of the contract, including | 10 | | but not limited to, the proposed terms and conditions, | 11 | | required performance and payment bonds, insurance, and the | 12 | | entity's plan to comply with disadvantaged business | 13 | | enterprises requirements and with Section 2-105 of the | 14 | | Illinois Human Rights Act; | 15 | | (4) the performance criteria; | 16 | | (5) the requirements for the technical and price | 17 | | proposals, including factors that will affect contract | 18 | | award; and | 19 | | (6) criteria for Phase II technical evaluation: | 20 | | (A) compliance with objectives of the project; | 21 | | (B) compliance of proposed services to the request | 22 | | for proposal requirements; | 23 | | (C) quality of products or materials proposed; | 24 | | (D) quality of design parameters; | 25 | | (E) design concepts; | 26 | | (F) innovation in meeting the scope and |
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| 1 | | performance criteria; and | 2 | | (G) constructability of the proposed project. | 3 | | (c) The Department may include any other relevant | 4 | | information that it chooses to supply. The additional | 5 | | information may include the payment of a stipend to assist | 6 | | design-build entities in the preparation of proposals. The | 7 | | Department may limit the amount of the stipend and may limit | 8 | | the payment of a stipend to those design-build entities who | 9 | | agree that their proposal will become the property of the | 10 | | Department, notwithstanding the provisions of Section 30. The | 11 | | design-build entity shall be entitled to rely upon the accuracy | 12 | | of this documentation in the development of its proposal. | 13 | | (d) The date that proposals are due must be at least 21 | 14 | | calendar days after the date of the issuance of the request for | 15 | | proposal. In the event the cost of the project is estimated to | 16 | | exceed $10,000,000, then the proposal due date must be at least | 17 | | 28 calendar days after the date of the issuance of the request | 18 | | for proposal. The Department shall include in the request for | 19 | | proposal a minimum of 30 days to develop the Phase II | 20 | | submissions after the selection of entities from the Phase I | 21 | | evaluation is completed. | 22 | | Section 30. Submission of qualifications or proposals. | 23 | | Qualifications and proposals must be properly identified and | 24 | | sealed. Qualifications and proposals may not be reviewed until | 25 | | after the deadline for submission has passed as set forth in |
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| 1 | | the request for qualifications or proposals. All design-build | 2 | | entities submitting qualifications shall be disclosed after | 3 | | the deadline for submission, and all design-build entities who | 4 | | are selected for Phase II evaluation shall also be disclosed at | 5 | | the time of that determination. | 6 | | Proposals shall include a bid bond in the form and security | 7 | | as designated in the request for proposals. Proposals shall | 8 | | also contain a separate sealed envelope with the cost | 9 | | information within the overall proposal submission. Proposals | 10 | | shall include a list of all design professionals and other | 11 | | entities to which any work may be subcontracted during the | 12 | | performance of the contract. | 13 | | Proposals must meet all material requirements of the | 14 | | request for proposal or they may be rejected as non-responsive. | 15 | | The Department shall have the right to reject any and all | 16 | | qualifications or proposals. | 17 | | The drawings and specifications of the proposal shall | 18 | | remain the property of the design-build entity. | 19 | | The Department shall review the proposal for compliance | 20 | | with the performance criteria and evaluation factors. | 21 | | Qualifications or proposals may be withdrawn prior to | 22 | | evaluation for any cause. After evaluation begins by the | 23 | | Department, clear and convincing evidence of error is required | 24 | | for withdrawal. | 25 | | Section 35. Selection committee. |
