Amendment ASA1-AB56

AB56-ASA1,390,17 (4) Bids. The office shall solicit design-build proposals in 2 phases. In the first phase, the office shall solicit requests for qualifications under sub. (5) and requests for proposals under sub. (6). The technical review committee shall certify responsible bidders as provided in sub. (5) (c) and shall score technical proposals as provided in sub. (6) (b). In the 2nd phase, the office shall solicit cost proposals and the technical review committee shall evaluate cost proposals as provided in sub. (7).

AB56-ASA1,390,19 (5) Request for qualifications. (a) The office shall prepare a request for qualifications that includes all of the following:

AB56-ASA1,390,21 1. Minimum required qualifications for certification as a qualified bidder, which shall include all of the following:

AB56-ASA1,390,25 a. The design and construction experience of the design-builder or member, personnel, and contractors who will manage the design, engineering, and construction aspects of the project. The office may not require a level of experience that will unreasonably restrict competition.

AB56-ASA1,391,3 b. A requirement that the design-builder or member employ an individual who has no fewer than 5 years of experience in highway construction specific to highway improvement projects in this state.

AB56-ASA1,391,5 c. A requirement that the design-builder or member be a design professional or will employ or contract with a design professional.

AB56-ASA1,391,8 d. A sworn statement of the design-builder's financial ability, equipment, and experience in design-build project delivery and any other information the office determines is necessary to determine a bidder's competency.

AB56-ASA1,391,10 2. Minimum required qualifications for certification as a responsible bidder, which shall include all of the following:

AB56-ASA1,391,11 a. The design-builder is registered or authorized to do business in this state.

AB56-ASA1,391,15 b. The design-builder submits a sworn statement that indicates that it has adequate financial resources to complete the work described in the request for qualifications, taking into account any other work the design-builder is currently under contract to complete.

AB56-ASA1,391,18 c. The design-builder is bondable for the term of the proposed contract and is able to obtain a 100 percent performance bond and a separate 100 percent payment bond.

AB56-ASA1,392,3 d. If the department has previously contracted with the design-builder or a member, the design-builder or member has a record of satisfactorily completing projects. In making this determination, the technical review committee shall consider if the design-builder or the member has completed all contracts in accordance with drawings and specifications, diligently pursued execution of the work and completed contracts according to the time schedule, fulfilled guarantee requirements of contracts, and complied with applicable safety program requirements. The technical review committee may not consider whether a design-builder or member exercised legal rights specified in statute or rule or under a contract with the department.

AB56-ASA1,392,7 e. The design-builder or a member is not on a list maintained by the department identifying persons ineligible to bid due to suspension or debarment or on a list that the department of administration maintains for persons who violated statutory provisions or administrative rules relating to construction.

AB56-ASA1,392,8 f. The design-builder or a member has been in business for at least 12 months.

AB56-ASA1,392,11 g. The design-builder or a member has served as a prime contractor on no fewer than 5 projects administered by the department during the previous 5 calendar years.

AB56-ASA1,392,14 h. The design-builder can provide information to the technical review committee upon request about ownership, management, and control of the design-builder.

AB56-ASA1,392,17 i. The design-builder or a member has not been debarred from any government contracts and has not been found to have committed tax avoidance or evasion in any jurisdiction in the previous 10 years.

AB56-ASA1,392,19 j. The design-builder has not been disciplined under a professional license in any jurisdiction in the previous 10 years.

AB56-ASA1,392,22 k. No design professional employed by the design-builder or a member or that the design-builder will contract with has been disciplined in any jurisdiction under a license that is currently in use.

AB56-ASA1,392,24 3. Information about bid procedures and the proposed project, including all of the following:

AB56-ASA1,392,25 a. The type of contract to be awarded.

AB56-ASA1,393,1 b. The selection criteria for recommendation of design-builders for phase 2.

AB56-ASA1,393,2 c. Project requirements, including a scope of work statement and a schedule.

AB56-ASA1,393,3 d. The required completion date of the project.

AB56-ASA1,393,4 e. A description of requirements for the technical proposal for the project.

