Public Act 094-0716
 
SB0766 Enrolled LRB094 08758 RSP 38971 b

    AN ACT concerning procurement.
 
    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 Procurement Act.
 
    Section 5. Legislative policy. It is the intent of the
General Assembly that the Capital Development Board 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 Capital
Development Board 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 Capital Development Board shall, prior to issuing
requests for proposals, promulgate and publish procedures for
the solicitation and award of contracts pursuant to this Act.
    The Capital Development Board shall, for each public
project or projects permitted under this Act, make a written
determination, including a description as to the particular
advantages of the design-build procurement method, that it is
in the best interests of this State to enter into a
design-build contract for the project or projects. In making
that determination, 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.
        (3) The ability of the State construction agency to
    define and provide comprehensive scope and performance
    criteria for the project.
    No State construction agency may use a design-build
procurement method unless the agency determines in writing that
the project will comply with the disadvantaged business and
equal employment practices of the State as established in the
Business Enterprise for Minorities, Females, and Persons with
Disabilities Act and Section 2-105 of the Illinois Human Rights
Act.
    The Capital Development Board shall within 15 days after
the initial determination provide an advisory copy to the
Procurement Policy Board and maintain the full record of
determination for 5 years.
 
    Section 10. Definitions. As used in this Act:
    "State construction agency" means the Capital Development
Board.
    "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 Qualification
Based Selection Act (30 ILCS 535/) and the principles of
competitive selection in the Illinois Procurement Code (30 ILCS
500/).
    "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 State construction agency
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 State construction agency 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 (225 ILCS
305/), the Professional Engineering Practice Act of 1989 (225
ILCS 325/), the Structural Engineering Licensing Act of 1989
(225 ILCS 340/), or the Illinois Professional Land Surveyor Act
of 1989 (225 ILCS 330/).
    "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 State
construction agency to solicit proposals for a design-build
contract.
    "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, 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. Solicitation of proposals.
    (a) When the State construction agency elects to use the
design-build delivery method, it must issue a notice of intent
to receive requests for proposals for the project at least 14
days before issuing the request for the proposal. The State
construction agency must publish the advance notice in the
official procurement bulletin of the State or the professional
services bulletin of the State construction agency, if any. The
agency 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 State construction agency must provide a copy of
the request for proposal to any party requesting a copy.
    (b) The request for proposal shall be prepared for each
project and must contain, without limitation, the following
information:
        (1) The name of the State construction agency.
        (2) A preliminary schedule for the completion of the
    contract.
        (3) The proposed budget for the project, the source of
    funds, and the currently available funds at the time the
    request for proposal is submitted.
        (4) Prequalification criteria for design-build
    entities wishing to submit proposals. The State
    construction agency 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 State
    construction agency.
        (5) 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 the utilization goals for
    business enterprises established in the Business
    Enterprise for Minorities, Females, and Persons with
    Disabilities Act, and with Section 2-105 of the Illinois
    Human Rights Act.
        (6) The performance criteria.
        (7) The evaluation criteria for each phase of the
    solicitation.
        (8) The number of entities that will be considered for
    the technical and cost evaluation phase.
    (c) The State construction agency may include any other
relevant information that it chooses to supply. 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 million, then the proposal due date must be at least
28 calendar days after the date of the issuance of the request
for proposal. The State construction agency 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 20. Development of scope and performance criteria.
    (a) The State construction agency 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 State construction
agency'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 State construction agency 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 State
construction agency, or the State construction agency may
contract with an independent design professional selected
under the Architectural, Engineering and Land Surveying
Qualification Based Selection Act (30 ILCS 535/) 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. Selection Committee.
    (a) When the State construction agency 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 State construction agency, shall
consist of 5 or 7 members and shall include at least one
licensed design professional and 2 members of the public.
Public members may not be employed or associated with any firm
holding a contract with the State construction agency. 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 30. Procedures for Selection.
    (a) The State construction agency must use a two-phase
procedure for the selection of the successful design-build
entity. Phase I of the procedure will evaluate and shortlist
the design-build entities based on qualifications, and Phase II
will evaluate the technical and cost proposals.
    (b) The State construction agency shall include in the
request for proposal the evaluating factors to be used in Phase
I. These factors are in addition to any prequalification
requirements of design-build entities that the agency has set
forth. Each request for proposal shall establish the relative
importance assigned to each evaluation factor and subfactor,
including any weighting of criteria to be employed by the State
construction agency. The State construction agency must
maintain a record of the evaluation scoring to be disclosed in
event of a protest regarding the solicitation.
    The State construction agency shall include the following
criteria in every Phase I evaluation of design-build entities:
(1) experience of personnel; (2) successful experience with
similar project types; (3) financial capability; (4)
timeliness of past performance; (5) experience with similarly
sized projects; (6) successful reference checks of the firm;
(7) commitment to assign personnel for the duration of the
project and qualifications of the entity's consultants; and (8)
ability or past performance in meeting or exhausting good faith
efforts to meet the utilization goals for business enterprises
established in the Business Enterprise for Minorities,
Females, and Persons with Disabilities Act and with Section
2-105 of the Illinois Human Rights Act. The State construction
agency may include any additional relevant criteria in Phase I
that it deems necessary for a proper qualification review.
    The State construction agency 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 State construction agency, 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 plan to comply with the
requirements established in the Business Enterprise for
Minorities, Females, and Persons with Disabilities Act and with
Section 2-105 of the Illinois Human Rights Act.
    Upon completion of the qualifications evaluation, the
State construction agency shall create a shortlist of the most
highly qualified design-build entities. The State construction
agency, 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 6 are selected to submit Phase II
proposals.
    The State construction agency 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 State construction agency
must allow sufficient time for the shortlist entities to
prepare their Phase II submittals considering the scope and
detail requested by the State agency.
    (c) The State construction agency 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 State
construction agency. The State construction agency must
maintain a record of the evaluation scoring to be disclosed in
event of a protest regarding the solicitation.
    The State construction agency shall include the following
criteria in every Phase II technical evaluation of design-build
entities: (1) compliance with objectives of the project; (2)
compliance of proposed services to the request for proposal
requirements; (3) quality of products or materials proposed;
(4) quality of design parameters; (5) design concepts; (6)
innovation in meeting the scope and performance criteria; and
(7) constructability of the proposed project. The State
construction agency may include any additional relevant
technical evaluation factors it deems necessary for proper
selection.
    The State construction agency shall include the following
criteria in every Phase II cost evaluation: the total project
cost, the construction costs, and the time of completion. The
State construction agency may include any additional relevant
technical evaluation factors it deems necessary for proper
selection. The total project cost criteria weighing factor
shall be 25%.
    The State construction agency 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 State construction agency may
award the design-build contract to the highest overall ranked
entity.
 
