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6(6) Request for proposals. (a) The office shall prepare a request for proposals
7for each design-build contract that includes all the following:
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1. The name, title, address, and telephone numbers of persons to whom
9questions concerning the proposal should be directed.
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2. The procedures to be followed for submitting proposals, including how
11proposals must be delivered, the date and time by which they must be received, and
12the name and address of the person who is to receive them.
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3. The date and time of the pre-proposal conference, if any.
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4. A requirement that a technical proposal and a cost proposal be submitted in
15separate sealed proposals at the same time.
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5. A clear description of the scope of all design, engineering, and construction
17work.
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6. The criteria for evaluating proposals and their relative weight, if applicable.
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7. The design criteria package, including a description of drawings,
20specifications, or other information to be submitted with the proposals, which shall
21allow the design-builder to use innovative projects meeting the criteria.
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8. The project schedule and budget limits, if any.
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9. The proposed terms and conditions of the contract.
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10. Requirements relating to performance bonds, payments bonds, and
25insurance.
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111. Amount of stipend, if any.
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12. The procedures for awarding a contract.
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13. A process for the technical review committee to review and accept
4alternative technical concepts and value engineering change proposals.
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14. A requirement that the design-builder perform not less than 30 percent of
6the construction services under the contract with labor provided by employees of the
7design-builder or member and equipment owned or rented by the design-builder or
8member.
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15. Any other information the office determines is necessary.
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(b) The technical review committee shall evaluate each technical proposal,
11which may include a confidential interview, and shall assign points in accordance
12with the request for proposals and subject to all of the following:
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1. For a project that will be awarded as either a low bid design-build contract
14or a fixed price variable scope design-build contract, the technical review committee
15shall determine whether technical proposals are responsive to the request for
16proposals without ranking or scoring the proposals.
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2. For a project that will be awarded as a best value design-build contract, the
18technical review committee shall determine whether technical proposals are
19responsive to the request for proposals and score each responsive technical proposal
20as required by the request for proposals. The technical review committee may award
21not more than 20 percent of the points awarded to a technical proposal based on the
22design-builder's qualifications and ability to design, contract, and deliver the project
23in accordance with any deadline established in the request for proposals. The
24technical review committee may award a technical proposal not more than 50
1percent of the maximum number of combined points that may be awarded to a
2technical proposal and cost proposal.
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(c) The office shall allow design-builders to include alternative technical
4concepts and value engineering changes in their proposals by describing the process
5for submission and evaluation of alternative technical concepts and value
6engineering changes in the request for proposals.
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(d) The technical review committee may not consider a proposal responsive
8unless the proposal includes a conceptual design, critical path method, bar schedule
9of the work to be performed or similar schematic, design plans and specifications,
10technical reports, and all other information required by the request for proposals.
11The technical review committee may not consider any price or fee included in the
12technical proposal.
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(e) The office shall notify the design-builder for each proposal that is
14determined to be responsive under par. (b) that the design-builder may submit a cost
15proposal under par. (7). The office shall reject all proposals that are determined to
16be nonresponsive under par. (b).
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17(7) Cost proposals. (a) Design-builders notified under sub. (6) (e) may submit
18a cost proposal and the proposal shall include a fixed cost of design, engineering, and
19construction services prepared by a design professional that contains all design,
20engineering, construction, and quality assurance and quality control costs of the
21project.
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(b) The technical review committee may open cost proposals only after the
23technical proposals have been reviewed as provided in sub. (6). At the time and place
24specified in the request for proposals, the technical review committee shall open cost
25proposals, read the proposals aloud, and, for a project that will be awarded as a best
1value design-build contract, make public the committee's scoring of the technical
2proposals.
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(c) Following a review of cost proposals, the department may issue a notice of
4intent to award a contract, subject to all of the following:
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1. For a low bid design-build contract, the contract shall be awarded to the
6qualified responsible bidder that submitted a responsive technical proposal and also
7submitted the lowest responsive cost proposal.
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2. For a fixed price variable scope design-build contract, the contract shall be
9awarded to the qualified responsible bidder that submitted a responsive technical
10proposal and that submitted a responsive cost proposal that provides the maximum
11amount of services for the maximum fixed price set by the office or for an amount that
12is less than the maximum fixed price.
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3. For a best value design-build contract, the contract shall be awarded to the
14qualified responsible bidder with the highest adjusted score, which shall be
15calculated by adding the bidder's technical proposal score to the bidder's cost
16proposal score. The technical review committee shall award the lowest qualified
17responsible bidder the maximum number of points that may be awarded to a cost
18proposal under the request for proposals, but not less than 45 percent and not more
19than 75 percent of the maximum number of combined points that may be awarded
20to a technical proposal and cost proposal. For each remaining qualified responsible
21bidder, the technical review committee shall calculate the score for the cost proposal
22by reducing the maximum number of points that may be awarded to the cost proposal
23by at least 1 percent for each percentage point by which the cost proposal exceeds the
24lowest cost proposal.
