SB285: Bill Text

SB285,12,16 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.

SB285,13,2 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 50 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal.

SB285,13,6 (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.

SB285,13,12 (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.

SB285,13,16 (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).

SB285,13,21 (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.

SB285,14,2 (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.

SB285,14,4 (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:

SB285,14,7 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.

SB285,14,12 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.

SB285,14,24 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.

SB285,15,9 (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.

SB285,15,12 (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.

SB285,15,15 (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).

SB285,15,16 (8) Contract award. (a) In this subsection:

SB285,15,19 1. “Construction services” means all services necessary to construct a project, including trucking expenses and the expense of materials regardless of whether the materials are installed by the design-builder.

SB285,15,22 2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, and fencing.

SB285,16,2 (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.

SB285,16,5 (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.

SB285,16,11 (d) The office shall determine the percentage of total construction services, excluding specialty services, identified in the contract to be performed by the design-builder or members. If the office determines that the construction services to be performed by the design-builder or members are less than 30 percent of construction services required under the contract, the office shall cancel the contract award.

SB285,16,17 (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.

SB285,16,20 (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.

SB285,16,22 (b) All design services, including architectural and engineering services, provided under a design-build contract are services and not products.

SB285,16,25 (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:

SB285,17,4 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.

SB285,17,6 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.

SB285,17,8 3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals.

SB285,17,12 (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.

SB285,17,17 (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.

SB285,17,19 (12) Rules. The department may promulgate rules necessary to implement this section.

SB285,18,2 (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:

SB285,18,4 1. The request does not include qualifications, requirements, or other items required under this section.

SB285,18,6 2. The request does not comply with procedural requirements under this section.

SB285,18,7 3. The request contains material errors or omissions.

SB285,18,9 4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

SB285,18,11 5. The request indicates a bias against or preference for a specific design-builder.

SB285,18,12 6. The request exceeds the department's authority.

SB285,18,18 (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:

SB285,18,20 1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

SB285,18,22 2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

SB285,18,25 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.

SB285,19,1 4. There is evidence of bias of a member of the technical review committee.

SB285,19,6 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.

SB285,19,11 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.

SB285,19,21 (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's 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's 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.

SB285,20,2 (14) Deliverables. (a) No later than 3 months after the effective date of this act .... [LRB inserts date], the office shall prepare a report that establishes a program structure for delivering projects as required under this subsection. The report shall specify the types of highway improvement projects to be considered and procedures and timelines for the bid process. The office may not designate a highway improvement project as a design-build project prior to the completion of the report.

SB285,20,7 (b) No later than 6 months after the effective date of this act .... [LRB inserts date], the office shall prepare a design-build procurement manual that incorporates the requirements under this subsection and any applicable requirements under federal law. The manual shall be created by a committee that includes all of the following members:

SB285,20,8 1. The director.

SB285,20,11 2. Two employees of the department who represent the division of the department responsible for transportation project development and who each have not less than 5 years of experience in the transportation construction industry.

SB285,20,14 3. One person representing a state association of transportation architectural, engineering, or design companies selected from a list of 3 individuals created by the majority leader of the senate.

SB285,20,16 4. One person representing a state association of transportation construction companies selected from a list of 3 individuals created by the speaker of the assembly.

SB285,20,19 5. One person representing a national trade group with a design-build certification program and experience in assisting states with the implementation of a design-build program.

SB285,21,3 (c) No later than December 31, 2026, the office shall submit a report the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.

SB285,21,9 (d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery pilot program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the pilot program should be made permanent.

SB285,3 Section 3 . 85.64 of the statutes is created to read:

SB285,21,11 85.64 Office of innovative program delivery. (1) In this section:

SB285,21,13 (a) “Director” means the director of the office of innovative program delivery attached to the department under s. 15.463 (1).

SB285,21,15 (b) “Office” means the office of innovative program delivery attached to the department under s. 15.463 (1).

SB285,21,18 (2) The secretary shall appoint a director who has no fewer than 5 years of experience in design-build project development and delivery specific to public transportation or public infrastructure construction.

SB285,21,19 (3) The director shall do all of the following:

SB285,21,20 (a) Perform the duties and functions required under s. 84.062.

SB285,21,22 (b) Employ, supervise, and train personnel assigned to the office by the secretary.

SB285,21,23 (c) Supervise all expenditures of the office.

SB285,21,24 (4) The office shall perform the duties and functions required under s. 84.062.

SB285,4 Section 4. Nonstatutory provisions.

SB285,22,12 (1) Emergency rules. The department of transportation may use the procedure under s. 227.24 to promulgate emergency rules under s. 84.062 (5) to (7) for the period before the date on which permanent rules under s. 84.062 (5) to (7) take effect. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the first day of the 25th month beginning after the effective date of the emergency rule, the date on which the permanent rules take effect, of the effective date of the repeal of the emergency rule, whichever is earlier. Notwithstanding s. 227.24 (1) (a) and (3), the department of transportation is not required to provide evidence that promulgating a rule under this subsection as emergency rules is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

SB285,22,16 (2) Employees of the office of innovative program delivery. The secretary of the department of transportation shall assign from the department's existing position authority at least 1.0 FTE position to the office of innovative program delivery attached to the department of transportation.

SB285,22,17 (End)