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| 1 | | (a) When the Department elects to use the design-build | 2 | | delivery method, it shall establish a committee to evaluate and | 3 | | select the design-build entity. The committee, under the | 4 | | discretion of the Department, shall consist of 7 members and | 5 | | shall include at least 6 licensed design professionals. Two of | 6 | | the members shall be members of the public and shall both be | 7 | | licensed design professionals. Public members may not be | 8 | | employed or associated with any firm associated with a | 9 | | design-build entity proposing on the public project being | 10 | | evaluated. One public member shall be nominated by associations | 11 | | representing the general design or construction industry, and | 12 | | one member shall be nominated by associations that represent | 13 | | minority or female-owned design or construction industry | 14 | | businesses. The selection committee may be designated for a set | 15 | | term or for the particular project subject to the request for | 16 | | 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 40. Procedures for selection. | 23 | | (a) The Department must use a two-phase procedure for the | 24 | | selection of the successful design-build entity unless it is a | 25 | | small project as set forth in Section 45 of this Act. Phase I |
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| 1 | | of the procedure shall evaluate and shortlist the design-build | 2 | | entities based on qualifications, and Phase II shall evaluate | 3 | | the technical and cost proposals. In a two-phase procedure, a | 4 | | request for qualifications shall be used by the Department to | 5 | | solicit offerors for Phase I, and a request for proposals shall | 6 | | be used for Phase II. | 7 | | (b) The Department shall include in the request for | 8 | | qualifications the evaluating factors to be used in Phase I. | 9 | | These factors are in addition to any prequalification | 10 | | requirements of design-build entities that the Department has | 11 | | set forth. Each request for qualifications shall establish the | 12 | | relative importance assigned to each evaluation factor and | 13 | | subfactor, including any weighting of criteria to be employed | 14 | | by the Department. The Department must maintain a record of the | 15 | | evaluation scoring to be disclosed in event of a protest | 16 | | regarding the solicitation. | 17 | | The Department may not consider any design-build entity for | 18 | | evaluation or award if the entity has any pecuniary interest in | 19 | | the project or has other relationships or circumstances, | 20 | | including but not limited to, long-term leasehold, mutual | 21 | | performance, or development contracts with the Department, | 22 | | that may give the design-build entity a financial or tangible | 23 | | advantage over other design-build entities in the preparation, | 24 | | evaluation, or performance of the design-build contract or that | 25 | | create the appearance of impropriety. No proposal shall be | 26 | | considered that does not include an entity's utilization plan |
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| 1 | | to comply with the requirements of the Department's | 2 | | disadvantaged business enterprises program, for both the | 3 | | design and construction areas of performance, and with Section | 4 | | 2-105 of the Illinois Human Rights Act. | 5 | | Upon completion of the qualifications evaluation, the | 6 | | Department shall create a shortlist of the most highly | 7 | | qualified design-build entities. The Department, in its | 8 | | discretion, is not required to shortlist the maximum number of | 9 | | entities as identified for Phase II evaluation, provided | 10 | | however, no less than 2 design-build entities nor more than 5 | 11 | | are selected to submit Phase II proposals. | 12 | | The Department shall notify the entities selected for the | 13 | | shortlist in writing. This notification shall commence the | 14 | | period for the preparation of the Phase II technical and cost | 15 | | evaluations. The Department must allow sufficient time for the | 16 | | shortlist entities to prepare their Phase II submittals | 17 | | considering the scope and detail requested by the Department. | 18 | | (c) The Department shall include in the request for | 19 | | proposal the evaluating factors to be used in the technical and | 20 | | cost submission components of Phase II. Each request for | 21 | | proposal shall establish, for both the technical and cost | 22 | | submission components of Phase II, the relative importance | 23 | | assigned to each evaluation factor and subfactor, including any | 24 | | weighting of criteria to be employed by the Department. The | 25 | | Department must maintain a record of the evaluation scoring to | 26 | | be disclosed in event of a protest regarding the solicitation. |
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| 1 | | The Department shall directly employ or retain a licensed | 2 | | design professional to evaluate the technical and cost | 3 | | submissions to determine if the technical submissions are in | 4 | | accordance with generally accepted industry standards. | 5 | | Upon completion of the technical submissions and cost | 6 | | submissions evaluation, the Department may award the | 7 | | design-build contract to the highest overall ranked entity. | 8 | | Section 45. Small projects. In any case where the total | 9 | | overall cost of the project is estimated to be less than | 10 | | $10,000,000, the Department may combine the