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1(d) Following a review of cost proposals, the office may reject all proposals. If
2the office rejects all proposals or does not execute a contract after issuing an intent
3to award a contract under par. (c), the office may reissue the request for proposals
4and allow only the qualified responsible bidders originally notified under sub. (6) (e)
5to submit new proposals. The office may pay a reasonable stipulated fee to each
6design-builder that provides a responsive but unsuccessful proposal in response to
7the reissued request for proposals. If the reissued request for proposals specifies a
8maximum fixed price, the office may not award a stipend to a design-builder whose
9proposal exceeds that price.
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(e) Not less than 5 working days prior to executing a design-build contract, the
11department shall provide notice to each unsuccessful qualified responsible bidder
12that a notice of intent to award a contract has been issued.
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(f) The department and the technical review committee shall maintain the
14confidentiality of information provided by design-builders as required by s. 84.01
15(32).
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16(8) Contract award. (a) In this subsection:
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1. “Construction services” means all services necessary to construct a project,
18including trucking expenses and the expense of materials regardless of whether the
19materials are installed by the design-builder.
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2. “Specialty services” means work related to sanitary sewer systems, water
21main systems, staking, electrical, landscaping and erosion control, traffic control,
22signing, pavement marking, and fencing.
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(b) No later than 10 days following the issuance of a notice of intent to award
24a design-build contract, the office shall verify that the design-builder will perform
25not less than 30 percent of the construction services under the contract with labor
1provided by employees of the design-builder or member and equipment owned or
2rented by the design-builder or member.
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(c) The design-builder shall submit to the office in the form prescribed by the
4office documentation of the construction services the design-builder or members will
5perform and the dollar value of the services.
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(d) The office shall determine the percentage of total construction services,
7excluding specialty services, identified in the contract to be performed by the
8design-builder or members. If the office determines that the construction services
9to be performed by the design-builder or members are less than 30 percent of
10construction services required under the contract, the office shall cancel the contract
11award.
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12(9) Project delivery. An individual identified in a response to a request for
13qualifications or in a technical proposal may be replaced by a design-builder if the
14office determines that the new individual meets the qualifications described in the
15response to the request for qualifications or in the technical proposal and that the
16individual's qualifications are at least equal to the qualifications of the individual
17being replaced.
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18(10) Liability. (a) Nothing in this section shall be construed as relieving a
19design-builder of 3rd-party liability or liability for loss or damage to property of the
20state or a county or municipality.
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(b) All design services, including architectural and engineering services,
22provided under a design-build contract are services and not products.
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23(11) Stipulated fee. (a) The department shall award a stipulated fee of not
24less than three-tenths of 1 percent of the department's estimated cost of design and
25construction as follows:
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11. To each qualified responsible bidder that provides a responsive but
2unsuccessful proposal when the office issues a notice of intent to award a contract.
3If the request for proposals specifies a maximum fixed price, the office may not award
4a fee to a proposal that exceeds the maximum fixed price.
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2. To all qualified responsible bidders that provide a responsive proposal, if the
6office does not issue a notice of intent to award a contract.
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3. To all qualified responsible bidders if the office cancels the solicitation before
8the technical review committee reviews technical proposals.
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(b) The department shall pay the fee to each qualified responsible bidder under
10par. (a) no later than 90 days after the department issues a notice of intent to award
11a contract, determines that it will not issue a notice of intent to award a contract, or
12cancels the solicitation.
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(c) In consideration for paying the fee, the department may use work product
14contained in an unsuccessful proposal in connection with any proposed or awarded
15design-build project without making any additional compensation to the
16design-builder. If an unsuccessful design-builder waives the stipulated fee, the
17department may not use work product in the design-builder's unsuccessful proposal.
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18(12) Rules. The department may promulgate rules necessary to implement
19this section.
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20(13) Appeals. (a) Any person aggrieved and directly affected by a decision of
21the office to issue a request for qualifications or a request for proposals under this
22section shall be entitled to judicial review of the decision as provided in chapter 227,
23subject to the procedural requirements of s. 227.53 (1). A person shall be considered
24a person aggrieved and directly affected by a decision of the office if any of the
1following apply to a request for qualifications or a request for proposals issued by the
2office under this section:
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1. The request does not include qualifications, requirements, or other items
4required under this section.
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2. The request does not comply with procedural requirements under this
6section.
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3. The request contains material errors or omissions.
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4. The request contains material discrepancies, deficiencies, or ambiguities
9that prevent a person from submitting a responsive proposal.
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5. The request indicates a bias against or preference for a specific
11design-builder.
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6. The request exceeds the department's authority.
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(b) Any person aggrieved and directly affected by a decision of the office to issue
14a notice of intent to award a contract under this section shall be entitled to judicial
15review of the decision as provided in chapter 227, subject to the procedural
16requirements of s. 227.53 (1). A person shall be considered a person aggrieved and
17directly affected by a decision of the office if any of the following apply to a notice of
18intent to award a contract under this section:
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1. The design-builder that received the notice of intent to award a contract was
20improperly certified as a qualified responsible bidder.
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2. A mathematical error was made in scoring any of the proposals that resulted
22in an improper intent to award a contract.