AB56-ASA1,393,13 (b) The office shall advertise the request for qualifications by publication of a class 1 notice, as defined in s. 985.07 (1), in the official state newspaper and on the department's Internet site. The office may place similar notices in publications likely to inform potential bidders of the project. The office shall issue a request for qualifications or provide information as to where the request for qualifications may be obtained to any person, without regard to the qualifications of the person. The office shall include in all advertisements under this paragraph the location and scope of work, the amount of bid guarantee required, the date, time, and place of bid or proposal opening, and the date when and place where plans will be available.

AB56-ASA1,393,18 (c) The technical review committee shall certify at least 2 but not more than 4 design-builders as qualified responsible bidders. If the office does not receive at least 2 responses to the request for qualifications or if the technical review committee certifies only one design-builder as a qualified responsible bidder, the office may re-advertise or cancel the project.

AB56-ASA1,393,20 (6) Request for proposals. (a) The office shall prepare a request for proposals for each design-build contract that includes all the following:

AB56-ASA1,393,22 1. The name, title, address, and telephone numbers of persons to whom questions concerning the proposal should be directed.

AB56-ASA1,393,25 2. The procedures to be followed for submitting proposals, including how proposals must be delivered, the date and time by which they must be received, and the name and address of the person who is to receive them.

AB56-ASA1,394,1 3. The date and time of the pre-proposal conference, if any.

AB56-ASA1,394,3 4. A requirement that a technical proposal and a cost proposal be submitted in separate sealed proposals at the same time.

AB56-ASA1,394,5 5. A clear description of the scope of all design, engineering, and construction work.

AB56-ASA1,394,6 6. The criteria for evaluating proposals and their relative weight, if applicable.

AB56-ASA1,394,9 7. The design criteria package, including a description of drawings, specifications, or other information to be submitted with the proposals, which shall allow the design-builder to use innovative projects meeting the criteria.

AB56-ASA1,394,10 8. The project schedule and budget limits, if any.

AB56-ASA1,394,11 9. The proposed terms and conditions of the contract.

AB56-ASA1,394,13 10. Requirements relating to performance bonds, payments bonds, and insurance.

AB56-ASA1,394,14 11. Amount of stipend, if any.

AB56-ASA1,394,15 12. The procedures for awarding a contract.

AB56-ASA1,394,17 13. A process for the technical review committee to review and accept alternative technical concepts and value engineering change proposals.

AB56-ASA1,394,21 14. A requirement that the design-builder perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

AB56-ASA1,394,22 15. Any other information the office determines is necessary.

AB56-ASA1,394,25 (b) The technical review committee shall evaluate each technical proposal, which may include a confidential interview, and shall assign points in accordance with the request for proposals and subject to all of the following:

AB56-ASA1,395,4 1. For a project that will be awarded as either a low bid design-build contract or a fixed price variable scope design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals without ranking or scoring the proposals.

AB56-ASA1,395,14 2. For a project that will be awarded as a best value design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals and score each responsive technical proposal as required by the request for proposals. The technical review committee may award not more than 20 percent of the points awarded to a technical proposal based on the design-builder's qualifications and ability to design, contract, and deliver the project in accordance with any deadline established in the request for proposals. The technical review committee may award a technical proposal not more than 55 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal.

AB56-ASA1,395,18 (c) The office shall allow design-builders to include alternative technical concepts and value engineering changes in their proposals by describing the process for submission and evaluation of alternative technical concepts and value engineering changes in the request for proposals.

AB56-ASA1,395,24 (d) The technical review committee may not consider a proposal responsive unless the proposal includes a conceptual design, critical path method, bar schedule of the work to be performed or similar schematic, design plans and specifications, technical reports, and all other information required by the request for proposals. The technical review committee may not consider any price or fee included in the technical proposal.

AB56-ASA1,396,4 (e) The office shall notify the design-builder for each proposal that is determined to be responsive under par. (b) that the design-builder may submit a cost proposal under par. (7). The office shall reject all proposals that are determined to be nonresponsive under par. (b).

AB56-ASA1,396,9 (7) Cost proposals. (a) Design-builders notified under sub. (6) (e) may submit a cost proposal and the proposal shall include a fixed cost of design, engineering, and construction services prepared by a design professional that contains all design, engineering, construction, and quality assurance and quality control costs of the project.