two-phase | 11 | | procedure for selection described in Section 40 into one | 12 | | combined step, provided that all the requirements of evaluation | 13 | | are performed in accordance with Section 40. The Department | 14 | | will solicit small projects with a request for proposals. | 15 | | Section 50. Acquisition of property. | 16 | | (a) The Department may exercise any and all powers for | 17 | | acquisition of property rights granted to it in the Illinois | 18 | | Highway Code or otherwise granted to the Department for the | 19 | | purpose of acquiring any lands or estates or interests in land | 20 | | for a transportation project as provided in the design-build | 21 | | contract or otherwise to the extent that the Department finds | 22 | | that the action serves the public purpose of this Act and it | 23 | | deems the action appropriate in the exercise of its powers | 24 | | under this Act. |
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| 1 | | (b) The Department and a design-build entity may enter into | 2 | | the leases, licenses, easements, and other grants of property | 3 | | interests that the Department determines necessary to carry out | 4 | | this Act. | 5 | | Section 55. Award. The Department may award the contract to | 6 | | the highest overall ranked entity. If the highest overall | 7 | | ranked entity is unable to perform at the time of award, the | 8 | | Department may award to the next highest ranked entity. Notice | 9 | | of award shall be made in writing. Unsuccessful entities shall | 10 | | also be notified in writing. The Department may not request a | 11 | | best and final offer after the receipt of proposals. The | 12 | | Department may negotiate with the selected design-build entity | 13 | | after award but prior to contract execution for the purpose of | 14 | | securing better terms than originally proposed, provided that | 15 | | the salient features of the request for proposal are not | 16 | | diminished. | 17 | | Section 60. Disadvantaged Business Enterprises. | 18 | | Disadvantaged Business Enterprises program compliance, | 19 | | enforcement, and monitoring shall be as established by federal | 20 | | law and Section 2-105 of the Illinois Human Rights Act. | 21 | | Section 65. Administrative Procedure Act. The Illinois | 22 | | Administrative Procedure Act applies to all administrative | 23 | | rules and procedures of the Department under this Act except |
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| 1 | | that nothing herein shall be construed to render any | 2 | | prequalification or other responsibility criteria as a | 3 | | "license" or "licensing" under that Act. | 4 | | Section 70. Federal requirements. In the procurement of | 5 | | design-build contracts, the Department shall comply with | 6 | | federal law and regulations and take all necessary steps to | 7 | | adapt their rules, policies, and procedures to remain eligible | 8 | | for federal aid. | 9 | | Section 75. Repealer. This Act is repealed on July 1, 2015. | 10 | | Section 100. The Illinois Procurement Code is amended by | 11 | | changing Section 30-45 as follows:
| 12 | | (30 ILCS 500/30-45)
| 13 | | Sec. 30-45. Other Acts. This Article is subject to | 14 | | applicable
provisions of the following Acts:
| 15 | | (1) the Prevailing Wage Act;
| 16 | | (2) the Public Construction Bond Act;
| 17 | | (3) the Public Works Employment Discrimination Act;
| 18 | | (4) the Public Works Preference Act (repealed on June | 19 | | 16, 2010 by Public Act 96-929) ;
| 20 | | (5) the Employment of Illinois Workers on Public Works
| 21 | | Act;
| 22 | | (6) the Public Contract Fraud Act; and
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| 1 | | (7) the Illinois Construction Evaluation Act ; and | 2 | | (8) the Design-Build for Highway Construction Act .
| 3 | | (Source: P.A. 90-572, eff. date - See Sec. 99-5; revised | 4 | | 10-19-10.)
| 5 | | Section 105. The Architectural, Engineering, and Land | 6 | | Surveying
Qualifications Based Selection Act is amended by | 7 | | adding Section 85 as follows: | 8 | | (30 ILCS 535/85 new) | 9 | | Sec. 85. Design-Build for Highway Construction Act. This | 10 | | Act is subject to applicable provisions of the Design-Build for | 11 | | Highway Construction Act. | 12 | | Section 997. Severability. The provisions of this Act are | 13 | | severable under Section 1.31 of the Statute on Statutes.
| 14 | | Section 999. Effective date. This Act takes effect upon | 15 | | becoming law.
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