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3. There is evidence of collusion or fraud involving either the design-builder
24who received the notice of intent to award a contract or a member of the technical
25review committee.
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14. There is evidence of bias of a member of the technical review committee.
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5. There is evidence that a member of the technical review committee has a
3conflict of interest because the committee member, a member of his or her immediate
4family, as defined in s. 19.42 (7), or any organization or business with which the
5member is associated, as defined in s. 19.42 (2), may benefit from the intent to award
6a contract.
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6. The technical proposal or cost proposal submitted by the design-builder who
8received the notice of intent to award a contract is not responsive to the request for
9proposals, contains conditions or qualifications not provided for in the request for
10proposals, or does not assign costs to all services identified in the technical proposal
11or is otherwise materially unbalanced.
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(c) If the office prevails upon judicial review, following any protest and
13appellate court proceedings, the office shall be entitled to recover all costs and
14charges included in the final order or judgment, excluding attorney's fees. Upon
15payment of costs and charges by the protester, the bond shall be returned. If the
16protesting party prevails, the protesting party shall be entitled to recover from the
17office all costs and charges included in the final order or judgment, excluding
18attorney's fees. The entire amount of the bond shall be forfeited if the hearing officer
19determines that a protest was filed for a frivolous or improper purpose, including but
20not limited to the purpose of harassing, causing unnecessary delay, or causing
21needless cost for the office or parties.
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22(14) Deliverables. (a) No later than 3 months after the effective date of this
23act .... [LRB inserts date], the office shall prepare a report that establishes a program
24structure for delivering projects as required under this subsection. The report shall
25specify the types of highway improvement projects to be considered and procedures
1and timelines for the bid process. The office may not designate a highway
2improvement project as a design-build project prior to the completion of the report.
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(b) No later than 6 months after the effective date of this act .... [LRB inserts
4date], the office shall prepare a design-build procurement manual that incorporates
5the requirements under this subsection and any applicable requirements under
6federal law. The manual shall be created by a committee that includes all of the
7following members:
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1. The director.
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2. Two employees of the department who represent the division of the
10department responsible for transportation project development and who each have
11not less than 5 years of experience in the transportation construction industry.
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3. One person representing a state association of transportation architectural,
13engineering, or design companies selected from a list of 3 individuals created by the
14majority leader of the senate.
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4. One person representing a state association of transportation construction
16companies selected from a list of 3 individuals created by the speaker of the assembly.
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5. One person representing a national trade group with a design-build
18certification program and experience in assisting states with the implementation of
19a design-build program.
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(c) No later than December 31, 2026, the office shall submit a report the joint
21committee on finance and the senate and assembly standing committees having
22jurisdiction over transportation matters summarizing observations of the process
23utilized for alternative project delivery methods and describing the effectiveness of
24the alternative project delivery methods contracting procedures. The report shall
25include discussion on scope of work, history of projects selected, evaluation criteria,
1selection process, contract administration, work progression, time and cost
2comparisons between the traditional contracting method and alternative delivery
3methods, claims, and changes.
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(d) No later than 6 months after receipt of the report required under par. (c),
5the joint committee on finance shall determine whether the alternative project
6delivery pilot program was successful in providing the department with additional
7tools that allow innovation, reduced project completion time, cost certainty, or
8reduced cost or other advantages or benefits and shall make a recommendation to
9the legislature as to whether the pilot program should be made permanent.
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10Section 3
. 85.64 of the statutes is created to read:
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1185.64 Office of innovative program delivery. (1) In this section:
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(a) “Director” means the director of the office of innovative program delivery
13attached to the department under s. 15.463 (1).
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(b) “Office” means the office of innovative program delivery attached to the
15department under s. 15.463 (1).
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16(2) The secretary shall appoint a director who has no fewer than 5 years of
17experience in design-build project development and delivery specific to public
18transportation or public infrastructure construction.
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19(3) The director shall do all of the following:
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(a) Perform the duties and functions required under s. 84.062.
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(b) Employ, supervise, and train personnel assigned to the office by the
22secretary.
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(c) Supervise all expenditures of the office.
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24(4) The office shall perform the duties and functions required under s. 84.062.
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25Section
4.
Nonstatutory provisions.
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1(1)
Emergency rules. The department of transportation may use the procedure
2under s. 227.24 to promulgate emergency rules under s. 84.062 (5) to (7) for the period
3before the date on which permanent rules under s. 84.062 (5) to (7) take effect.
4Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this
5subsection remain in effect until the first day of the 25th month beginning after the
6effective date of the emergency rule, the date on which the permanent rules take
7effect, of the effective date of the repeal of the emergency rule, whichever is earlier.
8Notwithstanding s. 227.24 (1) (a) and (3), the department of transportation is not
9required to provide evidence that promulgating a rule under this subsection as
10emergency rules is necessary for the preservation of public peace, health, safety, or
11welfare and is not required to provide a finding of emergency for a rule promulgated
12under this subsection.
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(2)
Employees of the office of innovative program delivery. The secretary of
14the department of transportation shall assign from the department's existing
15position authority at least 1.0 FTE position to the office of innovative program
16delivery attached to the department of transportation.