AB56-ASA1,396,15 (b) The technical review committee may open cost proposals only after the technical proposals have been reviewed as provided in sub. (6). At the time and place specified in the request for proposals, the technical review committee shall open cost proposals, read the proposals aloud, and, for a project that will be awarded as a best value design-build contract, make public the committee's scoring of the technical proposals.

AB56-ASA1,396,17 (c) Following a review of cost proposals, the department may issue a notice of intent to award a contract, subject to all of the following:

AB56-ASA1,396,20 1. For a low bid design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and also submitted the lowest responsive cost proposal.

AB56-ASA1,396,25 2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the office or for an amount that is less than the maximum fixed price.

AB56-ASA1,397,12 3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder's technical proposal score to the bidder's cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 45 percent and not more than 75 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by at least 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal.

AB56-ASA1,397,21 (d) Following a review of cost proposals, the office may reject all proposals. If the office rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the office may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The office may pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the office may not award a stipend to a design-builder whose proposal exceeds that price.

AB56-ASA1,397,24 (e) Not less than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.

AB56-ASA1,398,3 (f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32).

AB56-ASA1,398,4 (8) Contract award. (a) In this subsection:

AB56-ASA1,398,7 1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

AB56-ASA1,398,10 2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office.

AB56-ASA1,398,15 (b) No later than 10 days following the issuance of a notice of intent to award a design-build contract, the office shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

AB56-ASA1,398,18 (c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or members will perform and the dollar value of the services.

AB56-ASA1,399,2 (d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or members by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or members by the difference. If the value of construction services to be performed by the design-builder or members is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award.

AB56-ASA1,399,8 (9) Project delivery. An individual identified in a response to a request for qualifications or in a technical proposal may be replaced by a design-builder if the office determines that the new individual meets the qualifications described in the response to the request for qualifications or in the technical proposal and that the individual's qualifications are at least equal to the qualifications of the individual being replaced.

AB56-ASA1,399,11 (10) Liability. (a) Nothing in this section shall be construed as relieving a design-builder of 3rd-party liability or liability for loss or damage to property of the state or a county or municipality.

AB56-ASA1,399,13 (b) All design services, including architectural and engineering services, provided under a design-build contract are services and not products.

AB56-ASA1,399,16 (11) Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows:

AB56-ASA1,399,20 1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office may not award a fee to a proposal that exceeds the maximum fixed price.

AB56-ASA1,399,22 2. To all qualified responsible bidders that provide a responsive proposal, if the office does not issue a notice of intent to award a contract.

AB56-ASA1,399,24 3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals.

AB56-ASA1,400,4 (b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

AB56-ASA1,400,9 (c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the stipulated fee, the department may not use work product in the design-builder's unsuccessful proposal.

AB56-ASA1,400,11 (12) Rules. The department may promulgate rules necessary to implement this section.

AB56-ASA1,400,18 (13) Appeals. (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in chapter 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a request for qualifications or a request for proposals issued by the office under this section:

AB56-ASA1,400,20 1. The request does not include qualifications, requirements, or other items required under this section.

AB56-ASA1,400,22 2. The request does not comply with procedural requirements under this section.

AB56-ASA1,400,23 3. The request contains material errors or omissions.

AB56-ASA1,400,25 4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

AB56-ASA1,401,2 5. The request indicates a bias against or preference for a specific design-builder.

AB56-ASA1,401,3 6. The request exceeds the department's authority.

AB56-ASA1,401,9 (b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in chapter 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section:

AB56-ASA1,401,11 1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

AB56-ASA1,401,13 2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

AB56-ASA1,401,16 3. There is evidence of collusion or fraud involving either the design-builder who received the notice of intent to award a contract or a member of the technical review committee.

AB56-ASA1,401,17 4. There is evidence of bias of a member of the technical review committee.

AB56-ASA1,401,22 5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract.

AB56-ASA1,402,2 6. The technical proposal or cost proposal submitted by the design-builder who received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced.

AB56-ASA1,402,12 (c) If the office prevails upon judicial review, following any protest and appellate court proceedings, the office shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the office all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including but not limited to the purpose of harassing, causing unnecessary delay, or causing needless cost for the office or parties.