    Section 35. Small projects. In any case where the total
overall cost of the project is estimated to be less than $10
million, the State construction agency may combine the
two-phase procedure for selection described in Section 30 into
one combined step, provided that all the requirements of
evaluation are performed in accordance with Section 30.
 
    Section 40. Submission of proposals. Proposals must be
properly identified and sealed. Proposals may not be reviewed
until after the deadline for submission has passed as set forth
in the request for proposals. All design-build entities
submitting proposals 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 as defined in Section 30-30 of the Illinois
Procurement Code to which any work may be subcontracted during
the performance of the contract. Any entity that will perform
any of the 5 subdivisions of work defined in Section 30-30 of
the Illinois Procurement Code must meet prequalification
standards of the State construction agency.
    Proposals must meet all material requirements of the
request for proposal or they may be rejected as non-responsive.
The State construction agency shall have the right to reject
any and all proposals.
    The drawings and specifications of the proposal shall
remain the property of the design-build entity.
    The State construction agency shall review the proposals
for compliance with the performance criteria and evaluation
factors.
    Proposals may be withdrawn prior to evaluation for any
cause. After evaluation begins by the State construction
agency, clear and convincing evidence of error is required for
withdrawal.
 
    Section 45. Award. The State construction agency may award
the contract to the highest overall ranked entity. Notice of
award shall be made in writing. Unsuccessful entities shall
also be notified in writing. The State construction agency may
not request a best and final offer after the receipt of
proposals. The State construction agency 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 46. Reports and evaluation. At the end of every 6
month period following the contract award, and again prior to
final contract payout and closure, a selected design-build
entity shall detail, in a written report submitted to the State
agency, its efforts and success in implementing the entity's
plan to comply with the utilization goals for business
enterprises established in the Business Enterprise for
Minorities, Females, and Persons with Disabilities Act and the
provisions of Section 2-105 of the Illinois Human Rights Act.
If the entity's performance in implementing the plan falls
short of the performance measures and outcomes set forth in the
plans submitted by the entity during the proposal process, the
entity shall, in a detailed written report, inform the General
Assembly and the Governor whether and to what degree each
design-build contract authorized under this Act promoted the
utilization goals for business enterprises established in the
Business Enterprise for Minorities, Females, and Persons with
Disabilities Act and the provisions of Section 2-105 of the
Illinois Human Rights Act.
 
    Section 50. Administrative Procedure Act. The Illinois
Administrative Procedure Act (5 ILCS 100/) applies to all
administrative rules and procedures of the State construction
agency 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 53. Federal requirements. In the procurement of
design-build contracts, the State construction agency 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 90. Repealer. This Act is repealed on July 1, 2009.
 
    Section 95. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.
 
    Section 99. Effective date. This Act takes effect upon
becoming law.